Workers’ Compensation Law § 15 (3) provides a schedule of permanent disability applicable to limbs, including arms and legs. Arms and legs are unique because each of those limbs has two constituent joints. Arm schedules are awarded for permanent injuries to elbows and shoulders. Leg schedules are awarded for permanent injuries to knees and hips.
Two recent decisions change the rules for calculating schedule losses of use.
In April, the Court of Appeals published its decisions in Johnson v. City of New York and Liuni v. Gander Mountain. These two appeals were consolidated and resolved by the Court in one written decision.
Johnson injured both knees in 2006. He then injured both hips in 2009. A permanency award was made in the second case first and Johnson was awarded a 50% SLU of his left leg and 52.5% schedule loss of use of his right leg due to the 2009 injuries. Johnson then sought permanency findings for his 2006 knee injuries. He presented medical proof of an 80% SLU of his left leg and a 40% SLU of his right leg. His doctor acknowledged that combining the knee and hip schedules would result in a 130% SLU of the left leg and a 92.5% SLU of the right leg.
A WCLJ awarded the 80% SLU of the left leg and the 40% SLU of the right leg due to the 2009 hip injuries but reduced each award by the schedules previously awarded in the 2006 knee injury case. The result was a 30% increase of the left leg SLU and no increase of the right leg SLU.
Liuni injured his left elbow in 2007 and was awarded a 22.5% SLU of his left arm. In 2014 Liuni sustained another work-related injury which led to a consequential injury to his left shoulder. He presented medical evidence of an overall 50% SLU of the left arm, 22.5% due to the left elbow and 27.5% due to the left shoulder.
A WCLJ agreed with Liuni’s medical expert and awarded an increase of 27.5% to the left arm SLU. The WCB reversed and awarded only a 5% increase in the left arm SLU (the difference between the initial 22.5% and the subsequent 27.5%).
The Appellate Division affirmed the WCB in both cases citing its prior decision in Matter of Genduso v New York City Dept. of Educ. (164 AD3d 1509 [3d Dept 2018]). The Court of Appeals accepted both for review.
The Court of Appeals rejected Johnson’s claim of a higher SLU for his legs, but accepted Liuni’s claim of a higher SLU for his left arm. The difference: Liuni presented medical evidence that the injuries to his elbow and shoulder were separate pathologies, and each individually caused a particular amount of loss of use of his arm. Johnson did not.