Week Ending February 6, 2021

  Good Evening All.  

Recently, the Workers' Compensation Board issued decisions touching on these subjects:

(1)  Litigation on Drug Formulary Issues

The carrier denied the treating physician's request for Formulary Prior Authorization because the requested dispensation  was in Phase A, and was not prescribed within 30 days of the accident (which occurred in 2004).

Over the carrier's exception, the Law Judge directed the deposition of the treating physician.  On appeal, the carrier argued that depositions were improperly directed, since the Drug Formulary itself resolves the issue with a three-step review system.  

Given the COVID pandemic, the Board modified the applicable regulations to extend the deadline by which all health care providers must obtain prior authorization for refills or renewals of medications from June 5, 2020, to January 1, 2021.  Given the delay, the Board Panel held that claimants remained entitled to raise issues as the need for medication pursuant to the Medical Treatment Guidelines, and further development of the record was warranted.  

(Please note that the January 1, 2021 deadline was further suspended given the continuing COVID pandemic, and will most likely be set this coming spring.  Accordingly, for now, the best practice appears to be to prepare for litigation in Drug Formulary disputes, as is the case with disputed Forms MG-2 and C-4AUTH).

St. Lukes Roosevelt Hospital 2021 WL 301201 (0041 5060 February 2, 2021).

(2) Psychological Condition

Claimant, a corrections officer, claimed that he suffered work-related depression, anxiety, and PTSD when he had to restrain a female inmate in 2010.  He filed his claim in 2011, but the issue was not fully developed until 2020.

The Law Judge found his psychological claims compensable, and the self-insured employer appealed on the grounds that the Law Judge did not hold claimant to the standard of demonstrating that his psychological conditions were greater than the stress suffered by other officers in the same situation.  

The Board Panel agreed that this standard had not been met.  While there was testimony that claimant was sensitive to the condition in question because his wife had been a victim of childhood rape, the Board Panel held that this "special sensitivity" did not mitigate claimant's failure to demonstrate that the stress he experienced in restraining a female inmate was greater than that experienced by his co-workers.  

Westchester County Department of Corrections, 2021 WL 391202 (G040 8177 February 2, 2021).

(3)  Reattachment to the Labor Market

After the Board Panel filed a decision in August of 2020 finding that claimant was unattached to the labor market, claimant began submitting documentation of job inquiries, all made by telephone, with no supporting confirmation.   Nonetheless, the Law Judge found that claimant had demonstrated re-attachment.

On appeal, the Board Panel took note of the fact that she applied for jobs with skills she did not possess, and physical abilities beyond her restrictions, as well as jobs that were on hold due to COVID.  Accordingly, the decision was reversed.

While the re-attachment requirement is actually suspended during the pandemic, when it is being addressed, the claimant is required to provide documentary evidence of a diligent independent job search consistent with the American Axle decision.

Minisink Valley CSD, 2021 WL 391203 (G150 8413 February 2, 2021).

(4)  Further Causally Related Disability and Up To Date Medical Evidence

The self-insured employer's IME found 0% disability and also made SLU findings.  The Law Judge suspended payments on this basis, as well as the lack of up to date medical evidence from the treating physician.  Claimant's request to cross-examine the IME physician was accordingly denied.

The Board Panel affirmed this suspension, given the lack of up to date medical evidence, and also affirmed the denial of cross-examination for the same reason.

North Babylon UFSD, 2021 WL 391204 (G178 4951 February 2, 2021).

(5) SLU and Attorney's Fee

By reserved decision, an SLU award was made.  The carrier appealed, arguing that the payments previously made exceeded the schedule, and that the attorney's fee should be rescinded.

While that appeal was pending, the reserved decision was amended accordingly, and claimant appealed.

Claimant's counsel persuaded the Board Panel to restore the fee of $25.00, given the work involved, but the Board Panel held that this fee was to be taken from a subsequent award.

R. Gallaghers Towing, 2021 WL 391205 (G183 4369 February 2, 2021(.

(6) Assault and PTSD

A claim for sexual assault and PTSD was disallowed and claimant appealed.  The Board Panel held that there was insufficient evidence supporting a work-related sexual assault where claimant had no recollection of the incident occurring and there was nothing corroborating her allegations.

We anticipate that this matter will be appealed to the Appellate Division.

DOCCS, 2021 WCL 391206 (G183 8428 February 2, 2021).

(7) Schedule Loss of Use

On appeal, the Board Panel reduced a finding of 60% SLU to the right leg to 15%.  In making this finding, the Panel noted that Special Consideration 7, enumerated in Section 7.5 of the 2018 Impairment Guidelines, provides that a tibial plateau fracture warrants 10-15% SLU.  Since the Guidelines provide that Special Considerations are to be given primary consideration, when applicable, and that range of motion testing should only apply when there are no Special Considerations, 15% was the appropriate award.  

Botanicus Inc., 2021 WCL 391207 (G189 4536 February 2, 2021).

The Board Panel also upheld a finding of no SLU, without prejudice to apportionment, upon a finding that the treating physician incorrectly averaged together his three range of motion testing findings, instead of using the greatest range of motion as required by the 2018 Impairment Guidelines.

NYC Department of Transportation, 2021 WL 391208 (G191 0422 February 2, 2021).

The self-insured employer produced an IME in which schedule findings were made.  Claimant's counsel accepted then.  The employer requested cross-examination of the treating physician to address MMI and classification.  The Law Judge denied this request and implemented the IME findings as to SLU.

On appeal, the Board Panel held that the IME was not credible because the evaluating physician incorrectly applied the 2012 Impairment Guidelines, which add 10-15% SLU for a rotator cuff tear, while the 2018 Guidelines do not.  Moreover, the 2018 Impairment Guidelines prohibit the addition of mild defects of rotation into the schedule calculation.

Since the employer did raise the issue of classification as to non-schedulable sites, the Board Panel found that the issue was preserved.

In an extremely rare occurrence, the self-insured employer persuaded the Board to find its own physician to not be credible, and to rescind the decision to allow for development of the record as to classification.

In another extremely rare occurrence, the self-insured employer did not preserve the issues of apportionment at the hearing in question.  However, taking note of the fact that the employer had emphasized that issue on numerous prior occasions, the Board, on its own motion, directed that any further permanency opinions address apportionment.

Great Neck UFSD, 2021 WL 391209 (G193 5291 February 2, 2021).

As stated above, the Board Panel has taken somewhat of a favorable turn towards carriers and self-insured employers.  It remains to be seen whether this is a continuing trend.