The phrase “loss of use” is used to describe the damages that occur when conduct results in property being unavailable for use for a limited period of time. Generally, loss of use damages are measured by the rental value of a substitute property or chattel. For example, in FIE, LLC v. New Jax Condo Association, Inc., the court held that the plaintiffs were entitled to damages for the loss of use of their condominiums where the condominium association negligently failed to maintain and repair the roof, resulting in water leaking from the roof causing extensive damage to the units, making them uninhabitable. The court stated that the loss of use damages “can be measured fairly and to a degree of relative certainty by the rental value of substitute property.”
“Loss of use” refers to the total or partial inability to use a body part. Under New York Workers’ Compensation Law, a permanent partial disability is called a schedule loss of use award because the statute assigns, by a schedule, a fixed number of lost weeks' compensation according to the bodily member injured. The purpose of a schedule loss of use award is to compensate for loss of earning power. A worker who suffers permanent partial disability as a result of loss (or loss of use) of one of the listed body parts or senses is entitled to an award amounting to a weekly payment of 2/3 of the average weekly wages prior to the injury for the number of weeks attributed to their type of injury in the schedule. For example, Section 15(3)(a) refers to the loss of an arm and entitles a claimant to 312 weeks of benefits.
An “industrial loss of use” refers to the manner in which a functional/medical disability affects the workers' compensation claimant's ability to perform the duties of his employment. For example, in Howard Industries, Inc. v. Hardaway, the claimant’s wrists were injured during work related activities. The court found the claimant was entitled to benefits under industrial loss of use where the claimant was unable to sustain full, unrestricted work and the injuries were found to exclude him from a number of jobs for which he was otherwise qualified.
[Last updated in June of 2020 by the Wex Definitions Team]