Decisions Rendered September 28, 2021

 Once again, here are some recent Board Panel Decisions:

(1)  Timely Objections

This claim was established for the back and consequential psychiatric condition from a 2005 accident,  The indemnity was settled, leaving the medical portion open.

The carrier performed a records review in 2020.  At a hearing in June of that year, claimant's counsel raised no objection to it.  However, at a subsequent deposition, they stated on the record that the records review was defective under Section 137 for failure to produce all reports reviewed.  Ultimately, at a hearing held in May 2021, claimant's counsel argued for preclusion, which the Law Judge denied.

The Board Panel noted that the regulations governing record reviews require an adverse party to raise a "timely objection," but does not give a specific deadline by which an objection must be made.  However, given the circumstances of the claim, which included the scheduling of three hearings and one deposition since the records review was produced, the Panel affirmed the Law Judge in finding that no timely objection was raised.

American Airlines, 2021 WL 4468257

(2)  Alive And Well

This claim was established for multiple injuries from a 1999 accident.  Claimant was classified in 2004, and the claim was last marked "no further action" in 2017.

The carrier filed an RFA-2 claiming that they were unable to locate the claimant.  The Board Panel denied their application to reopen due to the lack of documentation.

They filed another RFA-2, and attached (a) a call long documenting claimant's phone number being disconnected; emails sent with no response; a statement from claimant's counsel that they had not spoke to their client in years; and a returned-mail notice from the US Postal Service for "Insufficient Address/Unable to Forward."

This time, the Board Panel noted that under Section 15(3)(w), the claimant is entitled to receive ongoing payments without demonstrating attachment to the labor market, and that the claimant is never obligated to respond to any correspondence from the carrier.  However, given the documentation provided, the Panel found that there was now sufficient evidence to reopen the claim, but solely on the issues of confirming that claimant is alive, and that their address is correct.

Buffalo Home Visiting, 2021 WL 4468758

(3) Medical Marijuana

This claim was established to both shoulders, elbows, and thumbs from a 2000 accident.  

In July of 2020, the Board denied a request for medical marijuana because it was not requested using Form MG-2, did not provide documentation of efficacy, and did not satisfy the Public Health Law requirements.  However, this decision was without prejudice.

In August of 2020, the doctor filed an MG-2 requesting medical marijuana for left shoulder pain.  Attached were prior notes indicating that since beginning medical marijuana in August of 2019, claimant's pain was improving, they were able to reduce opioids, they no longer had muscle spasms, and that prior medications were not effective.

The carrier denied this MG-2 for defective service, a records review finding, and failure to sustain burden of proof.  Subsequently, an IME was held at which time, it was found that medical marijuana was not medically necessary, there was no objective documentation of functional improvement, and no discussion of whether further improvement could be expected.

The treating physician testified as to claimant's condition before being prescribed medical marijuana, and her improvements in activities of daily living since.  He did not believe that claimant would improve more than she already had, but he found this to be an acceptable goal of treatment.

In a Reserved Decision, the Law Judge granted this variance.  Given claimant's muscle spasms, the Law Judge reasoned that claimant's condition qualified for medical marijuana under the Public Health Law.  The Judge also credited the comparative ineffectiveness of opioids previously prescribed, and the lack of a requirement that medical marijuana restore work capacity, but only restore and maintain functional capacity.  The Law Judge also used discretion in disregarding the failure to send the MG-2 to the correct email, since the carrier did receive the MG-2 timely.  The Judge also directed claimant to file medicla marijuana medication, which claimant did days later.

On appeal, the carrier argued that the certifications in question were not provided with the MG-2, rendering it defective.  Also, the carrier argued that there was no documentation of measurable baseline to measure improvement, and the lack of alternatives under the MTG's.

In rebuttal, claimant argued that the appeal was defective because it was served on claimant's counsel at the wrong address.  Moreover, they argued that the Law Judge's decision should be affirmed because the burden of proof was met.

The Board Panel excused the improper service, since claimant was served and claimant's counsel was able to provide a timely rebuttal.  Moreover, per Title V-A of the Public Health Law, medical marijuana can be used to treat severe conditions, including (a) pain that degrades health and functional capacity as an alternative to opioids; and (b) persistent muscle spasms.  Accordingly, the Panel affirmed the Law Judge, and used its continuing jurisdiction under Section 123 to review the subsequently submitted certifications and deem them acceptable.

IBM, 2021 WL 4468759

(4)  TTD Against Caps

This claim was established to the back from a 2016 accident.

In 2016, diagnostic tests revealed no disc herniation, no nerve root compression, or radiculopathy.

In 2018, claimant was classified with a 25% LWEC, entitling her to 250 weeks of PPD, but no awards were made as there was no lost time.

In 2020, she was examined by her treating physicians for a flare-up of back pain, taken out of work, and found to have a 60% temporary partial disability.  Her medication was increased, left sciatica was found, and she was subsequently found to have a temporary total disability.

Due to COVID, much of her treatment was done via telemedicine, but several of her physicians found a temporary partial disability, rather than total.  

