This Week with the NYS WCB

  (1) Labor Market Attachment This claim was established for the back, following a 1990 accident.  There was no lost time, and liability was transferred from the carrier to Special Funds under Section 25-a. Claimant also had a claim established for the neck from a 2002 accident with only three weeks of lost time.  A subsequent claim for a right shoulder arising out of a 2015 accident was indexed, but never established. On the neck claim, claimant raised the issue of causally-related lost time after retiring on June 1, 2016.  After several hearings were held addressing which claim or claims resulted in lost time awards, testimony as to retirement was held at a hearing in January 2017, at which time SF raised attachment.  In a Reserved Decision filed March 24, 2017, the Law Judge classified claimant with a 50% LWEC and made awards from June 1, 2016 to March 20, 2017 at $400.00 PPD, directed development of the record on attachment. On appeal, in a decision filed Oc...

  (1)  Variance Requests This claim is established for the lower back, left leg hematoma and right leg laceration from a 1995 accident,  Claimant was classified in 1996 and moved out of state in 2003. In 2018, osteoarthritis was raised in both hips, but the carrier's IME found that the right hip arthritis was unrelated, and disallowed the claim to amend ANCR. In 2019, an MG-2 was filed requesting a queen-sized electric adjustable bed frame, but no statement as to causal relationship was attached.   In 2021, after several re-submissions, the carrier denied the MG-2, citing no evidence of fall risk, or limitations in activities of daily living, or a change in condition.  New notes indicated that claimant needed a cane, slept in a recliner, and stated that an "orthopedic mattress without an industrial frame is useless." The ECLJ granted the MG-2 and the carrier appealed on the grounds that claimant needed an unrelated right hip surgery, causal relationship was...

 Once again, here are some recent Board Panel Decisions: (1)  Timely Objection s This claim was established for the back and consequential psychiatric condition from a 2005 accident,  The indemnity was settled, leaving the medical portion open. The carrier performed a records review in 2020.  At a hearing in June of that year, claimant's counsel raised no objection to it.  However, at a subsequent deposition, they stated on the record that the records review was defective under Section 137 for failure to produce all reports reviewed.  Ultimately, at a hearing held in May 2021, claimant's counsel argued for preclusion, which the Law Judge denied. The Board Panel noted that the regulations governing record reviews require an adverse party to raise a "timely objection," but does not give a specific deadline by which an objection must be made.  However, given the circumstances of the claim, which included the scheduling of three hearings and one deposition...

 Good Afternoon All.  The Board has gotten a little bit quicker about filing their recent decisions, so here we go! (1)  Defective Appeals A few days ago, the Board dismissed two appeals, one filed by a claimant, and one filed by a carrier, seeming to prove their point that all parties are affected by the 2016 regulatory amendments. In both matters, the appellants sought review of Law Judges' decisions that resolved Forms C-8.1B for the adverse parties.  In both matters, the appellants did not actually cite to the Forms C-8.1B's as exhibits in Item 13 of the RB-89 .   Accordingly, the Board Panels exercised their discretion under Rule 300.13 to reject both appeals. Wegmans , 2021 WL 3917693 (G003 4277 August 31, 2021); AIG CR , 2021 WL 3917694 (G020 5959 August 31, 2021). NOTE:   If your appeal concerns particular documents, which it most likely does, cite to it in Item 13, including the Document Number .  Unless and until the Legislature approves...

Greetings All - Here are some more recent decisions: 1.     Reopening This claim was established for injuries to the left hip, left knee, neck, consequential psychiatric condition, consequential ulcers, and consequential right knee from a 2008 accident.  Claimant was classified with 77.07% LWEC in 2013. In May of 2021, a treating physician filed a Form C-27 finding increasing pain, neuropathy, and degenerative changes that would keep claimant from returning to work.  Claimant's counsel wrote to the Board on June 9, 2021, requesting a reopening. The Board Panel addressed this request for reopening, based upon a statement that there is a material medical "change in condition."  However, since the C-27 noted that continuing treatment had been provided for the degenerative condition, and that his condition did not change substantially , there was an insufficient basis to reopen the case.  Particularly where the degenerative condition was due to age, and not due...

 Good Evening Compers!  Here are a few new decisions from the Board: (1) Late Payment of Section 32 This claim was established for the left index finger, left hand, and CRPS from a 2011 accident. A Section 32 Agreement was finalized per Proposed Notice of Approval on August 3, 2020.  However, claimant's counsel filed an RFA-1LC alleging that the claimant did not receive the net settlement within 10 days of August 3, 2020.  At a hearing, SIF stated that the check was mailed on August 4, 2020, but they were advised on August 24, 2020 that it was not received, accordingly they placed a stop-payment on the original check and forwarded a new check on August 25, 2020.  The Law Judge directed SIF to produce an affidavit and documentary evidence within 45 days. SIF did so, including a payment ledger demonstrating the timely payment of the initial check.  Accordingly, the Law Judge denied the request for a late-payment penalty. On appeal, claimant's counsel argued t...