From the Desk of Attorney David L. Niefer
PRACTICE TIP: Consider a finding of no MMI if there is the possibility of a high SLU followed by TKR surgery.
In previous editions of our newsletter, we highlighted the provisions of the Impairment Guidelines limiting a schedule award arising out of chondromalacia patella of the knee to 10% without regard to mobility defects (Section 7.5(4)). Despite many Board Panel Decisions affirming this interpretation of the Impairment Guidelines, the Appellate Division has now stepped in and permitted schedule awards beyond 10% when an injured worker is diagnosed with chondromalacia patella in addition to other defects of the knee. Blue v. NYS Off. Of Children & Family Services, 206 A.D.3d 1126 (2022).
In order to limit the impact of the Court decision in Blue, we recommend that cases involving chondromalacia patella be carefully evaluated to determine if the claimant is currently at MMI. If chondromalacia patella is sufficiently severe, there is a likelihood that TKR surgery is not far off and an injured worker may not be at MMI. Efforts at avoiding an MMI finding are relevant if the schedule award is likely to exceed 35%. An effort should be made to avoid a schedule award in excess of 35% given that a TKR procedure with a good result will not exceed 35%. In other words, there is no benefit to implementing a high SLU award if TKR surgery will be taking place in the future with a high probability that the schedule award post-TKR will be no greater than 35%.
If you have any questions about this or any other issue, contact David L. Niefer at dniefer@gittolaw.com or (607) 723-0600 or any of the attorneys in our office. If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm.
This information is provided for general guidance only. This information should not be used as a substitute for consultation with legal counsel. Each case presents unique facts requiring individual analysis.
