Opinion
529843
11-12-2020
In the Matter of the Claim of Kevin HLUSKA, Appellant, v. CENTRAL NEW YORK PSYCHIATRIC CENTER et al., Respondents. Workers' Compensation Board, Respondent.
Murad and Murad, PC, Utica (Frederick W. Murad of counsel), for appellant. Tanisha S. Edwards, State Insurance Fund, New York City (Rudolph Rosa Di Sant of counsel), for Central New York Psychiatric Center and another, respondents.
Murad and Murad, PC, Utica (Frederick W. Murad of counsel), for appellant.
Tanisha S. Edwards, State Insurance Fund, New York City (Rudolph Rosa Di Sant of counsel), for Central New York Psychiatric Center and another, respondents.
Before: Garry, P.J., Clark, Devine, Aarons and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Clark, J.
Appeal from a decision of the Workers' Compensation Board, filed July 12, 2019, which ruled that claimant was not entitled to a schedule loss of use award.
Claimant established a claim for a 2016 work-related injury to his left shoulder and was granted a 13% schedule loss of use (hereinafter SLU) award for his left arm. In 2017, claimant sustained a work-related injury to his left elbow. Based upon an evaluation of the left elbow, claimant's physician found a 10% SLU of the left arm. A Workers' Compensation Law Judge determined that, because the prior 13% SLU award for the left arm exceeded the current 10% SLU, claimant was not entitled to any SLU award for the impairment to the left arm resulting from the elbow injury. The Workers' Compensation Board affirmed, and claimant appeals.
We affirm. " Workers' Compensation Law § 15(3) sets forth SLU awards that the Board may make resulting from permanent injuries to certain body parts, losses of hearing or vision and facial disfigurements" ( Matter of Genduso v. New York City Dept. of Educ., 164 A.D.3d 1509, 1510, 82 N.Y.S.3d 662 [2018] ; see Workers' Compensation Law § 15[3][a]-[t] ). "An SLU award is compensation for ‘the residual permanent physical and functional impairments’ of an extremity, not for the particular injury itself" ( Matter of Blair v. SUNY Syracuse Hosp., 184 A.D.3d 941, 942, 125 N.Y.S.3d 490 [2020], quoting Workers' Compensation Guidelines for Determining Impairment § 1.5, at 8 [2018]; see Matter of Johnson v. City of New York, 180 A.D.3d 1134, 1136, 118 N.Y.S.3d 302 [2020], lv granted 35 N.Y.3d 915, 2020 WL 6141709 [Oct. 20, 2020] ). "Although more than one SLU award may be given for a ‘loss of use of more than one member or parts of one member,’ the SLU award is limited to the statutory-enumerated members set forth in Workers' Compensation Law § 15(3)" ( Matter of Kleban v. Central N.Y. Psychiatric Ctr., 185 A.D.3d 1342, 1343, 128 N.Y.S.3d 318 [2020], quoting Workers' Compensation Law § 15[3][u] ; see Matter of Blair v. SUNY Syracuse Hosp., 184 A.D.3d at 942, 125 N.Y.S.3d 490 ).
Claimant's physician evaluated claimant's elbow injury pursuant to the guidelines and determined that claimant sustained a 10% SLU of the left arm. "Because claimant previously received an SLU award for his [left] arm in connection with a shoulder injury that exceeded the SLU resulting from the injury to the elbow, the Board properly determined that claimant was not entitled to any further award resulting from the elbow injury" ( Matter of Kleban v. Central N.Y. Psychiatric Ctr., 185 A.D.3d at 1343, 128 N.Y.S.3d 318 ; see Matter of Johnson v. City of New York, 180 A.D.3d at 1136, 118 N.Y.S.3d 302 ). Therefore, the Board's decision will not be disturbed. Claimant's remaining contentions, to the extent that they are properly before us, have been considered and found to be without merit.
Garry, P.J., Devine, Aarons and Reynolds Fitzgerald, JJ., concur.
ORDERED that the decision is affirmed, without costs.