Weeks Ending May 14, 2021 and May 21, 2021

 Good Afternoon All.

Here are some of the latest decisions of interest from the Board:

1.    CREDIT FOR PRIOR SLU

This claim was established to the left ankle and right knee from a 2007 accident.  The AWW was set at $1,200.00, but no awards were made because claimant's lost time was less than the seven-day waiting period.

In an earlier claim involving the same parties, there were established injuries to the right elbow and right hip from a 2005 accident.  The AWW was set at $1,100.00 and claimant was awarded a 30% SLU of the right leg, less prior payments and employer reimbursement.

In the 2007 claim, an IME addendum dated October 17, 2019 indicated 0% SLU to the left ankle and right knee.  Medical testimony proceeded.

The IME physician conceded that MRI findings supported complaints of pain, and that and all three ranges of motion were not noted.  The treating physicians found 10% SLU to the right knee, over and above 30% to the right leg.

The WCLJ found that the 10% SLU to the right leg was credited against the 30% in the 2005 claim, resulting in no money moving for that site, and also awarded 35% to the left foot.

On appeal, claimant argued that the 10% should not be credited against the prior 30% for the right leg.  In rebuttal, the carrier cited to Appellate Division precedent, particularly where awards for both the knee and the hip fall under SLU for the leg.

The Board Panel cited the rule that "[w]hen a schedule loss of use is awarded for a permanent impairment of an extremity, any subsequent award for impairment to any other part of the same extremity will be subject to a credit for the prior award."  Genduso v. NYC Dept of Educ., 164 A.D.3d 509 (2018).  The Panel further found that Genduso applies to "all SLU findings for the same extremity, regardless of the specific site of injury."  Accordingly, the credit was affirmed.

Town of Hempstead Dept. Highway, 2021 WL 1943954 (2080 2419 May 11, 2021.

2.      Consequential Injuries

The first claim was established to the right knee and right Achilles from a 2013 accident, with an AWW of $356.08.  The carrier for the 2013 claim was Indemnity.

The second claim was established to the right knee and left ankle from a 2014 accident, with an AWW of $375.00.  The carrier for the 2014 claim was SIF.

In 2016, all awards and treatment to the right knee were apportioned between both claims at 50% per stipulation.

On the 2014 claim, claimant underwent right total knee revision in 2016, and a pre-operative diagnosis was failed knee replacement with infection.  In 2017, the treating physician recommended referral to a vascular surgeon to address the possibility of another repeat surgery.

In 2019, the treating orthopedist noted infections in the implants, and elected not to perform a repeat surgery.  However, the indications for the first surgery were not made known to him, preventing him from making a determination as to causal relationship.

In both cases, PFME was found for a consequential infection and IME's were directed, and claimant was directed to produce a HIPAA in the 2014 case.  At a subsequent hearing for the 2014 case only, no HIPAA was produced.  Accordingly, SIF was not required to produce an IME, and the claim was marked no further action until a HIPAA was produced.

In the 2013 claim, Indemnity served a subpoena with a HIPAA on the treating orthopedist for all records regarding claimant.  However, none of those records were filed with the Board.

As to both cases, at a hearing in December 2020, both carriers stated that due to claimant's residing in a nursing home, and the treating physicians stating that there were no such records before 2017, the record sought could not be obtained.

In both cases, the Law Judge amended ANCR to include a consequential infection and that the carriers waived their IME rights.

Both carriers argued on appeal that their rights should not have been precluded due to the lack of responses from treating physicians.  Claimant argued on rebuttal that the scheduling of an IME was not dependent on receipt of those prior medical records.

The Board cited to precedent stating that when a carrier is at fault, or has no excuse, for producing what was directed, preclusion is not an abuse of discretion, and that Law Judges are granted broad discretion to "conduct hearings in an orderly manner."  However, it also held that neither carrier waived their IME rights because (a) claimant did not execute a HIPAA when directed; and (b) the medical providers were unresponsive.

