In NY Apportionment Claims, Key is Existence of Prior Disability, Not its Cause
A New York appellate court held that since an employer and carrier had prevailed in a 2013 scheduled loss of use (SLU) claim on causation grounds — the WCLJ’s decision in that case found that any loss of use suffered by claimant had been the result of aging and not the claimed accidental injury — they were not precluded from arguing, in a subsequent, separate 2015 SLU injury claim to the same arm, that the Board should apportion some of claimant’s loss of use to the claimant’s prior disabling condition [Matter of St. Aubin v. Office of Children & Family Servs., 2020 N.Y. App. Div. LEXIS 3791 (3d Dept. July 2, 2020)]. The fact that there had been no SLU awarded in the 2013 case did not mean the claimant had not experienced a genuine loss of use prior to the injury that was the subject of the 2015 claim.
Background
In November 2013, claimant filed a claim for workers’ compensation benefits alleging a work-related right shoulder and arm had occurred in October 2003, more than 10 years earlier. The parties presented conflicting medical opinions as to claimant’s loss of use of his right arm: two separate consultants obtained by claimant opined that he had a 55 percent SLU, whereas a consultant hired by the employer and its carrier found that claimant’s shoulder injury was relatively minor, remote in time, and not causally related to his 2003 accident.
A WCLJ found the carrier’s consultant was more persuasive. The WCLJ determined that claimant failed to establish that his right shoulder injury was causally related to the 2003 accident — as opposed to being a consequence of aging. Accordingly, the WCLJ found that claimant was not entitled to an SLU award for the 2003 injury, a determination that was upheld upon administrative appeal.
In August 2015, claimant sustained another injury to his right shoulder while at work, and his ensuing claim was established for injury to the right shoulder. Ultimately, a WCLJ found that claimant had a 50 percent SLU of the right arm that was causally related to the 2015 accident. The WCLJ rejected the carrier’s assertion that there should be apportionment between the 2015 claim and the 2003 noncompensable injury. The WCLJ reasoned that in as much as the carrier had earlier argued — during the litigation of the 2013 claim — that one of claimant’s consultants was not credible, and that there was no SLU for the 2003 injury, it would be contradictory now to reduce claimant’s award based on that same consultant’s prior SLU opinion. The Board adopted the WCLJ’s decision in full upon administrative appeal, and the carrier’s subsequent application for reconsideration and/or full Board review was denied. The employer appealed.
Appellate Court Decision
The appellate court noted that under New York law, apportionment might be applicable in an SLU case if the medical evidence established that claimant’s prior injury to the same body member — had it been compensable — would have resulted in an SLU finding. The Court disagreed with the Board, however, that in order for the Board to to have concluded that claimant had a documented prior injury or condition with respect to his right shoulder for the purpose of apportionment, it would have been required to take a position inconsistent with its determination in claimant’s 2003 claim.
The appellate court stressed that the Board had adopted the WCLJ’s findings and decision in disallowing the 2003 claim. While the WCLJ stated generally that the carrier’s consultant had been the most persuasive, the WCLJ went on to explain that the basis for that finding was the disagreement among the consultants regarding causation. Specifically, the WCLJ was persuaded by testimony from the carrier’s consultant that claimant’s established medical condition was a common sign of aging and concluded only that claimant had failed to demonstrate, within a reasonable degree of medical certainty, that the 2003 accident was the cause of his right shoulder condition.
While the Board was correct that the carrier had successfully opposed claimant’s request for an SLU finding for his 2003 injury, that request had been denied on causation grounds, not because there was an affirmative finding of no loss of use to claimant’s right arm. The Board should have determined whether, prior to the 2015 accident, claimant had loss of use, function or range of motion of his right arm, without regard to causation of that prior loss of use. The Court remitted the case to the Board for such a determination.