Members of the NYS Correctional Officers and Police Benevolent Association, Inc. (NYSCOPBA) employed by the NYS Department of Corrections and Community Supervision (DOCCS) who suffer a work-related injury that results in a permanent schedule loss of use (SLU) award under the Workers’ Compensation Law (WCL) should be aware of the position being taken by DOCCS and the New York State Insurance Fund (NYSIF) and the findings made in a 2023 decision of a Master Arbitrator. The decision addresses a member’s entitlement to workers’ compensation leave for lost time from work that occurs after an SLU has been awarded.
Article 14.9 of the Security Services Unit agreement between the State of New York and NYSCOPBA provides that a member who suffers an occupational injury or disease as defined in the WCL shall be entitled to leave with pay without charge to leave credits for up to six months (“the contractual benefit”). After which the member can draw from accrued leave credits and, upon exhausting leave credits, be allowed sick leave at half pay. A member who draws leave credits shall be entitled to restoration of those credits when an award of compensation is made and credited to the State as reimbursement of wages paid.
Certain injuries sustained by a member, specifically those involving the arm, leg, hand, foot, fingers, toes, vision loss or hearing loss, may result in a Workers’ Compensation SLU award. An SLU award compensates the injured worker a fixed number of weeks of compensation benefits for total or partial loss of use of the involved body part based upon a schedule set forth in the WCL. At the time of an SLU award NYSIF takes credit for prior lost time payments that had been made to the injured worker, the State of New York is entitled to any remaining balance of reimbursement for full wages that had been paid to the member, and any remaining balance of the SLU award is paid to the member. Under the WCL, that balance of compensation paid to the injured worker is considered to be an advance payment for future lost time that may occur as result of the work injury and, in a usual case, the injured worker is not entitled to workers’ compensation for further lost time until the lost time experienced following the SLU award exceeds the SLU balance that was paid.
DOCCS and NYSIF have recently taken the position that when an SLU award has been made to a DOCCS employee represented by NYSCOPBA, if the member suffers further lost time from work as result of a work-related injury following the SLU award the member is not entitled to further Workers’ Compensation leave under Article 14.9, even where the member had not utilized the full six months of the contractual benefit. That position was upheld in a 2023 decision of a Master Arbitrator following a grievance filed by a NYSCOPBA member. The effect of this is that a member who receives an SLU award and thereafter experiences additional lost time from work due to the same work-related injury, will not receive either payment of full wages under Article 14.9 or further workers’ compensation benefits from NYSIF. The member would be entitled to workers’ compensation for lost time once the dollar amount associated with that lost time exceeds the balance of the SLU award that was paid.
Not addressed in the Master Arbitrator’s decision was the issue of whether in such circumstance the member may draw from accrued leave credits for such lost time, although we caution that due to the credit balance from the SLU award NYSIF would likely object to any compensation awards payable as reimbursement to restore those leave credits until such time as the credit balance for the SLU has been exhausted. If a member is permitted to use accrued leave credits for such lost time following an SLU award, we recommend speaking with a tax professional concerning the issue of whether such payments may represent nontaxable income.
For any questions or if we can be of assistance to you, please call the Law Firm of Alex Dell, PLLC today for a free consultation. 866-965-2667.
Article 14.9 of the Security Services Unit agreement between the State of New York and NYSCOPBA provides that a member who suffers an occupational injury or disease as defined in the WCL shall be entitled to leave with pay without charge to leave credits for up to six months (“the contractual benefit”). After which the member can draw from accrued leave credits and, upon exhausting leave credits, be allowed sick leave at half pay. A member who draws leave credits shall be entitled to restoration of those credits when an award of compensation is made and credited to the State as reimbursement of wages paid.
Certain injuries sustained by a member, specifically those involving the arm, leg, hand, foot, fingers, toes, vision loss or hearing loss, may result in a Workers’ Compensation SLU award. An SLU award compensates the injured worker a fixed number of weeks of compensation benefits for total or partial loss of use of the involved body part based upon a schedule set forth in the WCL. At the time of an SLU award NYSIF takes credit for prior lost time payments that had been made to the injured worker, the State of New York is entitled to any remaining balance of reimbursement for full wages that had been paid to the member, and any remaining balance of the SLU award is paid to the member. Under the WCL, that balance of compensation paid to the injured worker is considered to be an advance payment for future lost time that may occur as result of the work injury and, in a usual case, the injured worker is not entitled to workers’ compensation for further lost time until the lost time experienced following the SLU award exceeds the SLU balance that was paid.
DOCCS and NYSIF have recently taken the position that when an SLU award has been made to a DOCCS employee represented by NYSCOPBA, if the member suffers further lost time from work as result of a work-related injury following the SLU award the member is not entitled to further Workers’ Compensation leave under Article 14.9, even where the member had not utilized the full six months of the contractual benefit. That position was upheld in a 2023 decision of a Master Arbitrator following a grievance filed by a NYSCOPBA member. The effect of this is that a member who receives an SLU award and thereafter experiences additional lost time from work due to the same work-related injury, will not receive either payment of full wages under Article 14.9 or further workers’ compensation benefits from NYSIF. The member would be entitled to workers’ compensation for lost time once the dollar amount associated with that lost time exceeds the balance of the SLU award that was paid.
Not addressed in the Master Arbitrator’s decision was the issue of whether in such circumstance the member may draw from accrued leave credits for such lost time, although we caution that due to the credit balance from the SLU award NYSIF would likely object to any compensation awards payable as reimbursement to restore those leave credits until such time as the credit balance for the SLU has been exhausted. If a member is permitted to use accrued leave credits for such lost time following an SLU award, we recommend speaking with a tax professional concerning the issue of whether such payments may represent nontaxable income.
For any questions or if we can be of assistance to you, please call the Law Firm of Alex Dell, PLLC today for a free consultation. 866-965-2667.
Please Complete the Form to Schedule a Consultation Regarding Social Security, Workers’ Compensation, or Veteran's Law
Toll Free
