Text of the Board’s decision. Publisher headnotes and editorial material are omitted. Linked from the SLU Worksheet notes.
Workers' Compensation Board State of New York
Case No. G307 8153
Carrier ID No. 3506219-1 W036722
December 30, 2025
AmTrust Ins Co of Kansas Inc PO Box 89404
Cleveland, OH 44101-6404
Law Office of Ralph Ankier 10 British American Boulevard Latham, NY 12110
Date of Accident 2/17/2022
This Board Panel, upon the direction of the Chair of the Workers' Compensation Board and pursuant to Workers' Compensation Law Section 142 and 12 NYCRR 300.13, has reviewed and considered the claimant's application for discretionary Full Board Review, received on September 29, 2025, of the Board Panel Memorandum of Decision (MOD) filed August 29, 2025, in the above cited case. Based on that review, the Board Panel has determined that Full Board Review is not warranted. The Board Panel, however, has determined that the MOD should be amended as indicated below.
This decision amends the Board Panel MOD filed on August 29, 2025, to properly calculate the schedule loss of use of the claimant's left leg. The amended portions of the decision are in italics.
The claimant requests review of the Workers' Compensation Law Judge (WCLJ) reserved decision filed September 13, 2024. The carrier filed a timely rebuttal.
The issue presented for administrative review is whether the record supports a finding that the claimant has a 20% schedule loss of use (SLU) of the left leg.
This case was previously established for a left knee injury, as a result of a work-related accident on February 17, 2022. The claimant's average weekly wage was determined to be $446.69.
Attached to a Prior Authorization Request: MTG Confirmation (“Confirmation PAR”) filed by Dr. Sullivan on October 5, 2022, was a number of attachments, including a report from a March 14, 2022 left knee MRI. In pertinent part, the MRI report reads: “There is a subtle subchondral impaction fracture lateral tibia adjacent to tibiofibular joint. Linear fracture measures 13 mm.”
The claimant underwent left knee surgery on January 31, 2023, performed by Dr. Sullivan. The pre-operative diagnosis was a left knee insufficiency fracture of the tibia. The surgery entailed a left knee arthroscopy, resection of the medial plica, debridement of the ACL, and treatment of the insufficiency fracture of the lateral tibial condyle.
On December 14, 2023, the claimant attended an independent medical examination (IME) performed by Dr. Scott. He opined that the claimant reached maximum medical improvement (MMI). He noted that the claimant is status post left knee arthroscopy. Ranges of motion were measured three times on each plane. Left knee range of motion was to 120 degrees on flexion and 0 degrees on extension. Contralateral (right) knee range of motion was to 140 degrees on flexion and 0 degrees on extension. Dr. Scott found that the claimant has a 10% SLU of the left leg, based on 120 degrees of flexion.
On April 29, 2024, the claimant was examined by Dr. Gould, who prepared a permanency report. He found that the claimant reached maximum medical improvement (MMI). Left knee active range of motion was to 90, 80 and 85 degrees. Left knee passive range of motion was to 100 degrees. Contralateral (right) knee range of motion was to 120 degrees. Dr. Gould calculated left knee SLU as follows: 10% for a tibial plateau fracture and 20% for a 30 degree deficit in range of motion, for a total SLU of 30%.
Orthopedic surgeon Dr. Scott was deposed on August 7, 2024. He testified that he examined the claimant on December 14, 2023. Dr. Scott agreed that a March 14, 2022 MRI revealed a subchondral impaction fracture in the lateral tibia based into the tibial fibular joint. He explained that an insufficiency fracture is not the same thing as an impaction fracture. He explained: “It's -an impaction fracture, according to the MRI, it didn't show any depression or anything, but that's what the impaction was from. And more insistent, insufficiency fracture is more or-more of, like a stress fracture. I think what he's saying-well, I'm not going to speak for it, but I just think they're both saying it's not a big depressed fracture.” He believed that a fracture of the lateral tibial condyle was found. He indicated that you have two condyles. He said: “The medial and the lateral condyle, and that's where the femur bone fits in. It's kind of a depressed area that's there. So we can consider those the tibial plateaus or just below the tibial plateau, so that's where the femur sits. So those two condyles are there, medial and lateral.” When asked if special consideration 7.5, number 7 of the impairment guidelines for the knee, for a fracture of the tibial plateau is a separate fracture, Dr. Scott said: “Yeah. You know, I would have to really see the MRI to see where it comes. Does it go up into the tibial plateau? The MRI doesn't describe it that way. It describes it as a subchondral, meaning below the cartilage, that it was there, so I would not call this-I did not look at it as a tibial plateau fracture. I think that's the fairest way to say it.” Dr. Scott explained that this is why he used range of motion. Dr. Scott indicated that his SLU was based solely on flexion, he did not feel that any of the special considerations applied.
