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DAMAGE TO A LEG MUSCLE, HERE THE HAMSTRING, SUPPORTED A SCHEDULE LOSS OF USE (SLU) AWARD, WORKERS’ COMPENSATION BOARD REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined damage to a muscle, here the hamstring, qualified for a schedule loss of use (SLU):

The Board’s conclusion that no SLU award can be made because “no special consideration applies to a hamstring tear” fails to take into consideration that the 2018 guidelines specifically permit an SLU award to be based upon a permanent residual deficit caused by physical damage to a muscle, such as a hamstring. We recognize that the 2018 guidelines provide “useful criteria” and the Board makes the ultimate determination of a claimant’s degree of disability, but that determination must be supported by substantial evidence … . In finding that claimant]was not entitled to an SLU award, the Board did not discredit or find unpersuasive the medical opinion of either of the orthopedists, reject Rashid’s [the orthopedist’s] opinion that this hamstring tear injury most closely correlated to a quadricep rupture or find that the orthopedists’ SLU calculations were inadequately supported; rather, the Board found that, even if credited, the medical opinions could not support an SLU award here … . …

… [W]e find, contrary to the Board’s interpretation, that, in the absence of specific instructions regarding hamstring tears in the 2018 guidelines, a medical expert could rationally rely upon the special consideration for quadricep ruptures as the closest corollary to claimant’s injury and impairment. The absence  a special consideration addressing a hamstring impairment did not preclude an SLU award for a leg impairment … . Matter of Semrau v Coca-Cola Refreshments USA Inc., 2020 NY Slip Op 07650, Third Dept 12-17-20

 

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