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Where a New York employer and its carrier successfully argued in a 2013 scheduled loss of use (SLU) claim that any loss of use sustained by claimant had been the result of aging and not the claimed work-related injury, they were not precluded from subsequently arguing in a 2015 SLU claim that the Board should apportion part of claimant's loss of use to claimant's prior disabling condition, held a state appellate court, reversing the New York Workers' Compensation Board. The WCLJ found, and the Board affirmed, that in as much as the carrier had earlier argued — during the litigation of the 2013 claim — that one of claimant’s consultants was not credible, and that there was no SLU for the 2003 injury, it would be contradictory now to reduce claimant’s award based on that same consultant’s prior SLU opinion. The appellate court reasoned that while the Board was correct that the carrier had successfully opposed claimant’s request for an SLU finding for his 2003 injury, the issue had been determined on causation grounds, not because there was an affirmative finding of no loss of use to claimant’s right arm. That there had been no SLU awarded in the 2013 case did not mean the claimant had not experienced a genuine loss of use prior to the injury that was the subject of the 2015 claim. The prior disability, not its cause, was the important factor for apportionment.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).
LexisNexis Online Subscribers: Citations below link to Lexis Advance.
See Matter of St. Aubin v. Office of Children & Family Servs., 2020 N.Y. App. Div. LEXIS 3791 (3d Dept. July 2, 2020)
See generally Larson’s Workers’ Compensation Law, § 90.04.
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law
For a more detailed discussion of the case, see
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