WCB Decisions Rendered October 13, 2021

 (1) Labor Market Attachment

This claim was established for the back, following a 1990 accident.  There was no lost time, and liability was transferred from the carrier to Special Funds under Section 25-a.

Claimant also had a claim established for the neck from a 2002 accident with only three weeks of lost time.  A subsequent claim for a right shoulder arising out of a 2015 accident was indexed, but never established.

On the neck claim, claimant raised the issue of causally-related lost time after retiring on June 1, 2016.  After several hearings were held addressing which claim or claims resulted in lost time awards, testimony as to retirement was held at a hearing in January 2017, at which time SF raised attachment.  In a Reserved Decision filed March 24, 2017, the Law Judge classified claimant with a 50% LWEC and made awards from June 1, 2016 to March 20, 2017 at $400.00 PPD, directed development of the record on attachment.

On appeal, in a decision filed October 27, 2017, awards were rescinded, with a finding that claimant was not attached to the labor market, and that there was no causally-related lost time.  Noting that SF had raised the issue of attachment before claimant was classified, the Panel held that the Law Judge should have addressed attachment and permanency together.

At a subsequent hearing in 2018, claimant argued that there was no obligation to demonstrate attachment, and the Law Judge found that claimant was not attached to the labor market.  

Then claimant's counsel appealed, arguing that per the 2017 amendment to Section 15(3)(w), there was no obligation to demonstrate attachment when claimant was classified, and in any event, awards should have been made until March 24, 2017.  In a subsequent decision filed May 9, 2019, the Panel affirmed the Law Judge, holding that claimant's retirement, by itself, did not require an inference of causally-related lost time and continued attachment, and that claimant was obligated to demonstrate attachment.  Accordingly, it found NCLT from June 1, 2016 to November 9, 2018.

Claimant appealed, and in a decision filed February 4, 2021, the Appellate Division held that the Board was incorrect in finding NCLT and remitted this matter back to the Board to address attachment.  In its holding, the Court held that the 2017 amendment did not relieve claimant of the obligation to demonstrate attachment, and that the Board was correct in finding that the retirement should not be assumed to causally-related lost time.  However, it reversed the Board on its finding of no attachment, since SF first raised attachment in January of 2017, accordingly there should not have been a finding of no attachment prior to the date attachment was raised.  

Upon remand, the Board referenced the 2020 decision of City of Kingston, which held that if attachment was addressed prior to the date the carrier raised it, an overpayment would be created.  Accordingly, claimants should not be required to demonstrate attachment prior to the date the issue was raised.  However, where there is a period of no lost time, the issue has not yet become ripe.  Accordingly, the carrier must raise the issue "as soon as practicable" after a claim for lost time awards is actually made, and before an award is made.  

It also referenced the Court's decision in Bruno v. WTC Volunteer Fund, 184 A.D.3d 929 (3d Dep't 2020), which held that "the appropriate date of a finding of no labor market attachment is not the date the issue is raised, but rather the date that evidence showing a lack of labor market attachment is submitted," citing the 2015 Staffpro Board Panel Decision.  However, on remand in that decision, the Panel noted that Staffpro was decided incorrectly, and while it was constrained by the Court's decision. going forward, it would follow City of Kingston.  Likewise, the Panel in this matter stated that it would disavow any decisions that were contrary to City of Kingston.

In this claim, lost time was raised at a hearing on June 14, 2016, but attachment was not raised until the hearing of January 26, 2017.  Accordingly, SF did not raise attachment "as soon as practicable."  Accordingly, lost time awards were made for that exact period, while claimant was found not be attached from that point forward.

Orange & Rockland, 2021 WL 4849314

(2)  Total Industrial Disability

This claim was established to the back for a 2013 accident.  Claimant was classified with a 96% LWEC in 2018.

Both sides appealed, claimant arguing that there should either be a permanent total disability or a total industrial disability, and the carrier arguing that there should be a 75% LWEC.  The Board Panel rejected their appeals for failure to particularize objections made on the record.  The Appellate Division reversed that ruling, holding that there was "no formulaic objection required" in order to preserve an appeal, and remitted the matter back to the Board for further proceedings.

