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Appellate Division Maintains Genduso Rule Regarding SLU Credit in Recent Decision

On 7/23/20, the Appellate Division, Third Department, decided Kleban v. Central New York Psychiatric Center. This decision again affirms the Appellate Division's decision in Genduso v. New York City Dep't. of Education, which held that a claimant’s schedule loss of use award will be subject to an automatic deduction for previous schedule loss of use awards to the same limb (hand, foot, arm, leg, etc.). This decision also holds that schedule loss of use awards are made only for the specific body members enumerated in the statute (WCL §15(3)(a) through (l)). This means that a claimant cannot receive separate schedule loss of use awards for sub-parts of the same body member, such as the knee and hip of the same leg. In cases where multiple sub-parts of the same body member are injured, the schedule loss of use award must be calculated only for the body member as a whole. That schedule loss of use award then is subject to an automatic deduction for any previous schedule loss of use awards to the same body member.

The court's decision in Kleban follows similar decisions in Johnson v. City of New York, and Bell v. Glens Falls Ready Mix Co., Inc.

The Appellate Division's continued affirmation of the principle in Genduso shows that despite the protests of the claimants' bar to the contrary, that the Genduso decision was not an anomaly. Employers and carriers should take care to investigate the existence of any prior schedule awards when considering permanency so as to avail themselves of any available credit. This is particularly important given the continued increase in the maximum compensation rate each year. 

Our partner Stephen Wyder successfully prepared the brief to the Appellate Division in Kleban. Anyone with questions about the Genduso line of cases should feel free to contact Mr. Wyder. 

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