Matter of Fiato v. New York State Dept. of Transp.

Summary

The Appellate Division, Third Department, affirmed Workers’ Compensation Board decisions awarding Daniel Fiato a 15% schedule loss of use of his left leg following knee replacement surgery. The court held that the 2018 Workers’ Compensation Guidelines applied because the first evaluation of the additional schedule loss occurred after January 1, 2018, and that the prior 20% award was properly deducted from the current 35% impairment determination.

Holdings

1. The 2018 Guidelines governed because the first medical evaluation of the claimant's current schedule loss of use occurred after January 1, 2018, the effective date of the 2018 Guidelines.
2. Substantial evidence supported the Board's finding that the claimant sustained a 35% schedule loss of use of the left leg.
3. The Board properly deducted the prior 20% schedule loss of use award from the current 35% award because both awards concerned impairment of the same left leg.
4. The appeals from the September 2019 and August 2020 decisions were deemed abandoned because the claimant failed to raise arguments challenging those decisions.

Questions Presented

1. Whether the claimant's schedule loss of use following his 2017 total knee replacement surgery had to be evaluated under the 2012 Guidelines or the 2018 Guidelines.
2. Whether substantial evidence supported the Board's finding of a 35% schedule loss of use under the 2018 Guidelines.
3. Whether the Board properly deducted the claimant's prior 20% schedule loss of use award for the same left leg.
4. Whether the claimant's appeals from the Board's denial of reconsideration or full Board review and its determination that the Workers' Compensation Law Judge lacked jurisdiction were abandoned.

Disposition

affirmed