New York SLU Awards Made for “Members”, not for Body Parts Making up Those Members
Under N.Y. Workers’ Comp. Law § 15(3), schedule loss of use (SLU) awards may be awarded only for a statutorily-enumerated member — for example, a leg or an arm — and not for body parts that make up such members, held a state appellate court in Matter of Johnson v. City of N.Y., 2020 N.Y. App. Div. LEXIS 946 (Feb. 6, 2020). Accordingly, where a claimant sustained a 2006 work-related injury to both knees and a separate work-related injury to both hips in 2009, he was entitled to one cumulative SLU for each leg; he could not be awarded separate SLUs for each leg separately based upon the injuries to his knees and to his hips.
Background
In February 2006, claimant, a patient care technician, sustained work-related injuries when he slipped and fell on snow as he exited a hospital bus. His claim was established for injuries to both knees, for which he ultimately underwent right knee arthroscopy in 2008 and a left knee replacement in April 2016. In November 2009, claimant sustained additional work-related injuries, and his subsequent claim for benefits was established for injuries to his neck, back, right shoulder and both hips.
As a result of those November 2009 work-related injuries, he was awarded, in January 2016, a 45 percent schedule SLU of his right arm, a 50 percent SLU of his left leg and a 52.50 percent SLU of his right leg. Subsequent to the January 2016 award, the parties submitted somewhat conflicting evidence of permanency with regard to the 2006 injuries.
WCLJ’s Findings
Ultimately, a WCLJ found that claimant sustained an 80 percent SLU of use of his left leg and a 40 percent SLU of his right leg. However, given that claimant had previously received SLU awards for both his left leg and right leg for the injuries sustained in 2009, the WCLJ reduced the 80 percent SLU of the left leg by the prior 50 percent SLU award for the left leg and reduced the 40 percent SLU of the right leg by the prior 52.50 percent SLU award for the right leg. The reductions resulted in a SLU of 30 percent for claimant’s left leg and a 0 percent SLU for the right leg.
Board Upholds the WCLJ
The Board upheld the WCLJ’s determination, finding inter alia, that claimant’s injuries to his hips and knees were not eligible for separate SLU awards because they are both encompassed by awards for the SLU of the legs. As such, the Board determined that claimant’s present SLU awards of the legs must be reduced by his prior SLU awards of the legs, regardless of which non-member parts of the leg were injured. Claimant appealed.
Knees nor Hips Are Not Statutorily-Enumerated “Members”
On appeal, the appellate court stressed that neither N.Y. Workers’ Comp. Law § 15(3) nor the state guidelines listed the knee or the hip as a statutorily-enumerated member or as body parts or members lending themselves to separate SLU awards. Rather, impairments to these body parts or extremities are encompassed by awards for the loss of use of the leg, which is the applicable statutorily-enumerated body member. The court acknowledged that a claimant could receive more than one SLU award for a loss of use of more than one member or parts of members, SLU awards are nevertheless limited only to those “members” statutorily enumerated in § 15(3).
Windfall Not Allowed
The court continued that to authorize separate SLU awards for a body member’s subparts was not authorized by statute or the guidelines and would amount to a monetary windfall for a claimant that would compensate him or her beyond the degree of impairment actually sustained to the statutorily-enumerated body member. In the instant case, therefore, it was not improper for the Board to deduct the prior percentages from the subsequent 80 percent SLU and 40 percent SLU made for the left and right leg respectively.