| Matter of Blue v New York State Off. of Children & Family Servs. |
| 2022 NY Slip Op 03565 [206 AD3d 1126] |
| June 2, 2022 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of the Claim of Maurice Blue,
Appellant, v New York State Office of Children and Family Services et al., Respondents. Workers' Compensation Board, Respondent. |
Kirk & Teff, LLP, Kingston (William J. Kistner III of counsel), for appellant.
Stockton, Barker & Mead, LLP, Troy (Nicholas M. Herubin of counsel), for New York State Office of Children and Family Services and another, respondents.
Clark, J. Appeal from a decision of the Workers' Compensation Board, filed April 21, 2021, which ruled that claimant was entitled to a 10% schedule loss of use of the right leg.
In December 2016, claimant injured his right leg in a work-related accident, and his claim for
workers' compensation benefits was later established for injury to the right knee. Claimant's
physician diagnosed him with a causally-related medial meniscus tear and significant
chondromalacia patella of the right knee. After finding that claimant had reached maximum
medical improvement, claimant's physician concluded that claimant's severe range of motion
deficits corresponded to a 50% schedule loss of use (hereinafter SLU) of the right leg (see
Workers' Compensation Guidelines for Determining Impairment, Table 7.4 at 42 [2018]).
However, looking to the Workers' Compensation Guidelines for Determining Impairment
(hereinafter the 2018 guidelines), the physician also found that the diagnosis of chondromalacia
patella required application of a special consideration under knee and tibia impairments
regarding same, which provides an enumerated SLU value for chondromalacia patella of
7
Neither physician was deposed, and the parties submitted memoranda of law in support of their respective positions. Upon review thereof, a Workers' Compensation Law Judge (hereinafter WCLJ) issued a bench decision concluding that, although special consideration 4 was factually relevant, claimant's overall loss of use was controlling. The WCLJ accordingly awarded claimant a 50% SLU based upon claimant's range of motion deficits—the percentage agreed upon by both physicians. The carrier administratively appealed, arguing that it was improper for the WCLJ to issue an award based upon range of motion deficits where a special consideration with an enumerated SLU value was applicable. The Board agreed and, crediting the opinion of claimant's physician for having applied special consideration 4, modified the WCLJ's SLU award to 10%, disregarding any loss of use attributable to claimant's meniscal tear. Claimant appeals.
Claimant argues that the Board's interpretation of special consideration 4 and the instructions regarding its application is irrational and runs afoul of [*2]the purpose of Workers' Compensation Law § 15 (3). We agree. "SLU awards are not given for particular injuries, but they are made to compensate an injured worker for his or her loss of earning power or capacity that is presumed to result, as a matter of law, from the residual permanent physical and functional impairments to statutorily-enumerated body members" (Matter of Fiato v New York State Dept. of Transp., 195 AD3d 1251, 1252-1253 [2021] [internal quotation marks and citations omitted], lv denied 37 NY3d 917 [2022]; see Matter of Genduso v New York City Dept. of Educ., 164 AD3d 1509, 1510 [2018]; Matter of Taher v Yiota Taxi, Inc., 162 AD3d 1288, 1289 [2018], lv dismissed 32 NY3d 1197 [2019]). In order to standardize the methodology for evaluation and assessment of such permanent impairment, the Board is empowered to promulgate guidelines, but those guidelines must be "reasonable" and "consistent with and supplemental to the [Workers' Compensation Law]" (Workers' Compensation Law § 117 [1]; see § 15 [3] [x]; 12 NYCRR 325-1.6 [a]; Matter of Kigin v State of N.Y. Workers' Compensation Bd., 24 NY3d 459, 467 [2014]; see e.g. Workers' Compensation Guidelines for Determining Impairment [2018]; New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity [2012] [hereinafter the 2012 guidelines]; State of New York Workers' Compensation Board Medical Guidelines [1996] [hereinafter the 1996 guidelines]).
Beginning with the 1996 guidelines and through to the applicable 2018 guidelines, there has
been a special consideration for the knee providing that "[c]hondromalacia patella, mild to
marked degree, equals 7
Legislation enacted in April 2017 directed the Board to consult with various stakeholders [*3]to adopt revised guidelines for the evaluation of medical impairment and determination of permanency with respect to injuries that are amenable to an SLU award to be "reflective of advances in modern medicine that enhance healing and result in better outcomes" (Workers' Compensation Law § 15 [3] [x]). As noted above, the chondromalacia patella special condition remained unchanged after that revision. At issue is instead the following two instructions regarding the application of special considerations regarding the knee and tibia.
