Week Ending March 20, 2021

 Here are some more recent Board Panel Decisions:

(1).  C-8.1B Resolution

The accident occurred in 2008 and claimant was found to have a schedule loss of use in 2009.

The carrier denied a bill for treatment in 2020 because the pain was alleged to have arisen out of a work-related accident six months beforehand, and was therefore not causally related to the accident.  A Proposed Decision resolved the C-8.1B for the provider and the carrier objected.

At the resulting hearing, the Law Judge resolved the C-8.1B for the carrier as unrelated, without prejudice to "resubmission related to any other injury."

The claimant appealed, arguing that an opportunity to provide clarification should be provided.  However, based on the statement of the treating doctor that the pain began six months beforehand, rather than in 2008, there was no evidence of causal relationship to the accident in question, and the decision was affirmed.

In the next few months, a new Form C-8.1B will take effect, and carriers are encouraged to become familiar with the new denial codes, particularly where there is any issue regarding the treatment being causally related to the accident in question.

Saratoga Springs Library, 2021 WL 1036777 (5080 1062 March 16, 2021).

(2).  C-4AUTH Denial

The accident occurred in 1999, and Special Funds (SF) is handling the claim pursuant to Section 25-a.

The treating physician filed Form C-4AUTH seeking authorization for lumbar fusion, conceding that the specific operation at the left S1 joint was not recommended per the Guidelines, and that the procedure would help, but not eradicate, the symptoms.  SF's IME physician, in a record review, noted that this operation was not authorized by the Guidelines and not indicated.

At the hearing, SF noted that not only was this operation not recommended under the MTG's, but the treating physician did not explain how the surgery would benefit claimant, and why the treatment set forth in the MTG"s were not sufficient.  The Law Judge denied the C-4AUTH and claimant appealed.

Chapter E.4 of the Back MTG's states that lumbar fusion must be pre-authorized, and Section E.8.a.i states that S1 joint fusion surgery is not recommended.  Where a proposed treatment requests both a variance from the MTG's and authorization for special services, Form C-4AUTH must be used, but the requesting physician must demonstrate the need for a variance, just as if an MG-2 were being used.

Since the treating physician did not demonstrate the burden of proof, the decision was affirmed.

Niagara Mohawk, 2021 WL 1036778 (6990 8390 March 16, 2021).

(3).  Extreme Hardship

The accident occurred in 2007.  Claimant was classified in 2009 with an 87.5% LWEC, entitling him to 475 weeks at $370.93.

In 2016, claimant applied for a "safety net" under Section 35.  On November 30, 2017, the SIF noted that 438 weeks of payments had been made thus far.

In 2018, claimant requested a hearing for extreme hardship.  He was directed by the Board to provide documentary evidence of income and expenses.  He testified at the next hearing as to his high school education, pre-accident work-experience, and job search prior to 2018.  His SSDI income just covered his listed expenses, but could be increased.  He also received other sources of income, including food stamps, and his rent was low due to his low income.  He lived with his fiancee, who also received SSDI and food stamps, but did not share them with him.  Prior to being classified, he went to ACCESS-VR, and was turned down.   The Law Judge found that he had demonstrated extreme hardship, and reclassified him with a permanent total disability.  

On appeal, SIF argued that claimant knew that his capped benefits would end, and that his failure to gain new employment skills in anticipation of the expiration of LWEC did not entitle him to an extreme hardship determination.  In rebuttal, claimant's counsel referenced his numerous expenses, and argued that claimant was unable to find employment within his restrictions, given his limited education and severe restrictions.

Subject Number 046-938 provides that in order to demonstrate extreme hardship, a claimant must set forth all factors required on Form C-35, including current monthly income and expenses.  

The Board Panel noted that the legislature did not provide a definition for "extreme hardship," but referenced the ordinary definition of "extreme" as "unusual or unexpected."  On review of the factors, noting that without continued workers' compensation payments, he would experience a significant shortfall, as well as his inability to become re-employed, extreme hardship had been demonstrated, the Board affirmed the decision.

Since the 2017 Amendments, findings of LWEC of greater than 75% are eligible for re-classification, provided that a request for extreme hardship is made during the last year of continuing payments being made.  Also, since the 2017 Amendments, classified claimants are relieved of their obligation to demonstrate attachment to the labor market.  While the claimant in this matter was not relieved of this obligation when he became classified, and arguably could have made more pronounced efforts to become re-employed, the arguments raised by SIF in this matter are no longer available if a claimant is classified per the 2017 Amendments.  Instead, a thorough examination of claimant's total sources of income and expenses must be addressed in arguing against an extreme hardship petition.

CAVEAT:  Since the carrier in this case was SIF, there was no ATF deposit directed.  For all private carriers, however, an ATF deposit will usually be directed on all PPD cases, therefore the issue to be addressed would be whether or not a further deposit or possible refund would be required.

