Decisions Rendered August 17, 2021

Greetings All - Here are some more recent decisions:

1.    Reopening

This claim was established for injuries to the left hip, left knee, neck, consequential psychiatric condition, consequential ulcers, and consequential right knee from a 2008 accident.  Claimant was classified with 77.07% LWEC in 2013.

In May of 2021, a treating physician filed a Form C-27 finding increasing pain, neuropathy, and degenerative changes that would keep claimant from returning to work.  Claimant's counsel wrote to the Board on June 9, 2021, requesting a reopening.

The Board Panel addressed this request for reopening, based upon a statement that there is a material medical "change in condition."  However, since the C-27 noted that continuing treatment had been provided for the degenerative condition, and that his condition did not change substantially, there was an insufficient basis to reopen the case.  Particularly where the degenerative condition was due to age, and not due to the injuries themselves, the Board kept this claim at PPD.

Turaro Transit, 2021 WL 3683825 (0083 9575 August 17, 2021).

NOTE:  Per the Board Announcement of June 2, 2021, where a claimant is classified, medical evidence may be considered to determine a temporary total disability, against which the cap will not run, provided that there is proof that claimant's condition has now worsened.  If claimant has not undergone surgery, but claimant's counsel is relying on other evidence, they will need to file Form RB-89 requesting a rehearing/reopening.  

2.   Post-Classification Working

This claim was established to the left knee, consequential back, and left hip from a 2004 accident.  He was classified with 40% LWEC.

Claimant was "laid off" in 2010, and additional knee surgeries were performed in 2012.  As of 2013, claimant had returned to work full-time for a different employer, and was thereafter either awarded TRE or RE payments, as he was working while classified.

A revision surgery was performed in November of 2020.  Claimant was released to return to work full-duty as of January 2021, and the carrier filed an RFA-2 requesting suspension.

The Law Judge noted that the doctor who released claimant to return to work had only examined the knee, and resolved the issues of lost time and voluntary withdrawal on prior findings.

On appeal, the carrier argued that claimant had removed himself from the labor market by not returning to work full-duty.  The Board affirmed the Law Judge's decision to continue the tentative payments, finding that there was no change in the claimant's condition as to his overall PPD status.  Aside from a brief period of recovery following the November 2020 TKR revision, claimant still had a mild to moderate partial disability, consistent with the 40% LWEC finding, accordingly his disabilities were still causally related to the 2004 accident.

DHL Holdings, Inc. 2021 WL 3683826 (4040 7792 August 17, 2021).

NOTE:  Seeking a change in condition after an LWEC finding apparently requires substantial evidence of a "change in condition" from either side.  Clearly something more than a return-to-work release is warranted.

3.    Fraud Under Section 114-a

This claim was established to the neck and left shoulder from a 2012 accident.  

In March of 2017, claimant advised her treating doctor that she was involved in a subsequent MVA one day before, and was complaining of severe neck and back pain.  Claimant continued to receive treatment for her established neck injury.

At IME's in December of 2017 and February of 2018, claimant did not disclose her subsequent MVA.

At a hearing in March of 2020, claimant testified that she was in an MVA in March of 2017, but only injured her back.  At a later hearing in February of 2021, claimant testified that she aggravated her neck injury in the March 2017 MVA.   The carrier raised Section 114-a, and claimant was disqualified from receiving payments.

On appeal, claimant's counsel argued that there was no material misrepresentation, since the neck injury in the MVA was minor.   The Board noted that the treating medical records from March 2017 showed that claimant injured her neck in the subsequent MVA.  However, claimant did not report this at either IME, and she had also testified at the March 2020 hearing that she only treated for a back injury due to the March 2017 MVA.  The Board found that a material misrepresentation was indeed made and Section 114-a was found.

Bronx-Lebanon Medical Center, 2021 WL 3683828 (G058 6693 August 17, 2021).

NOTE:  Review all inconsistencies between complaints to treating physicians and statements to IME's.

4.   HIPAA Authorizations

This claim is established to the back from a 2018 accident.

Several decisions were remitted over two years directing claimant to produce HIPAA-compliant authorizations, which he failed to do.  At a hearing in February 2021, the carrier requested a suspension of payments due to claimant's failure to produce the authorizations.  In response, claimant's counsel stated that there were two prior accidents that were alleged to have taken place in December of 2007 and February of 2017, but claimant stated that he was not involved in any accidents on those dates.

The carrier raised Section 114-a against claimant and demanded testimony.  The Law Judge refused to suspend payments, but continued the hearing for claimant's testimony.

At a hearing in April of 2021, claimant denied having been involved in one out of eight prior accidents, and insisted he did not need to go to the hospital.  The carrier again raised Section 114-a, claiming that there was evidence of a settlement being received from the one accident, and demanding that HIPAA's be provided.  The Law Judge held that there was insufficient evidence of fraud.

The Board Panel credited claimant's testimony and held that merely referencing a prior accident without proof of injury to the same site in the claim is insufficient to support a direction to provide a HIPAA.

Oval Tennis Inc. 2021 WL 3683833 (G226 3029 August 17, 2021).

NOTE:  It's standard practice to review ISO reports and medical canvasses, but in order to obtain HIPAA's for prior authorizations, there must be a demonstrating that the prior accidents actually did involve an injury that the claimant sustained, and that injury overlapped with raised or established site.

APPELLATE DIVISION, July 22, 2021:

Cadme vs. FOJP Services Corp.:  In 2019, a hospital food service worker sustained injuries when he was struck by a motor vehicle while walking towards the hospital entrance.  The claim was controverted, upheld on appeal by a divided panel, and affirmed by the Full Board.

The Court referenced the Husted exception to the coming-and-going rule, and found that the claim was compensable.  Claimant parked his vehicle across Route 9W from the hospital, as many other food service workers did, as they were not permitted to park directly in front of the hospital loading dock.   The employer witness conceded that Route 9W was unsafe, and therefore determined that there was a "special hazard" involving the roadway, and given its proximity to the loading dock entrance, that the accident did arise in and out of the course of employment.

Cardona v. DRG Construction LLC:  In 2018, claimant was a construction worker injured in a building collapse.  It was disputed whether he was an employee of DRG, the subcontractor, or Avitus, the PEO.  After trial, the Law Judge found that the PEO and its carrier, American Zurich, were liable.

Per statute, a PEO is considered the employer for purposes of workers compensation coverage.  A state-specific addendum to the professional employer agreement with DRG indicated that they were "co-employing" a majority of DRG's workers.  Given the available documentation, there was nothing to indicate that Zurich's coverage was limited, particularly where the contract itself stated that DRG was listed in its schedule of named insured, with the notation "ALL EMPLOYEES."