In this CPLR Article 78 action the Workers' Compensation Board ruled, among other things, that Petitioner [Claimant] was not simultaneously entitled to an award for a schedule loss of use and a permanent partial disability classification.
Claimant was injured in a motor vehicle accident while working as a police officer and established a workers' compensation claim for injuries suffered in that accident, including a neck injury. The Workers' Compensation Board found that Claimant had a permanent medical impairment that was not amenable to a schedule loss of use [SLU] finding and directed the matter be returned to the hearing calendar for a determination of loss of wage-earning capacity.
A Workers' Compensation Law Judge [WCLJ] determined that Claimant was permanently partially disabled with a 15% loss of wage-earning capacity, but he was not entitled to awards based upon a nonscheduled permanent partial disability classification as his current position as a police sergeant did not result in any reduced earnings. However, the WCLJ also found that Claimant "sustained a 15% SLU of his right hand, left hand and left arm and a 7.5% SLU of his right leg, entitling him to an SLU award."
The Board modified the WCLJ's decision, rescinding the SLU award based on its finding that Claimant's permanent medical impairment was subject to a nonscheduled classification encompassing all of Claimant's injuries and, therefore, Claimant was not entitled to an SLU award. Claimant appealed the Board's determination.
Addressing Claimant's appeal of the Board's rescinding the SLU award, Appellate Division noted that it had recently held that "where a claimant who has sustained both schedule and nonschedule permanent injuries in the same work-related accident has returned to work at pre-injury wages and, thus, receives no award based on his or her nonschedule permanent partial disability classification, he or she is entitled to an SLU award."*
As there was a finding of permanency as to Claimant's neck injury and he had returned to work at pre-injury wages, the Appellate Division held that Claimant was entitled to an SLU award for the remaining injuries, reversing the Board's ruling and "remitted [the matter] to the Workers' Compensation Board for further proceedings not inconsistent with the Court's decision."
The decision is posted on the Internet at: