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Claimant sustained a work-related right shoulder injury in 2009. The Workers’ Compensation Board (WCB) awarded schedule loss of use (SLU) but apportioned the award, attributing most of the disability to preexisting degenerative arthritis and a 1981 injury, and only 10% to the 2009 injury. The appellate court reversed this decision, ruling that apportionment was improper. The court reasoned that a preexisting condition, even if symptomatic, does not warrant apportionment unless it was disabling in a compensation sense before the current injury. Since the claimant remained fully employed and capable of performing duties despite prior shoulder issues, the prior conditions were not considered disabling. Therefore, the claimant is entitled to the full 60% SLU award for the 2009 injury.
Matter of Levitsky v. Garden Time, Inc. is a workers' compensation case decided in Appellate Division of the Supreme Court of the State of New York. This case addresses legal issues related to compensation claims, benefits, and court rulings.
It is commonly referenced in legal research involving workers' compensation laws in Appellate Division of the Supreme Court of the State of New York.
Full Decision Text1 Pages
Claimant sustained a work-related right shoulder injury in 2009. The Workers’ Compensation Board (WCB) awarded schedule loss of use (SLU) but apportioned the award, attributing most of the disability to preexisting degenerative arthritis and a 1981 injury, and only 10% to the 2009 injury. The appellate court reversed this decision, ruling that apportionment was improper. The court reasoned that a preexisting condition, even if symptomatic, does not warrant apportionment unless it was disabling in a compensation sense before the current injury. Since the claimant remained fully employed and capable of performing duties despite prior shoulder issues, the prior conditions were not considered disabling. Therefore, the claimant is entitled to the full 60% SLU award for the 2009 injury.
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