On remand, the Board Panel referenced the standard for total industrial disability, namely that based on education, functional abilities, age. language, training, and experience, that a permanently partially disabled claimant is "effectively unable to work."  

Noting that the claimant was 65 years old, and spoke very little English, and had only ever worked as a carpenter which he can no longer do, the Panel modified the finding of 96% LWEC to increase awards to the permanent total rate, and found total industrial disability.

Mayrich Construction Corp., 2021 WL 4849315

(3)  AWW Calculation

This claim was established for the left shoulder, left elbow, and neck for a 2015 accident.  The AWW in this claim was set at $1,124.11.

A prior claim was established for an occupational disease to the neck with a date of disablement in 2013.  The AWW in that claim was set at $1,416.87.

In 2019, claimant was classified with 25% LWEC with no lost time, and the permanency to the neck was apportioned 50/50 between both files as of January 2019.   Claimant subsequently began losing time from work.

The WCLJ held that the higher AWW from the 2013 claim was controlling, and the carrier appealed.  The Board Panel noted that the most recent accident had a lower AWW, and held that the correct AWW to be used was the one reflecting the "wage earned at the time of each injury" when the highest AWW was not paid in the most recent employment, subject to apportionment, and modified that award to use the lower AWW.

However, based on the carrier's statement at the hearing of May 26, 2021 that "we are asking for that finding to be made today," the Panel would only modify the WCLJ's ruling as of that date.

Engineered Centrifugal Org., 2021 WL 4849317

(4)  Incorrect Parties

In January 2021, this claim was indexed against MacLean Curtis and its carrier, Zurich American Insurance Company.  In February, the claim was established against both entities as an occupational disease of binaural hearing loss with a date of disablement set at December 28, 2020.  In May, a penalty was assessed for failure to timely pay the hearing loss SLU award.

In June, Gallagher Bassett filed a FROI-04 on behalf of the carrier.  A few weeks later, a corrected Notice of Indexing was filed indicating that the employer was MacLean Fogg, with the same address as MacLean Curtis.

The carrier then filed a request for a reopening, alleging that the employer, carrier, and third-party administrator were never placed on notice, and that MacLean Fogg was self-insured, unlike MacLean Curtis, but was never served with any Board notices.

The Board Panel held, as previously done, that the failure of a third-party administrator to appear does not excuse a carrier's non-appearance or non-action.  While the name of the employer may have been incorrect, its address was not, and the correct carrier was nonetheless on notice for all hearings and decisions.  Accordingly, the carrier was on notice of the hearings, as required by Rule 300.8, and there was no such obligation to place the third-party administrator on notice.  The request for reopening was denied.

MacLean Fogg, 2021 WL 4849318

(5)  Voluntary Removal

This claim was established to the back, neck, left knee, left ankle, left shoulder, left wrist, pelvis, depression, and PTSD for a 2016 accident.

Claimant retired from the employer in 2020 and claimant that there was no treatment available.  She worked for four years for the employer after the accident and did not request accommodations.  

On appeal, the Board Panel held that in order to avoid a finding of voluntary removal from the labor force, the claimant must present medical evidence that the causally-related disability "caused or contributed to" claimant's retirement.  In this matter, there were no medical records at the time of retirement, and the Panel found claimant's testimony that she couldn't take time off from work not to be credible.  Moreover, she did not undergo the surgery she sought until 10 months after she had stopped working.

NYCH&HC, 2021 WL 4849319

(6) Suspension of Awards

This claim was established to the left knee for a 2018 accident.  

In 2021, an IME physician found a 20% SLU to that site.  A shot time later, treating physicians found consequential injuries to the left hip and left ankle.  

At a hearing in June, the carrier requested a suspension of payments given the MMI finding to the established site.  The Law Judge held this application in abeyance pending development on the record as to the additional sites.  In September, ANCR was amended to include the consequential sites.

