NY Employer Does Not Always Take Employee as it Finds Him

Apportionment Allowed for Prior Nonwork-Related Knee Injury

A New York appellate court affirmed a finding by the state’s Workers’ Compensation Board that apportioned a claimant’s 30 percent right leg schedule loss of use (“SLU”) between claimant’s February 2007 work-related injury and his 2005 nonword-related injury, showing, that at least in limited circumstances, an employer does not necessarily take an employee as it finds him or her [Matter of the Claim of Sanchez v. STS Steel, 2017 N.Y. App. Div. LEXIS 7001 (3rd Dept., Oct. 5, 2017)].


In August 2005, claimant, a steel worker, underwent right knee arthroscopy to repair a nonwork-related lateral meniscus tear, after which he returned to work. In February 2007, claimant sustained a work-related injury to his right knee when he exited the back of a truck that he had finished loading. As a result, he underwent a second right knee arthroscopy procedure. A WCLJ established the claim for a right knee injury without prejudice to the issue of apportionment. Following the depositions of two physicians, regarding the apportionment issue, the WCLJ found that claimant had a 30 percent SLU of his right leg, of which 66 percent was attributable to the work-related injury and 33 percent to the 2005 nonwork-related injury. The Board upheld the WCLJ’s decision and the claimant appealed.

Apportionment is the Exception, Not the Rule

The appellate court noted that, as a general rule, apportionment is not applicable where the preexisting condition was not the result of a compensable injury and the claimant was able to effectively perform his or her job duties at the time of the work-related accident despite the preexisting condition. There is, however, a limited exception: apportionment may be applicable in an SLU case if the medical evidence establishes that the claimant’s prior injury—had it been compensable—would have resulted in an SLU finding.

Earlier Injury Would Have Supported SLU Award

Reviewing the evidence offered in the case, the Court noted that one of the medical experts testified that even if claimant had fully recovered from his 2005 injury, the 2005 surgical procedure involving the excision of his meniscus in his right knee, standing alone, would have resulted in a 7 1/2 percent SLU finding and would have been amenable to a scheduled award. That finding was not contradicted by any other evidence and the Board, accordingly, was within its power to apportion the claimant’s SLU one-third to the nonwork-related injury.

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