Week Ending June 5, 2021

 Here are some recent Board Panel decisions of note:

(1)  Transitional Housing

This claim was established for the left shoulder, consequential CRPS, and depression for a 2002 accident.  Claimant was classified with a permanent total disability in 2011.  A few months before that finding, assisted living was authorized, and the SIE was directed to reimburse claimant for those expenses.

A 2020 IME revealed that claimant suffered from an unrelated psychosis.  Claimant was hospitalized for this condition in 2019, and after refusing placement in the city mission, was instead discharged to Homewood Suites.  At the time of the IME, claimant was looking for placement in a new assisted living facility.  The IME physician found that claimant's need for assistance with daily activities was only 25% causally related and 75% due to the unrelated psychiatric conditions.

Claimant sought reimbursement for nursing and companion aide services during his stay at Homewood Suites, pending placement in a new assisted living facility.  The SIE argued that these expenses were not for assisted living, and that since the Board had already resolved Forms C-8.1B for unrelated inpatient treatment in favor of the SIE, there was no evidence that the need for assisted living was causally related.  Referencing the 2011 decision, the WCLJ found that the bills for the hotel and assisted living services were for "comparable interim services."

On appeal, the Board Panel held that the expenses in question reflected only a temporary substitute for living conditions, and were not an open-ended condition.  Since the 2011 decision was never appealed or modified, the carrier's subsequent IME did not vitiate that decision.

However, the Board Panel deemed the SIE's argument to be a request for reopening, and returned the case to the calendar for a determination as to whether or not claimant's current need for assisted living is causally-related.

Accordingly, the SIE was required to pay for a certain amount of expenses during claimant's hotel stay, but after a certain date, it was subject to a re-hearing.

NOTE:  When there is contradictory medical evidence of any kind, carriers and TPA's are encouraged to seek relief first, especially where there is grounds to reconsider a prior decision, even one decades old.

American Sales, 2021 WL 2313361 (8020 2512 June 2, 2021).

(2)  SLU Increase

This claim was established for the left knee and left elbow from a 2014 accident.  Claimant also injured his left shoulder in a 2016 accident.

In the 2014 claim, claimant was awarded for 15% SLU to the left leg and 17.5% SLU to the left arm.  In the 2016 claim, he was awarded a 35% SLU to the left arm.

Claimant's treating physician found an increased SLU of 37% SLU for the left elbow on the 2014 claim, resulting in an increase.  The carrier was willing to accept the raised 19.5% SLU increase, but that Genduso applied, given the 35% finding on the 2016 claim, resulting in no increase.  

The Law Judge found that on both claims, there was a combined 52.5% SLU to the left arm, due to the left shoulder and left elbow findings, and that therefore under Genduso, there could be no increase.

The claimant appealed, arguing that Genduso was not applicable.  The Board Panel held that per this Appellate Division case, when a schedule award is made, "any subsequent award for impairment to any other part of the same extremity will be subject to a credit of the prior award."  Accordingly, while the 2014 claim involved the elbow and the 2016 claim involved the shoulder, both claims involved the left upper extremity, and since the SLU finding did not exceed 52.5%, there was no increase.

Office of Children & Family 2021 WL 2313363, (G091 5859 June 2, 2021)

(3)  Fraud

This claim is established for the neck, back, PTSD, and depression from a 2015 accident.

Claimant testified emphatically that she had done no work since the date of accident.  When confronted with video surveillance depicting her at a churro stand in a subway station, she insisted that she was merely visiting a friend who operated that stand.  In addition to the video, several eyewitnesses who knew claimant personally testified that she was indeed selling churros at a stand that she was operating.

The Law Judge found Section 114-a and issued both the mandatory and discretionary penalties.  The Board Panel agreed, faulting claimant for her "blatantly false" testimony.

NOTE:  When raising Section 114-a, as much evidence as possible should be used, if available.  It is very difficult to prove material misrepresentation, much less done intentionally, as was done here.

Chavez Corp., 2021 WL 231364 (G129 7108 June 2, 2021).

(4)  Hearing Loss

Claimant alleged job-related hearing loss due to repetitive noise exposure from 2007 to 2019.  She furst treated in August of 2019.

She testified that she was hired by the employer to do a job as a planner at Siemens/Dresser-Rand in April of 2019.  She was exposed to big machines with wheels on the production floor, and she had also previously worked for Siemens/Dresser-Rand itself from 2007 to 2013 as an expeditor.  However, she retired in 2013 and did not work until 2019.

The treating physician testified that the most recent noise exposure to claimant was in the five months claimant worked at Dresser/Rand, and that she would need to have over 85 decibels in those five months.  She also confirmed that claimant was provided with hearing protection, but did not use it.  Also, the doctor admitted that she had no information regarding the decibel level at the work location.

The IME physician initially conceded that at least some of claimant's hearing loss was causally related, but since she had only 1% hearing loss when she retired in 2013 (having had the benefit of reviewing earlier audiograms), he opined that this condition was more consistent with presbycusis,

In a Reserved Decision, the Law Judge established the claim for binarual hearing loss and found 15% SLU.  The carrier appealed.

The carrier argued that any hearing loss would have occurred between 2007 and 2013, when claimant was not working for the employer, and that the treating physician did not have prior audiograms in finding causal relationship.

Since the treating physician did not have the prior audiograms and did not know the noise level during the five-month period in 2019, the Board Panel found her unpersuasive.  Given this fact, as well as the six year gap in working, the Board Panel reversed and disallowed the claim.

NOTE:  For hearing loss claims, it is imperative not only to confirm the type of environment that claimant worked in for the insured, but also whether there were prior audiograms conducted when the claimant was in other employ.

Walker Business and Staffing, 2021 WL 2313365 (G130 7131 June 2, 2021).

(5) Payments Exceeding Schedule

This claim is established for the right shoulder from a 216 accident.  Both sides submitted permanency opinions as to SLU and depositions were directed.

The carrier filed an RFA-2 seeking to suspend continuing payments as the payments exceeded the schedule findings.  However, at the subsequent hearing, while noting that an updated SROI was filed a few weeks beforehand, the Law Judge denied the RFA-2.

On appeal, the Board Panel noted that the record of payments exceeded the IME findings of a 20% SLU, even if a protracted healing period were added.  Under the circumstances, which could lead to an overpayment, the Panel agreed that payments should have been suspended at the hearing.

NOTE:  Even if it is only the IME physician's SLU findings that could result in no money moving to claimant, if there are continuing payments, argue for a suspension nonetheless.

Cross-Country Inc., 2021 WL 2313367 (June 2, 2021).