PRACTICE TIP: Although burn injuries often affect extremities, do not assume a schedule loss of use if the criteria of Chapter 14 of the 2012 Permanent Impairment Guidelines apply.
In the recent case of Matter of Mayewski v. Superior Plus Energy Servs., 2021 WL 921819 (3rd Dept. 2021), the claimant sustained second and third degree burns to his right arm, right leg, and abdomen. At the time of permanency, physicians offered opinions both of a schedule loss of use in addition to a non-schedule permanent impairment to the “torso/skin” with a Class 3 Severity G rating. Claimant’s counsel argued in favor of the claimant receiving both a schedule loss of use award for the extremities and a classification.
On review, the Appellate Division affirmed the ruling below and held that the classification for a permanent skin injury under Chapter 14 applied and there was no entitlement to a schedule loss of use award. Thus, issues such as the loss of sweat glands resulting in issues of “thermal regulation” in combination with intermittent over-the-counter medication for pain and “regular use of skincare agents for maintaining moisture and residual elasticity” justified classification. After reviewing the record, the Appellate Division held that there was substantial evidence in support of the Board’s finding that the claimant’s injuries were amenable to a non-schedule classification. The claimant therefore did not receive the benefit of any schedule loss of use awards.
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.