Dr. Gould was deposed on August 13, 2024. He agreed that his report indicates that he chose special consideration 7 under 7.5 for the claimant. He said “....I mean I look at tibial plateau-I just looked it up today and tibial plateau is two articular surfaces, the medial lateral tibial condyle and the surgical report says treatment of insufficiency frature lateral tibia condyle-” The questioning attorney discussed his interpretation of caselaw with Dr. Gould. Dr. Gould further said: “I mean, the range of motion would be a larger number than the percent from a fracture.” He also said: “I would think that he would-It is one or the other and you want to take the larger of the two, that is more appropriate to me.” He continued: “In which case here it would be the 20 percent as of 30-degree asymmetry of knee flexion on my examination on April 29, 2024.” In response to persistent questioning by the questioning (claimant's) attorney, Dr. Gould was willing to agree that it is not a tibial plateau facture subject to the special considerations but a tibial condyle fracture. On cross examination, Dr. Gould said that he originally did believe that the fracture was a tibial plateau fracture. He explained: “Orthopedics have tibial condyle fracture and tibial condyle medial lateral to the condyle make up the tibial plateau.” He recounted his range of motion findings. His understanding is that you are supposed to use active range of motion.
In a reserved decision filed September 13, 2024, among other things, the WCLJ found that the claimant has a 20% SLU of the left knee, entitling the claimant to 57.6 weeks of benefits, with no protracted healing period (PHP), for a total SLU award of $17, 152.70, less payments already made. She directed an attorney fee in the amount of $67.31 for the claimant's representative.
The claimant's attorney contends that the WCLJ should have found that the claimant has a 34.284% SLU based on the medical evidence in the file.
In rebuttal, the carrier contends that the WCLJ's decision should be affirmed in its entirety.
In Matter of Blue v New York State Off. of Children & Family Servs., 206 AD3d 1126 (2022) the Appellate Division, Third Department found that when chondromalacia patella has a specific schedule loss of use range set forth in the Special Consideration #4, the Board should not prohibit additional amounts for range of motion deficits caused by a diagnosis of meniscus tear.
Subsequently, the Court has clarified that its holding in Blue is not limited to only chondromalacia patella and meniscus injuries, and “applies with equal force where a claimant alleges [an] impairment due to both a condition encompassed by a special consideration and a diagnosis that is not governed by the special consideration at issue” (Matter of Garrow v Lowe's Home Ctrs. Inc., 227 AD3d 1242 [2024]).
Further, “the Board should determine the appropriate SLU percentage, whenever possible, in a manner that is ‘consistent with the plain language of the impairment guidelines' (Matter of Zuhlke v Lake George Cent. Sch. Dist., 220 AD3d 1028 [2023])” (Matter of Albany Marble Inc, 2024 NY Wrk Comp G2098201). Therefore, when a “literal interpretation of the Guidelines would unfairly result in a lower SLU based on the application of [a] Special Consideration ... than claimant would receive based on [the] range of motion deficits alone ... without regard to the special consideration,” the SLU award should be “the higher of these two values” (Albany Marble Inc, 2024 NY Wrk Comp G2098201).
“Whether a claimant is entitled to [a schedule loss of use] award and, if so, the resulting percentage are factual questions for the Board to resolve” and the Court's review is limited to whether the Board's determination is supported by substantial evidence (Matter of Maunder v B & B Lbr. Co., 166 AD3d 1261 [[2018] [internal citations omitted]; see also Matter of Gilliam v Doccs Wende Corr. Facility, 190 AD3d 1080 [2021]).
