That Prior Loss Won’t Just Come Out in the Wash

The issue for resolution concerned the schedule loss of use of the right leg. The treating physician reported a 45% schedule loss, while the IME reported a 35% schedule loss. The claimant refused to compromise and the matter was litigated.

In a Reserved Decision, the Judge found the opinion of the carrier’s consultant to be more persuasive based upon the impairment guidelines, and he found the claimant to have a 35% schedule loss of use. He awarded claimant’s counsel a fee of $7,200.00.

We requested an Amended Reserved Decision, noting that the Judge had neglected to credit the carrier with a prior schedule loss of use for the same injury site. Pursuant to Matter of Genduso, we requested that the carrier be credited for the prior 20% schedule that they had paid in 2017. The Judge did submit an Amended Reserved Decision, granting the carrier credit for the prior 20% schedule, and reducing the finding to a 15% overall schedule loss of use. The attorney fee was also reduced to $1,900.00.

The claimant appealed, alleging that the Judge had exceed his authority in issuing the Amended Decision and reducing the schedule to 15%. In the subsequent Board Panel Decision, the Amended Decision was affirmed, indicating that the Judge had properly found a 35% schedule loss of the right leg, and that he was well within his discretion to reduce to 15% based on the prior 20% SLU pursuant to Matter of Genduso.

Moral of the story: claimants often seek multiple SLU awards. Be cognizant of a claimant’s history at the Board, and what prior schedule loss awards he may have received. Pursuant to Matter of Genduso, a carrier is allowed credit for a prior schedule loss award for the same injury site.

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