IN RE: the Claim of Glenn SCOFIELD

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Glenn SCOFIELD, Appellant, v. CITY OF BEACON POLICE DEPARTMENT et al., Respondents. Workers' Compensation Board, Respondent.

Decided: January 24, 2002

Before:  CARDONA, P.J., MERCURE, CREW III, SPAIN and CARPINELLO, JJ. Ouimette, Goldstein & Andrews (Louis M. Dauerer of counsel), Poughkeepsie, for appellant. Walsh & Hacker (R. Scott Thomson of counsel), Albany, for City of Beacon Police Department and another, respondents.

Appeal from a decision of the Workers' Compensation Board, filed August 8, 2000, which ruled, inter alia, that the employer was entitled to full reimbursement from a schedule award.

 Claimant, a police officer, sustained a work-related left knee injury in May 1995 and injured the same knee at work in May 1996.   He lost time from work after each injury and was paid his regular wages pursuant to General Municipal Law § 207-c.   After the May 1996 injury, a 15% schedule loss of use award for the left leg was made and, pursuant to Workers' Compensation Law § 30, the employer sought reimbursement from the schedule award for the wages paid after both injuries.   Based upon the opinion of his treating physician that the schedule award was caused entirely by the 1995 injury, claimant argued that the employer's right to reimbursement from the award was limited solely to the wages paid after the first injury.   The Workers' Compensation Board disagreed and concluded that the 1996 injury was a consequence of the 1995 injury, not a new injury, and therefore the two files should be combined resulting in reimbursement to the employer for all wages paid on the combined files.   Claimant appeals.

 Whether a second injury is a consequence of an earlier one is a factual issue for the Board to resolve (see, Matter of Trickel v. Judski Assocs., 247 A.D.2d 778, 669 N.Y.S.2d 411) and depends upon the existence of a sufficient relationship between the two injuries (see, Matter of Crawford v. New York City Health & Hosp. Corp., 257 A.D.2d 801, 683 N.Y.S.2d 652).   Both injuries in this case were a dislocated patella.   After the second injury, claimant was diagnosed with a recurrent dislocation which was surgically repaired.   As the second injury is a result of the weakened condition caused by the earlier accident, there is ample support for the Board's finding that it was a consequence of the first (see, Matter of Johnson v. New York City Bd. of Educ., 169 A.D.2d 1003, 565 N.Y.S.2d 566).   Although a finding of consequentiality does not necessarily resolve the issue of reimbursability (see, Matter of Landgrebe v. County of Westchester, 57 N.Y.2d 1, 11, 453 N.Y.S.2d 413, 438 N.E.2d 1128), where, as here, both injuries were directly related to the impairment upon which the schedule award was based, full reimbursement is appropriate.

ORDERED that the decision is affirmed, without costs.



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