Decisions Rendered July 13, 2021

 Good Evening Compers!  Here are a few new decisions from the Board:

(1) Late Payment of Section 32

This claim was established for the left index finger, left hand, and CRPS from a 2011 accident.

A Section 32 Agreement was finalized per Proposed Notice of Approval on August 3, 2020.  However, claimant's counsel filed an RFA-1LC alleging that the claimant did not receive the net settlement within 10 days of August 3, 2020.  At a hearing, SIF stated that the check was mailed on August 4, 2020, but they were advised on August 24, 2020 that it was not received, accordingly they placed a stop-payment on the original check and forwarded a new check on August 25, 2020.  The Law Judge directed SIF to produce an affidavit and documentary evidence within 45 days.

SIF did so, including a payment ledger demonstrating the timely payment of the initial check.  Accordingly, the Law Judge denied the request for a late-payment penalty.

On appeal, claimant's counsel argued that the penalty should have been assessed.  Without even addressing the old rule that once the check is mailed, the payment has been made, the Board noted that Section 25(3)(f), which mandates payment within 10 days of the filing of a Notice of Decision, applies to Section 32 settlements not be statute, which renders the penalty self-executing, but by regulation under Rule 300.36(g), thus leaving it within the province of the Law Judge to "suspend or modify" the Board's regulations per Rule 300.30.

New York State Insurance Fund, 2021 WL 3013866 (G102 7056 July 13, 2021).

NOTE:  While late payments should always be avoided, the fact that the self-executing language of the statute actually does not apply to late payments of Section 32 Agreements is very surprising.

(2) Legal Objection v. Valuation Objection

This claim was established to the back for a 1985 accident and claimant was classified in 1991.

In a companion occupational disease claim against the same employer and carrier with a 1989 date of disablement, injuries were established for the neck, left shoulder, left arm, and right CTS.  This claim was classified in 1994, and at that time, apportionment was found 65% against the 1985 back claim and 35% against the 1989 claim.

In a medical report from treatment in August of 2020, a nurse practitioner recommended trigger point injections to the neck and back, and referred claimant to a "One-Day Surgery" clinic to have them performed.  They were performed, and the clinic submitted a $105.32 bill to the carrier per its medical coding.

The carrier filed a C-8.1B on both claims for a bill from the same clinic in the amount of $718.00.  The basis for the denial was that the clinic improperly used an ambulatory surgery code to bill for this procedure which should have been done at the doctor's office without anesthesia.  The clinic responded with documentation from the NYS Department of Health indicating that both the setting and billing were warranted.  The Law Judge held that there was no issue over the need for the injections, but rather the value of the services, and resolved the C-8.1B for the provider without prejudice to arbitration as to the valuation objection.

On appeal, SIF argued that there was no medical necessity for the injections to have been performed outside the doctor's office.  The Board noted that a "valuation" objection is used when the monetary value of the treatment or the amount billed is at issue with a C-8.4 (except when the only issue is excess of the fee schedule, in which case merely an EOB is permitted), a "legal objection" is used when the carrier is not legally liable for payment of the bill, in whole or in part, with a C-8.1B.

The Board resolved the C-8.1B for SIF, noting that the issue was that it was not appropriate for the claimant to be referred ambulatory setting with a higher billing rate.  The Board noted that DOH regulations actually remove such visits from their higher fee schedule.  Accordingly, they could not be billed at the ambulatory surgical rate.

While conceding that SIF's objection was to the amount billed, the Board actually found a "legal" objection, specifically the same DOH regulations that the provider attempted to rely upon, for reversing the Law Judge.

Laribee Wire Mfg Co., 2021 WL 3013861 (6851 7418 July 13, 2021).

(3)  Reopening/Rehearing

This claim was established for the right shoulder, back, right hip, neck, upper back, mid-back, lower back, right knee, and consequential adjustment disorder with depressed mood from 2010 accident.  Per stipulation, claimant was classified with a 71% LWEC in 2013.

In November of 2020, claimant appeared at an IME that referenced her three post-classification  kee surgeries, but also noted that her abilities had improved somewhat.  He found Severity Ranking A to the neck and B to the back, 40% SLU to the right arm, 7.5% SLU to the right hip, and 35% SLU to the right leg.  

Clamant sought a reopening due to the 35% SLU found to the right leg due to her surgeries.  SIF referenced a hearing that took place after that IME, where claimant raised no issue and argued that the issue was waived.

The Board noted that a change in medical condition is a valid ground to seek reopening.  However, the mere fact that claimant underwent knee surgeries following her classification in 2013 was insufficient to warrant reopening, particularly where her condition appeared to have improved.

SUNY Plattsburgh, 2021 WL 3013864 (G031 1185 July 13, 2021)

(4)  Labor Market Reattachment

This claim is established to the left shoulder, neck, and back from a 2013 accident.

In the decision of April 2, 2020, the Law Judge found an insufficient job search, but made awards after March 7, 2020 due to the pandemic.  On appeal, on October 1, 2020, these awards were rescinded, as claimant had not demonstrated re-attachment as of the beginning of the pandemic.

The next few medical reports and IME's found a total disability.  However, claimant filed several forms C-258.1 documenting a job search commencing in December of 2020.  At a hearing, she testified that she was not bilingual, but she applied for jobs that required it, as well as jobs that required her to stand and also lift.  The Law Judge found reattachment and made awards beginning in December of 2020 at the total rate.

On appeal, the carrier argued that she was not fit for all of the jobs for which claimant applied, and that notwithstanding the TTD finding, once claimant was found unattached to the labor market, she was obligated to demonstrate re-attachment.  The Board Panel found that claimant did not apply for jobs that were in her restrictions, and also failed to prove that her injuries caused her inability to find work.  All awards were rescinded.

Premier Home Health Care, 2021 WL 3013865 (G079 1004 July 13, 2021).