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In New York State Workers’ Compensation, awards are given for permanent impairment to extremities known as schedule loss of use (SLU) awards. These SLU awards are calculated following examinations of the injured workers using the workers’ compensation guidelines for determining permanent impairment. The guidelines typically start with taking the range of motion deficits in the claimant’s injured extremity and applying it to various charts to determine the SLU percentage and award.
However, the same guidelines offer “special considerations” for each extremity where specific SLU findings can be found for unique diagnoses—for example, chondromalacia in the knee. An ongoing issue with these guidelines, as written, is that they suggest that if a “special consideration” applies, then the SLU percentage should not increase for mobility deficits unless the consideration specifically states each time to “add for mobility deficits.” That language creates a scenario where an SLU award may end up relatively low for what could be considered a serious injury when the guideline doesn’t provide an additional allowance for mobility deficits.
In June 2022, in Matter of Blue v. New York State Off. Of Children & Family Serv, the Appellate Division, Third Department addressed this concern. The claimant had been diagnosed with a causally related medial meniscus tear with a range of motion deficits and chondromalacia patella of the right knee. The claimant’s treating doctor found a 50% SLU due to the severity of the injury, but the Board capped the SLU award at 10% using the special consideration for chondromalacia patella despite the range of motion deficits supporting a much higher SLU finding. The Third Department reversed and instructed the Board to include the mobility deficits to reach the conclusion of the higher SLU finding citing inequity.
Despite the decision in Matter of Blue, the Board maintained their previous findings of caps when special considerations were applied. In Matter of Kenmore, the Board found that Matter of Blue could not be used as it dealt solely with an injury to the knee and could not be applied to the shoulder. In cases like Matter of Vape Kult, LLC, the Board found that an SLU of the leg 15% was limited by the cap based on the special consideration of fracture to the tibial plateau.
Finally, in Matter of Lowe’s Home Centers Inc., the Board stated that the reasoning of Matter of Blue was misplaced as applied to the claim, as the knee was not established and an inequitable result cannot, therefore, be relied upon. Ultimately, following Matter of Blue, the Board repeatedly held that the finding in Matter of Blue was specific to the knee with the special consideration of chondromalacia patella and not applicable to any other site of the body in addition to any other special consideration, that is up until now.
On May 16, 2024, the Appellate Division, Third Department, released its decision in the Matter of Garrow v. Lowe’s Home Centers Inc. In this claim, the claimant suffered an injury to the left arm/shoulder initially stipulated to a 45% SLU. Further follow-ups saw the claimant’s consultant providing an addendum opining a 33.33% SLU and noting that the claimant had sustained injuries beyond the initial bicep tendon rupture—specifically a partial tear of the claimant’s rotator cuff—entitling the claimant to awards over the special consideration. The carrier responded that, per Matter of Blue, the claimant’s SLU could not exceed the special considerations.
The Third Department on appeal stated: “The preliminary instructions for calculating the loss of use of a knee or shoulder are substantially the same, the language governing the application of the respective special considerations is identical and the inequity and/or disparity identified by this court in Blue, i.e., that ‘the claimants suffering from greater injury … are the ones receiving lesser compensation’ is equally evident here.” So, in other words, a site is a site, be it a knee or a shoulder, and compensation should be adjusted based on the extent of the suffering.
With this second finding from Matter of Garrow, in addition to Matter of Blue, it becomes clear that the Board could be turning the wave on the applications of special considerations. Particularly, by citing the modern interpretation of the court in Matter of Blue, the Board noted that there was a “disparity” in the findings and reinterpreting the prior decision to mean that "the claimants suffering from greater injury … are the ones receiving lesser compensation." As such, the court seems to try to readdress the way awards are given to claimants by quantifying, as a Board, the suffering of the claimant. It will be interesting going forward to see if the Board attempts to limit this new decision the way it did with Matter of Blue or if the special considerations will become less limiting on SLU awards.
