Lack of Medical Evidence Leaves Knee Injury Questions Unanswered

Frank Ferreri

New York, NY ( – When cases involve apportionment, a best practice tip is to have clear medical evidence on what is attributed to the injury at issue and what stems from a prior injury.

Because information from two medical professionals in Matter of Hughes v. Mid Hudson Psychiatric Center, No. 531160 (N.Y. App. Div. 09/02/21) did not make the distinction clear, an administrative decision was off the mark involving a worker’s knee injuries.


The worker experienced a work-related injury to his right knee and underwent surgery. His claim for workers’ compensation benefits was subsequently established.

Later, the worker’s surgeon opined that the worker had reached maximum medical improvement and had a 45 percent schedule loss of use of his right leg. A medical examiner agreed but opined that the SLU was 60 percent attributable to a prior noncompensable injury that occurred years earlier and resulted in six surgeries.

After learning about the prior injury and related surgeries, the surgeon issued a new report, finding that 30 percent of the worker’s SLU was attributable to the prior injury. Following a hearing, a workers’ compensation law judge found the examiner’s opinion more credible and concluded that the worker had a 45 percent SLU, 40 percent of which was causally related to the work-related injury.

On administrative review, the Workers’ Compensation Board rejected both medical opinions, citing the “complete lack of medical evidence” regarding the worker’s prior injury and surgeries. Turing to state guidelines, the board found that the worker had a 27.5 percent SLU related to the at-work injury.

The worker appealed to court.

Apportionment Questions

Generally, apportionment is not applicable as a matter of law when a preexisting condition was not the result of a compensable injury and the claimant was able to effectively perform his job duties at the time of the work-related accident despite the preexisting condition. However, an exception provides that apportionment may be applicable in an SLU case if the medical evidence establishes that the prior injury would have resulted in an SLU finding if it had been compensable.

In the worker’s case, the lack of medical evidence left the court unable to apportion the injuries, and the board’s use of guidelines to construct am SLU was misdirected, according to the court.

“There are no operative or pathological reports from any surgeries related to the [prior] injury in the record,” the court wrote. “Nor is there any medical evidence regarding the degree of disability, if any, that had resulted from the prior injury and/or surgery and the record reflects that claimant was fully employed with no restrictions at the time of the [workplace] injury.”

As a result, the court determined that an SLU award was not supported by the evidence, and it reversed the case.

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