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No. 29

In the Matter of the Claim of Thomas Johnson, Appellant.


City of New York, Respondent.

Workers’ Compensation Board, Respondent.


No. 30

In the Matter of the Claim of Joseph D. Liuni, Appellant.


Gander Mountain et al., Respondents.

Workers’ Compensation Board, Respondent.

The common issue in these appeals is whether, under Workers’ Compensation Law (WCL) § 15, a claimant’s schedule loss of use (SLU) award must always be reduced by the percentage loss determined for a prior SLU award to a different subpart of the same body “member” enumerated in section 15. We hold that separate SLU awards for different injuries to the same statutory member are contemplated by section 15 and, when a claimant proves that the second injury, “considered by itself and not in conjunction with the previous disability” (WCL § 15 [7]), has caused an increased loss of use, the claimant is entitled to an SLU award commensurate with that increased loss of use.

Johnson injured both knees in 2006. He then injured both knees in 2009, before any SLU was awarded for the 2006 knee injuries. He was later awarded a 50% SLU of the left leg and a 52.5% SLU of the right leg because of the 2009 injuries.

Johnson then sought SLUs for his knees. He submitted medical evidence regarding the permanency of his injuries, including a report from his expert, who was also his treating physician, opining that Johnson sustained an 80% SLU of his left leg and a 40% SLU of his right leg. Johnson’s expert later testified that the knee injuries did not exist in isolation from the hip injuries. Although Johnson’s expert acknowledged that it was fair to say, under the guidelines, that Johnson had suffered a 130% loss of use of his left leg and 92% loss of use of his right due leg

to the separate injuries, the expert refused to opine as to whether those numbers translated to the actual loss of use for the legs.

The Workers’ Compensation Law Judge (WCLJ) ultimately credited the opinion of Johnson’s expert on the degree of impairment caused by the knee injuries, determining that Johnson had an 80% loss of use of his left leg and a 40% loss of use of his right leg. The WCLJ concluded, however, that the then-recent decision in Matter of Genduso v New York City Dept. of Educ. (164 AD3d 1509 [3d Dept 2018]) required that any SLU awards based on the knee injuries be offset by the previously awarded SLU for each leg in connection with his hip injuries. The WCLJ reduced the 80% SLU of the left leg by 50% to account for the prior SLU award for that leg and reduced the 40% SLU of the right leg by the prior 52.50% SLU awarded for that leg, leaving Johnson with an “additional” SLU award of 30% for the left leg and 0% for the right leg.

The WCB affirmed. The Appellate Division also firm reasoning that separate SLU awards for a member’s subparts are not authorized by the statute and would amount to a monetary windfall that would compensate claimants be on the degree of impairment actually sustained to the statutorily enumerated member.

Matter of Liuni v Gander Mountain

2007 left elbow injury resulted in a 22.5% SLU of the left arm. Following a 2014 accident the claimant developed a consequential injury of his left shoulder. His doctor found a 27.5% SLU of the left arm and stated that he warrants a 50% schedule loss of use of the left arm with 22.25% attributable to the 2007 injury and 27.5% related to his 2014 injury. He later testified that the two injuries were separate pathologies and unrelated to one another. The WCLJ awarded 50% of the left arm which was a 27.5% increase.

The WCB modified that decision and found that the claimant had a increase of 5% to the left arm (27.5% -22.5%). The WCB reasoned that the two SLU awards could not be treated as separate under Genduso. The Appellate Division affirmed. The Court reasoned, as in Johnson, that separate SLU awards for a member’s subparts are not authorized—i.e., the elbow and shoulder are not enumerated as separate body members in the statute but encompassed by the arm—and concluded that the SLU awards arising from the two injuries were both encompassed by awards for the loss of use of the left arm (see id. at 1404-1405).