On 9/6/18, the Appellate Division, Third Department, decided Genduso v. New York City Department of Education.  This decision is notable primarily for what we believe to be an error by the Court in describing how schedule loss of use awards are assessed for ankle injuries. 

Claimant had a few claims involving injuries to his right leg: one for the ankle and two for the knee.  He received multiple schedule loss of use awards for the right leg over the years.  In 2013, claimant injured his right knee again and filed a third knee claim.  Claimant’s treating physician opined a 40% schedule loss of use award for the right leg based on the right knee injury in that case.  The Board awarded a 40% loss of use for the right leg, but deducted the previous 20% and 12.5% schedule loss of use awards from the claimant’s other two claims, resulting in a net 7.5% increased loss of use to the right leg. 

Claimant appealed to the Appellate Division, arguing that one of the previous loss of use awards was for a right ankle injury, separate from the right knee involved with his current case.  Based on this, claimant argued that only the previous schedule loss of use awards attributable to right knee injuries should be deducted from his 40% SLU attributable to the right knee.  The Court disagreed, stating that, “Neither the statute nor the Board’s guidelines list the ankle or the knee as body parts lending themselves to separate SLU awards.”  The Court reasoned that a schedule loss of use award for the leg is a schedule loss of use award for the leg regardless of what particular part of the leg is injured. 

We believe the Court’s statement that “Neither the statute nor the Board’s guidelines list the ankle or knee as body parts lending themselves to separate SLU awards” is incorrect because the schedule loss of use guidelines (all three versions) provide separate schedule loss of use calculations for injuries involving knees and feet.  Ankle injuries are generally analyzed as foot schedule loss of use awards rather than leg awards.  As such, the Court’s statement here seems to reflect a misreading of the Board’s schedule loss of use guidelines.  Additionally, the Court’s decision appears inconsistent with the New York Court of Appeals holding inZimmerman v. Akron Falls Park, 29 N.Y.2d 815 (1971).  The Zimmerman decision, issued by New York’s highest Appellate Court, states that a claimant can receive multiple schedule loss of use awards for a limb totaling greater than 100% as long as each award involves separate injury sites which have no impact on each other.  The facts in that case involved a loss of use award to the left arm based on a shoulder injury, and a separate loss of use for a previous amputation to the left forearm.   There appears to be no material distinction between these two cases.

On 9/6/18, the Appellate Division, Third Department, decided Taylor v. Little Angels Head Start.  This case involved a carrier’s defense against a claim based on untimely notice.  It is well known that there are many reasons the Board may invoke to excuse a claimant’s failure to provide timely notice, and the Board regularly does so.  Nonetheless, the Court here highlighted the fact that excusing untimely notice is discretionary.  The Court stated, “The Board is not required to excuse a claimant’s failure to give timely written notice even if [a ground for excusal] is proven; the matter rests within the Board’s discretion.”  As such, even when the record contains evidence allowing for excusal of untimely notice, an argument can be made in appropriate cases that the Board should decline to exercise its discretion to do so.