Claim of Scally v. Ravena Coeymans Selkirk Central School DistrictClaim of Scally v. Ravena Coeymans Selkirk Central School District
Lead Opinion
Appeal from a decision of the Workers’ Compensation Board, filed December 3, 2004, which ruled that claimant’s workers’ compensation award be apportioned 50% to a nonwork-related injury and 50% to a work-related injury.
In 1986, claimant sustained a nonwork-related injury to her left knee while performing gymnastics in high school. She subsequently underwent reconstructive surgery to address this injury in 1993. Claimant worked without disability or restrictions until February 12, 2002, when she slipped in her employer’s cafeteria and reinjured her left knee. She thereafter applied for workers’ compensation benefits. A Workers’ Compensation Law Judge (hereinafter WCLJ) established the case for a left knee injury, but reserved on the issue of apportionment. Following hearings, the WCLJ found that apportionment of the award to the 1986 injury was not appropriate notwithstanding testimony from the employer’s independent medical expert to
We begin with the general rule that “apportionment is not appropriate where the claimant’s prior condition was not the result of a compensable injury and such claimant was fully employed and able to effectively perform his or her duties despite the noncompensable preexisting condition” (Matter of Bruno v Kelly Temp Serv.,
In reviewing claimant’s claim, however, the Board did not consider it to be a “traditional apportionment case[ ].” Rather, the Board found that this case involved the narrow situation where the prior nonwork-related injury would have resulted in a schedule loss of use award had the injury occurred in a work environment (see Trathen Logging Co., Inc.,
As to the dissent’s argument that the Board never made a schedule loss of use award for the second work-related injury, it is clear from the record that the only issue presented for Board review was the dispute over apportionment of the medical expenses for the second surgery. Thus, it was never asked to make a schedule loss of use award. There can be no doubt, however,
Furthermore, this Court has never held as a matter of law that apportionment cannot be applied where the prior nonworkrelated injury would have resulted in a schedule loss of use award had the injury been work related. In this regard, the precedent cited by the dissent (see Matter of Edmondson v State Ins. Fund,
Crew III, Spain and Lahtinen, JJ., concur.
Dissenting Opinion
Over the past 30 years, this Court has consistently held that “apportionment is not appropriate where the claimant’s prior condition was not the result of a compensable injury and such claimant was fully employed and able to effectively perform his or her duties despite the noncompensable preexisting condition” (Matter of Bruno v Kelly Temp Serv.,
Whereas our prior apportionment cases concerned the “dis-positive” question of whether the preexisting injury caused the claimant to lose time from employment or work with restrictions prior to the occurrence of the second work-related injury (Matter of Bruno v Kelly Temp Serv., supra at 731; compare Matter of Hogan v Hilltop Manor of Niskayuna, supra at 823-824, with Matter of Rafferty v Four Corners, LLC,
In light of the past precedent of this Court and the fact that Trathen Logging and its progeny appear to mark a radical departure therefrom, I have considerable concerns whether the Board’s new line of apportionment determinations are a rational interpretation of the Workers’ Compensation Law. However, in my view, the instant case does not require us to reach a definitive determination concerning that issue. On the contrary, I believe that reversal of the Board’s determination is required because its application of its new precedent to the facts of this case marks an unwarranted expansion of Trathen Logging into cases which do not involve a schedule loss of use.
The Board’s rationale for Trathen Logging and its progeny is that, inasmuch as schedule loss of use cases concern compensation for lost earning capacity attributable to the permanent loss of use or function of a particular body part (see generally Matter of Landgrebe v County of Westchester,
Notably, claimant herein has not yet received a schedule loss of use award and the record is unclear as to whether she ever will. In the original decision rendered by a Workers’ Compensation Law Judge herein, claimant was awarded compensation for eight days of lost work time and no mention whatsoever was made of a schedule loss of use award (see Workers’ Compensation Law § 15). Subsequent decisions made mention of the need to resolve the question of apportionment, but, again, no reference was made to a schedule loss of use finding or any permanency concerning claimant’s disability. Moreover, the carrier’s application for Board review of the WCLJ decision denying apportionment only made explicit reference to the need to apportion claimant’s medical expenses.
Notes
. Although the majority does not agree with my analysis of cases such as Matter of Edmondson v State Ins. Fund (supra), it cannot be argued that Edmondson stands for the proposition that the test to be applied in cases involving preexisting non-work-related injuries—even those involving a schedule loss of use—is the test formulated by this Court in Matter of Carbonaro v Chinatown Sea Food (supra). Even if, as the majority notes, we have “never held as a matter of law that apportionment cannot be applied where the prior nonwork-related injury would have resulted in a schedule loss of use award,” we have repeatedly held that “apportionment is inapplicable as a matter of law ‘[wjhere the prior condition was not the result of a compensable injury and the claimant is able to effectively perform his or her job despite the preexisting condition’ ” (Matter of Johnson v Feinberg-Smith Assoc., supra at 827, quoting Matter of Krebs v Town of Ithaca, supra at 883-884).
. The ease with which the Board’s new analysis becomes outcome determinative is fully apparent in the record in this case. During cross-examination of claimant’s treating orthopedist, the physician initially indicated that claimant’s original injury would not have been amenable to a schedule loss of use finding—had it been compensable—because she retained full range of motion following surgery. Upon further inquiry from counsel for the employer, however, the orthopedist was forced to admit that, pursuant to guidelines published by the Board in 1996—i.e., three years following claimant’s surgery—the minimum schedule that is permitted following a surgery like that undergone by claimant is 15%. This series of concessions based on hypothetical premises served as the primary basis for the Board’s conclusion that there is medical evidence indicating that claimant had a loss of use of her left leg prior to her 2002 work-related accident (Ravena Coeymans Selkirk, 2004 WL at *2, 2004 NY Wrk Comp LEXIS at *3-4). Unlike the majority, under these circumstances, I would not ascribe significance to the orthopedist’s eventual “opinion” that claimant’s preexisting injury would have been amenable to schedule loss of use award had it been work related.
. As the Board itself has repeatedly recognized, inasmuch as “[m]edical expenses are not payment of compensation as compensation is defined by [the Workers’ Compensation Law]” (Minkowitz, Practice Commentaries, McKinney’s Cons Laws of NY, Book 64, Workers’ Compensation Law § 13, at 532), payments for a claimant’s medical expenses may be apportioned to a noncompensable preexisting injury irrespective of whether the claimant’s award for compensation is apportionable (see e.g. Jefferson Rehabilitation Ctr.,