Week Ending June 26, 2021

Here is a review of relevant Board Panel Decisions filed this past week:

(1) Consequential Exacerbation

This claim is established for bilateral ankles and the lower back due to a 2015 accident.  The indemnity portion of the claim was settled in 2018, leaving the medical portion open.

A C-4AUTH for a left ankle CT-scan was filed in March of 2020, which the carrier granted.  A subsequent C-4AUTH for the same text was filed in November of 2020, but denied by the carrier due to a new accident, since the supporting medical report described a new accident occurring in October of 2020.

At a hearing, claimant testified to a fall occurring on August of 2020 while walking from his garage to his house, when he lost his balance.  Claimant argued that this fall was consequential, since the loss of balance was due the established injuries, and reference the previously-granted C-4AUTH.  The carrier argued that this was a new and superseding accident, and that the prior C-4AUTH was not before the Law Judge.  The Law Judge denied the subsequent C-4AUTH and claimant appealed.

Provided that there is a causal nexus between the initial compensable injury and the subsequent injury, the subsequent injury is consequential and compensable.  However, neither the medical evidence nor claimant's testimony demonstrated that the fall was due to the compensable injury.  In fact, claimant testified that while had did lose his balance a few times following the accident, the August 2020 balance loss was not the same as those occasions.  Accordingly, the prior C-4AUTH approval was not relevant.

D & J Management Co. LLC, 2021 WL 2600677 (G127 7772 June 22, 2021).

(2)  Consequential Injury

This claim was established to the right knee from a 2016 accident, and an SLU award of 11.25% to the right leg was made in 2018.

In 2020, claimant complained of right hip pain and his treating physician opined that this pain was secondary to his mild antalgic gait, and was consequential to his knee injury.

At his IME, the evaluating physician found a non-antalgic gait, and noted that claimant stated to him that he did not injure the right hip in the accident and had no issues with that site.  He did note an acetabular impingement to the right hip, but did not associate it with the established injury.

PFME for a consequential right hip was found and depositions were directed.  The treating physician referenced the mildly antalgic gait, but conceded that the right hip condition could be an unrelated degenerative hip condition.  Also, acetabular impingement could be caused by arthritis, which is degenerative in nature.  Ultimately, he was not sure that the hip discomfort was caused by the altered gait due to the knee injury.

The IME physician testified that both hips were symmetric in motion, but there was a decrease in abduction.  The acetabular impingement was an underlying condition associated with bodily formation, and not with an injury.  Also, clamant did not advise that he was having right hip problems due to an antalgic gait.  Also, there as no orthopedic possibility that if there had been an antalgic gait due to the knee, that it would transfer discomfort to the hip.

The Law Judge amended ANCR to include the right hip, and the carrier appealed.

The Board Panel found the treating physician's testimony to be unpersuasive as his August 2020 report indicated that claimant walked without a limp.  He also did not know if the right hip symptoms were the result of an antalgic gait caused by the knee injury, and never offered a clear medical diagnosis.  Accordingly, the treating physician based his conclusion on the claimant's statements, and did not explain that his opinion was based on a probability, rather than a possibility.  Accordingly, the Panel disallowed the claim for the consequential site.

NYS DOCCS, 2021 WL 2600678 (G168 3169 June 22, 2021).

(3)  Reconsideration

This claim for a back injury was controverted.  In her C-3.0, claimant denied a prior back injury.

The carrier filed a SROI-04 and PH-16.2, arguing that the claim was retaliatory and that notice was not timely provided.  

In the first medical record was a description of a slip and fall in a patient's room.  Claimant told the treating physician that she initially felt no pain, had the next day off, and was then told not to come into work.  She was then terminated from employment, and she admitted to a prior back injury.

The carrier failed to appear at the pre-hearing conference.  Claimant testified only that she was working for the employer of record at the time, and the claim was established to the back.

The carrier appealed in the interests of justice, arguing that a miscommunication between the carrier and TPA resulted in the non-appearance, and that claimant's wage loss was unrelated.

As expected, the Board Panel denied the appeal due to the carrier's absence and failure to appear at the pre-hearing conference.  However, the Board Panel elected to treat the appeal as an application for a reopening instead of an appeal.

The Board Panel noted that the carrier did timely file a Notice of Controversy and Pre-Hearing Conference Statement.  Further, while regulations require the Law Judge to "make a reasoned decision . . . outlining the evidence supporting said determination" in controverted matters, the Law Judge did not address the sufficiency of the medical records and did not take any substantive testimony from claimant as to accident, notice or causal relationship.  Moreover, the record still contained inconsistencies that the Law Judge did not address.

Accordingly, the Board Panel converted the appeal into an application for a reopening, rescinded the establishment of the claim, and directed that a pre-hearing conference once again be scheduled.

NOTE:  Maybe it's not over if the carrier fails to appear at a pre-hearing conference.  Of course, all efforts should be made to meet all statutory deadlines and make all appearances in controverted matters, but where the claim is established without testimony as to the mechanism of the accident, and without confirming PFME and causal relationship from the medical records, and without addressing any contradictory information, the establishment of the claim is subject to reconsideration.

