In Blue v. New York State Office of Children and Family Services [___A.D.3d___, 2022 NY Slip Op 03565 (2022)], the Appellate Division, Third Department, rejected the WCB interpretation of its own 2018 permanency impairment guidelines and sent the case back to the WCB for a do-over.
Blue injured his right knee in 2016. When his doctor evaluated the right knee for permanency, he found that Blue had significant chondromalacia patella as well as a medial meniscal tear. He also found that Blue’s range of motion deficits justified a 50% SLU of the right leg. However, due to the chondromalacia patella, he limited his opinion to a 10% SLU of the right leg based on § 7.5, Special Consideration No. 4, of the 2018 Workers’ Compensation Guidelines for Determining Impairment.
Chapter 7 of the 2018 guidelines describes the process for determining impairment due to injuries to the knee and tibia. Section 7.4 directs that the process begins with an assessment of whether any special considerations apply. Section 7.5 enumerates 13 special considerations and includes this instruction:
The following are special considerations that have enumerated schedule loss of use values. Other defects may be added when specified or when no schedule value is provided. However, the maximum schedule loss of use value cannot exceed the value of ankylosis.
Special Consideration No. 4 states: “Chondromalacia patella, mild to marked degree, equals 7½ – 10% loss of use of the leg, depending on the defects of motion and atrophy of muscles found.”
Because Special Consideration No. 4 does not specify that motion defects should be added, the WCB has heretofore consistently ruled that the maximum schedule loss of use available when chondromalacia patella is present is 10%. This is the interpretation applied by Blue’s doctor when he evaluated the knee for permanency.
The Appellate Division ruled that the instructions in §§ 7.4 and 7.5 are ambiguous and that the WCB’s interpretation of the ambiguous instructions in these two sections “does not reflect a fair and considered judgment on the circumstance presented in this case.”
Since the Appellate Division’s ruling, the WCB has issued its first post-Blue, Board Panel decision regarding Special Consideration No. 4. In Employer: Sky Chefs, Inc. [2022 NY Wrk. Comp. G2441551 (June 15, 2022)], a claimant had causally related diagnoses of meniscal tears and chondromalacia patella in both knees. The Board Panel awarded the claimant an SLU value for range of motion loss plus an SLU value for chondromalacia patella.
Moving forward, it is likely that where claimants have diagnoses of the knee which support a reason for range of motion loss, the WCB will award an SLU for the loss of motion regardless of a chondromalacia diagnosis. In other words, just because a diagnosis of chondromalacia is present, there is no longer an expectation that a cap of 10% SLU will be found so long as other pathology exists. In fact, as supported by Sky Chefs, Inc., the two SLU values (i.e., range of motion loss and chondromalacia) may now be combined.
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