Appellate Division Allows Claimant to Receive Two 100% SLU Awards for the Same Injury
On 5/25/17, the Appellate Division, Third Department decided Deck v. Dorr, holding that a claimant can receive a 100% schedule loss of use award for the thumb and a separate 100% schedule loss of use award for the same hand at the same time as long as there are distinct separate injuries to the thumb and the rest of claimant’s fingers.
Claimant lost all four fingers when his hand became stuck in a meat grinder. The grinder also amputated his thumb, but doctors were able to reattach a portion of the thumb to his hand. The thumb was half the size of claimant’s thumb on the opposite hand and had no pinching ability. The parties stipulated to a 100% schedule loss of use award for the hand based on claimant’s loss of all four fingers, and litigated claimant’s eligibility for a separate 100% schedule loss of use award for the thumb. Uncontradicted medical testimony stated that the Disability Guidelines allow for more than 100% loss of use for a hand under certain circumstances. The Board awarded claimant the 100% loss of use for his hand and a separate 100% loss of use for the thumb, stating that claimant sustained distinct injuries to his four fingers and his thumb, and that the separate injuries had differing impacts on the functionality of his hand. Based on this, the Board concluded that distinct loss of use awards for the four fingers (which translates into a 100% loss of use of the hand), and the thumb was appropriate.
On appeal, the carrier argued that the injuries to the fingers and thumb should be subsumed into a 100% schedule loss of use for the hand with no additional award. The Court disagreed, citing precedent from the New York State Court of Appeals, New York’s highest appellate court, and Appellate Division precedent holding that when a claimant has multiple injuries to different parts of the hand, the schedule loss of use award is not limited to 100% of the hand. The Court highlighted the fact that the Disability Guidelines treat the fingers and thumbs separately for schedule loss of use award analysis. The Court also highlighted the uncontradicted medical testimony that the Guidelines contemplate a greater than 100% loss of use for the hand under certain circumstances.
The take-away from the case is that when a claimant has multiple injuries to different parts of a hand, separate schedule loss of use awards can and will be awarded for those distinct injuries.
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