Week Ending February 13, 2021

 Good Evening All:

Here are some more decisions from the Board, not as recent, but relevant nonetheless.

(1)    Schedule Loss Of Use

In 2013, claimant was found to have 16.25% SLU right leg and 21.25% SLU left leg.  However, after undergoing surgery on both knees in 2018, SLU was revisited.

The treating physician now found 50% SLU for each leg, while the IME physician found 35% SLU for each leg, after both surgeries were successful.

While the treating physician failed to appear for depositions, his report was not stricken.  Nonetheless, after reviewing Table 7.5 of the 2018 Impairment Guidelines, which set forth 35% SLU for a "good outcome" of surgery, as well as the range of motion findings of the claimant's own physician, the Law Judge credited the IME findings.

On appeal, claimant's counsel argued that the range of motion findings of the treating physician should not have been credited as a "good outcome," but the Board Panel disagreed.  While crediting his range of motion findings, the Panel found that he did not assign the correct percentage per the Guidelines.

Once again, we have one party arguing that their own expert's findings should be disregarded.  

Brookdale Hospital, 2021 WL 528316 (0052 6166 February 9, 2021)

(2)    MG-2 Deadline

On September 9, 2020, the carrier denied an MG-2.  At a hearing held on October 1, 2020, the Law Judge granted this MG-2.

On appeal, the Board Panel rescinded this decision because claimant did not file an MG-2R seeking review of the denial within 21 business days.

The point to be considered is that the hearing took place within 21 business days of the date of the denial.  Nonetheless, the Board will clearly not consider oral applications for review of same without the filing of an MG-2R.

Chestnut Ridge Transit, 2021 WL 528317 (3021 0815 February 9, 2021)

(3)    Section 25-a Relief

In this matter, the original paper file for this case was actually destroyed by the Board.  However, in December of 2013, shortly before the expiration of the sunset provision for Section 25-a applications, the self-insured employer filed an RFA-2 requesting this relief for this hearing loss case, arguing that the threshold of seven years since the accident and three years since the date of last payment was met.  Attached was documentation from 2011.

The Board took no action until 2018, at which time the employer filed additional Forms RFA-2, but no action was taken at the resulting hearings.

In 2019, the file was reassembled with the employer's documentation, and at a hearing held in 2020, the employer argued that it was entitled to reimbursement going back to 2009, two years before the documented hearing aid request.  The claim was "re-established" for hearing loss with a date of disablement in 1966, and Section 25-a relief was found.

Special Funds appealed, arguing that given the destruction of the original file, a "true closing" could not be confirmed.  In rebuttal, the employer argued that since claimant lost no time from work until his retirement 29 years later in 1995, there most certainly was a true closing until claimant requested a hearing aid in 2011.  

The Board Panel modified the date of disablement, since claimant actually began working for the employer in 1966.  Instead, it was to be set as December 9, 1977, since there must be at least 90 days of exposure for a hearing loss claim, and the 2011 documentation reflected this date.

Moreover, the Panel found that the fact that the claim had gone so stale for so long that the Board chose to destroy the original file was proof positive of a true closing.

As to the two-year retroactive rule, the employer was only entitled to medical reimbursement going back to 2011, two years before the RFA-2 was filed.

Fortunately, it does not appear possible for all Board file to become "destroyed" due to the passage of time.  However, should there be any outstanding Section 25-a applications that have not been addressed since 2013 or earlier, further correspondence with the Board is certainly needed.  As a caveat, we do not recommend filing multiple Forms RFA-2, as penalties can be assessed for that action.

General Electric Company, 2021 WL 528318 (5771 6988 February 9, 2021).

(4).  Idiopathic Injury

The carrier controverted this claim, resulting from a fall due to claimant's shoe sticking to the floor, causing her to trip and fall.  Arguing that this was an idiopathic injury, the carrier appealed the establishment of this claim to the neck and left shoulder.

The Board Panel noted that under Section 21, injuries are presumed compensable unless the presumption is rebutted with substantial evidence.  However, "even if the presumption is rebutted with evidence that claimant's accidental fall or injury was idiopathic, the claim may still be found to be compensable if the claimant shows that the resulting injury was caused by a 'risk incident to the employment, whether the risk be great or small, usual or extraordinary.' Matter of Connelly, 259 N.Y. 137 (1932); Manhattan Psychiatric Center, 2013 NY Wrk Comp G022 5269."

Since claimant's shoe stuck to the floor as she was walking at a faster pace that usual, due to a very busy shift and a specific request from a patient to provide applesauce in order to deliver his medications.  The employer witness did not contradict this assertion and claimant's shoes were compliant with the employer's requirements.  Accordingly, the Board Panel affirmed the establishment of this claim.

When alleging an idiopathic condition, there must be demonstrable evidence that the condition did not arise out of claimant's employment duties.

AO Fox Memorial Hospital 2021 WL 666192 (G238 7879 February 12, 2021).

A nursing assistant fell while on a break, and was knocked unconscious.  The carrier controverted this claim as an idiopathic injury.

She told the IME physician that she "slipped and fell while working," but on her intake sheet, she indicated that sat down to take a break at work.

The Law Judge established this claim finding that the Section 21 presumptions had not been rebutted.  On appeal, the Board Panel cited to case law stating that an unexplained injury will be deemed compensable "absent compelling evidence" to rebut the presumption.  Andrews v. Pinkerton, 306 A.D.3d 655 (3d Dep't 2003).

Here, the claimant stated that she was taking a break, her shift was not more strenuous than usual, and she was told at the hospital that she may have had an episode of syncope.  Accordingly, the presumption was rebutted, and there was insufficient evidence to demonstrate causal relationship.  Accordingly, this decision was reversed.

Since claimant was taking a break, even though this fact does not often serve to raise the "in and out of the course of employment" defense, the carrier was able to better demonstrate that the accident was not work-related.  Clearly, there is a higher burden of "substantial evidence" needed to rebut the presumption when idiopathic injuries are at issue, but the Board clearly adjudges this on a case-by-case basis.

Harlem Center for Nursing, 2021 WL 666137 (G280 7878 February 10, 2021).