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Appellate Division Issues Two Important SLU Decisions in January

As befits the adoption of the Board’s just-barely revised SLU Guidelines on January 1st, the Appellate Division also has had SLUs on the mind, issuing two decisions concerning same in January 2018.

In the first, Parody v. Old Dominion Freight, the Court held that the Board is not bound by the medical opinions of schedule loss of use (SLU) in the record and may fashion its own SLU assessment based on the medical evidence and the impairment guidelines if the ultimate result is supported by the record, even if the percentage loss of use awarded has not been given by any medical expert in the record.

This opens additional avenues for compromising as well as litigating SLU awards because the parties need not assume that the Board will be forced to choose the SLU opinion of one of the medical experts. The Board is permitted to selectively adopt and reject portions of expert opinion and testimony, and thus could make a different finding on percentage loss of use, using the medical evidence in the record, than that reached by the medical experts.

The second case, Maloney v. Wende Correctional Facility, holds (as we have long argued) that a medical expert may not add both the values for deficits in anterior (or forward) flexion and abduction in determining percentage SLU of the arm because the combined value of same could exceed 80%, which is the SLU percentage applicable to ankylosis under the Board’s Impairment Guidelines. This decision provides authority from the Appellate Division to support the Board’s own line of cases following NFTA Metro that considering loss of range of motion in both abduction and forward flexion would be duplicative and improper. Of note, the Board’s new 2018 SLU Impairment Guidelines also clarify that the two values should not be duplicated.

Also of note in Maloney was the Court’s rejection of the claimant’s argument that the employer waived its defenses to the attending physician’s SLU opinion because it failed to file a pre-hearing conference statement. The Court noted that the filing of a pre-hearing conference statement is contemplated where the claim for workers’ compensation benefits is controverted. The Court said that in Maloney, the employer did not controvert the claim and that the Board admitted error in directing the employer to file a pre-hearing conference statement. The Court’s statement concerning pre-hearing conference statements being filed in contemplation of controversy may allow an argument to avoid the Board’s attempt to preclude issues where it directs a pre-hearing conference statement in an established or accepted claim.

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