Hamberger & Weiss LLP

Appellate Division Allows SLU Award after Classification with PPD

On 6/14/18, the Appellate Division, Third Department, decided Taher v. Yiota Taxi, Inc. This decision appears to allow a claimant classified with a permanent partial disability to receive a schedule loss of use award in the same claim as long as no permanent partial disability payments have been paid.

This case involved a claimant who had injuries to his neck, back, right knee, and right shoulder. The doctors examining him produced both schedule loss of use award opinions and permanent partial disability opinions. Claimant argued that he should be both classified and also given a schedule loss of use award because he had returned to work with no reduced earnings. The Board rejected this argument, and claimant appealed to the Appellate Division. The Court reversed the Board’s decision, in part, stating that, “In the unique circumstance where no initial award is made based on a non-schedule permanent partial disability classification, a claimant is entitled to an SLU award.” In support of this holding, the Court cited Gallman v. Walt’s Tree Service, 43 A.D. 2d 419 (3d Dep't. 1974). The Gallman case cited by the Court states that a claimant classified with a permanent partial disability may also receive a facial disfigurement award in the same claim as long as no lost time awards have been made based on the PPD classification.

Some have questioned whether the Court truly means that a claimant can receive both a schedule loss of use award and a PPD classification in the same case or if this decision is an anomaly with limited precedential value. Because the Court directly cited the Gallman decision for the proposition that a classified claimant can also receive a facial disfigurement award in the same case when no PPD awards have been paid, we believe the correct reading of this case is that a claimant can receive a schedule loss of use award payment and classification in the same case, but where no PPD payments have previously been made. This decision may have implications for the value of future settlements in cases having both PPD classification and SLU potential.

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