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Court of Appeals Leaves Genduso with Barely a Leg to Stand On

Employers and carriers were delighted by the Appellate Division’s 2018 decision in Genduso v. New York City Department of Education. That case held that a claimant’s schedule loss of use award would be subject to an automatic deduction for any prior schedule loss of use awards to the same body member. Genduso prevented a claimant from receiving separate schedule loss of use award for separate joints of the same limb. For example, if a claimant received an earlier 15% schedule loss of use of the arm due to an elbow injury two years ago, but later was assessed a 30% SLU of the arm following a shoulder injury, the new 30% SLU would be reduced by the prior 15% arm SLU assigned to the elbow, yielding a net 15% SLU to the arm. The claimant’s bar has challenged this decision in numerous cases over the years and we were concerned that Genduso would be overturned when the Court of Appeals granted certiorari in Johnson v. City of New York and Liuni v. Gander Mountain.

On 4/21/22, the Court of Appeals issued its decision in Johnson v. City of New York and Liuni v. Gander Mountain. This decision does not explicitly overturn Genduso, but it does hold that a claimant may receive separate SLU awards for “different injuries to the same statutory member,” so long as the claimant proves that the second injury, considered by itself, has caused an increase in the claimant’s loss of use. We do not believe that this will be a difficult burden for a claimant who has separate injuries to different joints or parts of the same body member/limb, such as in our elbow/arm example above. The Court asserted in its decision that WCL §15(7) provides that a claimant may receive more than one SLU award in connection with successive injuries to the same body member but that any such award must be limited by “any diminished wage earning capacity due to the previous disability.”

In Johnson, the claimant had bilateral knee injuries in 2006 and then later injured both hips in a 2009 accident. He received schedule awards in the 2009 injury of a 50% SLU of the left leg and a 52.50% SLU of the right leg. After Johnson was awarded these schedules, he reached maximum medical improvement in the 2006 knee injuries. The Law Judge in Johnson found that the claimant had an overall 80% loss of use of the left leg and a 40% loss of use of the right leg. But, given the Genduso decision, the Law Judge reduced the schedule loss of use award by the 50% prior loss of use to the left leg and 40% loss of use to the right leg for the bilateral hip injuries in the 2009 case, leaving the claimant with an “additional” SLU award of 30% for the left left and 0% for the right leg. Both the Board and the Appellate Division affirmed. The Court of Appeals affirmed, citing the absence of evidence in Johnson that would have allowed the Board to determine the loss of use of his legs solely related to his bilateral knee injuries.

The Court also cited support for its decision from Zimmerman v. Akron Falls Park - Erie County, 29 N.Y.2d 815 (1971). Zimmerman involved a claimant who received separate schedule loss of use awards: one for his hand in 1924 for a forearm amputation and a later 1967 injury to his arm for a shoulder injury. The Zimmerman court did not reduce the 1967 schedule award by the 1924 award, noting that the 1924 injury did not affect the 1967 shoulder injury. Accordingly, the court asserted that Zimmerman establishes that offset is not required when the claimant demonstrates that the later injury increases the schedule loss of use of the affected body member beyond the schedule awarded in the earlier injury. In a sharply worded dissent, Judge Wilson argued that the majority’s discussion of Zimmerman was incorrect and wholly unnecessary to their holding. Rather, Judge Wilson felt that Genduso was wrongly decided and that both Johnson and Liuni should have been reversed.

In Liuni, the claimant injured his left elbow in 2007 and received a 22.5% SLU of the left arm for that injury. He later injured his shoulder in 2014. The Workers’ Compensation Law Judge ruled that Liuni had an overall SLU of 50% to the left arm, an increase of 27.5% over schedule loss of use from the 2007 left elbow injury. Liuni’s physician said that the two injuries were separate and not in any way related. The Board and the Appellate Division credited this opinion but noted that under Genduso that the later schedule loss of use award would have to be reduced by the prior schedule loss of use award. The Court of Appeals reversed because there was evidence from Liuni’s expert that the two injuries were separate and distinct pathologies.

In Johnson, the Court of Appeals did not feel that there was sufficient evidence that the two injuries were sufficiently separate from one another because Johnson’s expert testified that his hip and knee injuries were not isolated from one another, leaving open the question of how much loss of use of his legs were related to the knee injuries.

Claims adjusters reviewing cases involving a new injury to a body member for which the claimant received a prior schedule loss of use award will want to consider obtaining an independent medical examination on the question of whether the claimant has experienced any increase in the loss of use above and beyond the previous schedule loss of use award for that same body member. The independent medical examiner will need to state whether any increase in the loss of use is due solely to the new injury or if the increase results from a combination of the new injury and the previous injury (or injuries) to that body member. Similarly, in defending schedule loss of use claims, employers and carriers will want to be sure that attending physicians apply the same standard in addressing schedule loss of use.

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