The New York Appellate Division has provided direction on what constitutes an improper calculation of the schedule loss of use of a shoulder. In Matter of Maloney v. Wende Correctional Facility, 2018 WL 456207 (January 18, 2013), the claimant injured his right shoulder as a result of a work related accident on July 30, 2013. The claimant’s treating physician rendered a permanency finding of 90 percent schedule loss of use of the right arm. The employer and the insurance carrier, collectively “the employer”, obtained a permanency report which found the claimant to have a 50 percent schedule loss of use of the right arm. At the conclusion of trial, the Law Judge found claimant exhibited a 50 percent schedule loss of use of the right arm. The Board affirmed and the claimant appealed to the New York Appellate Division, Third Department. The claimant’s 50 percent schedule loss of use was upheld.
In its affirmation of claimant’s 50 percent schedule loss of use, the court noted that both rating physicians utilized the New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012). Both physicians assigned 10 percent for claimant’s rotator cuff tear, 40 percent schedule loss of use for decrease in range of motion in anterior flexion and abduction to 90 degrees based on Table 2.11. This resulted in the employer’s 50 percent schedule loss of use opinion. The claimant’s treating physician went beyond the 50 percent and additionally assigned 40 percent for decrease in range of motion in abduction under section 2.5(3), resulting in a total 90 percent schedule loss of use.
The court held that in determining the schedule loss of use percentage to a shoulder injury, it is inappropriate to assign separate loss of use values for deficits in anterior flexion and abduction. The court looked to prior Board decisions which concluded adding together separate values for anterior flexion and abduction deficits could produce the illogical result that the combined value could exceed 80 percent. The schedule loss of use for a claimant with ankylosis, an impairment of the shoulder restricting the range of motion to zero degrees, is 80 percent. The court noted the difference between an injury resulting in ankylosis and the instant claim where the claimant was cleared to return to unrestricted work following surgery.
While the 2012 Impairment Guidelines left some ambiguity in separately valuing deficits in anterior flexion and abduction, the 2018 Impairment Guidelines clarified that issue. The 2018 Guidelines specifically state that after determining whether a special consideration is applicable, if there are deficits in range of motion in abduction and flexion, the physician is to use the higher of the two and caps the overall deficit, not to exceed 80 percent. These new guidelines will ensure going forward that an artificially inflated scheduled loss of use, such as in the instant case, will not result in a finding greater than a case of ankylosis. It may take some time for providers to catch up to the new standards, and we will continue to monitor any cases stemming from this issue.