Further, the evidence that would have been relied upon in supporting a finding of consequential relationship was not present.  The reports that were present did not give a clear finding of consequential causal relationship.  Moreover, given the pandemic in 2020 and claimant's conceded refusal to sign HIPAA's, the carriers indeed demonstrated good faith.  Accordingly, the Board Panel rescinded the Law Judge's findings and directed IME's on both claims within 90 days.

The Stop & Shop Supermarket Company, 2021 WL 2029524 (G078 7902, G101 9961 May 18, 2021).

3.    Authorization of Surgery

This claim involved a left knee injury from a 2002 accident.  A schedule loss of use rating of 48.75% SLU was found per stipulation.

In November 2020, a C-4AUTH was filed requesting a total knee replacement.  However, claimant's body mass index was 36.4, more than the 35 set forth in the MTG's.  In denying the C-4AUTH, the SIE's physician found that other requirements, such as conservative treatment and injection management, were not met.  

The Law Judge found that the BMI requirement was "not absolute," that X-rays demonstrated moderate arthritis, and that the claimant was allergic to the injections.  Accordingly, the surgery was authorized.

On appeal, the Board Panel cited to Table 8 at Section F.2 of the knee MTG's.  This table states that claimant must be at least 50 years old, have a BMI of 35 of less, and have completed conservative treatment.  Where this did not take place, the Board Panel reversed the Law Judge's findings.

NOTE:  While some doctors, and apparently some Judges, believe that the MTG's are "merely guidelines" and need not be deemed absolute, the Board still does not agree.

Univera Healthcare, 2021 WL 2029520 (8020 7217 May 18, 2021).

4.    Untimeliness of Additional Sites

This claim was established for right CTS, right shoulder, and consequential de Quervain's tenosynovitis from a 2012 accident.  

In 2013, claimant produced a report where the physician found claimant post-trauma (with the trauma not described) with range of motion deficits in the cervical spine.  An EMG was directed to rule out CTS vs. cervical radiculopathy.  While the EMG showed no evidence of root impingement, a cervical MRI was recommended.

The cervical MRI showed herniations at C5-C6 impressing on the spinal cord, and she was subsequently diagnosed with a cervical radiculopathy, as well as traumatic peripheral neuropathy.

At a hearing in January 2021, the above records from 2013 were discussed and Section 28 was raised.  While they were all within the two year period following the date of accident, the carrier argued that none of them actually referenced the injury, and there was no statement as to causal relationship.

The Law Judge noted that since claimant only gave a history of her right hand becoming injured, there was no evidence of a causally related neck injury within two years of the date of accident.  The neck claim was disallowed.

On appeal, claimant argued that the carrier made an advance payment with knowledge that claimant was treating for the neck, and and that the medical reports from 2013 constituted the timely filing of a claim.  In rebuttal, the carrier argued that none of the medical reports or treatment paid for by the carrier could have shown that a claim was being filed or that payment for treatment would constitute an advance payment.

The Board Panel noted that the claim was amended in 2014 to include the shoulder and tenosynovitis, but made no mention at that time of a neck injury.  Moreover, the treating physician's prior deposition testimony showed that he was not aware that claimant had a work-related accident until 2015, and claimant's own prior testimony never referenced a neck injury.

Given these factors, the Board Panel found that claimant did not timely raise a neck injury within two years, and her claim for a neck injury was barred by Section 28.

NOTE:  When a new site is raised, even if there is timely medical evidence of treatment, there must also be a timely finding of causal relationship by the treating physicians, as well as a claim for that injury from the claimant himself/herself.

LVI Environmental Services, 2021 WL 2029525 (G096 3780 May 18, 2021)

5.     Additional Sites

This claim is established to the left wrist and right knee from a 2018 accident.  

In November 2019, there was a finding that claimant's left ulnar nerve symptoms were causally related to the accident.  Accordingly, the treating physician filed a C-4AUTH requesting ulnar release surgery, which the carrier denied.

