Court Affirms Genduso Decision Holding that SLUs Reduced by SLU Award to Same Limb, Even if Different Part of Limb
On 2/6/2020, the Appellate Division, Third Department, decided Johnson v. City of New York. This decision reaffirms the court’s previous holding in Genduso v. New York City Dept. of Education (2018) 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 squarely 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 facts in Johnson involved a claimant with an overall 80% loss of use for his left leg and an overall 40% loss of use for his right leg based on hip and knee injuries. The Board deducted a previous 50% schedule loss of use award for the left leg and a previous 52.5% schedule loss of use award for the right leg. This resulted in a functional 30% loss of use payable for the left leg and a 0% loss of use payable for the right leg. Claimant appealed, and the court affirmed, citing Genduso and Bell v. Glens Falls Ready Mix Co., Inc., holding that:
"SLU awards are . . . limited to only those statutorily-enumerated members listed in Workers’ Compensation Law §15(3) . . . In this regard, to authorize separate SLU awards for a body member’s sub-parts is not authorized by statute or the guidelines and would amount to a monetary windfall for a claimant that would compensate him or her beyond the degree of impairment actually sustained to the statutorily-enumerated body member." (Internal citations omitted)
The court also held that the Board properly deducted the previous schedule loss of use awards automatically from claimant’s overall schedule loss of use assessments.
The Johnson decision shows that Genduso is not an anomaly and will be applied by the court as controlling authority. The practical impact is that claimants can no longer receive separate schedule loss of use awards for multiple injuries to the same limb (knee and hip for the leg, shoulder and elbow for the arm, etc.). In such cases, the schedule loss of use would be payable only for a single leg or arm, respectively. Likewise, automatic deduction for previous schedule loss of use awards to the same body member applies even if the previous schedule loss of use award was for a different sub-part of that body member.