Section 1.3 of the Workers' Compensation Guidelines for Determining Impairment (2018 Guidelines) states what a medical provider should consider and report when providing an opinion on permanent impairment and states that a thorough physical examination should be performed which includes measuring range of motion. Section 1.3 further specifies that “[d]eficits [in range of motion] should be measured by comparing to the baseline reading of the contralateral member, if appropriate. Using the contralateral is not appropriate where the opposite side has been previously injured or is not otherwise available for comparison.” A contralateral member is unavailable for comparison only when there is evidence of a permanent physical or functional impairment to the member resulting from a traumatic injury or other condition which does not affect the injured member (Matter of DOCCS Hale Creek ASACTC, 2021 NY Wrk Comp G1434828). It will be presumed that it is appropriate to use the contralateral member for comparison absent evidence of permanent physical or functional impairment to the contralateral member which is not present in the member which was injured at work (id.).
The 2018 Guidelines, Table 7.4 indicates usage of ROM deficits for flexion and extension of the knee. Here, Dr. Gould measured left knee flexion of 90 degrees versus 120 degrees for the contralateral. The 2018 Guidelines, Table 7.4 indicates 40% SLU for a moderate flexion impairment of 90 degrees (140 normal).
As to calculating SLU values when using the contralateral, the Board's Permanent Impairment Scheduled Loss of Use Frequently Asked Questions, under Calculating a Schedule Loss of Use, sets forth the following:
“How is the SLU calculated when comparing the non-affected to affected side?
The impairment is determined based on the percentage of loss of range of motion when compared to the contralateral side. The contralateral limb should be used as the baseline for assessing the injured limb unless there is evidence that a prior injury to the contralateral limb resulted in ROM restrictions, or is otherwise unavailable (e.g., contralateral limb amputated). Example 1: When the ROM for the contralateral shoulder is not available, use the normal shoulder flexion ROM 0-180 degrees according to the Guideline table. If, for example, the claimant's ROM is 135 degrees, this results in a 20% SLU of the arm (See 2018 Guidelines, Table 5.4(a), p. 31).
Example 2: However, if the contralateral shoulder ROM is available and flexion ROM is 0 to 160 degrees, this becomes the baseline comparison for ROM. For example, flexion ROM of the injured shoulder is 0 to 135 degrees. 160/180 x 10089% 135 degrees20% 2S 8918% SLU” (https://www.wcb.ny.gov/content/main/hcpp/ImpairmentGuidelines/ SLU-FAQs.jsp#calculatingLoss) Here, in reviewing the deposition testimony, the Board Panel found Dr. Gould to be highly credible, even in the face of persistent questioning. Using Dr. Gould's figures, the Board Panel chooses to compare the highest value on active flexion, 90 degrees with the 120 degrees found on the contralateral side. The Board Panel finds that based upon Dr. Gould's measurements of the contralateral knee and no indication of contralateral injury, 120 degrees of flexion is the appropriate baseline rather than the 140 degrees indicated in the guidelines. 120/140 86%. As a result, the SLU award indicated by Guidelines Table 7.4 for the knee, should be multiplied by 86% to find the proper SLU value. Therefore, the 40% SLU for loss of left knee flexion must be multiplied by 86% to find the proper SLU value. 40% x 86% 34.4% SLU. Thus, 34.4% SLU is the proper finding of SLU for the left knee. The Board Panel also finds that special consideration 7, for a tibial plateau fracture, applies here, which equals a 10-15% SLU of the leg. The higher of these two values is 34.4%. The Board Panel finds that the claimant has a 34.4% SLU of the left leg.
Therefore, the Board Panel finds, upon review of the record and based upon a preponderance of the evidence, that the SLU based upon Dr. Gould's range of motion findings results in a 34.4% SLU of the left leg.
ACCORDINGLY, the WCLJ reserved decision filed September 13, 2024, is MODIFIED to note prior periods of total disability were from March 1, 2022 to April 6, 2022 and from January 31, 2023 to March 12, 2023. The 20% SLU finding is MODIFIED to 34.4% SLU of the left leg. Benefits are awarded as follows:
99.072 weeks @ $297.79/week $29, 502.65 total award $29, 502.65 - $17, 152.70 (prior payments) $12, 349.95 net award $12, 349.95 - $1, 852.49 (15% attorney fee) $10, 497.46 balance to claimant.
The carrier is directed to pay any balances due and owing to the claimant, and/or the claimant's attorney, as a result of the modifications made herein.
No further action is planned at this time.
All Concur.
Robert Bergin Samuel G. Williams Clarissa Rodriguez