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Appellate Division Clarifies Taher Holding Regarding Claimants Receiving Both SLU and PPD

On 12/24/20, the Appellate Division, Third Department decided Nasir v. BJ's Wholesale Club. This decision holds that the court's earlier decision in Taher v. Yiota Taxi does not compel the Board to award both a schedule loss of use award and a permanent partial disability classification in the same case if the Board rejects the medical evidence supporting one of these forms of permanent disability on credibility grounds.

As most of our readers know, Taher held that a claimant can receive both a schedule loss of use award and a permanent partial disability classification in the same case at the same time so long as the claimant has not received an initial award under the classification. Before Taher, a claimant could receive either a schedule loss of use award or a permanent partial disability classification, but not at the same time in the same case. Taher and its progeny have significantly changed the analysis of claims at permanency.

The Nasir decision clarifies that a claimant may receive both forms of permanency awards only if the Board finds the medical opinions supporting both forms of permanent disability credible. The Board may use its inherent fact-finding power to reject one or more of the permanent disability medical opinions as lacking credibility. If the Board rejects a medical opinion on permanent disability as lacking credibility, then the form of permanent disability in that medical opinion will not be awarded. In cases where the Board finds the medical opinions supporting both forms of permanent disability credible, both forms of permanent disability may still be established.

This decision allows employers and carriers another avenue to attack SLU opinions in a case resolved with classification by, for example, arguing that the opinion on SLU is not credible enough for the Board's consideration.
 

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