Finger Lakes DDSO, 2021 WL 1036779 (7070 5496 March 16, 2021)

(4).  Section 114-a and Defective RB-89.

SIF argued that the classified claimant had violated Section 114-a in misrepresenting his work status.  Claimant refused to testify on his own behalf and was precluded.  Video surveillance demonstrated that claimant was working for a four-month period of time, but the Work Activity Form that claimant signed, as well as the endorsement to the checks he received from SIF, certified that he was not working at the time recorded in the surveillance.  The Law Judge found that claimant violated Section 114-a, issued a mandatory penalty, and disqualified claimant from further benefits.

On appeal, claimant's counsel argued that the video surveillance was obtained via improper conduct between the carrier's representative, the investigator, and the claimant, and that a material misrepresentation of fact was not made.

The Board Panel denied review, as the RB-89 was defective.  In Item 15, claimant's counsel stated that an exception was noted, but did not indicate that date that the exception was noted.  Since there were multiple hearings in this matter, and claimant's counsel did not specify at which one of those hearings their exception was noted, the Board refused to entertain the appeal.

Usually, when the Board rejects an appeal for incomplete or defective Forms RB-89, they list the defective appeal as the only issue to be addressed.  However, in this decision, they included a reference to the substantive issue on appeal, seemingly indicating that they had considered possibly reviewing the substantive argument on appeal before ultimately deciding not to do so.

While this was certainly a favorable decision for SIF, we anticipate that the legislature may consider enacting proposed Section 23-a, which will prevent the Board from rejecting appeals simply due to mistakes, errors, or omissions.  Until then, it is essential for all practitioners to review this form multiple times before filing to ensure that all required responses are provided, particularly since the Board modified this form in 2018 to clearly indicate that the date the exception was noted must always be referenced, unless you are appealing from a Reserved Decision.

Monster Home Improvement, 2021 WL 1036780 (G059 2887 March 16, 2021).

(5).  Reduced Earnings

Claimant was classified with 29% LWEC, and was awarded reduced earnings, given his employment status at the time of classification.

SIF sought to take credit for an overpayment upon review of updated information as to claimant's current employment.  Per testimony, claimant stated that he had switched employers after a warning following an accident, and that his new employment was "more easygoing, and he did not have to worry about losing his job."  

The Law Judge applied the Appellate Division's decision in Meisner v. UPS, 243 A.D.2d 128 (3d Dep't 1998), to rule that when a claimant is classified, a reduced earnings calculation does not take into account claimant's ability to earn more or less, and continued reduced earnings awards.

On appeal, SIF argued that claimant's reduced earnings were not related to the established injuries.  The Board held that since claimant was classified, there is an inference that his subsequent wage loss is causally-related.  Since the new job was less physically demanding, the Board upheld the Law Judge's finding that the reduced earnings were indeed causally related to claimant's permanent disability.

Once again, classified claimants are accorded slightly more deference as to their ability to become or remain gainfully employed.  The saving grace here is claimant's relatively low LWEC finding, which prevents any extreme hardship finding.

CAVEAT:  While this issue is not present for SIF, for all private carriers, the issue of reduced earnings made following the deposit into the ATF would be whether or not a further deposit or possible refund is available.

Big 4 Tire Sales & Service, 2021 WL 1036781 (G075 8014 March 16, 2021)

(9).  Failure to Produce a C-4.3.

This appeal involves three cases:  2010, for the right ankle, consequential back, and left knee; 2014, OD for repetitive trauma to the back; 2016, OD for the neck.  

In the 2010 case, a C-4.3 was produced finding 57.5% to the right ankle in 2017.  The carrier requested a suspension of payments in 2019 for the lack of up to date medical evidence.  Claimant's counsel referenced medical evidence as to overlapping sites in the associated files.  Medical evidence of permanency and apportionment was directed on all three matters.

Also in the 2010 case, the carrier produced an IME finding 0% SLU to the left knee and 10% SLU to the right foot, with "no apportionment to any other files."  The IME physician also found the back was addressed in a different file, and that there were "no findings or complaints referable to this date of accident" as to the back.

As to the 2014 claim, the carrier produced an IME finding Severity Ranking E to the back, with no apportionment.

As to the 2016 claim, the carrier produced an IME finding Severity Ranking B to the neck, with no apportionment.

One year later, claimant's counsel advised that claimant was relocating to Georgia.  Two months later, in a decision pertaining to all three claims, claimant was directed to produce a C-4.3.

At the next hearing for all three claims, more than two months following the decision, claimant's attorney requested a final opportunity to produce a C-4.3.  In two separate decisions for the 2010 and 2016 claims, claimant was precluded from producing a C-4.3.

