NY Claimant Should Be Awarded Scheduled Injury to Leg for Serious Hamstring Tear
Reversing a decision by the state’s Workers’ Compensation Board, a New York appellate court held that, contrary to the Board’s interpretation, in the absence of specific instructions regarding hamstring tears in New York’s 2018 Workers’ Compensation Guidelines for Determining Impairment (“guidelines”), a medical expert could rationally rely upon the special consideration for quadricep ruptures as the closest corollary to claimant’s injury and impairment and reasonably opine that claimant had suffered permanent impairment to the leg [Matter of Semrau v. Coca-Cola Refreshments USA Inc., 2020 N.Y. App. Div. LEXIS 7850 (Dec. 17, 2020)].
The court acknowledged that whether a claimant was entitled to an SLU award and, if so, the resulting percentage were factual questions for the Board to resolve, and that the Board’s determination would be upheld provided that it is supported by substantial evidence. Nevertheless, the court stressed that two orthopedists agreed that claimant’s hamstring muscle tear left a permanent leg impairment and a functional loss to that member, and concurred that he had reached MMI, disagreeing only as to the percentage of impairment. Under those circumstances, the Board’s determination that claimant suffered no scheduled impairment to the leg was not supported by the evidence.
Background
After falling at work in January 2016, claimant established claims for injuries to his left knee and a tear to his left medial hamstring. In August 2017, he underwent surgery to repair a meniscus tear to his left knee. Claimant was evaluated by his treating orthopedist and by another orthopedist who conducted a medical exam of claimant on behalf of the employer’s workers’ compensation carrier. Both orthopedists submitted reports and agreed that claimant had reached MMI and that, following the surgical repair of his left knee, he had full range of motion in that knee with no permanent impairment.
Experts’ Opinions
Claimant’s expert testified that claimant’s hamstring injury, described as a “large” muscle tear that left a “big defect” and a raised scar, was an uncommon injury that was not surgically repairable. The doctor concluded that claimant had sustained a 25 percent schedule loss of use of his left leg due to the hamstring impairment. Given that a hamstring impairment is not specifically addressed in the 2018 guidelines, the doctor relied upon the special consideration under hip and femur impairments for a quadricep rupture, concluding that it correlated most closely to claimant’s hamstring injury and impairment. The carrier’s expert found that claimant had a 10 percent SLU of his left leg based upon the hamstring impairment.
WCLJ & Board Determinations
The WCLJ determined that claimant had a 25 percent SLU of his left leg. On administrative appeal, the carrier indicated that it would concede that claimant had a 10 percent SLU of his left leg. The Board modified, concluding that claimant was not entitled to any SLU award for his left leg, reasoning that there was no special consideration applicable to a hamstring impairment in the guidelines and no range of motion deficit in his left knee. Claimant appealed.
Appellate Court Decision
The appellate court observed that although a hamstring muscle was not listed as a body part lending itself to a separate SLU award in either N.Y. Workers’ Comp. Law § 15(3) or the 2018 guidelines, ordinarily, such impairments to separate parts of a member were encompassed in an overall SLU award for that specified member. The court indicated that while unlike a knee, femur, tibia or hip, a hamstring was not specifically referenced in the 2018 guidelines, neither the governing statute nor the 2018 guidelines supported the conclusion that a claimant who sustained an otherwise qualifying permanent impairment to a body part of a statutorily enumerated member was not entitled to an SLU merely because that particular body part was not specifically referenced in a special consideration. Although muscles, tendons and ligaments of the leg and hip were not all addressed in the 2018 guidelines, there was a clear directive that a “permanent residual physical deficit … may include physical damage to,” among other body parts, muscles and tendons [Opinion, p. 2, emphasis by the court].
The court concluded that Board’s conclusion that no SLU award can be made because “no special consideration applies to a hamstring tear” fails to take into consideration that the 2018 guidelines specifically permit an SLU award to be based upon a permanent residual deficit caused by physical damage to a muscle, such as a hamstring. As the Board’s determination was not supported by substantial evidence, the court held it must be reversed, and the matter remitted for a determination of claimant’s SLU award.