NY Claimant Entitled to Marked Permanent Disability Award Instead of SLU Award

Construing the N.Y. Workers’ Compensation Guidelines for Determining Impairment, a state appellate court affirmed a decision of the Workers’ Compensation Board that held an injured employee’s foot injury was not amendable to a schedule loss of use award, but rather, should be compensated as a marked permanent disability [Matter of Lyman v. New York State Canal Corp. C/O N.Y. Power Auth., 2022 N.Y. App. Div. LEXIS 5235 (Sept. 29, 2022)]. Claimant’s injury was confined to her foot, involving no other member, but it was accompanied by a chronic painful condition and severe swelling with minimal improvement after exhausting treatment options that included surgery. Under the Guidelines, the Board was justified in making its award on the basis of claimant’s marked permanent disability.

Background

In January 2018, claimant, a motorized snow operator, sustained injuries, including to her lower back and right outer foot, when she slipped on ice while shoveling a path. Her subsequent claim for workers’ compensation benefits was accepted by the self-insured employer and its third-party administrator (“the employer”) for a temporary aggravation of a prior right foot condition and was ultimately established for a work-related injury to the right foot.

In June 2018, surgery—Kidner procedure with reattachment of the posterior tibial tendon—was performed on claimant’s right foot with continued treatment thereafter. Two years later, claimant’s treating podiatrist evaluated claimant’s injury for permanency and schedule loss of use (SLU), opining that claimant’s injury to her right foot warranted a 65 percent SLU award based upon a moderate loss of plantar flexion of 15 percent, a moderate loss of dorsiflexion of 15 percent and a loss of inversion and eversion of 35 percent. Three months later, in August 2020, an orthopedic surgeon who performed an independent orthopedic medical examination of claimant, diagnosed claimant with a right foot sprain (with posterior tibial tendon insufficiency status post removal of accessory navicular, and reattachment of the tendon with poor result) and found that claimant had reached MMI and that she had sustained a 20 percent SLU of the right foot based upon claimant’s loss of inversion.

WCLJ/Board Decision: Marked PPD, Not SLU

Following hearings and the depositions of the two medical experts, a WCLJ found that claimant’s injury had reached MMI and that claimant had a continuing chronic painful condition of the right foot and a marked permanent partial medical impairment. The affirmed, finding that, because claimant had a chronic painful condition and severe swelling with minimal improvement after exhausting treatment options, her permanent impairment was amenable to classification as a marked permanent partial disability and not a SLU. The employer appealed.

Was Condition Amenable to Schedule Award?

Initially, the appellate court observed that N.Y. Workers’ Comp Law § 15(3) contained a schedule of awards for PPD resulting from a loss of specific body parts or functions. Subsection (w) of the provision pertained to “all other cases of permanent partial disability”— i.e., those cases that are not amenable to a schedule award. The court added that while impairment of an extremity may be amenable to a schedule award under certain circumstances, not all impairments of an extremity qualify, including those involving a “[c]hronic painful condition of an extremity commonly affecting the distal extremities such as the hands and feet” and accompanied by, as relevant here, “chronic swelling” or minimal or no reported improvement after claimant has undergone all modalities of chronic pain treatment (see N.Y. Workers’ Compensation Guidelines for Determining Impairment § 1.6[2] at 8-9 [1st ed 2017]).

Podiatrist Alters Opinion

The court noted further that while claimant’s podiatrist, in her May 2020 medical report, opined that claimant’s permanent impairment warranted a SLU award, she subsequently testified that she thought claimant’s injury met the criteria for a nonschedule classification, and the podiatrist explained that she provided a SLU opinion originally because claimant only requested an opinion with respect thereto at the time of the initial visit. The podiatrist further testified that claimant’s permanent impairment in her right foot had resulted in a chronically “painful condition” involving “chronic swelling” and instability, all of which rendered her permanent impairment subject to classification under the impairment guidelines as a severe disability.

The court noted as well that while the employer’s expert ultimately found that claimant’s condition warranted a SLU award, the specialist agreed with the podiatrist that claimant’s condition had reached MMI at the time of his evaluation of claimant and that claimant was experiencing chronic pain and severe swelling. The employer’s expert further opined that there were no additional therapy or orthopedic treatments that would improve claimant’s symptoms because she had exhausted all kinds of treatment available to her and that claimant had experienced minimal improvement of her condition.

The appellate court concluded that in light of the foregoing, that claimant suffered from a permanent and chronic painful condition of an extremity (foot) accompanied by chronic swelling constituted substantial evidence to support the Board’s determination that claimant’s permanent impairment was amenable to nonschedule classification as a marked permanent partial disability.