You tore a rotator cuff and hurt your back in the same accident. The shoulder was repaired and it is never going to be what it was. The back is a permanent problem too. At permanency, somebody tells you that because your back is involved, there is no schedule award for the shoulder — you are being classified instead.
That answer has been wrong since 2018, and the Appellate Division has now said so four times.
The short version
You cannot be paid both at the same time. A claimant who sustains both schedule and non-schedule injuries in the same accident “may receive only one initial award,” because paying a schedule award and a non-schedule award for the same accident would be duplicative compensation. That much has been settled since 1974.
But classification is not an award. Those are two different things, and the difference is the whole case. You can be classified with a permanent partial disability for your back and still receive no money on it — because a non-schedule award is paid out of lost wages, and if you have gone back to work at your old pay there is no wage loss to pay on.
When that happens, the schedule award for the shoulder is available. In the court’s words, “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.”
Why you may have been told otherwise
Because for years the Workers’ Compensation Board took the opposite position and kept taking it after the courts said no. This is not ancient history and it is worth knowing, because it explains how a worker in exactly your situation gets turned away.
2018 — Taher
A taxi driver was hurt in a motor vehicle accident. His claim was established for his neck, back, right knee and right shoulder — scheduled members and non-scheduled sites together. He had returned to work at his old wages. The Board ruled he could not have a schedule award and a classification.
The Third Department disagreed in part. He could not receive both, but classification alone did not destroy the schedule award: “If it is ultimately determined that claimant is not entitled to a nonschedule award, he will at that time be entitled to an SLU award.” Matter of Taher v Yiota Taxi, Inc., 162 AD3d 1288 (3d Dept 2018).
2020 — Arias
A school crossing guard slipped on ice. Carpal tunnel, right ankle, right hand, right ring finger, neck and back. She was working without reduced earnings. She asked for a schedule award under Taher. The Board refused.
The court’s response was blunt: “the Board’s disregard of Matter of Taher was in error.” Matter of Arias v City of New York, 182 AD3d 170 (3d Dept 2020).
Three things in that decision are worth reading twice. The Board had leaned on its own impairment guidelines, which say no residual impairments must remain in the systemic area — head, neck, back — before a claim is suitable for schedule evaluation. The court pointed out that the guideline never says permanent residual impairments, and that the Board was inserting the word.
The Board also argued that holding the schedule award back was a “virtual banking” of benefits for later. The court called that “a policy choice with no basis in the Workers’ Compensation Law,” and noted it was really “an attempt to control how prudently a claimant uses or rations his or her lump-sum SLU award.”
And the court observed what the Board’s rule actually encouraged: it “strongly incentivizes injured claimants with schedule and nonschedule permanent impairments arising from the same work-related accident who are capable of returning to work at preinjury wages not to do so.”
2022 — Gambardella
A bus maintainer hurt his back, left shoulder and right third finger lifting an eighty-pound seat. He had schedule losses of 35% of the left arm and 15.8% of the finger, a classified lumbar condition, and he had voluntarily retired. The Board now argued that Taher and Arias applied only to people who had returned to work at their old wages, and he had not.
Too narrow, the court said. The rule is broader: “the salient condition for a claimant to receive an SLU award where he or she has both schedule and nonschedule impairments arising out of the same accident is the fact that he or she is ineligible to receive a nonschedule award at the time of classification, whether that be due to his or her return to work at preinjury wages or, as here, voluntary retirement.” Matter of Gambardella v New York City Tr. Auth., 204 AD3d 1210 (3d Dept 2022).
2025 — Romero
Decided September 25, 2025, so this is current law and not a historical curiosity. A worker with an established claim for her right knee, head, neck and back had a total knee replacement. Both doctors who examined her for permanency — the carrier’s consultant and her own treating physician — declined to assign any schedule loss of use for the knee, because they considered her injuries amenable to classification instead.
The court reaffirmed the rule, and added that a claimant’s failure to show attachment to the labor market at classification does not preclude a schedule award. Matter of Romero v Akorn Inc., 2025 NY Slip Op 05128.
The trap inside Romero
Look again at what happened in that case, because it is the most likely way this goes wrong for you, and it has nothing to do with the law.
Neither doctor assigned a schedule loss of use percentage for the knee. Not because the knee was fine — it had been replaced — but because both of them assumed the case was a classification case and that a schedule number was therefore beside the point.
If no percentage is in the record, there is nothing for a judge to award. You can be entirely right about the law and still get nothing, because the medical evidence that would support the award was never created. Somebody has to ask the treating doctor for a schedule loss of use evaluation of the limb, and ask before permanency is decided.
This is timing, not a windfall
It is worth being straight about what the rule does and does not do, because the Board’s fear was double payment and that fear is addressed.
If you receive a schedule award now and your circumstances later change — the back injury eventually costs you earnings and a non-schedule award is made — the carrier gets a credit for what it already paid you on the schedule award. You are not collecting twice. You are collecting the money that is due for the permanent damage to your shoulder at a point when the alternative is collecting nothing at all, perhaps forever.
And your back is not ignored in the meantime. Every impairment from the accident, scheduled and non-scheduled alike, has to be considered in setting your loss of wage earning capacity at classification.
What to do with this
- Do not accept “your back rules out a schedule award” as the final answer. It is the answer the Board argued for and lost, four times.
- Ask for the schedule loss of use percentage early. Before permanency is decided, while the treating doctor is still writing reports.
- Know which question decides it. Not whether you were classified — whether a non-schedule award is actually payable to you at classification.
- Working at your old wages helps you here. It is the clearest version of the situation the courts have addressed.
Frequently asked questions
I hurt my shoulder and my back. Do I get an SLU, a classification, or both?
Not both as concurrent awards. You may be classified for the back and still receive a schedule award for the shoulder, if no non-schedule award is payable to you at the time of classification — most commonly because you are back at work at your old wages.
I went back to work full duty. Does that hurt me?
On this question it helps. No wage loss means no non-schedule award, and that is the circumstance in which the courts have held the schedule award is available. The court in Arias specifically criticized a rule that would have punished workers for going back.
I retired. Am I out?
Not on that basis alone. Gambardella involved a claimant who had voluntarily retired, and the court held the test is ineligibility for a non-schedule award at classification, whatever the reason for it.
My doctor never gave a schedule loss percentage. Can that be fixed?
Often, yes — but it has to be raised. That is exactly what happened in Romero: both physicians skipped the schedule evaluation because they assumed classification was the answer.
Is this settled, or still being fought?
The Third Department has now held the same way in 2018, 2020, 2022 and 2025. Whether any particular claim qualifies is still decided by the Board on the record in that case.
If this sounds like your claim
A shoulder, knee, hand or foot injured in the same accident as a back or neck is one of the most common ways a permanent award goes unpaid in New York. Call 718.701.2776 or 800.310.5520.
This page describes New York law in general terms and discusses published appellate decisions. It is not legal advice about your claim, and reading it does not make us your attorneys.
