You are here: / / THE WORKERS’ COMPENSATION BOARD SHOULD NOT HAVE OFFSET THE SLU AWARD...

THE WORKERS’ COMPENSATION BOARD SHOULD NOT HAVE OFFSET THE SLU AWARD FOR CLAIMANT’S ARM INJURY BASED ON A PRIOR SLU AWARD FOR INJURY TO THE SAME ARM; THE TWO INJURIES WERE NOT RELATED (THIRD DEPT)

The Third Department, reversing the Workers’ Compensation Board, determined claimant was entitled to a schedule loss of use (SLU) award for injury to his arm, despite a prior SLU award for injury to the same arm. The injuries involved different pathologies:

​”Pursuant to Matter of Genduso [v New York City Dept. of Educ. (164 AD3d 1509 [3d Dept 2018])] and its progeny, the Board may offset an SLU award by previous SLU awards for the same body member, regardless of whether the prior injuries involved the same or separate parts of that member” … . However, the Court of Appeals has held that an offset of an SLU award by previous SLU awards for the same body member “is not required when the claimant demonstrates that a subsequent injury increased the loss of use of [the] body member beyond that resulting from the prior injury” (Matter of Johnson v City of New York, 38 NY3d at 444 …). Such demonstration may include medical evidence that a prior injury and the current injury to the same member are “separate pathologies that each individually caused a particular amount of loss of use of [the subject member]” … and that the current injury resulted in a greater degree of loss of use of the body member in question “beyond that . . . [of] the prior injury” … . * * *

… [C]laimant’s physician clearly stated that claimant had “received a scheduled loss of use of 27% for the right shoulder,” and, in his July 2021 report, claimant’s physician opined that the surgery he had performed for claimant’s 2015 shoulder injury was “unrelated” to the 2019 biceps injury. Claimant’s physician made it clear that the 33.33% SLU that he found claimant had sustained for the biceps injury was separate from, and in addition to, the prior shoulder injury. Thus, in accordance with the holding in Matter of Johnson, the SLU attributable to the prior shoulder injury should not have been deducted from the SLU attributable solely to the biceps injury, and we find that the Board’s determination is not supported by substantial evidence. Matter of Germano v Dynamic Appliances, Inc., 2024 NY Slip Op 05259, Third Dept 10-24-24

Practice Point: A claimant is eligible for more than one SLU award for injuries to the same body part if the injuries are not related and involve different pathologies.

 

You might also like
CLAIMANT ACCEPTED $10,000 AND AGREED TO RESIGN IN GRIEVANCE PROCEEDINGS, VOLUNTARY SEPARATION PRECLUDED UNEMPLOYMENT INSURANCE BENEFITS.
ALTHOUGH THE CORRECTIONS OFFICERS CONDUCTING A STRIP SEARCH OF CLAIMANT PRISONER WERE PARTIALLY MOTIVATED BY THE INTENT TO HUMILIATE, THEY WERE DEEMED TO BE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AND THE STATE IS VICARIOUSLY LIABLE FOR THEIR INTENTIONAL TORTS (THIRD DEPT).
CLAIMANT’S RECEIPT OF STRIKE BENEFITS DID NOT DISQUALIFY HIM FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).
IN THIS COMPLEX CASE INVOLVING ALLEGED MISUSE OF LAND GIFTED TO THE AUDUBON SOCIETY AS “FOREVER WILD” AND SUBSEQUENTLY SOLD, THE ATTORNEY GENERAL’S ARGUMENT THE DEED WAS VOID AB INITIO AND THEREFORE NEVER TRIGGERD THE STATUTE OF LIMITATIONS WAS REJECTED; THE DEED WAS DEEMED “VOIDABLE” AND THE STATUTE HAD THEREFORE RUN; THE TWO-JUSTICE DISSENT ARGUED THE MAJORITY SHOULD NOT HAVE SENT THE MATTER BACK TO BE HEARD BY A DIFFERENT JUDGE (THIRD DEPT).
PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING.
THE PEOPLE DID NOT DEMONSTRATE THE SEARCH OF DEFENDANT’S VEHICLE WAS A VALID INVENTORY SEARCH; THE RECORD SUPPORTED COUNTY COURT’S CONCLUSION THE INVENTORY SEARCH WAS A ‘PRETEXT’ FOR A SEARCH FOR INCRIMINATING EVIDENCE (THIRD DEPT).
THE STATE DIVISION OF HUMAN RIGHTS (SDHR) ADMITTED IT HAD FAILED TO ADEQUATELY INVESTIGATE PETITIONER’S GENDER DISCRIMINATION CLAIMS; REVERSING SUPREME COURT, SDHR’S “NO PROBABLE CAUSE” FINDING WAS ANNULLED AND THE MATTER REMITTED (THIRD DEPT).
PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

RETROACTIVE APPLICATION OF THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) WHERE... THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) DETERMINATION DID NOT TAKE...