Opinion
531757
02-04-2021
In the Matter of the Claim of Roscoe NEELY, Appellant, v. NEW YORK CITY DEPARTMENT OF CORRECTION, Respondent. Workers' Compensation Board, Respondent.
Rella & Associates, PC, Sleepy Hollow (David I. Tomack of counsel), for appellant.
Rella & Associates, PC, Sleepy Hollow (David I. Tomack of counsel), for appellant.
Before: Garry, P.J., Egan Jr., Lynch, Clark and Reynolds Fitzgerald, JJ.
Clark, J.
Appeal from a decision of the Workers' Compensation Board, filed December 27, 2019, which ruled, among other things, that claimant sustained a 10% schedule loss of use of his left arm and a 15% schedule loss of use of his left leg as the result of a June 8, 2017 accident.
Claimant, a correction officer, previously established a claim for workers' compensation benefits for a September 2014 worked-related injury to, among other body parts, his left knee and left shoulder, and it was ultimately found that he sustained a 20% schedule loss of use (hereinafter SLU) of the left arm and a 15% SLU of the left leg as a result of those injuries. Claimant also has an established claim for a December 2017 accident, in which he injured his left shoulder, left knee and left ankle. For that claim, he was awarded, by agreement of the parties, a 3.75% SLU of the left arm, with no deduction of the prior left arm SLU, and a 5% SLU of the left foot. The instant claim concerns a June 2017 work-related injury to claimant's left shoulder, left elbow, left wrist, left hand and left hip. Medical opinions as to the permanency of those injuries were provided by the parties, after which a Workers' Compensation Law Judge declined to rule on the credibility thereof, reasoning that, even accepting the highest of SLU percentages proffered, no money would move to claimant once the prior SLU awards were deducted. The Workers' Compensation Board concluded that claimant was entitled to a determination as to his SLU percentages for the instant claim irrespective of whether he would ultimately be entitled to additional monies and found that claimant sustained a 10% SLU of the left arm and a 15% SLU of the left leg as a result of the June 2017 accident. In accordance with ( Matter of Genduso v. New York City Dept. of Educ. 164 A.D.3d 1509, 82 N.Y.S.3d 662 [2018] ), the Board then concluded that, because the SLU awards from claimant's September 2014 claim exceeded the instant SLU awards, claimant was not entitled to any additional compensation. Claimant appeals.
Contrary to claimant's contention, the Board's interpretation and application of Matter of Genduso was sound (see Matter of Genduso v. New York City Dept. of Educ., 164 A.D.3d at 1510, 82 N.Y.S.3d 662 ). The instant SLU awards, which are not otherwise challenged, therefore will not be disturbed (see Matter of Rybka v. Central N.Y. Psychiatric Ctr., 188 A.D.3d 1389, 1390, 132 N.Y.S.3d 341 [2020] ; see also Matter of Liuni v. Gander Mtn., 188 A.D.3d 1403, 1405, 135 N.Y.S.3d 201 [2020] ; Matter of Kleban v. Central N.Y. Psychiatric Ctr., 185 A.D.3d 1342, 1343, 128 N.Y.S.3d 318 [2020] ; Matter of Blair v. SUNY Syracuse Hosp., 184 A.D.3d 941, 942–943, 125 N.Y.S.3d 490 [2020] ; Matter of Johnson v. City of New York, 180 A.D.3d 1134, 1137, 118 N.Y.S.3d 302 [2020], lv granted 35 N.Y.3d 915, 2020 WL 6141709 [2020] ). Claimant's remaining contentions, to the extent not expressly addressed herein, have been considered and found to be without merit.
Garry, P.J., Egan Jr., Lynch and Reynolds Fitzgerald, JJ., concur.
ORDERED that the decision is affirmed, without costs.