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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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Colleen Willis Retires
from Partnership
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Colleen
Willis has retired from her H&W partnership
but will maintain "Special Counsel" status with the firm
and intends to handle cases from time-to-time after some much needed
travel and time with her family.
Law was a second career for Colleen, who graduated from the State
University of Buffalo Law School following an 18 year career as a
Registered Nurse, working in both hospital and community based
settings.
Resident in our Rochester office, Colleen was known as the firm
"mom" - making sure not only that our briefs were filed on
time but that we remembered to wear a hat before going outside in the
winter weather.
She wanted our wonderful clients to know that she enjoyed working
with them over the years and that they are "a pretty amazing,
smart, and hard working group with challenging jobs." Amen,
Colleen - you will be missed by all of us here at Hamberger &
Weiss.
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Board Enforces
Requirement for Certification of RFA-2s
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We have
learned that the Board will no longer consider RFA-2s that do not
have the certification section completed at the bottom of the form.
Our clients will recall that the certification section asks whether
the person signing the RFA-2 has discussed the issues cited on the
RFA-2 with the opposing party or whether that person attempted to
contact the opposing party to discuss the issues raised. It appears
now that failure to complete this section will result in the Board
taking no action on the RFA-2 so please remember to work this
requirement into your RFA-2 filing processes.
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Appellate Division
Extends Taher Rule in New Decision
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On 4/14/22,
the Appellate Division, Third Department decided Gambardella v. New York City Transit
Authority. This decision holds that the Court's
previous decisions in Taher
v. Yiota Taxi and Arias v. City of New York apply
to cases where a claimant is not working and is not receiving
indemnity benefits because they have withdrawn from the labor market.
As a reminder, Taher and Arias held
that claimants may receive both a permanent partial disability
classification and schedule loss of use award(s) in the same claim at
the same time. For claimants who are working and not receiving lost
wage payments at the time of permanency, Taher and Arias allow
the claimant to receive a lump-sum schedule loss of use award
payment. That award then becomes a credit against any future lost
wage benefits flowing from the permanent partial disability
classification should they later occur. The Court’s holding in Gambardella shows
a willingness to extend the Taher and Arias holdings
beyond the original fact patterns in those cases. Gambardella raises
the question of whether the Taher / Arias rule
will also apply to other fact patterns in which a claimant is not working
but also not receiving lost wage payments at the time of permanency.
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Reminder - Don't Blindly
Split the Difference on SLUs
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In recent
months we have seen quite a few stipulations, prepared by claimant's
counsel and signed by our clients that "split the
difference" on SLU opinions, even when both the attending
physician and IME have misapplied the guidelines. Our readers may recall
that we discussed this in
March 2020 when we reminded our readers that the
Appellate Division's decision in Parody v. Old Dominion Freight 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. Thus, a physician's failure to follow the procedure described
in the Impairment Guidelines for determining SLU can be used to
obtain significant savings on the SLU award in some cases.
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Board Announces Changes
to C-8.1/C-8.4 Forms
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The Board
has announced some important updates to the C-8.1 and C-8.4 forms.
First, the Board reminded payers completing these forms that only the
last four digits of the claimant's Social Security number should be
put on the form. The Board determined as of 6/16/21 that it would no
longer require the claimant's full nine digit Social Security number
on the form.
The Board is also eliminating Part A of the C-8.1 form and publishing
a new C-8.1 form on 7/1/22. Payers will be required to use the new
form as of 8/15/22. The new C-8.1 form eliminates the objection
"Requested treatment is not for an established site or
condition," and moves it to a new RFA-2 form that will be
published on May 2, 2022. The Board does not comment on the other
objection reasons noted on the C-8.1 such as:
- Withdrawal of
authorization based on a conflicting medical report
- Termination of
further medical treatment based on a conflicting medical report
- Objection to further
treatment based on non-appearance at a scheduled IME
- Denial of
authorization based on a medical appliance or program not being
covered under the WCL
- Medical necessity of
a requested special service
Presumably,
employers and carriers will still be able to raise these objections
via the Board's RFA-2 but we are concerned that the Board did not address
these objections directly in their announcement.
As of 8/15/22, payers will be required to use the new forms and
should the old forms be submitted after that date, the Board will
take no action.
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Wojcik Wins Extreme
Hardship Determination Case
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Our
partner, Melanie Wojcik, successfully
defended an extreme hardship determination claim under WCB §35(3),
receiving a favorable decision from a Board Panel on in Toys R Us. WCB
Case No. 80801667 (4/22/22). In this case, the claimant was
previously classified with an 80% loss of wage earning capacity and
when he reached the durational limit of his permanent partial
disability benefit, he applied for further benefits under the extreme
hardship determination provision of WCB 35(3). During litigation,
Melanie cross-examined the claimant, and established that the
claimant's expenses were typical for someone on a fixed income, that
some of the claimant's costs were discretionary and that the claimant
made no effort to reduce his expenses. Nonetheless, the Law Judge
found that the claimant met the criteria for extreme hardship and
awarded ongoing benefits.
Melanie appealed the Law Judge's decision to the Board Panel. In an
unanimous decision, the Board Panel overruled the Law Judge, finding
that the mere fact that a claimant's expenses exceed his income does
not, by itself, entitle that claimant to further benefits under an
extreme hardship redetermination.
Our clients should remember to scrutinize claims for ongoing benefits
under the extreme hardship determination provision. Please contact
our office for advice and recommendations for any assistance.
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Hamberger
& Weiss LLP - Buffalo Office
700 Main Place
Tower
350 Main
Street
Buffalo, NY
14202
716-852-5200
buffalo@hwcomp.com
Hamberger
& Weiss LLP - Rochester Office
1 South
Washington Street
Suite 500
Rochester, NY
14614
585-262-6390
rochester@hwcomp.com
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