By now, we’re all well aware that Matter of Genduso v, New York City Dept. of Edu., 164 A.D.3d 1509 (3d Dept. 2018), affirmed the principle that schedule awards are not given for particular injuries, but rather “for the residual physical and functional impairments”. Matter of Empara v. New Rochelle Sch. Dist., 130 A.D.3d 1127, 1129, 12 N.Y.S.3d 391 [3d Dept. 2015], lv denied 26 N.Y.3d 911, 2015 WL 7288984 ; see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity § 1.5, at 10 .
In Genduso, the Court elaborated that “consistent with this observation, neither the statute nor the Board’s guidelines lists the ankle or the knee as body parts lending themselves to separate SLU awards. Rather, impairments to these extremities are encompassed by awards for the loss of use of the leg (see Workers’ Compensation Law § 15[b]; New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity § 8, at 43 ).” For that reason, The Court determined the Board properly deducted prior schedules for the claimant’s right knee and ankle to arrive at the claimant’s overall schedule loss of use of the right leg.
This case has been instrumental in forcing the Judges to account for all prior schedule loss of use awards to a particular extremity, rather than schedules for the same part of the extremity? But what about total joint replacements…?
The 2018 Guidelines for Determining Permanent Impairment, for example, state that for a “good result” following a total knee replacement, a claimant could expect a 35% schedule loss of use award. See Workers’ Compensation Guidelines for Determining Permanent Impairment § 7.5, at 44 (2017). Claimant’s attorney frequently argue that these provisions mean the claimant automatically get at least a 35% schedule just for undergoing a total knee replacement. The Guidelines after, all say 35% for a total knee replacement without regard to any other prior schedule. Surely, that means if there was a prior schedule considering other conditions and range of motion deficits, the 35% should be added to it.
But NO! DO NOT FALL FOR THAT TRAP! The Board Panel has specifically found that Genduso applies to total replacements. In Matter of State University at Purchase, 2020 NY Wrk. Comp. G07778237, the claimant was previously found to have a 17.5% schedule loss of use of the right leg. The claimant then had a total knee replacement, with his doctor opining a 40% schedule loss of use of the right leg. The Board affirmed the WCLJ’s determination that the claimant was entitled to an overall 22.5% increase in schedule loss of use.
So, if a claimant has prior schedule for an extremity and then undergoes a joint replacement, we still get to take credit for the prior schedule to arrive at the overall percentage allowed under the Guidelines. If anyone says otherwise, well, you know where to find us!