The carrier appealed, citing to the MMI/SLU findings and the lack of up-to-date medical evidence.  However, given the fact that additional sites were being addressed, the Board Panel held that an MMI finding to one site was insufficient to warrant a suspension.

Board of Cooperative Education, 2021 WL 4849323

(7)  LWEC Aggravating/Mitigating Factors

This claim was established to the back for a 2018 accident.

The unrepresented claimant testified in June of 2021 that she was 50 years old, graduated in high school in 1989 with a NYS Regents Diploma, and had a two-year Associates' Degree in Applied Science of Business Management.  She took several BOCES courses in unspecified fields, and that since they were done 20 years ago, they did not qualify her for any type of career today.  Following completion of training she was qualified to set up EKG's, but not to read them, that she understood medical terminology, and was able to perform clinical and clerical duties in medical offices.

Prior to her current job, she worked as a companion, which was essentially the same as her current occupation as a personal care assistant, with the abilities to assist clients with activities of daily living.  She currently works for the employer but her restrictions are taken into account.

Following testimony and summations, the Law Judge held that claimant's medical history indicated at least a 50% disability, that her HS diploma was an aggravating factor, but her associate's degree was a mitigating factor.  The WCLJ also noted claimant's work history as an aggravating factor, given the physical labor requirements, but that even while she works with restrictions, this could limit her employability in the future.  Accordingly, he found 55% LWEC.

On appeal, the carrier argued for a 25% LWEC.  The Board Panel referenced the IME finding of Severity Ranking B and the ability to perform light work, with restrictions of 10 pounds frequently and 20 pounds occasionally.  The Associate's Degree did not appear to have actually been utilized in claimant's employment, much like her additional BOCES training.  Accordingly, the Panel found that claimant's education and training were neutral factors.

The Panel further noted that claimant had worked as a companion since 2012, but she is restricted in her ability to do so.  Moreover, she cannot perform the tasks she did prior to 2012.  Accordingly, her skills are a neutral factor.  Also, her age is neutral factor, while her English skills are a mitigating factor.

Based on the above, the Panel affirmed the finding of a 55% LWEC.

Homemakers of Broome County, 2021 WL 4849322

(8)  Section 28 for Additional Sites

This claim was established to the back, left foot, left knee, left shoulder, and right shoulder for an accident occurring on January 30, 2017.

On February 3, 2020, claimant's counsel raised the right knee and bilateral hips.  The carrier raised Section 28, and claimant raised advance payments.  Claimant admitted that there were records from 2017 and 2018 that mentioned right hip pain, but concededly no diagnosis was made.

The carrier had paid for physical therapy, but there was no diagnosis and no actual treatment.  There had been a diagnosis of "pain" in the right hip, but a hip examination performed in 2018 was normal.

On July 12, 2019, there was a diagnosis of bursitis in the bilateral hips.  On August 26, 2019, the bilateral hips were raised as a direct injury, not consequential, and the claimant was directed to produce timely PFME for those sites, and never did.

At a subsequent hearing on February 22, 2021 claimant referenced the December 19, 2017 report from Dr. Lee finding right hip impingement, and while noting that there were no early treatment records for the left hip, the fact that claimant raised the whole left leg in her Form C-3.0 should have been sufficient.  The claimant had stated that her back and right hip did not bother her until she returned to work on November 1, 2017, and records demonstrated a course of therapy involving the right hip until January 3, 2019.  The Law Judge amended ANCR to include all three additional sites.

On appeal, the Panel found that the carrier did make an advance payment of compensation as to the right hip by paying for treatment to that site for a lengthy period of time within the two-year statute of limitations.  However, it found that this was not the case for the left hip and right knee, as any payment for treatment to those sites would not be with the "acknowledgement and recognition of liability" within two years of the date of accident.  Since those records only showed treatment for the right hip, and since the finding of causal relationship to those sites did not negate their untimely filing, the Panel affirmed the establishment of the right hip, but reversed and disallowed the establishment of the left hip and right knee.

Nassau Health Care Corp., 2021 WL 4849320