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Court Affirms in Three Decisions the Taher Rule that Claimant May Receive Both SLU and PPD in the Same Case at the Same Time

On 2/27/20 the Appellate Division, Third Department, decided Arias v. City of New YorkSaputo v. Newsday LLC, and Fernandez v. New York University Benefits. These decisions squarely hold that the Court’s previous decision in Taher v. Yiota Taxi is controlling, and that a claimant may receive both a schedule loss of use award and a permanent partial disability classification in the same case at the same time. It is unclear as of this writing if this decision will be appealed to New York’s highest appellate court, the New York Court of Appeals.

After the Appellate Division issued its previous decision in Taher, the Board and the workers’ compensation defense bar both took the position that it was incorrectly decided and should not be followed. The Court’s new decisions in AriasSaputo, and Fernandez. reject that argument. In particular, the Court rejected the argument that the 2018 schedule loss of use guidelines warrant departure from the Taher decision. The Court stated that language in the 2018 schedule loss of use guidelines requiring no residual impairment in the systemic area of the injury before a schedule of loss of use award can be made is ambiguous and therefore does not automatically require one form of permanent disability finding over another.

The take away from these decisions is that, for the time being, unless the New York Court of Appeals reverses them, claimants may receive both a schedule of loss of use award and a permanent partial disability classification in the same case at the same time, and may receive a lump-sum schedule loss of use award payment as long as they are not losing time or wages from work.

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