On appeal, claimant's counsel argued that claimant had relocated twice, and referenced COVID as a further obstacle to obtaining a permanency evaluation.  Given the amount of time that had elapsed, as well as the ability to submit additional medical evidence other than permanency evaluations, the Board Panel affirmed the preclusion of the production of a C-4.3.

Since claimant had been directed more than once to produce a permanency evaluation that also addressed an apportionment, the Board Panel was clearly not willing to grant any leeway.  Since the same employer and carrier were involved on all three claims, they would be placed in the situation of facing both an SLU and LWEC finding, but there are other decisions that address apportionment and/or credit when that situation arises.

SDH Education West LLC, 2021 WL 1036782 (G102 0168; G122 1793; G165 1785 March 16, 2021).

(10).  Medical Marijuana

This claim is established for the left hand and consequential PTSD.  Claimant was classified with a permanent total disability.

The treating physician filed an MG-2 requesting extended use of medical marijuana, citing the success of a prior trial.  The SIF denied it, as the burden of proof was not met.

A Proposed Decision was filed granting the MG-2, and SIF objected.  At the subsequent hearing, SIF noted that there was no description of the signs and symptoms that did not improve with prior treatment, or any treatment plan with functional goals.  There were also no objective measurements or functional improvement.  The Law Judge nevertheless granted the MG-2, and SIF appealed.

The Board Panel found that there was significant documentation of necessity of medical marijuana as a viable alternative to opioids.  Also, as expected, the Board cited to claimant's classification with a permanent total disability in affirming the Law Judge's decision.

As further background, the Board has recognized Title V-A of the NYS Public Health Law, which permits marijuana to be prescribed to treat cancer, HIV, Parkinsons, MS, and PTSD, as valid law.  As of 2017, "chronic pain" has been added to this list.  See NY Pub. Health Law Section 3360(7); 10 NYCRR 1004.2(a).  Accordingly, the mere fact that it is marijuana being prescribed does not necessarily warrant a denial in all cases.

LTSP Holding Corp., 2021 WL 1036783 (G105 2911 March 16, 2021).

(11).  Notice Under Section 18.

Claimant alleged in his Form C-3.0 that he was walking back to his delivery truck when he stepped on a snow-covered stone, twisted his right knee, and fell on October 26, 2018.  He alleged timely notice, but did not begin treating until July of 2019.

The treating medical reports, however, stated that the accident occurred in November of 2018.

The FROI-00 indicated the employer's first knowledge on April 1, 2019 and the carrier's first knowledge on April 3, 2020.  The IME found causal relationship.

At the pre-hearing conference, PFME was found and authorizations were directed.

At trial, claimant testified that the accident date was November 14, 2018, and that October 26, 2018 was his hire date.  His knee subsequently gave way in July of 2019 on a delivery, and he continued working until January of 2020.  He did not ask for the claim to be processed until September 2019, and he was able to bowl following the accident.  He was allegedly terminated after advising the employer that he would retain counsel.

The employer's HR Manager testified, however, that claimant was terminated after threatening the supervisor to whom notice was allegedly provided.  Notice was actually not provided until September of 2019.  When he advised claimant about the 30-day reporting deadline, which had not been met, he became agitated.

The employer's Supervisor denied that she received timely notice from claimant.  She was not told about it until September of 2019, but at that time, claimant did provide her with details, and she did not investigate further.  A co-worker advised her that claimant did not immediately notify her of the accident because he was afraid of losing his job, being a new hire.

In January of 2020, she spoke with claimant about the claim, at which time claimant told her that if she did not "do something" about his knee, she would "not like what would happen."  She took this as a threat and fired him.

A co-worker, claimant's uncle by marriage, testified that both he and claimant reported the accident to the Supervisor together in November of 2018.  In rebuttal testimony, Supervisor denied that this conversation took place.

Following trial, the Law Judge found claimant's testimony to be credible and excused any late notice to the employer, since an investigation was still done in 2019, and an IME had been held.  The carrier appealed.

The carrier argued that claimant was not credible, given the recitation of the wrong date, the inability to show lack of prejudice to the employer, and further referenced that the IME was performed without the requested prior records for review.

The Board found that claimant's testimony was nonetheless credible, and the Supervior's denials of receiving notice were insufficient to rebut the statutory presumption.  Ultimately, the Board excused any late notice due to claimant's fear of job loss, as well as the fact that the employer was nonetheless able to perform an investigation, but allegedly delayed the processing of the claim.

Over the past several years, the late notice defense has become greatly eroded to the point where "lack of prejudice" can nearly always be found.  Moreover, employers must be kept on notice that under Section 120, any retaliatory action taken against a claimant who wants to file for workers' compensation can be considered "discrimination," and that employer can be found liable for penalties if it is proven, and such penalties cannot be paid by the carrier.

JAB Express Inc., 2021 WL 1036784 (G130 7112 March 16, 2021).