The 2018 New York Workers’ Compensation Guidelines for Determining Impairment includes “Special Considerations” applicable to schedule losses of use (SLU). Accurate assessment of SLU opinions requires knowing that a special consideration applies. Just as important is knowing how the Board has interpreted and applied that Special Consideration. A recent SBM win shows that knowledge of the interpretation and application of special considerations can result in substantial savings.
The special consideration at issue involves ruptures of the long head of the biceps muscle which states:
“Non-surgical rupture of the long head of the biceps muscle is equal to 10-15% loss of use of the arm. Rupture at distal point of insertion of the biceps is equal to 20% loss of use of the arm.” (2018 Impairment Guidelines, Chapter 5.5.6)
The dispute was over the meaning of “non-surgical rupture”. The injured worker had indeed suffered a rupture of the biceps muscle, but it was surgically repaired. Knowing how the Board had previously ruled on this issue, SBM argued that special consideration 6 did not apply because the rupture had been surgically repaired. The WCLJ disagreed and applied special consideration 6 reasoning that it always applies to a biceps muscle rupture occurs during surgery.
On appeal, the Board reversed the WCLJ and explained that a “non-surgical rupture” means a biceps tear that was not surgically treated. The Board reduced the SLU from the 15% awarded by the WCLJ to 4.44%, saving SBM’s client, a self-insured county $18,599.02.
By knowing the law, SBM guides its clients through the complications of New York workers’ compensation claims. Contact us if we can help you.
by Emily A. Gray, Esq.
