Matter of the Claim of Kevin Krein v Green Haven Correctional Facility et al.; Workers' Compensation Board
Attorneys and Parties
Brief Summary
Workers' compensation — whether a schedule loss of use (SLU) award for a later injury to the same statutory member must be automatically reduced by a prior SLU, or whether the Board must assess medical proof that the later injury independently increased loss of use.
The Workers' Compensation Board reduced the Workers' Compensation Law Judge's 25% SLU finding to 12.5% by offsetting a prior 12.5% SLU, relying on Genduso to require an automatic reduction.
The Board's categorical offset and resulting 12.5% SLU award.
Under Workers' Compensation Law (WCL) § 15(7) [permits successive SLU awards where the later injury, considered by itself, causes an increased loss of use limited to the loss caused by that later injury] and Matter of Johnson v City of New York, the Board cannot automatically offset a prior SLU; it must evaluate the medical evidence, including whether the injuries are separate pathologies and whether the later injury increased loss beyond the prior award.
Background
Claimant injured his right knee in 1999 and received a 12.5% SLU of the right leg (knee) in 2000. He sustained another right knee injury in 2003, but no permanency was found and medical records indicated full improvement by July 2003. In March 2020, he suffered a new right knee injury. After permanency evaluations and physician depositions, the Workers' Compensation Law Judge found a 25% SLU of the right leg, attributing 2.5% to preexisting deficits from 1999 and 22.5% to the 2020 accident.
Lower Court Decision
On administrative review, the employer and State Insurance Fund argued the 25% SLU should be reduced by the prior 12.5% SLU. The Workers' Compensation Board agreed, reasoning under Genduso that an SLU must always be reduced by any prior SLU to the same statutory member, and awarded a 12.5% SLU.
Appellate Division Reversal
Reversing, the court held the Board applied the wrong legal standard by mandating an offset. Citing Matter of Johnson v City of New York and WCL § 15(7) [permits successive SLU awards limited to the loss caused by the later injury], the court explained that separate SLU awards for successive injuries are allowed when medical proof shows the later injury, considered alone, increased the loss of use. Because the Board failed to assess and make credibility findings on the conflicting medical evidence regarding separate pathologies and increased loss, the matter was remitted for reconsideration. No costs.
Legal Significance
Clarifies that, after Johnson, the Board may not apply a blanket offset of prior SLU awards under Genduso. Instead, it must determine—based on substantial medical evidence—whether the later injury independently increased the loss of use of the same statutory member under WCL § 15(7) [permits successive SLU awards limited to the loss caused by the later injury] and WCL § 15(3) [schedule of compensation for statutorily-enumerated members].
No automatic SLU offset for successive injuries to the same member; the Board must evaluate medical proof of separate pathology and increased loss under WCL § 15(7) and Johnson, and make credibility findings before determining any reduction.