Award for Loss of Four Fingers and Thumb Exceeds That of Entire Hand
In a divided decision, a New York appellate court affirmed an amended decision of the state’s Workers’ Compensation Board that awarded an injured employee a 100 percent schedule loss of use of his right thumb in addition to his previously awarded 100 percent schedule loss of use of his right hand [Matter of Deck v. Dorr, 2017 N.Y. App. Div. LEXIS 4130 (May 25, 2017)]. The math-defying result is that the employee, who sustained an injury to his right hand when it was caught in a meat grinder, amputating all four of his fingers and his thumb on his right hand, will receive more workers’ compensation loss of use benefits than if his hand had been completely severed just above the wrist.
Following the traumatic injury, surgeons successfully reattached the employee’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, a WCLJ awarded the employee a 100 percent schedule loss of use of his right hand based upon the loss of his four fingers, without consideration of his thumb, in accordance with New York workers’ compensation guidelines.
The employee’s surgeon testified that, upon utilization of the applicable guidelines and taking into account loading, the amputations of all four fingers and the thumb equated to a combined SLU of 157 percent. The surgeon explained that the guidelines contemplate circumstances in which the SLU may exceed 100 percent 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 ). The WCLJ issued a decision crediting the surgeon’s unrefuted testimony and reliance on the guidelines, and concluded that the employee had sustained an additional 57 percent SLU of his right thumb, or a combined 157 percent SLU of his right hand.
Board Separated Finger Injuries from Loss of Thumb
The Board rescinded the 157 percent SLU, finding that, under the guidelines and given the limited functioning of his thumb, the employee had actually sustained a 100 percent SLU of his right thumb, in addition to the previously awarded 100 percent SLU of his right hand, as the latter award had been based on the amputation of his four fingers. The Board concluded that the loss of four fingers, excluding his thumb, warranted the previously awarded 100 percent SLU of the right hand and that, separately considering the thumb injury, the employee was also entitled to a 100 percent SLU of his right thumb.
Appellate Court Majority Agreed
The majority of the appellate court deferred to the Board’s determination to credit the sole proffered medical opinion of the surgeon, and to the Board’s conclusion that the employee sustained a separate and distinct injury to his thumb, which warranted separate SLU determinations and awards for the thumb and the fingers. The majority indicated that under these circumstances, the Board’s determination to assign a separate SLU to the loss of the thumb and to make a distinct award was supported by the case law and the guidelines, and was not contrary to the statutory language.