No Initial Nonschedule Award, No Bar to SLU: Third Department Confirms SLU Eligibility and Retroactive Reopening Post‑Taher

Case: Matter of Romero v. Akorn Inc., 2025 NY Slip Op 05128 (App Div, 3d Dept, Sept. 25, 2025)

Court: Appellate Division of the Supreme Court, Third Department

Authoring Judge: Clark, J. (Garry, P.J., Aarons, Reynolds Fitzgerald and Ceresia, JJ., concurring)

Introduction

This decision adds a clear, practical gloss to New York’s “one initial award” rule governing the interplay between schedule loss of use (SLU) awards and nonschedule permanent partial disability (PPD) classifications. The Third Department holds that when a claimant has both schedule and nonschedule injuries from the same accident, but no initial award was made on the nonschedule classification (here, because the claimant failed to show attachment to the labor market at the time of classification), the claimant is entitled to pursue an SLU award for the statutorily enumerated member. The court further underscores that this principle applies even if no SLU opinion was introduced at the original permanency hearing and directs the Workers’ Compensation Board (Board) to reopen the case in line with its own post‑Taher policy guidance.

The case involves Rosa Romero, a worker who sustained injuries to the right knee (a schedule member), head, neck, and back (nonschedule sites). After a 2019 nonschedule PPD classification with a 75% loss of wage‑earning capacity (LWEC), Romero received no monetary award because she could not establish labor‑market attachment. Post‑Taher jurisprudence evolved, and by 2021 her treating physician filed an EC‑4.3 opining a 65% SLU of the right leg. The WCLJ and the Board rejected the SLU request as foreclosed by the prior permanency determination. The Appellate Division reverses, remitting for SLU consideration.

Summary of the Opinion

The court reiterates the baseline rule: a claimant with both schedule and nonschedule injuries arising from a single accident may receive only one initial award to avoid duplicative compensation for the same loss of wage‑earning capacity.
However, if no initial award was made on the nonschedule classification, the claimant may obtain an SLU award for permanent impairments to enumerated members (e.g., the leg/knee), consistent with Matter of Taher v Yiota Taxi, Inc.; Matter of Arias v City of New York; and Matter of Gambardella v New York City Tr. Auth.
Failure to demonstrate labor‑market attachment at the time of classification means no nonschedule award was payable. Because attachment is irrelevant to SLU entitlement, the lack of attachment does not bar an SLU award.
The Board’s refusal to consider SLU on the ground that no SLU opinion was introduced in 2019 is rejected: pre‑Taher, the injuries were treated as amenable only to classification, and the Board itself considered the knee impairment when classifying, confirming a permanent, schedule‑type impairment that can now be evaluated for SLU.
The Board’s non‑retroactivity stance conflicts with its own Release Subject No. 046‑1211 (Mar. 13, 2020), which promised reopening of cases contrary to Taher and its progeny upon request. The court remits for the Board to proceed accordingly.
Disposition: The decision is modified to reverse the Board’s determination that Romero could not receive an SLU award under these circumstances and is otherwise affirmed; the matter is remitted for further proceedings consistent with the court’s decision.

Analysis

Precedents Cited and Their Influence

The opinion rests on a cohesive line of Third Department authority that re‑balances the SLU/nonschedule architecture to avoid both duplication and forfeiture when nonschedule awards are not actually payable at classification.

Matter of Taher v Yiota Taxi, Inc., 162 AD3d 1288 (3d Dept 2018), lv dismissed 32 NY3d 1197 (2019):
- Articulated the “one initial award” principle: a claimant with schedule and nonschedule injuries from the same accident cannot receive both an SLU award and a nonschedule PPD award covering overlapping loss of wage‑earning capacity.
- Recognized a “unique circumstance”: if no initial nonschedule award is made, an SLU award may be pursued without causing duplicative compensation.
Matter of Arias v City of New York, 182 AD3d 170 (3d Dept 2020):
- Applied Taher to hold that where no initial nonschedule award was made, an SLU award could be granted for the schedule member injuries, despite coexistence of nonschedule impairments.
- Clarified that the absence of a payable nonschedule benefit opens the path to SLU.
Matter of Gambardella v New York City Tr. Auth., 204 AD3d 1210 (3d Dept 2022), lvs dismissed 39 NY3d 955 (2022):
- Identified the “salient condition” enabling SLU: ineligibility for a nonschedule award at classification, which may be due to a return to work at pre‑injury wages or voluntary retirement.
- Emphasized that labor‑market attachment is irrelevant to SLU entitlement and cannot bar an SLU award. The court quotes Gambardella here, integrating its reasoning.
Matter of Fuller v NYC Tr. Auth., 202 AD3d 1189 (3d Dept 2022), lv denied 39 NY3d 903 (2022):
- Expressly stated that a claimant’s lack of attachment to the labor market—voluntary or otherwise—does not affect SLU entitlement.
- Gambardella relies on Fuller; Romero uses that chain to neutralize the Board’s reliance on labor‑market attachment as a bar.

Together, these precedents establish the controlling framework: (1) avoid duplicative compensation by limiting claimants to one initial award; (2) if nonschedule PPD yields no payable initial award at classification, SLU may be pursued; and (3) labor‑market attachment does not impact SLU eligibility.

