Decisions Rendered August 30, 2021 and August 31, 2021

 Good Afternoon All.  The Board has gotten a little bit quicker about filing their recent decisions, so here we go!

(1)  Defective Appeals

A few days ago, the Board dismissed two appeals, one filed by a claimant, and one filed by a carrier, seeming to prove their point that all parties are affected by the 2016 regulatory amendments.

In both matters, the appellants sought review of Law Judges' decisions that resolved Forms C-8.1B for the adverse parties.  In both matters, the appellants did not actually cite to the Forms C-8.1B's as exhibits in Item 13 of the RB-89.   Accordingly, the Board Panels exercised their discretion under Rule 300.13 to reject both appeals.

Wegmans, 2021 WL 3917693 (G003 4277 August 31, 2021); AIG CR, 2021 WL 3917694 (G020 5959 August 31, 2021).

NOTE:  If your appeal concerns particular documents, which it most likely does, cite to it in Item 13, including the Document Number.  Unless and until the Legislature approves the proposed Section 23-a, and our new Governor signs it into law, all appellate forms must be filled out completely and correctly.

(2)  Post-Classification Reduced Earnings/Labor Market Withdrawal

This claim was established to the back from a 2015 accident, and claimant was classified with a 65% LWEC, after which he continued working.

In 2020, awards were made for tentative reduced earnings, with an admission that claimant received unemployment that year when his employer at that time closed due to COVID.  In March of 2021, the carrier filed an RFA-2 and requested a suspension, arguing that the layoffs in question were not causally related to claimant's established injury.  The Judge set testimony, but refused to suspend payments, and the Notice of Decision did not specify awards.

The Board Panel held that there was no proof justifying continued reduced earnings, even if claimant was classified, because claimant was required to demonstrate that the withdrawal from the labor market was due to his injuries, and not for an unrelated reasons.  Accordingly, the decision was modified to hold awards in abeyance as of the date the RFA-2 was filed, and to direct claimant to produce proof of causally related lost time/reduced earnings.

Nautilus Diner, 2021 WL 3917695 (G139 1700 August 31, 2021)

(3)  Additional Sites

This claim was established to the lower back only as the result of a 2016 accident.  However, a 2017 MRI showed a meniscus tear.

Over the next several years, treating providers and IME physicians developed contrary opinions as to whether or not there were causally-related or consequentially related injuries to the knees.  Following medical testimony, during which neither party questioned the treating physician as to the MRI, claimant testified at a hearing that he had repeatedly told his treating physicians about injuries to his knees from the beginning, but they refused to address his complaints because the knees were "not part of the case."

The Law Judge found that there was no evidence of the mechanism of the accident causing injuries to the knees, given the amount of time that elapsed before the first documented complaint regarding the knees, and disallowed the additional sites.

The Board Panel affirmed, finding that the treating physicians did not review significant prior medical records that would address the knees, including the 2017 MRI.

Delta Air Lines, 2021 WL 3917676 (G171 7651 August 31, 2021)

∫NOTE:  Without contemporaneous documentation, or at least medical evidence demonstrating the mechanism of the accident, or a consequential link, additional sites cannot be added.  Moreover, if you don't want the adverse medical provider to give testimony that would undoubtedly be unfavorable, then "don't ask questions that you don't want the answer to."

(4)  Genduso Credit

This claim was established for a left shoulder injury from a 2019 accident.  Claimant had a prior claim for the left elbow for which he was awarded 25% schedule loss of use.

Both sides' doctors agreed on a 37.5% SLU to the left shoulder.  Noting that Genduso applied to this matter, the Law Judge credited the prior SLU to the left elbow and awarded claimant the difference, 12.5% SLU.

Claimant's counsel appealed, but the Board Panel affirmed this finding, specifically that under Genduso, a prior schedule award "applies to all schedule findings to the same extremity, regardless of the specific site of injury."

DOCCS Coxsackie Correctional Facility, 2021 WL 3927698 (G245 2682 August 31, 2021)

NOTE:   Hopefully the Court of Appeals affirms this finding, if a further appeal was granted.

(5)  Penalty

In this claim, the carrier raised voluntary retirement against the claimant, and two other matters travelled with this claim.

However, the carrier failed to appear at the hearing.  Apparently out of frustration (to put it mildly), the Law Judge penalized the carrier $1,000.00 under Section 114-a(3), for instituting proceedings without reasonable grounds.

The carrier appealed (despite the fact that it was not at that hearing and could not assert an exception), conceding that it did fail to appear, but that a more appropriate penalty would be the $100.00 under Section 25(c)(3), for causing an adjournment due to dilatory tactics.

On appeal (again, despite the failure to appear and objet), the Board Panel found that Section 114-a(3) was not applicable, because asserting issues without a reasonable basis was not what the carrier actually did, while the carrier was instead dilatory.

Staten Island DDSO, 2021 WL 3917700 (G257 5896 August 31, 2021)

NOTE:  Don't miss hearings.

Seriously though, it's still wise to "pick your poison," as some Judges are not necessarily operating from a logical and dispassionate state when they find it necessary to assess penalties.

(6)  Section 44

This claim was established for asthma as an occupational disease with a date of disablement set at July 9, 2005.  AIG was found to be the liable carrier, and directed to produce an IME addressing Section 44 apportionment within 90 days.  The decisions in question, which were filed in 2008, were appealed, but affirmed.

However, AIG did not produce IME's addressing apportionment until 2015 and 2018.  Eventually, the other carriers placed on notice argued that AIG had waived Section 44 due to laches due to the extensive delay.  In response, AIG argued that they had raised Section 44 as soon as it was deemed the liable carrier, but they were awaiting provision of union records and SSDI records from claimant.  Claimant's counsel reminded all parties that the union records were already filed in 2006, and the other carriers argued that the examination addressed apportionment based on earning records (SSDI), and not by the time claimant worked for each employer.  Moreover, since several prior employers had gone out of business during the ensuing delay, it was unfairly prejudicial to address this issue more than a decade later.

The Law Judge found that AIG had waived Section 44 and that laches applied.  On appeal, the Board Panel affirmed, in no small part because (a) the union records were filed in 2006; and (b) AIG did not place prior employers on notice until 2018.

Fresh Meadow Power Authority, 2021 WL 3917654 (0054 1954 August 30, 2021).

NOTE:  Obviously, as AIG did, raise Section 44 as soon as your client is determined to be the liable carrier in an occupational disease claim.  While an appeal may hold the issue in doubt for a short time, do not wait nearly a decade to argue that prior employers