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Classification vs. scheduled loss
#1
I need major help. I am on your website reviewing old posts on this issue. I found the following:

"There are two types of permanent partial disability compensation methods available (scheduled and non-scheduled):

If the employee has suffered a "scheduled" injury, in other words, one of the specified injuries in the LHWCA, then that employee is compensated a set number of weeks of compensation for the total loss of use of the particular member or portion of the body that is involved under the schedule. The partial loss or loss of use of the member is calculated on a proportional number of weeks for compensation to be awarded. In other words, if the claimant has a 10 percent permanent partial disability to an arm, and the total loss of use of the arm is worth 312 weeks of compensation for total loss or total loss of use, the injured claimant would be entitled to 31.2 weeks of compensation. The compensation for partial loss of use of a scheduled member is based on medical evidence in evaluation.

If the type of injury is a "non-scheduled" injury, the compensation is limited to 66 2/3 of the employee's wage earning capacity loss as measured by the difference between the employee's average weekly wage and the employee's wage earning capacity after the injury in the same or other employment. Types of non-scheduled injuries are shoulder injuries, neck injuries, or back injuries.

Okay, here's my story. I am in New York. Fifteen years ago I had a 25% injury per arm for carpal tunnel.

Then in 2008 I was diagnosed with repeat bilateral carpal tunnel, bilateral cubital tunnel and thoracic outlet syndrome (as well as a neck injury currently denied and in appeal to the Appellate Division of the Supreme court).

I am representing myself. Due to the rareness of thoracic outlet syndrome (TOS), no attorney would take the case, added by the complication of old and new injuries.

I will be unable to get surgery for TOS because my Denver doctors (the only competent doctors in the country with no lawsuits and 200 surgeries per year) have decided they are sick and tired of NY WC and will not accept patients from New York. I can successfully prove there are no doctors in NY who can provide the surgical procedures I need.

Therefore, I want to file for permanency for TOS (as well as the other injuries).

There is a new permanency form effective January 1st, 2012. My carpal tunnel doctor had previously filed for a scheduled loss of 39.55 percent per arm.

MY TOS doctor will file for 100% permanency.

How does this work?

I am understanding that I can use the old permanency guidelines or the new permanency guidelines (because a permanency form was already on file in the old file for this new injury). However, obviously, I want to maximize the disability, particularly given that I have many complications to TOS which will never get recognized on this file as there are no doctors here who understand the condition.

Now, the post above makes reference to 66 2/3 of my prior salary, but for how long? I am 44. Is this 66 2/3 salary for my remaining working years? Is there a table for this?

So my question to board members, which is better:

1. filing for scheduled loss of use of the arms and classification for TOS
or
2. filing for classification loss for everything?




P.S. With the old disability of 25% per arm and the new disability of 39.55% per arm, I am allowed to file for a classification loss on the arms rather than a scheduled loss.
 
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#2
(12-01-2011, 11:17 AM)Chimaren Wrote: Due to the rareness of thoracic outlet syndrome (TOS), .....

Rare, yes, but easily treated with surgical intervention involving a first rib resection (removal), or decompression of the subclavian artery and vein. I know. I had it done 35 years ago. The procedures are far more advanced than they are now.

Quote:So my question to board members, which is better:

1. filing for scheduled loss of use of the arms and classification for TOS
or
2. filing for classification loss for everything?

Something you need to remember when considering the two is that the ironic part of the NY schedule loss of use statute is that all benefits paid to an injured worker while they are out of work prior to the finding of permanency are subtracted from the schedule loss of use award.

Now, to explain, a "scheduled" loss means it involves the loss of eyesight or hearing, or loss of a part of the body or its use.

A "non-scheduled" loss would be anything other than those. In other words a PARTIAL loss of use of a part of the body is NOT loss of use, therefore, not a "scheduled" loss. That is when the 66 2/3% would come into play.

Using the formula on the following link, you would determine what percentage of "loss of earning capacity" and find the number of weeks within that percentage range, times the weekly benefit amount.

http://www.wcb.state.ny.us/content/main/...yClass.jsp

Bear in mind that TOS does NOT present a 100% loss of use of the limb as it does not render the limb totally useless.