PFME was found for the left elbow, but at an IME, the carrier's physician found that the alleged left elbow injury could not have been causally related to the accident given the lack of contemporaneous complaints or medical findings.

The treating doctor testified at deposition that he diagnosed claimant with a possible left cubital tunnel in August of 2019, but conceded that an ulnar nerve test was negative.  The Law Judge amended ANCR to include the left elbow.

On appeal, the carrier argued that the first complaint of left elbow pain was nearly a year and a half following the accident.  The Board Panel noted that lack of contemporaneous findings, and the fact that the diagnosis of left cubital tunnel syndrome was only "possible," given the negative test.  Finding that mere possibility was insufficient to set forth the probability of a causally related left elbow injury, combined with the delay in such finding being made, the Board Panel reversed the Law Judge and found the left elbow to not be causally related.

Long Island Blood Services, 2021 WL 2029526 (G139 8026 May 18, 2021).

6.    Section 114-a

This claim is established to the neck, right shoulder, and left wrist from a 2015 accident.

In her Forms C-3, and in questionnaires at at six IME's conducted in 2017 and 2018, she stated that she had not returned to work.  However, in an IME questionnaire in in 2019, she stated that had returned to work for the SIE for six months in 2018.  In a subsequent IME questionnaire, she stated she had not returned to work since the accident.

An IME finding an SLU opinion was filed in 2020, but claimant's counsel objected to the filing of an EC-81.7 because claimant was still out of work.  At a following hearing, claimant testified that she was working at "a little part time job  . . . since about 2010."  This involved answering phone calls and being on-call for OnStar.  

At the next hearing, when claimant failed to produce a C-4.3 as directed, the SIE requested preclusion and also raised Section 114-a given claimant's testimony, which contradicted her earlier statements.  The preclusion was held in abeyance and further testimony was directed.

At that next hearing, claimant stated that her earlier testimony of working since 2010 was in error, and she produced documentation showing work in 2019.  She recalled also working for another employer in 2016, but could not locate records for that time.  That actual employer appeared and testified that claimant worked for her answering phones as a "personal assistant" in the years 2016 and 2019, and that she recommended her to GM for their OnStar service, but that she also provided additional duties such as filing, organizing, and mail delivery.

The Law Judge found that claimant's testimony was inconsistent, and that she had worked without notifying the Board, and misrepresented her work history to the IME physicians.  Accordingly, the mandatory penalty of rescinding awards from the first 2017 IME to the date of the hearing was imposed.  However, the discretionary penalty of a lifetime disqualification from receiving payments was not imposed.  The Law Judge reasoned that there should be a "lesser penalty" for those who choose to disclose their misrepresentations, rather than being found out later.  

On appeal, claimant argued that the misrepresentations were not material, since her work involved only clerical activities, and did not lead to incorrect findings.  The SIE argued that given claimant's contradictory testimony, that information is suspect.  Also on appeal, he SIE argued that the discretionary penalty should have been imposed.

The Board Panel held that where claimant "frequently, consistently, and repeatedly" failed to disclose her work activity, and where her testimony was contradicted by her prior testimony, as well as that of her employer for whom she worked as a personal assistant, these misrepresentations were indeed material.  Specifically, the information that claimant was actually able to perform light work for up to seven hours per day was relevant to her degree of disability.  Accordingly, the mandatory penalty was certainly warranted.

However, the Panel still found that the discretionary penalty of disqualification was not warranted, given her election to disclose these false statements voluntarily.  

NOTE:  Even where, as here, there is irrefutable evidence of fraud, the Board is barred from assessing penalties that are disproportionate to the fraudulent party's conduct.  Accordingly, where the fraud is confessed to, rather than discovered via surveillance, the Board is most likely to assess the mandatory penalty of rescinding awards previously made, but will not assess the discretionary penalty of a lifetime disqualification.

That being said, claimant would still be obligated to reimburse the amounts in question to the SIE, and may or may not face criminal charges following an investigation by the Inspector General.

NYC MTA, 2021 WL 2029529 (G152 4201 May 18, 2021).