You were given a schedule loss of use award years ago. Twenty percent of the leg, say. The check came, the case closed, and that was the end of it as far as you knew.
Then the knee keeps going. It bends less than it used to. A doctor measures it and says the loss is now well beyond what you were paid for.
You can ask for the difference. A Third Department decision from February shows both how that works and how the Board can get it wrong.
Sixteen years, three numbers
The claimant hurt her left knee at work in May 2006 and had arthroscopic surgery. Her claim was established in April 2008 with a 12% schedule loss of use. After a second surgery in March 2009 that went to 20%.
In November 2022 — sixteen years after the accident — an orthopedic surgeon examined her and found measurable decline in her range of motion, which he attributed to a worsening of the underlying condition. In his opinion the loss was now 35%.
She applied to reopen. The Board said no. The Appellate Division reversed and sent it back (Matter of Siddon v Advance Energy Technologies, 3d Dept, Feb. 19, 2026, Docket No. CV-24-1300).
What reopening for an increase requires
The regulation is short and it is the whole test. A request to reopen must “set forth sufficient facts to establish that a material change in the claimant’s condition has occurred” (12 NYCRR 300.14[a][2]).
Note what that is not. It is not new pain, or a bad stretch, or the sense that the award was too low in the first place. It is a change in the condition, documented, since the award was made. The instrument for showing it on a joint is a measurement.
The Board called its own method subjective
This is the part worth reading twice.
The surgeon measured her range of motion with a goniometer — the hinged protractor used to measure how far a joint travels. The Board, in denying the application, “summarily dismissed this numerical range-of-motion evidence, deeming it mere subjective proof of change in condition.”
The court’s answer was that the rejection “is inconsistent with the Board’s own impairment guidelines,” which identify the goniometer as the preferred method for obtaining range-of-motion measurements (New York Workers’ Compensation Guidelines for Determining Impairment § 1.3 [2018]).
In other words: the Board dismissed as subjective the exact measurement its own published Guidelines tell physicians to use. That is the kind of reasoning that does not survive review.
Uncontradicted does not mean ignorable
The second holding is the more broadly useful one. The court set both halves of the rule out together:
“Although we recognize that ‘the Board is free to reject the opinion of an expert where it finds such to be unconvincing or incredible,’ it is equally settled that the Board ‘may not reject an uncontradicted opinion that is properly rendered.’”
The Board has wide latitude to disbelieve a doctor. What it cannot do is brush aside a properly rendered opinion that nobody has contradicted. Where the carrier puts up no competing medical proof, an opinion that follows the Guidelines is not something the Board can simply decline to accept.
What the difference is worth
Schedule awards are arithmetic, which is what makes this concrete. A leg is 288 weeks at total loss, so each percentage point is a little under three weeks of benefits.
Going from 20% to 35% is fifteen points — roughly 43 additional weeks, against which the carrier gets credit for what it already paid. Whether any individual case produces that is for the Board on remittal, but it shows why these applications are worth making rather than assuming a closed file is closed forever. How the schedule works is on our schedule loss of use page, and the knee specifically on our knee injury page.
This is not the same as a claim that was never paid
Two different situations get called “reopening,” and it is worth keeping them apart. If yours is the first kind — an award that was never made in the first place — that is a different route with different time limits.
One is an old claim where a permanency award was never made at all — the case went quiet and nobody ever classified it. That, along with the time limits that apply, is the subject of our post on reopening an old workers’ comp claim.
The other is this one: an award was made, you were paid, and the body part has since gotten measurably worse. Different facts, different proof, and the deciding question is the material change.
If your old injury has gotten worse
- Get measured, not just examined. Numbers in degrees are what a material change looks like on paper.
- Ask the doctor to compare. The opinion should say the condition has worsened since the earlier findings, not merely that it is bad now.
- Make sure the report follows the Guidelines. An opinion built the way the Board’s own manual prescribes is much harder to dismiss.
- Dig out the old award. The prior percentage is the baseline the new one is measured against.
- Do not be put off by how long ago it was. This accident was in 2006 and the application was made in 2022.
- A denial is not the end. The Board was reversed here because its reasoning did not hold up.
Talk to a New York workers’ compensation attorney
Most people who were paid a schedule award years ago have no idea the number can be revisited when the joint deteriorates. If your knee, shoulder, hand or hip is meaningfully worse than it was when you were paid for it, that is worth a conversation.
Call (718) 701-2776. The consultation costs nothing, and you will speak with me.
We handle workers’ compensation claims for injured workers throughout the five boroughs and across New York State. If we don’t recover money for you, we don’t get paid.
Nothing on this page is legal advice about your own claim. This post discusses a published appellate decision, and whether a claim can be reopened is decided by the Board on the record in each case.
