In the Matter of the Claim of Rosa Romero v Akorn Inc. et al.; Workers' Compensation Board
Attorneys and Parties
Brief Summary
Workers' compensation—interaction between schedule loss of use (SLU) awards and nonschedule permanent partial disability classifications when no initial nonschedule award is payable.
The Workers' Compensation Board affirmed a denial of claimant’s request for an SLU award on the ground that permanency (including the knee impairment) had been addressed in 2019 and no SLU opinion was submitted then.
The Board’s determination that claimant could not receive an SLU award where she had a nonschedule classification but received no nonschedule award for the same accident.
Under Matter of Taher and progeny, when no initial award is made on a nonschedule permanent partial disability classification (e.g., due to lack of labor‑market attachment), a claimant with both schedule and nonschedule injuries may receive an SLU award; lack of attachment is irrelevant to SLU entitlement. See Workers' Compensation Law § 15(3)(w) [governs permanent partial disability; nonschedule awards are based on loss of wage-earning capacity derived from average weekly wages and wage-earning capacity].
Background
Claimant was injured at work in 2015 (right knee, head, neck, back) and underwent a total right knee replacement in 2017. By 2019, both the carrier’s consultant and the treating physician opined maximum medical improvement and a permanent partial disability classification; neither assigned an SLU because the injuries were deemed amenable to classification. In March 2019, a Workers' Compensation Law Judge classified claimant with a permanent partial disability (lumbar soft tissue, B severity, and right knee) and set a 75% loss of wage-earning capacity, but issued no awards because claimant failed to show labor‑market attachment. No administrative appeal followed. In 2021, the treating physician opined a 65% SLU of the right leg based on permanent knee range-of-motion loss. Relying on Matter of Taher and Matter of Arias, claimant sought an SLU award.
Lower Court Decision
In March 2022, the WCLJ denied the SLU request, reasoning that permanency had been litigated in 2019 and no SLU evidence was presented then. On administrative review, the Board affirmed (Feb. 7, 2023), holding that the prior classification already considered the right knee impairment and that claimant could not relitigate permanency or obtain an SLU absent a contemporaneous 2019 SLU opinion.
Appellate Division Reversal
Reversed in part and remitted. The Court held that because no initial nonschedule award was payable at the 2019 classification (due to lack of labor‑market attachment), claimant may seek an SLU award for schedule‑eligible impairments from the same accident. The Court rejected the Board’s reliance on the absence of a 2019 SLU opinion, noting claimant then had no reason to seek an SLU and the Board’s own classification considered the knee impairment, evidencing a permanent impairment amenable to an SLU determination. The Court also pointed to the Board’s policy (Subject No. 046-1211) to reopen cases affected by Taher and its progeny upon request.
Legal Significance
Clarifies that where a claimant has both schedule and nonschedule injuries but receives no initial nonschedule award at classification, the claimant may obtain an SLU award notwithstanding a prior classification that included the schedule member. Labor‑market attachment is irrelevant to SLU entitlement, and the Board should reopen affected cases consistent with its stated policy after Taher and related decisions.
If no initial nonschedule award is made at classification (e.g., for lack of labor‑market attachment), a claimant with both schedule and nonschedule injuries can pursue an SLU award for schedule‑eligible impairments from the same accident, and the Board must allow such proceedings consistent with Taher and its policy.