By: Leonardo Lampret, Associate Attorney
In New York Workers’ Compensation law, the question of whether a Schedule Loss of Use (SLU) award can be apportioned to a prior non-work-related injury is complex and context-dependent. Traditionally, the general rule is that apportionment is not appropriate where the claimant’s prior condition did not result from a compensable injury, and the claimant was fully employed and capable of performing their job duties despite the preexisting noncompensable condition. See e.g. Bruno v. Kelly Temp Serv., 301 A.D.2d 730, 753 N.Y.S.2d 550 (2003).
However, the New York Workers’ Compensation Board has recognized limited exceptions to this rule. The Board acknowledged that in narrow situations, apportionment may be appropriate where the prior non-work-related injury would have qualified for an SLU award had it occurred in a compensable setting. The rationale stems from the understanding that SLU awards are designed to compensate for a permanent loss of wage-earning capacity, not merely the fact that the injury occurred on the job.
This nuanced view was later upheld by the Third Department in Scally v. Ravena Coeymans Selkirk Cent. Sch. Dist., 31 A.D.3d 836 (2006). The Court found the Board’s reasoning to be rational, emphasizing that it had never held as a matter of law that apportionment is categorically barred when a prior non-work injury would have merited an SLU award under compensable conditions.
Thus, while the prevailing rule disallows apportionment for non-compensable injuries when the claimant had no functional impairment or employment restrictions, exceptions exist. These arise in cases where the non-work-related condition, if work-related, would have independently justified an SLU award. In such circumstances, the Board may consider that impairment to be a “disability in a compensation sense,” making apportionment a viable legal argument.
Accordingly, in SLU cases, carriers and employers should thoroughly investigate any history of prior injuries, regardless of their compensability. If there is evidence of pre-existing condition, it would not be unreasonable to raise apportionment of the SLU determination, even if the prior injury occur outside of the workers’ compensation system.