Section 7.4 of the 2018 guidelines instructs that, to determine the overall SLU for the knee
and tibia, "first assess whether any special considerations apply," and, "[i]f not, consider deficits
in flexion . . . or extension . . . per [Table 7.4] if applicable" (Workers'
Compensation Guidelines for Determining Impairment § 7.4 at 42 [2018]). The
special considerations for the knee and tibia may be found in the following section. As relevant
here, those instructions provide as follows: "The following are special considerations that have
enumerated schedule loss of use values. Other deficits may be added when specified or when no
schedule value is provided" (Workers' Compensation Guidelines for Determining Impairment
§ 7.5 at 43 [2018]).[FN1] In full, special consideration 4 states that
"[c]hondromalacia patella, mild to marked degree, equals 7
Relying on the plain language of the 2018 guidelines, the Board reads special consideration 4
as making no provision for additional values due to flexion or extension deficits, reasoning that
the enumerated SLU range already takes into account range of motion deficits. It is therefore the
Board's position that, whenever chondromalacia patella is present, an SLU value for the knee as a
whole must be in the range of 7
Although special consideration 4 may arguably be said to rationally limit an SLU value when
it is based upon only a finding of chondromalacia patella, the Board's interpretation of the
foregoing instructions results in the obvious inequity identified by claimant and cannot be
upheld. To accept the Board's interpretation would be to sanction an application of the 2018
guidelines that results in claimants with only meniscus tears routinely receiving SLU awards far
greater than 7
Although "medical advances since 2012 have resulted in better outcomes—i.e., lesser residual permanent impairments" (Matter of Fiato v New York State Dept. of Transp., 195 AD3d at 1254), there is nothing to suggest that the Legislature, in directing the Board to revise its guidelines to reflect those advances, intended for similarly situated claimants to receive vastly disparate SLU awards (compare id.), particularly in light of the fact that, under the Board's interpretation, it is the claimants suffering from greater injury that are the ones receiving lesser compensation (see Matter of Arias v City of New York, 182 AD3d 170, 172-173 [2020]).[FN4] If anything, the Legislature has repeatedly evinced its intent to ensure the exact opposite result (cf. Matter of Mancini v Office of Children & Family Servs., 32 NY3d 521, 529-530 [2018]). Thus, to the extent that any deference to the Board's interpretation of its guidelines is warranted (see generally Workers' Compensation Law § 15 [3] [x]; 12 NYCRR 325-1.6 [a]; Kisor v Wilkie, 588 US —, —, 139 S Ct 2400, 2417-2418 [2019]; Matter of Kigin v State of N.Y. Workers' Compensation Bd., 109 AD3d 299, 304-305, 312 [2013], affd 24 NY3d 459 [2014]), we find that the Board's interpretation of the ambiguous instructions in sections 7.4 and 7.5 "does not reflect a fair and considered judgment on the circumstance presented in this case" (Matter of Arias v City of New York, 182 AD3d at 172-173 [internal quotation marks and citations omitted]).[FN5] Under these circumstances, the matter must be remitted to the Board so that a proper assessment of the evidence may occur (see Matter of Green v Dutchess County BOCES, 183 AD3d 23, 30-31 [2020], lv dismissed 36 NY3d 1044 [2021], lv granted 37 NY3d 907 [2021]; Matter of Estate of Youngjohn v Berry Plastics Corp., 169 AD3d 1237, 1239-1240 [2019], affd 36 NY3d 595 [2021]; Matter of Carlucci v Omnibus Print. Co., Inc., 68 AD3d 1259, 1260 [2009]).
Lynch, J.P., Aarons, Colangelo and McShan, JJ., concur. Ordered that the decision is modified, without costs, by reversing so much thereof as found that Workers' Compensation Guidelines for Determining Impairment chapter 7, special consideration 4 precludes a schedule loss of use value for impairment of the knee and tibia resulting from diagnoses other than chondromalacia patella; matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.