Matter of Amato v. Patchogue Supermarkets LLC
Domenico Amato, a claimant, sustained work-related injuries to his bilateral shoulders and biceps in May 2019, leading to two arthroscopic surgeries. Following these, medical evaluations for permanency by two orthopedic specialists, Frank Hudak and Lee Kupersmith, yielded differing schedule loss of use (SLU) percentages for Amato's arms. A Workers' Compensation Law Judge initially found a bilateral 42.5% SLU. However, the Workers' Compensation Board subsequently rejected both physicians' permanency opinions, deeming them unreliable due to inconsistent range of motion (ROM) measurements. Instead, the Board relied on earlier ROM measurements from Dr. Kupersmith, taken before Amato reached maximum medical improvement (MMI), to determine a 20% SLU for each arm. Amato appealed this decision. The Appellate Division, Third Department, modified the Board's decision, finding that it was improper for the Board to determine SLU percentages based on premature medical reports that did not confirm MMI or adhere to proper ROM measurement guidelines. Consequently, the matter was remitted to the Workers' Compensation Board for further consideration.