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In re Claim of Deck

Supreme Court of New York, Third Department

May 25, 2017

In the Matter of the Claim of KENNETH J. DECK, Respondent,
v.
DARIN M. DORR, Doing Business as THE DEER SHOP, et al., Appellants. WORKERS' COMPENSATION BOARD, Respondent.

          Calendar Date: March 28, 2017

          William O'Brien, State Insurance Fund, Buffalo (Thomas P. Etzel of counsel), for appellants.

          Eric T. Schneiderman, Attorney General, New York City (Steven Segall of counsel), for Workers' Compensation Board, respondent.

          Before: Garry, J.P., Lynch, Rose, Clark and Aarons, JJ.

          MEMORANDUM AND ORDER

          Clark, J.

         Appeal from an amended decision of the Workers' Compensation Board, filed November 10, 2015, which ruled that claimant had a 100% schedule loss of use of his right thumb in addition to his previously awarded 100% schedule loss of use of his right hand.

         In 2011, claimant sustained an established injury to his right hand when it was caught in a meat grinder at work, amputating all four of his fingers and his thumb on his right hand. Surgeons reattached claimant's thumb, but it is about half the size of his left thumb and has no pinching ability. Upon consent of the employer and its workers' compensation carrier (hereinafter collectively referred to as the carrier), a Workers' Compensation Law Judge (hereinafter WCLJ) awarded claimant a 100% schedule loss of use (hereinafter SLU) of his right hand based upon the loss of his four fingers, without consideration of his thumb, in accordance with workers' compensation guidelines (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 18, table 2.4 [2012] [hereinafter the guidelines]). The carrier disputed claimant's entitlement to an additional award for the loss of use of his right thumb, and the WCLJ reserved on this issue.

         At the ensuing hearing, Paul Douglas Paterson, claimant's surgeon, testified that, upon utilization of the applicable guidelines and taking into account loading, [1] the amputations of all four of claimant's fingers and his thumb equated to a combined SLU of 157%. Paterson calculated that claimant was therefore entitled to 382 weeks of compensation (see Workers' Compensation Law § 15 [c]; New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 14, No. 2 [2012]), which translated into an SLU of 157% [2]. When questioned about an SLU exceeding 100% for all of the digits on one hand, Paterson explained that the guidelines contemplate circumstances in which the SLU may exceed 100% for the loss of parts of a hand (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 17, figure 2.8 [2012]). The WCLJ issued a decision crediting Paterson's unrefuted testimony and reliance on the guidelines, and concluded that claimant had sustained an additional 57% SLU of his right thumb, or a combined 157% SLU of his right hand.

         Upon the carrier's appeal, the Workers' Compensation Board initially modified by rescinding the 157% SLU, finding that, under the guidelines and given the limited functioning of his thumb, claimant had sustained a 100% SLU of his right thumb, in addition to the previously awarded 100% SLU of his right hand, as the latter award had been based on the amputation of his four fingers. The carrier applied for reconsideration and/or full Board review. The Board denied the request for full Board review, but issued an amended decision clarifying that Workers' Compensation Law § 15 (3) (q) precluded the WCLJ's 157% SLU award for claimant's right hand, and rescinded the additional 57% SLU awarded for the thumb. However, the Board determined that claimant sustained distinct injuries to his four fingers and to his thumb, which had differing impacts to the functionality of his hand, thereby permitting separate SLU measurements and awards for the loss of his fingers and the loss of his thumb. The Board further concluded that claimant's loss of his four fingers, excluding his thumb, warranted the previously awarded 100% SLU of his right hand and that, separately considering his thumb injury, claimant was also entitled to a 100% SLU of his right thumb. The carrier now appeals.

         We affirm. The disputed issue is whether the Board erred in awarding claimant an additional 100% SLU for the amputation of his nonfunctioning, reattached right thumb which, combined with the previous 100% SLU of his right hand for the amputation of his four right fingers, exceeds 100% for injuries to his right hand. In relevant part, Workers' Compensation Law § 15 (3) (q), on which the carrier relies, provides that "[c]ompensation for [the] loss or loss of use of two or more digits... of a hand... may be proportioned to the loss of use of the hand... occasioned thereby[, ] but shall not exceed the compensation for loss of a hand." The carrier argues that the 100% SLU award for claimant's right hand based upon the loss of his four fingers necessarily encompasses compensation for all components of his hand, including his thumb, and that the total SLU for all injuries to the right hand cannot exceed 100%. The Board agreed that Workers' Compensation Law § 15 (3) (q) precludes a combined 157% SLU of the right hand for this accident, but concluded that it could, based upon competent, unrefuted medical evidence, separately evaluate multiple injuries to claimant's hand. Indeed, courts have held that, where a claimant suffers multiple injuries to a hand or other body part, the Board is not limited to a 100% SLU award for separate injuries to the hand or other body part (see Matter of Bazzano v Ryan & Sons, 62 A.D.2d 260, 261 [1978]; Matter of Fullerton v Frewsburg Furniture Co., 263 A.D. 1029, 1029-1030 [1942]; see also Matter of Zimmerman v Akron Falls Park-Erie County, 29 N.Y.2d 815, 817 [1971], revg 35 A.D.2d 1030');">35 A.D.2d 1030 [1970]; Matter of Pellegrino v Textile Prints Corp., 81 A.D.2d 723, 724 [1981]; cf. Matter of Flicker v Mac Sign Co., 252 NY 492, 494-495 [1930]; Matter of Brown v Wilson Moving & Stor. Co., 58 A.D.2d 128, 129-130 [1977]).

         Here, the Board proportioned the loss of four fingers to the total loss of the hand as required by Workers' Compensation Law § 15 (3) (q), and then separately evaluated the distinct and additional injury to the thumb, to which it awarded a 100% SLU. We defer to the Board's determination to credit the sole proffered medical opinion of Paterson, and the Board's conclusion based thereon that claimant sustained a separate and distinct injury to his thumb, which therefore warranted separate SLU determinations and awards for the thumb and the fingers (see Matter of Mellies v Consolidated Edison Co. of N.Y., Inc., 140 A.D.3d 1543, 1544 [2016]). Such result is supported by the guidelines, which contemplate awards greater than 100% for the loss of a hand (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 17, figure 2.8 [2012]) and provide that the loss of four fingers, excluding the thumb, constitutes a 100% SLU of the hand (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 18, Table 2.4 [2012]). The guidelines, which address impairments to the thumb separately from fingers (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 12-14 [2012]), provide that "[t]he thumb deserves special consideration; it is the highest valued digit and the most important" (New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 17 [2012]). Under these circumstances, the Board's determination to assign a separate SLU to the loss of the thumb and to make a distinct award is supported by the case law and the guidelines, and is not contrary to the statutory language. Therefore, we uphold the Board's determination and affirm the amended decision.

          Garry, J.P., Lynch and Rose, JJ., concur.

          Aarons, J. (dissenting).

         Because I agree with the contention by claimant's employer and its workers' compensation carrier that claimant is not entitled to an additional 100% schedule loss of use (hereinafter SLU) award for his right thumb on top of the 100% SLU award already awarded to ...


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