At a hearing in June of 2021, awards were made from April of 2020 to July of 2021 and continuing at the permanent partial rate of $237.57, representing slightly more than the 25% rate.

On appeal, the clamant argued that awards should instead be made at the 60% rate until April of 2021, and the total rate thereafter, arguing that claimant could not work due to her disability.  The carrier argued that the TTD finding was based on a telemedicine visit, and not an actual office visit.

The Board Panel acknowledged that periods of TTD paid after a claimant is classified do not count against the PPD caps because they are governed by different statutes.  TTD is paid under Section 15(2), while PPD is paid under Section 15(3)(w).  Per the Appellate Division's decision in Sanchez v. Jacobi Medical Cener, 182 A.D.3d 121 (3d Dep't 2020), the cap is to be tolled when a subsequent TTD is found.  However, before PPD awards can resume, it must be once again confirmed that claimant has reached maximum medical improvement.

Although there was a finding of a total disability in April of 2020, claimant was prescribed medication at that time, and her prior prescriptions were increased.  Her other physicians then found a 25% partial disability continuously.  The Panel credited those physicians instead of the one finding a total disability, found that a TTD had not been demonstrated, and affirmed the Law Judge's findings.

Rochster-Genesee Regional Transit Service, 2021 WL 4468763

(5)  Labor Market Attachment and COVID

This claim was established to the back and consequential depression from a 2013 accident.

In August of 2019, the Law Judge found a temporary marked partial disability and directed production of labor market attachment evidence within 30 days.  Claimant did so, in the form of ACCESS-VR attendance and a C-258.1 documenting an independent job search.  No additional evidence was filed past October of 2019.

The next hearing was not held until June of 2021 to address permanency.  The carrier requested a suspension due to the lack of recent labor market attachment evidence, but claimant's counsel argued that COVID relieved her of this responsibility.  The Law Judge held attachment in abeyance, noting that (a) the carrier never filed an RFA-2 to suspend payments; and (b) the claimant truly did not produce the evidence in question.  Subsequently, the claimant was directed to produce evidence of attachment.

On appeal, the carrier argued that payments should have been suspended, since attachment was raised months prior to the pandemic.  Claimant's counsel argued that the Law Judge's decision was correct in that there were no grounds to suspend payments.

The Board Panel referenced the lifting of the requirement to demonstrate labor market attachment between March of 2020 and August of 2021.  It also cited to the Appellate Division's decision in Bruno v. World Trade Center Volunteer Fund, 184 A.D.3d 929 (3d Dep't 2020) for the rule that the appropriate date of finding no attachment is not the date that the issue is raised, but the date that the evidence, or lack thereof, showing no attachment is submitted.  Notwithstanding the lack of an RFA-2 requesting a suspension, it still behooved the claimant to update the labor market search beyond October of 2019, particularly where the evidence submitted then was not evaluated, and claimant's counsel admitted that claimant did not search for work after that time.

Accordingly, attachment should not have been held in abeyance, and the issue must be addressed.  The Panel further noted that the pandemic did not excuse claimant from demonstrating attachment between October of 2019 and March of 2020, or since August 16, 2021.  For this reason, the Panel directed adjudication of labor market attachment and rescinded continuing awards.

The Beverage Works NY Inc, 2021 WL 4468761.

(6) LWEC

This claim is established for the neck, back, head, bilateral shoulders, right hip, right knee, and adjustment disorder from a 2016 accident.

Several of claimant's treating physicians filed Forms C-4.2 making SLU findings, but no Severity Rankings for the neck or back.  The treating and IME psychiatrists both found a moderate permanent partial disability as to the adjustment disorder.  

At her deposition, claimant's treating neurologist mostly treated claimant for the neck and back, but made no findings regarding Severity Rankings.  Her treating orthopedist testified that he could not make a finding as to MMI without reviewing certain MRI studies.

At trial, claimant testified that she was 59 years old and had a bachelor's degree.  She was currently working part-time as an independent sales representative, but had previously been a program director for an energy conservation program.  She also was fluent in English, Spanish, and French, and possessed several licenses in insurance and securities.

The Law Judge found that she had Severity Ranking B for the neck, was capable of sedentary employment, and had a 5% loss of wage earning capacity.  

On appeal, claimant's counsel argued that the Law Judge did not consider claimant's schedulable sites or work restrictions, and that claimant should have been classified with a 75% LWEC.  

The Board Panel noted that claimant did not appeal the finding of Severity Ranking B, that finding remained undisturbed.  However, given claimant's psychiatric condition, SLU findings for the remaining sites, the Law Judges decision as to LWEC was still incorrect.

While claimant's age was an aggravating factor, her education and prior work history, comprised of non-physical jobs, were mitigating factors.  Likewise her language and technological skills were mitigating factors as well.

Based on the totality of circumstances, the Panel found a 45% LWEC.  Given the reduced earnings available to claimant when working, and that she has a 55% wage-earning capacity when she is not, thus resulting in a reduced earnings wage of $844.29, which is the maximum rate for the date of accident.

Sunset Park Redevelopment, 2021 WL 4468764