In this 3rd Department decision, the court confirms a claimant’s right to a standalone SLU, regardless of whether he/she had a SLU previously to that same member. The claimant had a 2015 accident to his right shoulder and received a 27.5% SLU for the right arm. In 2019, he had an injury to right elbow/right distal biceps tendon. The Board initially permitted a credit for the 27.5% for the 2019 injury and the Board Panel affirmed finding that there was no credible medical evidence that the 33 1/3% SLU opinion for the right arm by their medical expert was “solely attributed” to the 2019 accident.
The 3rd Dept. reversed the finding, noting that the claimant’s expert did in fact reference and distinguish the prior right shoulder injury, and referenced it in his report, that it was “unrelated” to the 2019 biceps injury.
Practice Tip: Here, the parties waived depositions, I would suggest not doing that. It may have been possible to get the claimant’s physician to concede some relationship to the prior injury.
[View source.]
