New York: Apportionment Inappropriate Where 1981 Injury Remained Symptomatic But Was Not Disabling

Where Claimant sustained a severe sprain to his right shoulder while working as a police officer in 1981 and returned to work without any schedule of loss (“SLU”) or other permanency related to that injury and again suffered a right shoulder injury in 2009, some 28 years later and some 20 years after Claimant left law enforcement for personal reasons, it was inappropriate to apportion any SLU that existed after the 2009 injury to Claimant’s preexisting conditions where the shoulder condition was symptomatic over the time period but was not disabling [see Levitsky v. Garden Time, Inc., 2015 N.Y. App. Div. LEXIS 2570 (3rd Dep’t, Mar. 26, 2015)].

After Claimant’s 2009 injury, X rays and an MRI showed, among other things, a severe degenerative glenohumeral joint due to arthritis. Both the treating physician and a consultant for the workers’ compensation carrier agreed that Claimant suffered a 60 percent to 65 percent SLU following surgery in 2011. The treating physician opined, however, that only 10 percent of the SLU was related to the 2009 injury, that the remainder was due primarily to Claimant’s progressive degenerative arthritis and, to a lesser extent that he did not quantify, to the 1981 work-related shoulder injury. Based on this testimony, the Board concluded Claimant had a 60 percent SLU. It attributed 10 percent of the SLU to the 2009 injury and the remainder to Claimant’s preexisting conditions.

On appeal, the court reversed, noting that after the 1981 injury, Claimant returned to the police force without any permanancy award of any kind. The court acknowledged that some evidence indicated Claimant’s shoulder was symptomatic over the years, a fact on which the Board relied, but the degenerative condition was not attributed to either work-related injury and Claimant remained fully employed. The court indicated that under settled precedent, the dispositive issue for apportionment was not whether a claimant’s preexisting condition was symptomatic but, rather, whether such condition was disabling. Here the shoulder condition had not prevented Claimant from being gainfully employed. He had undergone no medical treatment for the shoulder condition from 1981 until the 2009 incident. Apportionment was, therefore, inappropriate.

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