Legal Reasoning

The Third Department’s reasoning proceeds in three steps:

Classification is not the same as an award. Workers’ Compensation Law § 15(3)(w) governs nonschedule PPD. Classification with a LWEC percentage mathematically frames potential benefits, but if the claimant is ineligible for payment (e.g., not attached to the labor market), no nonschedule “initial award” exists. The court emphasizes that the claimant here received no awards because she failed to demonstrate attachment to the labor market. The absence of paid nonschedule benefits thus triggers Taher’s “unique circumstance.”
No duplication concerns because no nonschedule money was paid. The “one initial award” rule prevents overlapping compensation for the same wage‑earning capacity loss. That concern does not arise where a nonschedule classification produced no initial monetary award. Permitting an SLU in such a scenario aligns with Taher, Arias, and Gambardella, and it respects the non‑overlap principle.
Labor‑market attachment does not bar SLU; retroactive application is appropriate.
- Under Gambardella and Fuller, attachment is irrelevant to SLU entitlement. The claimant’s failure to prove attachment in 2019 therefore does not—and cannot—defeat a subsequent SLU claim.
- The Board’s reliance on the absence of a contemporaneous 2019 SLU opinion is unpersuasive. Pre‑Taher, the parties treated the knee injury as “amenable to classification,” not to an SLU; there was no reason for claimant to secure an SLU opinion then. Moreover, the Board included the knee impairment in the classification analysis, acknowledging a permanent schedule‑type impairment existed—precisely the predicate for SLU evaluation now.
- The Board’s non‑retroactivity stance conflicts with its own Release Subject No. 046‑1211 (Mar. 13, 2020), which pledges to reopen cases decided contrary to Taher and its progeny upon request. The court enforces that policy by directing a reopening here.

Impact

This decision has significant practical and doctrinal consequences:

Clear path to SLU in “no nonschedule award” cases. Claimants who were classified with a nonschedule PPD but received no monetary award—because they failed to demonstrate labor‑market attachment, returned to work at pre‑injury wages, or voluntarily retired—can pursue SLU awards for schedule members injured in the same accident.
Retroactive reopening is not only permissible; it is expected. The court leans on the Board’s own 2020 Release committing to reopen Taher‑contrary decisions upon request. Practitioners can invoke this decision and the Release to revive appropriate cases where the nonschedule classification yielded no money and no SLU was previously considered.
No “second bite” concerns when no first bite occurred. The decision reinforces that awarding an SLU in this posture does not violate the “one initial award” rule because no nonschedule award was paid. But it also implicitly cautions: once an SLU is paid as the “initial award,” a subsequent nonschedule “initial award” for the same accident is foreclosed to avoid duplication.
Renewed exposure for carriers/employers. Expect increased SLU litigation and potential liabilities in legacy cases where nonschedule classifications produced no payments. Carriers should audit inventory, assess exposure on scheduled members, and prepare to litigate SLU percentages under the applicable impairment guidelines.
Administrative efficiency and fairness. The opinion promotes uniformity by aligning the Board’s practice with Third Department precedent and the Board’s own policy, reducing inconsistent denials based on procedural finality arguments.

Complex Concepts Simplified

Schedule Loss of Use (SLU): A lump‑sum (or lump‑sum equivalent) award compensating for permanent functional loss of a statutorily enumerated body member (e.g., arm, leg, hand). It is not tied to actual time off work and is measured by the percentage loss of use under the Board’s impairment guidelines once the worker reaches maximum medical improvement (MMI).
Nonschedule Permanent Partial Disability (PPD) Award: Ongoing weekly benefits based on the worker’s loss of wage‑earning capacity (LWEC) for injuries not covered by the schedule (e.g., spine, head). It is calculated under WCL § 15(3)(w) using average weekly wage and LWEC. Payments may require the claimant to demonstrate labor‑market attachment if not working.
“One Initial Award” Rule: To prevent double recovery for the same accident, a claimant may receive only one “initial award”—either an SLU award or a nonschedule PPD award—not both. However, if no initial nonschedule award was made (i.e., no money paid), an SLU may be awarded without duplication.
“No Initial Award” Explained: A PPD classification that yields no paid benefits—whether because the claimant is not attached to the labor market, has returned to work at pre‑injury wages, or has voluntarily retired—does not constitute an “initial award.” Only paid benefits count as an initial award.
Labor‑Market Attachment: The requirement, relevant to nonschedule PPD payments, that a claimant show a good‑faith, diligent search for work within medical restrictions. Attachment is irrelevant to SLU entitlement.
MMI and EC‑4.3: Maximum Medical Improvement (MMI) means the worker’s condition has stabilized. A Doctor’s Report of MMI/Permanent Impairment (Form EC‑4.3) provides the medical basis for permanency ratings, including SLU percentages.

Conclusion

Matter of Romero v. Akorn Inc. fortifies and operationalizes the Taher‑Arias‑Gambardella line: when a nonschedule PPD classification produces no initial award, the claimant may obtain an SLU for permanent impairments to enumerated members arising from the same accident. The court rejects procedural and evidentiary roadblocks erected by the Board—particularly the absence of a contemporaneous SLU opinion at the original permanency hearing—and insists on retroactive reopening pursuant to the Board’s own 2020 policy release.

Key takeaways:

No paid nonschedule award at classification means SLU remains available.
Lack of labor‑market attachment does not defeat an SLU claim.
Board must reopen Taher‑contrary decisions upon request.
Receiving an SLU as the initial award forecloses a later initial nonschedule award for the same accident to avoid duplication.

For practitioners, Romero is both a roadmap and a mandate: identify cases with nonschedule classifications that yielded no payments, obtain current EC‑4.3 SLU opinions for schedule members, and press for reopening and adjudication of SLU awards consistent with this decision.