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CLAIMANT WAS SIMULTANEOUSLY ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD AND A PERMANENT PARTIAL DISABILITY CLASSIFICATION (THIRD DEPT).

The Third Department, reversing (modifying) the Workers’ Compensation Board, determined claimant was simultaneously entitled to an award for a schedule loss of use [SLU] and a permanent partial disability classification:

For the reasons more fully discussed in Matter of Arias v City of New York (182 AD3d 170, 172 [2020]), we agree with claimant’s contention that the Board erred in disregarding or attempting to distinguish Matter of Taher [162 AD3d 1288] … . Under Matter of Taher, a claimant who sustains both schedule and nonschedule permanent injuries in the same work-related accident and returns to work at preinjury wages — and, thus, has not received a reduced-earnings award based upon a nonschedule permanent partial disability classification (see Workers’ Compensation Law § 15 [3]) — is entitled to an SLU [schedule loss of use] award for permanent partial impairments to the statutorily enumerated body parts, here, claimant’s knee and possibly his left elbow (see Workers’ Compensation Law § 15 [3] [a] …). Matter of Garrison-Bey v Department of Educ., 2020 NY Slip Op 05273, Third Dept 10-1-20

 

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