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Claimant Denied Further PHP Absent Evidence of Change in Condition From Prior SLU

On 4/30/20, the Appellate Division, Third Department decided Hale v. Rochester Telephone Corporation. This decision holds that a claimant may not be entitled to additional protracted healing period (PHP) payments after a previous schedule of loss of use award unless there is a change in the degree of loss of use, regardless of any additional surgeries or temporary total disability.

In this case, claimant received a 55% schedule loss of use award for her right leg. Several years later, she underwent two additional surgeries, which resulted in an extended period of temporary total disability. Claimant requested additional PHP awards based on the temporary total disability after her two new surgeries. The Board denied her request, holding that there had been no change in condition warranting additional PHP awards.

Claimant appealed to the Appellate Division, which affirmed the Board, holding that the Board's decision met the substantial evidence threshold because the medical evidence showed claimant's overall loss of use for the leg remained at 55% despite the two new surgeries. The court held that, under these circumstances, the Board could properly find no change in condition and therefore no additional PHP awards.

This decision now gives employers and carriers a reasonable basis for opposing additional PHP awards after a claimant has already received a previous schedule of loss of use award in the absence of any change in claimant's overall loss of use.

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