Week Ending May 29, 2021

 Good Evening All.  Here are some Board Panel Decisions handed down before Memorial Day.

(1)  Pre-Classification Attachment

This claim is established to the right leg and left foot, PTSD, depression, and CRPS of the right shin from  a 2005 accident.

After the record was nearly fully developed as to permanency, the carrier raised the issue of labor market attachment, since claimant had been receiving a temporary partial rate.  The Law Judge held that the issue of LWEC would be postponed until after the COVID-19 pandemic restrictions were lifted.  

On appeal, claimant's counsel raised laches, as attachment was not raised previously.  The Board Panel took note of the fact that attachment would not be addressed during the COVID pandemic, as well as the fact that the 2017 Amendments no longer required classified claimants to demonstrate attachment.  However, since the claimant was not yet classified, and the carrier appropriately raised attachment at the first permanency hearing, the Board Panel affirmed the Law Judge's decision.

American Building Supply, 2021 WL 2184717, 0060 1232 May 25, 2021

This claim is established for the back and bilateral knees from a 2010 accident.

In their permanency evaluations, the carrier's IME found Severity Ranking F, and the treating physician found Severity Ranking G.  

At the LWEC hearing, claimant testified that he is 64 years old, cannot speak English, ahs minimal computer skills, and worked in building management for 21 years.  The Law Judge found 85% LWEC.

On appeal, the Board Panel held that the issue of labor market attachment was raised at a previous hearing, and that the issue must be addressed at the time of classification.  Accordingly, it rescinded the LWEC findings and directed proof of labor market attachment.

Accordingly, claimant submitted proof of applications for nearly 300 jobs.  The Law Judge found attachment, reinstated the 85% LWEC finding and made awards.

On further appeal, the carrier argued that claimatn had no more than a 60% LWEC, and that the medical evidence demonstrated that his condition was less severe.  Moroever, since claimant did not commence his work search for several years, the carrier argued that he was not attached to the labor market.

The Board Panel took note of claimant's multiple surgeries, and his use of a cane and back brace.  They also took note of his age, education, language skills, and work experience.  This supported the finding of 85% LWEC.  Conversely, the rate, which corresponds to 85% disability, or 15% wage earning capacity, was also affirmed.

Lastly, the documentation comprised of email confirmations of online submissions did satisfy the American Axle test for labor market attachment.

NOTE:  Claiamant's job search was form May of 2020 until January of 2021.  It would appear that the COVID-19 restrictions are indeed lessening.  Nonetheless, raising them prior to a classification finding is imperative, given the 2017 Amendments.

Total Maintenance Solution, 2021 WL 2184723, G025 5335 May 25, 2021

(2)  Surgical Authorization

This claim is established for a left knee injury from a 2002 accident.  Claimant was found to have a 20% SLU in 2003.

There was no subsequent treatment until January of 2020, when the treating physician first filed a C-4AUTH requesting a left total knee replacement.  The carrier denied this request when claimant failed to appear for an IME, and the IME physician performed a records review.  The IME physician found that there was no evidence that claimant had attempted medication or injections per the Medical Treatment Guidelines.

The Law Judge denied the C-4AUTH without prejudice and claimant's counsel presented a HIPAA for post-SLU left knee treatment records.

The treating physician examined claimant several more times, documenting injections that were provided, and then filed a new C-4AUTH.  The carrier denied this request as well.

At a hearing, the carrier argued that there were still no records of physical therapy, as required.  Depositions were directed.

In a Reserved Decision, the C-4AUTH was denied once again, without prejudice to re-submission upon "exhaustion of all lower levels" of conservative treatment.

On appeal, the Board Panel reviewed the medical evidence and found that claimant did indeed satisfy all requirements for a total knee replacement, specifically the age and weight requirements, and further noted that a claimant "need not exhaust all levels of conservative care, but rather must have tried one of the three listed . . . modalities," specifically medications, viscosupplemental injections, or steroids.  

NOTE:  This decision may require further review, particularly given the extremely long gap in treatment.

Tilcon New York Inc., 2021 WL 2184719, 3021 0795 May 25, 2021

(3)  Causally-Related Permanency

This claim was established to the right hand and right arm from a 2005 accident.  There were only two weeks of lost time.

A C-27 was filed in 2008, as claimant's pain was increasing, but she was discharged from care in 2009.

She resumed treatment again in 2010, but discontinued in 2011.  She then resumed treatment in 2018, and in 2019, her treating physician made SLU findings.  When asked about the gap on cross-examination, he said the pain was "waxing and waning."

The carrier's IME found that there was no causally-related permanent disability.  The Law Judge agreed and claimant appealed.

Since the medical findings in 2009 and 2009 revealed a full range of motion, the Board Panel agreed that there was no causally-related permanent disability.

NOTE:  Apparently the need for treatment can be re-assessed following long gaps in treatment, but permanency can't.

Quad/Graphics Inc., 2021 WL 2184720, 5050 3882 May 25, 2021.

(4)  Apportionment

This claim was established to the neck, back, and left shoulder due to a July 2012 accident.  However, she also suffered injuries to the exact same sites in a non-compensable accident in December 2011, but she was able to return to work full-time in April 2012, three months prior to the instant accident.

Claimant settled a third-party action, a lien was accepted, and a setoff was taken.  Permanency was raised and litigated, where the IME physician testified that claimant's injuries were sustained in the 2011 prior accident, but exacerbated in the instant accident.  She was "just finishing therapy" for the 2011 accident when the 2012 accident occurred.

The Law Judge made permanency findings, but held that apportionment was not applicable.  On appeal, the carrier argued that case law supported apportionment "even when it is not" due to a compensable matter.  

The Board Panel held that apportionment is not applicable where the prior condition was not a compensable injury and the claimant is "able to perform his or her job despite the pre-existing condition."  Since claimant had been discharged from care and returned to work full time before the 2012 accident, there was no apportionment.

NOTE:  As tempting as it is to raise issues stemming from prior injuries to raised sites, the better way is to controvert causal relationship based on prior injuries.  Otherwise, if apportionment is sought, see if the claimant had been working at full duty, or had to take less strenuous employment due to the prior accident.  Otherwise, addressing apportionment would be somewhat difficult.

Westchester County Department of Social Services, 2021 WL 2184725, G061 5748 May 25, 2021