Appellate Division Decisions

 Here are some more recent decisions, this time from the Appellate Division, Third Department.

James O'Flaherty v. MRZ Trucking Corp., decided May 13, 2021

This claim was established to the back from 2010 accident.  In 2014, claimant was classified with 81% LWEC.  Continuing payments were made at $600.00 PPD, and claimant was instructed to disclose any change in work status or impairment.

On appeal to the Board Panel in 2015, the finding was modified to 30% LWEC, and the rate was reduced to $252.68 PPD.  

In the interim, claimant underwent surgery in October of 2015 and requested a change in awards.  At a hearing, payments were increased to $600.00, as of the date of surgery, without expressly designating the rate as temporary total.

Claimant appeared at three IME's. none of which found that he had reached MMI.  However, in 2018, an IME physician found MMI at Severity Ranking I.  Claimant was directed to, but did not produce, a permanency evaulation.  Claimant was re-classified as of the date of the 2018 IME, awards continued at $600.00 TTD, and the permanency finding was once again 81% LWEC.  

On appeal to the Board Panel in 2019, the LWEC was reduced to 75%.  Although no exception was noted as to the Law Judge making awards at $600.00 TTD, on its own motion, the Board reduced payments to $252.68 PPD.

The Court acknowledged the Board's continuing jurisdiction under Sections 22 and 123, but reviewed the issue of whether or not there was a basis to reduce the rate.  Citing to its recent prior decision in Sanchez, the Court noted that while a classified claimant may later be found to be temporarily totally disabled, both conditions cannot exist simultaneously.  Instead, the TTD finding would displace the classification until re-classification.

Given the fact that claimant underwent surgery in 2015, and there were findings of a total disability from the treating physicians, the Court found that the Board abused its discretion in reducing the payments.  Accordingly, the Court rescinded those awards and remitted this matter to the Board for further proceedings.

NOTE:  If a post-classification surgery results in changing the rate from PPD to TTD, if subsequent IME's show a partial disability, albeit temporary, a request to reduce those awards should be made, just as if there was never a classification.

Nazlija v. Metropolitan Cleaning LLC, decided May 20, 2021

Claimant resolved a third-party action without obtaining the carrier's consent.  Accordingly, the carrier suspended payments.  At a subsequent hearing, the Law Judge held that payments were improperly suspended, reinstated payments, and penalized the carrier.  However, payments were nonetheless suspended by the Law Judge permanently given the lack of consent to the third-party settlement.

Both sides appealed to the Board Panel, who affirmed the forfeiture of future payments, but reduced the amount of payments from 20 weeks to 14 weeks, and also reducing the penalty.

Both sides appealed to the Appellate Division, but in the interim, the Board further amended its decision to state that the carrier's suspension was proper and rescinded the penalty as well.  Accordingly, the Court dismissed both appeals.

Claimant appealed form the Board's amended decision, and the Court affirmed.  The Court agreed with the Board's modified decision that once claimant signed a stipulation of discontinuance without obtaining the carrier's consent, the forfeiture of payments commenced on that date.

NOTE:  If there is any evidence that a third-party action settled without consent, suspension of payments is absolutely warranted.