WCB Decisions Rendered October 19, 2021

 (1)  Re-Attachment

ANCR:  neck, right thumb, right shoulder, right elbow, right index finger, right wrist, right hand, and right arm.

DOL:  2018

CLASS:  50% LWEC, but no attachment to the labor market, 2019.

Claimant filed several Forms C-258.1 between November 2019 and June 2021.  They indicated that she applied for 28 jobs through the internet, with a gap between October 2019 and December 2019, with all details documented for primarily administrative, clerical, and cashier positions.  She also produced a record demonstrating attendance at One Stop on 23 occasions with a copy of her resume.

At a hearing in June of 2021, testimony was taken on attachment.  She searched for work per her restrictions, but never heard back from any of the potential employers who received her applications, and One Stop closed due to COVID.  The WCLJ found her reattached to the labor market and made awards from September 26, 2019 to June 30, 2021 and continuing.

On appeal, the carrier argued that the documentary evidence did not include email confirmations of several jobs for which she applied, that she initially applied for jobs outside her restrictions, and that she never completed her training at One-Stop.  Claimant responded that the documentary evidence submitted was sufficient.

The Panel held that the carrier's arguments were baseless and unsupported.  The record revealed that claimant's voluminous documentation revealed a diligent independent job search, and that she dutifully attended One-Stop until COVID prevented her from doing so.  Moreover, the gap in treatment between October 2019 and December 2019 was otherwise filled with One-Stop attendance.  Accordingly, the WCLJ's finding of attachment was affirmed.

PALJR LLC, 2021 WL 4937537

(2)  Defective Appeal

ANCR:   neck, back and both shoulders.

DOL:  2016

Following depositions and summations, the WCLJ credited the carrier's physician in finding 10% SLU left arm and 0% SLU right arm.  

On appeal, claimant argued that the WCLJ did not review all the evidence, and sought an increase to 30% SLU left arm and 25% SLU right arm "in the interests of justice."  The carrier noted that the appeal was not timely filed and the WCLJ was correct.

Since the RB-89 was filed 41 days after the filing of the Notice of Decision without any explanation, the Panel denied the appeal.

Mark Alexis Company Medallion, 2021 WL 4937533.

ANCR:  back

DOL:  2012

In a Reserved Decision, the WCLJ found that claimant had not violated Section 114-a.  On appeal, the SIF indicated in Item 12 that "NYSIF argues that claimant violated WCL 114-a," and listed a few documents in Item 13.  The claimant argued that the appeal was defective.

The Panel held that the information contained in Item 12 did not sufficiently set forth the grounds for appeal, as it did not list the specific findings of fact that were challenged.  It also held that Item 13 did not list any hearing dates or documentation referenced in the attached letter brief.  Accordingly, the appeal was denied.

Hudson Mohawk Recovery Center, 2021 WL 4937530.

(3)  15(8) Reimbursement

ANCR:  back, left knee,  consequential right knee, and right hip.

DOL:  2005

CLASSIFIED:  2011. and 15(8)(d) found against Special Funds.

In February 2018, the SIE filed an RFA-2 addressing reimbursement of medical expenses from Special Funds, attached requests for same from 2011 to 2016.  In response, the SFCC (prior administrator) reduced the reimbursed amounts pending review of additional documentation.

At a hearing in March 2018, the WCLJ directed the SIE to follow the procedure set forth in Express Solutions in order for SFG (current administrator) to reconsider their partial denial.

Subsequently, a new RFA-2 was field because SFG would not reimburse the SIE for 100% of its medical expenses.  At a hearing in November 4, 2019, the WCLJ directed reimbursement from SFG, as 15(8) was established.

A later hearing was scheduled for March 2020, with no purpose stated.  Claimant and SIE appeared, but SFG did not.  Claimant's counsel stated that the hearing was scheduled to address a C-4AUTH denial, but that a Section 32 agreement was being circulated, which would resolve that issue.  The SIE noted that they were still only receiving partial reimbursement from SFG, and the WCLJ once again directed reimbursement.

On appeal, SFG argued that the WCLJ has no jurisdiction over SFG reimbursement, and that prior case law provides a mechanism by which carriers can address reimbursement issues outside of hearings, and that in any event, it did not attend the hearing because there was no notice that Special Funds reimbursement would be addressed.

