Week Ending January 30, 2021

 Good Afternoon All.  

This past week, the Workers' Compensation Board issued decisions touching on these subjects:

(A)  Incomplete Forms RB-89

In three decisions, the Board denied review of appeals due to several technicalities.  One decision involved a notation in Box 15 stating the date that exception was noted, a detail the Board clarified some time ago, but not the exact ruling from which an exception was taken.  Two others involved exceptions not being noted on the record itself, which remains fatal.

The best practice now appears to be to ensure that exceptions are expressly noted on the record in response to every adverse ruling, and that it be stated with particularity what ruling an exception is being noted against, and specifically repeating this detail on Form RB-89.  

AMI Leasing 2021 WL 303751 (WCB 5020 5821 January 26, 2021)

NYC Department of Corrections 2021 WL 303754 (WCB G077 9814 January 26, 2021)

Lowe's 2021 WL 303757  (WCB G135 4485 January 26, 2021)

(B)  Claim For Additional Site Disallowed

Claimant sought to amend ODNCR to include right cubital tunnel syndrome.  However, the Board Panel held that notwithstanding the more recent medical evidence and testimony, a 2013 diagnostic test result being negative for right cubital tunnel syndrome served to negate any claim that the condition would have arisen from a 2012 date of disablement.

For there to be causal relationship, there must be competent medical evidence demonstrating a causal nexus.  However, if there is competent medical evidence that directly refutes it, the claim must be disallowed.

Goodyear Tire & Rubber Corp. 2021 WL 303753 (WCB G060 8160 January 26, 2021)

(C)  Appeal Pending While Matter Proceeds Rendered Moot

Testimony was directed on the issue of attachment to the labor market.  Claimant appealed, given the COVID pandemic  Nonetheless, testimony proceeded, and claimant was found to have been attached to the labor market nonetheless.

On appeal, the Board Panel noted that given that the testimony had gone forward while the appeal was pending, the matter had become moot.  However, since claimant counsel did not withdraw the appeal, and thereby continued proceedings without a rational basis for doing so, a penalty under Section 114-a(3) was warranted.

Law Judges often remove hearings from the calendar when an appeal is pending, but there is no requirement for them to do so.  Accordingly, should grounds for appeal be subsequently obviated, the best practice is to withdraw the appeal as soon as possible.

University of Rochester 2021 WL 303755 (WCB G084 1222 January 26, 2021)

(D)  Schedule Loss of Use, Credit for Prior Award, and Employer Reimbursement

The Law Judge awarded a claimant 20% SLU.  The SIE appealed, referencing claimant's prior SLU award in a prior claim for the same site, against the same SIE, and the Law Judge's failure to address the request for employer reimbursement.

The Board held that the credit for the prior SLU award to the same site applied, resulting in a rescission of the 20% SLU award and the resulting attorney's fee.  The Board also noted that where a claimant is paid by the employer following a compensable injury, in "like manner as wages," and a schedule award is made, the employer is entitled to full reimbursement of its payments to claimant.  However, since there was now a finding of 0% SLU, given the credit for the prior award, the issue had been rendered moot.

While SLU awards and credits certainly cannot be credited against future awards for different sites in the same or separate claims, the credit is most certainly applicable to awards made for the same site in different compensable claims where the same employer and/or carrier is involved.  Moreover, the employer is entitled to full reimbursement out of a schedule loss of use, if reimbursement has not yet been awarded.

It's worthwhile to note this distinction, since if an employer seeks reimbursement out of an award that would have otherwise been for lost time, the employer can only recover the amount that would have otherwise been paid to claimant, regardless of how much they actually paid the claimant.  Accordingly, should a compensable claim involves a schedulable site, particularly where there is a closed period of lost time, it may be worthwhile to await an SLU award before seeking reimbursement to the employer.

DOCCS Fishkill Correctional Faciltity 2021 WL 303758 (WCB G168 0823 January 26, 2021).

THE TAKEAWAY:

(1)  As fundamentally unfair as the Board's 2016 regulatory amendments governing administrative appeals seem to be, it behooves the practitioner to adapt.  Given the amount of appeals that are turned away, without consideration of the merits, it's clearly very easy to fall into this trap.

While there is a proposed Section 23-a, which would prohibit the Board from rejecting appeals due to technical mistakes, errors, and omissions, this legislation remains with the Labor Committees of both houses of the State Legislature.  S.6087, A.7435; S.829, A. 386.  Unless and until this proposed legislation is signed into law, all stakeholders must review their appeals thoroughly before filing them.

(2)  While it never obviates the need to schedule an IME when additional sites are controverted, the presence of medical or diagnostic testimony that rebuts a finding of causal relationship on its face is indispensable.

(3)  When the grounds for appeal have evaporated, the appeal should evaporate too.

(4)  In schedulable cases, always be aware of any prior SLU awards to the same sites, whether it's against a different employer/carrier, or the same.

More case summaries and analysis to follow next week.

DISCLAIMER:  The above information is not intended to be taken as legal advice, and no attorney/client relationship is established merely by the viewing of the above.