On 7/23/20, the Appellate Division, Third Department, decided Kleban v. Central New York Psychiatric Center. This decision again affirms the Appellate Division's decision in Genduso v. New York City Dep't. of Education, which held that a claimant’s schedule loss of use award will be subject to an automatic deduction for previous schedule loss of use awards to the same limb (hand, foot, arm, leg, etc.). This decision also holds that schedule loss of use awards are made only for the specific body members enumerated in the statute (WCL §15(3)(a) through (l)). This means that a claimant cannot receive separate schedule loss of use awards for sub-parts of the same body member, such as the knee and hip of the same leg. In cases where multiple sub-parts of the same body member are injured, the schedule loss of use award must be calculated only for the body member as a whole. That schedule loss of use award then is subject to an automatic deduction for any previous schedule loss of use awards to the same body member.

The court's decision in Kleban follows similar decisions in Johnson v. City of New York, and Bell v. Glens Falls Ready Mix Co., Inc.. 

The Appellate Division's continued affirmation of the principle in Genduso shows that despite the protests of the claimants' bar to the contrary, that the Genduso decision was not an anomaly. Employers and carriers should take care to investigate the existence of any prior schedule awards when considering permanency so as to avail themselves of any available credit. This is particularly important given the continued increase in the maximum compensation rate each year. 

Our partner Stephen Wyder successfully prepared the brief to the Appellate Division in Kleban. Anyone with questions about the Genduso line of cases should feel free to contact Mr. Wyder. 

On 6/4/20, the Appellate Division, Third Department decided Razzano v. New York State Dep't. Of Corrections and Community Supervision, holding that the Board correctly deducted the full amount of an attorney fee from a claimant's schedule loss of use award. The claimant in Razzano injured his left shoulder while closing a door at work. He missed work because of his injury but continued to receive his full wages. After he filed a workers’ compensation claim, the employer filed a claim for reimbursement of the wages it had paid him.

A workers’ compensation law judge ("WCLJ") awarded the claimant lost time but deducted the amounts already paid by the employer. The WCLJ also awarded the claimant's attorney a fee of $2,050 as a lien on the credit to the employer.

The WCLJ later awarded the claimant a 42% schedule loss of use ("SLU"), less the payments already made by the department and an additional attorney fee. The employer's workers' compensation insurance carrier deducted an additional $2,050 from the SLU award, representing the attorney fee paid from the initial lost time awarded. 

The claimant contended that he was underpaid because the initial attorney fee of $2,050 was improperly deducted from the SLU award. The WCLJ agreed and imposed a penalty on the carrier.

On review, the Board reversed, finding that that the employer was entitled to full reimbursement of the advanced wages without any reduction for the attorney fees. The Board directed that the amount be paid from the SLU award. On appeal, the Appellate Division affirmed. 

“Here, the initial $2,050 award of counsel fees was a lien on the employer's reimbursement credit, which was limited to the temporary total disability and temporary partial disability payments being received by claimant — the total of which was insufficient to cover both the counsel fees and reimbursement to the employer,” the court explained. “Once claimant received the SLU award, there were sufficient funds to satisfy the employer's right to reimbursement, leaving claimant with an excess from which counsel fees could be paid.”

Given the Board’s broad discretion over attorney fees, the court said it saw no basis to disturb the directive. 

Our partner Joseph DeCoursey successfully prepared the brief to the Appellate Division in Razzano. Anyone with questions about the case should feel free to contact Mr. DeCoursey.