Humboldt Houre Rehab Nuring, 2021 WL 2600679 (G174 7160 June 22, 2021).

(4)  Reimbursement of Medical Expenses

This claim is established for an occupational disease to bilateral feet, CRPS, and avascular necrosis, with a date of disablement set in 2017.

In 2020, claimant sought reimbursement for medication costs, as well as medical expenses for treatment that claimant should not have paid.  After several hearings and decisions on appeal, a hearing was set in early 2021 to address the expenses and possible reimbursement.

While the claim was being controverted, prior to its eventual establishment, claimant paid for treatment that his private heath insurer did not cover.  Claimant's counsel argued that the prior audits of these expenses were not done properly, and the carrier argued that there was nothing demonstrating that the treatment was for causally-related injuries, and that it was not responsible for co-payments made by claimant.  

On appeal the Board Panel noted that Section 13(a) requires the carrier to make payments for causally-related treatment.  Under Section 13(d), where a health insurer makes payments for said treatment, the carrier is to reimburse the heath insurer for such payments.  However, Section 13(f) states that no health care provider rendering case for compensable injuries shall collect a fee from the claimant.  Any claimant who does has a cause of action against said health care provider.

There is no statutory provision directing the carrier to reimburse the claimant for any bills or co-payments directly paid by the claimant to the health care provider.  Instead, claimant's remedy is to sue the providers directly, or to assign the cause of action to the Board itself.

Accordingly, this portion of the decision was modified, and the health insurer was placed on notice.

NOTE:  Any requests for M&T must be limited solely to mileage and for purchases of prescription medication (in the event there is no vendor assigned to review prescription requests).  The carrier is never to reimburse claimant for co-payments made where the health insurer paid the balance of the bill.

Elder Contracting, 2021 WL 2600680 (G202 3809 June 22, 2021).

(5)  Permanent Total Disabiiity/Total Industrial Disability

This claim was established for an occupational disease involving the neck and consequential occipital neugalgia and the thoracic spine with a 2018 date of disablement.

The carrier produced a permanency evaluation finding Severity Ranking B to the back and neck  Claimant produced two Forms C-4.3 indicating no MMI.  Decisions directed depositions.

Claimant's counsel raised the issue of fibromayalgia, and an additional neck surgery was authorized.  The carrier argued that the claimant had waived cross-examination, and that no addendum was obtained because it was never confirmed that claimant wanted to undergo neck surgery.  The case proceeded on permanency.

Claimant testified that she has a high school education and can use a computer, but her hands and arms were too painful to use a keyboard.  She did not speak English, and had social anxiety.  She can partake in activities of daily living, but requires some assistance getting dressed.  She also receives SSDI, orders groceries online, and only rarely drives.

PFME was found for fibromyalgia, an IME was directed as to that site, and a brain MRI was authorized.  Following summations on permanency, the Law Judge found a "permanent total industrial disability."  In a subsequent decision, ODNCR was amended to include fibromyalgia.

On appeal, the carrier argued that the IME physician's findings were unchallenged and claimant never produced a permanency report, that there should be no finding of fibromaylgia, and claimant should instead be found to have a permanent partial disability with 75% LWEC.  

The Board Panel noted that the Law Judge never actually found that claimant had any kind of permanent disability.  In order to make a finding of total industrial disability, there must first be a finding of a permanent partial disability.  Then, the claimant has the burden of demonstrating that she is "incapable of gainful employment."  

Accordingly, the finding of TID and the purported classification were rescinded, and both sides were directed to produce new permanency evaluations including all sites, including fibromyalgia, which remained established.  

NOTE:  Make sure that Law Judges properly designate their findings in the Notice of Decision.  As here, an incorrect designation or an ambiguous finding can be grounds for appeal.

McKesson Corporation, 2021 WL 2600681 (G203 7488 June 22, 2021).

(6)  SLU / 2018 Guidelines

This claim was established to the left shoulder for a 2016 accident.

In an IME, the evaluating physician found a 33.3% SLU to the left arm, based upon the finding of a biceps rupture.  Claimant's treating physician found 92.3% SLU, based on the rupture and range of motion findings.  

Depositions did not proceed.  At a hearing, the carrier argued that per the Special Considerations for the shoulder, claimant was only entitled to 33.3% SLU per the rupture.  The Law Judge held that both the Special Considerations and the range of motion limitations were to be considered, and awarded claimant 77.3% SLU.

On appeal, the Board noted that Section 5.4 of the 2018 Impairment Guidelines state that in order to assess a schedule loss of use, it must first be addressed whether Special Considerations were warranted, and if not, range of motion deficits were to be addressed.  Section 5.5 assigned a 33.3% percentage to rupture of the long head of the biceps.

Given the Special Consideration for biceps ruptures, the Board Panel noted that claimant was entitled to no more than 33.3% SLU, as the range of motion deficits could not be addressed, as the Impairment Guidelines are "diagnosis driven."  As an aside, the Panel noted that there is no Special Consideration for rotator cuff tear, and that accordingly, range of motion testing would be properly considered in that instance, but not here.

DOCCS Collins Correctional Facility 2021 WL 2600682 (G203 9422 June 22, 2021).