December 2019

From the Desk of Patrick B. Guy


PRACTICE TIP: When evaluating a medical opinion on schedule loss of use, make certain the physician is appropriately interpreting and applying any Special Considerations set forth in the 2018 Impairment Guidelines.  If a Special Consideration applies, the doctor’s opinion can be limited to the explicit schedule award in the Special Consideration with range of motion deficits having little or no impact on the schedule award.

                In Focus at Otsego LLC, WCB G157 2869 (5/24/19), an employee injured both knees.  An MRI of the right knee revealed chondromalacia patella among other findings.  An MRI of the left knee revealed the same findings as the right knee. Relying upon range of motion deficits of each knee, the attending physician found a 40% schedule loss of use in addition to 10% for the presence of chondromalacia patella.  Thus, the attending physician found a 50% schedule loss of use of each leg.  The carrier’s consultant offered an opinion of a 40% SLU of each leg due to range of motion deficits.  Despite an argument by the carrier that the schedule award should be limited due to the Special Consideration relating explicitly to chondromalacia patella (which directs a schedule award of 7.5% to 10%), the Administrative Law Judge awarded a 50% SLU of each leg.

                On appeal, a Board Panel considered the carrier’s argument that the Special Consideration in the 2018 Impairment Guidelines requires no greater than a 10% schedule award of each leg with no addition on account of range of motion deficits.  The Board Panel agreed that the Special Consideration set forth in the 2018 Impairment Guidelines dictates that if the Special Consideration relating to chondromalacia patella applies, then the schedule award should be no greater than 7.5 to 10% of the leg and there should be no additional schedule on account of any other defects.  The Board Panel reduced the 50% schedule loss of use of each leg to a 8.33% schedule loss of use of each leg, which reduced the combined permanency award of 288 weeks to 48 weeks.

                The Focus at Otsego LLC case was handled by our Gitto & Niefer, LLP.  If you have a complex claim involving a permanency determination and would like our assistance, please contact Patrick Guy at (607) 723-0600 or any of the attorneys in our office.  If you would like a training session on this or any other area of the Workers’ Compensation Law, please do not hesitate to contact our firm.

                This information is provided for general guidance only.  This information should not be used as a substitute for consultation with legal counsel.  Each case presents unique facts requiring individual analysis.