Scheduled Versus Non-Scheduled Injuries

The single largest issue affecting the amount of compensation benefits to which you may entitled under the LHWCA is usually whether the injury that you have suffered is a “scheduled” or a “non-scheduled” injury under the LHWCA. The LHWCA actually separates parts of the body and lists injuries to certain parts of the body as scheduled injuries and injuries to other parts of the body as non-scheduled. Typically injuries to your knee, foot, hand, arm, fingers and eyes are scheduled injuries. In contrast, injuries to your neck, shoulder and back are non-scheduled injuries. One of the first threshold, and most important, determinations in your claim under the LHWCA is determining whether you have suffered an injury to a scheduled part of the body or a non-scheduled part of the body.  The Act lists the following as scheduled injuries; the number of weeks of compensation FOR TOTAL LOSS of that part of the body is listed to the right:

Arm-312 weeks

Leg-288 weeks

Hand-244 weeks

Foot-205 weeks

Eye-160 weeks

Thumb-75 weeks

First finger-46 weeks

Great toe-38 weeks

Second finger-30 weeks

Third finger-25 weeks

Toe, not great-16 weeks

Fourth finger-15 weeks

Hearing loss-1 year-52 weeks

Hearing loss both ears-200 weeks

If your injury is not listed as a scheduled injury above, it is most likely that your injury will qualify as a non-scheduled injury.  Specifically, injuries to a shoulder, neck or lower back are clearly considered non-scheduled injuries.  Generally the Department of Labor will allow any injury not listed above as a scheduled injury to qualify as a non-scheduled injury.

Under a non‑scheduled injury you are entitled to receive compensation of two-thirds your AWW for the rest of your life, but your employer is entitled to receive a credit for your earning capacity once you are released to return to some form of work.  In almost all Longshore claims the amount of your “earning capacity” is the central issue that is debated and litigated with your employer.  This is because your employer will generally claim you can return to earning significant money while you and your treating physician may believe that you are not capable of returning to the identified job opportunities provided by your employer.

It is also possible to suffer injuries to both non-scheduled and scheduled parts of the body in the same accident. In such cases, you are entitled to receive separate benefits for both injuries, but not ‘double’ benefits. This means if you are temporarily disabled due to a serious injury to your back, and at the same time you are recovery from a serious injury to your hand, you will only receive TTD benefits of 2/3 your AWW once, not twice. However, once you are discharged in regard to your hand injury, you will then receive the scheduled payment for any percentage disability the doctor assigns to your hand—and, you also will receive LWEC benefits in regard to your back injury if you are assigned permanent restrictions in regard to your back that prevent you from returning to work earning as much as you did at the time of your injury.

Non-Scheduled Injury Payments

If you have suffered an injury to your neck, back or shoulder you have sustained a “non-scheduled” injury under the LHWCA. In very simple terms, if you have received an injury to a non-scheduled part of your body, you will receive two thirds of your average weekly wage for the rest of your life, but your employer will receive credit for any income that your employer proves you can go back to earning. If for example you suffer a very minor pulled muscle in your lower back and you are off of work for six weeks, and your treating physician then releases you to return to full duty, unlimited work at your previous job, your employer will correctly argue that after six weeks you were able to return to your previous occupation earning as much as you earned at the time of your injury and therefore you would not be entitled to any compensation benefits after the initial six week period. In contrast, if you suffer a severe injury to your lower back which requires surgery and ultimately you are released to return to only sedentary or light duty work, you may be limited to earning minimum wage as compared to your previous salary of, say, $50,000.00 annually. In such an example your employer would then be responsible for two thirds of the difference between your new minimum wage salary and your previous $50,000.00 per year salary. Under the LHWCA you would receive this two thirds difference for the rest of your life.

With most non-scheduled injuries, the real disagreement and fight with your employer will be based upon the type of work to which you can return and the amount that you can earn doing such work. Typically employers will argue that you can earn much more money than you believe to be true following a non-scheduled injury. They are doing this because they do not want to pay two thirds the difference between your old pre-injury salary and your new post-injury earning capacity.

Scheduled Injury Payments

If you have injured a part of your body which is defined as a “scheduled” injury under the LHWCA, unfortunately your recovery of compensation benefits is generally very limited. As wrong and horrible as it seems, you will only receive a single “scheduled” payment at the end of your medical treatment as your final compensation payment. This final payment is limited and determined only by the percentage disability which your treating physician assigns to your injury. For example if you have suffered a knee injury which ultimately requires a serious surgery and your treating physician discharges you with a 20 percent disability to your knee, you will only receive a single, final compensation payment which represents a 20 percent impairment to your whole knee. The LHWCA assigns numbers of weeks for “total loss” of such body parts and you would then receive 20 percent of the number of weeks for the “total loss” of your knee. In contrast, if the doctor places a 100 percent disability upon your knee then you obviously receive the full number of weeks for the “total loss”.

The only real way that you can increase and/or challenge your compensation benefits under a scheduled injury is to increase the average weekly wage upon which your benefits are being calculated or increase the ultimate percentage impairment rating which your treating physician assigns to you at the time of your discharge. Otherwise, determining your final compensation payment for a scheduled injury is a simple mathematical formula. Even if you cannot return to your old employment and even if your future earning capacity is seriously diminished, the only final compensation benefits you will receive for a scheduled injury will directly and solely relate to the percentage impairment placed upon your injury by your treating physician.

To fully understand the unfairness and extreme nature of the final scheduled injury payment, the example of a piano player is often used. Even if a professional piano player were to have his fingers seriously injured to the point where he would never play the piano again for the rest of his life or earn any income from doing so, his only compensation payment at the end of his medical treatment would be a single scheduled injury payment for the percentage impairment his treating physician assigned to his finger injury. Such a small payment would in no way compensate him for the future loss of income that he would suffer.