PRACTICE TIP: Carefully evaluate permanency opinions to make sure physicians are not adding Range of Motion and Special Consideration SLU’s together.
In the 2022 decision of Matter of Blue v New York State Office of Children and Family Services, 206 A.D.3d 1126 (2022) the Appellate Division held that if a Special Consideration is implicated for purposes of a Schedule Loss of Use award, the claimant is not limited to the percentage loss of use set forth in the Special Consideration.
A three member Board Panel has recently clarified that, when arriving at an SLU award, a claimant is not entitled to both the percentage set forth in the Special Consideration and the percentage generated by range of motion deficits. Rather, the claimant is only entitled to the greater of one or the other, not both. The recent Board Panel decision can be found at Matter of DOCCS Lakeview Correctional Facility, 2024 NY Wrk. Comp. G1758899. Thus, carriers and self-insured employers should closely inspect all permanency opinions relating to schedule awards (even those of consultants) to make sure that physicians are not inappropriately adding SLU values.
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.