The Panel noted that since there was no indication that SFG's presence would be necessary at this hearing, it would exercise its discretion and entertain the appeal.  It further noted the Express Solutions format to address reimbursement from Special Funds:

1. The carrier files a timely request for reimbursement with the SFG using the appropriate form and including all necessary information and documentation;

 

2. The SFG screens the request for any incomplete or improper entries, issues confirmation of receipt, and reviews the request to determine if each item is eligible for reimbursement and was paid in accordance with all appropriate laws, regulations, fee schedules and other appropriate considerations;

 

3. The SFG issues a response to the carrier indicating the dollar amount approved for each indemnity payment along with an explanation for reductions from the amount requested (if any). If the total amount of the medical reimbursement requests was not reduced, SFG will not respond to the request, and will process for payment;

 

4. The carrier may request reconsideration of a response from SFG in which the reimbursement amount requested was reduced;

 

5. A Senior staff person in SFG shall review the reconsideration request and issue its final determination; and,

 

6. The carrier may seek review of SFG’s final determination by filing a timely request for further action, subject to WCL § 23.

 

This process was reiterated in a Subject Number in May 4, 2018.

The Panel found that this process was not followed, as while bills were sent to the prior administrator, SFCC, they were not also sent to SFG after they took over the handling of Section 15(8) claims.  Accordingly, the SIE was directed to re-submit all requests for screening and review by SFG.  Also, the Panel noted that the prior decisions directing reimbursement did not address specific medical bills, and accordingly did not bind SFG over and above the Express Solutions process.  

NYC Housing Authority, 2021 WL 4937528

(4)  Degree of Disability

ANCR:  exacerbation of the left knee and work-related injuries involving the left shoulder, back, and left wrist.

DOL:  2016

Continuing payments were directed from November 4, 2019 forward at $150.00 TR.  As of June 10, 2020, her treating physician found a total disability.  However, the next several reports had no indication of a degree of disability.

On May 5, 2021, the SIE filed an RFA-2 to suspend payments for lack of up to date medical evidence.  On May 26, 2021, the treating physician's assistant wrote a letter indicating that claimant continued to treat due to "unremitting pain to the lower back following unsuccessful surgeries to the back and implementation of a spinal cord stimulator."  

At the hearing of June 11, 2021, the SIE requested a suspension, and the WCLJ denied the request.  Claimant testified that she had retired two years earlier because the SIE eliminated per position, and the SIE raised voluntary withdrawal while payments continued.

On appeal, the SIE argued that payments should have been suspended.  On rebuttal, claimant argued that the May 26, 2021 letter demonstrated a continuous disability.

The Panel took note of the fact that despite the age of this claim and significant treatment, claimant had not been classified and therefore was required to demonstrate a continuing disability in order to continue receiving payments.  The note from the PA was not actually signed by the supervising physician and did not indicate a specific date of examination.  Accordingly, the WCLJ's denial of the RFA-2 was reversed and payments were suspended.

Longwood Central School District, 2021 WL 4937531.

(4)  Schedule Loss of Use

ANCR:  right shoulder/right bicep

DOL:  2018

C-4.3:   71% SLU right arm (including 20% for Special Considerations - clavicle resection and biceps rupture).

The carrier filed an RFA-2 to address misapplication of the Impairment Guidelines.  The WCLJ found NCLT and directed a deposition of the treating physician.

On cross-examination, the treating physician conceded that he had misapplied the Guidelines, as the Special Considerations should be applied first.  "However, the special considerations only allow for an additional range of motion in a single plane to be included."  Accordingly, he reduced his findings to 51% SLU.  In a Reserved Decision, the Law Judge found his finding credible.

On appeal, the carrier argued that there should have instead been a finding of 41% SLU.  It argued that Special Consideration 6 provides for 10-15% SLU for a non-surgical biceps rupture, but does not apply to this case, as there was no rupture.  In rebuttal, claimant's counsel argued that without an IME, the carrier had no standing to challenge the treating physician's findings.

The Panel agreed with the carrier.  While surgery was performed, claimant had a non-srugical partial tear of the biceps tendon, and an SLU finding is given not for the injury sustained, but for the residual impairment.  Accordingly, the Board reduced the finding to 41% SLU to the right arm.

Ingersoll Cutting Tool Co., 2021 WL 4937536.