NY Employer Allowed 10 Percent Credit for Claimant's Prior SLU Injury to Same Leg

A New York appellate court affirmed a decision of the state’s Workers’ Compensation Board that held a claimant was entitled to a 7.5 percent schedule loss of use (“SLU”) of his left leg following a work-related injury to his left knee in spite of testimony by the claimant’s orthopedist that after the claimant reached MMI, he had sustained a 17.5 percent SLU of the left leg, specifically attributing 7.5 percent for the loss of extension and 10 percent for chondromalacia [Matter of Rickard v. Central New York Psychiatric Ctr., 2020 N.Y. App. Div. LEXIS 5385 (Oct. 1, 2020)]. The court found the employer was entitled to a credit for a prior 10 percent SLU award to the left leg stemming from a 2015 left hip injury.

Background

Claimant suffered a compensable work-related injury to his left knee while restraining a patient. Ultimately, claimant’s orthopedist opined that claimant, having reached MMI, sustained a 17.5 percent SLU of his left leg. The employer’s workers’ compensation insurance carrier did not dispute the 17.5 percent SLU, but it sought a credit for claimant’s prior 10 percent SLU award of the left leg due to a 2015 left hip injury. The WCLJ credited the carrier with the prior 10 percent SLU award and the Board affirmed.

Appellate Court Affirms

Analyzing N.Y. Workers’ Comp. Law § 15(3), the appellate court acknowledged that a claimant might receive two or more SLU awards for loss of use of more than one member or parts of members, but stressed that SLU awards were nevertheless limited to only those statutorily-enumerated members listed in § 15(3). Moreover, compensation for impairments to separate parts of the same member were reflected in the overall SLU award for the statutorily-enumerated member. There was no statutory basis to award separate SLU awards for the knee and the hip, said the court. Accordingly, the prior 10 percent award for the left leg was properly credited against the current 17.5 percent SLU award.