New York: Apportionment Allowed in Schedule Loss of Use Case

While the normal rule in most jurisdictions is that a judge or board may not apportion a claimant’s PPD award based upon a preexisting condition that did not prevent the employee from effectively performing his or her job duties at the time of a subsequent work-related injury, New York has an exception when it comes to schedule loss of use (“SLU”) cases. Based on that exception, a New York appellate court affirmed a finding by the state’s Workers’ Compensation Board apportioning an injured employee’s SLU injury to the right leg between the employee’s February 2007 work-related injury and his 2005 nonwork-related injury. A medical expert opined that the employee’s 2005 surgical procedure involved the excision of the meniscus in the employee’s right knee. That procedure, standing alone, would have resulted in a 7.5 percent SLU finding and would have been amenable to a scheduled award. Apportionment was, therefore, appropriate in the case.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis 

See Matter of the Claim of Sanchez v. STS Steel, 2017 N.Y. App. Div. LEXIS 7001 (Oct. 5, 2017)

See generally Larson’s Workers’ Compensation Law, § 90.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see