Using the formula, for a "scheduled loss", let's say that your loss of earning capacity is 50%. The maximum number of weeks you could draw would be 300 weeks. If your weekly benefit amount was $400, then you'd be entitled to 300 weeks at $400. That means a lump sum of $120,000. Now, if you had drawn $20,000 in benefits while you were out of work, that would be deducted, and you'd be entitled to $80,000.

This is for illustration purposes only, as the calculation is a bit more complex than that.

As to the "non-scheduled" loss, i.e. partial loss of use of a body part, then using the same 50% loss of wage earning capacity, you would be entitled 66 2/3% of the difference between your actual wage earning capacity and the AWW for 1/2 the number of weeks in the formula.

From what you're presenting, you seem to be trying to decide whether to choose one over the other. There is no choosing. Your impairment is either a "scheduled loss" or it is a "non-scheduled" loss.
DISCLAIMER: I am not an attorney. While drawing from my professional training and experience in law enforcement and as a former Paralegal, no comments offered should be considered as legal advice.
 
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#3
I am in NY and just went through something similar, I guess you could say. The WC IC sent me for an IME for MMI and their doctor determined that I was 75% perm. partial disabled. It was explained to me that because the rating was so high ( marked-75% whole) that it becomes a classification and not a scheduled loss of use. So it is not up to us what "we want it to be." I was very confused about it even after my attorney expained it to me, but it finally sank in after a while Smile

My cousin just had surgery for TOS about 8 weeks ago at Duke University. There were many doctors in her area (Carolina's) who would not do the surgery and urged her not to have it done ???? Even the Mayo Clinic advised against it, suggesting there is no viable proof that it has corrected the problem and/or relieved the pain and/or symptoms for such an involved surgery. (Just repeating what I was told, I have no idea opinion either way)

good luck!
Live, Laugh, Love ~
 
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#4
I am in NY and just went through something similar, I guess you could say. The WC IC sent me for an IME for MMI and their doctor determined that I was 75% perm. partial disabled. It was explained to me that because the rating was so high ( marked-75% whole) that it becomes a classification and not a scheduled loss of use. So it is not up to us what "we want it to be." I was very confused about it even after my attorney expained it to me, but it finally sank in after a while Smile

My cousin just had surgery for TOS about 8 weeks ago at Duke University. There were many doctors in her area (Carolina's) who would not do the surgery and urged her not to have it done ???? Even the Mayo Clinic advised against it, suggesting there is no viable proof that it has corrected the problem and/or relieved the pain and/or symptoms for such an involved surgery. (Just repeating what I was told, I have no idea opinion either way)

good luck!
Live, Laugh, Love ~
 
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#5
(12-05-2011, 12:57 PM)sonny1 Wrote: It was explained to me that because the rating was so high ( marked-75% whole) that it becomes a classification and not a scheduled loss of use. So it is not up to us what "we want it to be." I was very confused about it even after my attorney expained it to me, but it finally sank in after a while

Too many people have a hard time embracing the "partial" in front of the "loss of use" - the latter being TOTAL loss, the former being only a little.

Quote:Even the Mayo Clinic advised against it, suggesting there is no viable proof that it has corrected the problem and/or relieved the pain and/or symptoms for such an involved surgery.

Hard to believe, as there is TONS of information, even on the internet about treatment of TSO. Still, there are MANY causes of TSO, so a fix for one cause may not be a fix for another cause.

Therefore, what the Mayo clinic may have claimed might have been in relation to a specific TYPE of causation, and not to TSO in general.
DISCLAIMER: I am not an attorney. While drawing from my professional training and experience in law enforcement and as a former Paralegal, no comments offered should be considered as legal advice.
 
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#6
LeglEgl, that may have very well have been the situation. I heard the information not directly from my cousin who had the surgery, but from a 3rd person...so maybe the whole story was not included! I personally did not research the information myself either, was just worried about my cousin as she was having a very difficult recovery (arm was numb for first 4 weeks with low grade fever).

I have to say, you are for sure on the ball and full of information!! Thanks for giving me the 411! Smile
Live, Laugh, Love ~
 
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#7
LeglEgl, that may have very well have been the situation. I heard the information not directly from my cousin who had the surgery, but from a 3rd person...so maybe the whole story was not included! I personally did not research the information myself either, was just worried about my cousin as she was having a very difficult recovery (arm was numb for first 4 weeks with low grade fever).

I have to say, you are for sure on the ball and full of information!! Thanks for giving me the 411! Smile
Live, Laugh, Love ~
 
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