The value of a workers’ compensation shoulder injury settlement will depend on factors specific to each case. These factors include the severity of the injury (Schedule Loss of Use), the structure of the settlement, lost time from work, and Average Weekly Wage.
When considering a workers’ compensation shoulder injury settlement, both sides will look to the Workers’ Compensation Guidelines for Determining Impairment. These Guidelines will help the parties value the case. The Guidelines that apply to shoulder injuries begin on page 29. Physicians use these Guidelines to determine Schedule Loss of Use to the shoulder. Schedule Loss of Use is a percentage. The percentage represents the degree of permanent impairment. To determine Schedule Loss of Use of the shoulder, the injured worker’s physician will measure range of motion. The physician will also review MRI’s, x-rays, and operative reports. Limited range of motion, surgery, and certain diagnoses will result in a percentage of Schedule Loss of Use.
The higher the Schedule Loss of Use percentage found, the higher the award or settlement an injured worker may receive. The parties will often disagree on a Schedule Loss of Use percentage to the shoulder. If so, they will either settle on a percentage, or a judge will decide the percentage. Either way, the expected Schedule Loss of Use percentage for a shoulder injury is a main factor when talking settlement.
A Schedule Loss of Use percentage equals a certain number of weeks of compensation. For example, if a worker suffers from a 10% Schedule Loss of Use to the arm from a shoulder injury, he or she will receive 31.2 weeks of compensation. The rate these weeks of compensation will be paid is two thirds of the injured worker’s average weekly wage. By law, the rate is subject to the maximum rate for each date of accident.
The amount of lost wage benefits previously paid to the injured worker up until the Scheduled Loss of Use Award is then taken out. If a worker is out of work for a long period of time, the award may be significantly reduced by benefits already paid. A Schedule Loss of Use Award does not factor in the cost of future medical care. It accounts purely for future lost time and earning capacity. Typically, if a worker receives a Schedule Loss of Use Award, medical treatment will remain open on the claim. Unfortunately, New York workers’ compensation law does not factor pain and suffering into a settlement amount. Settlement value is limited to future lost wages and the cost of future medical care.
The Workers’ Compensation Board will set Average Weekly Wage in each case. The Board will look at the worker’s total earnings for the year prior to the accident. This may include tips, raises, housing, and other benefits received from the employer. Generally, the higher the Average Weekly Wage, the higher the rate awards are paid in a case. This includes Schedule Loss of Use Awards for a shoulder injury. However, wage replacement benefits are capped at the maximum rate for the date of accident. To increase settlement value for a workers compensation shoulder injury, Average Weekly Wage should be set as high as possible.
Once the parties estimate the value of a claim by considering the factors above, they may settle on a percentage for schedule loss of use. If so, medical treatment will remain open. Or, the parties may instead agree to close the entire claim with a Section 32 Settlement Agreement. A Section 32 Settlement Agreement can include the value of future medical treatment for the shoulder. It can also include what the parties feel is a reasonable value for Schedule Loss of Use. If you are considering a workers compensation shoulder injury settlement, contact us to be sure you are getting the compensation you deserve.