WCB Decisions Rendered October 5, 2021

 (1)  Variance Requests

This claim is established for the lower back, left leg hematoma and right leg laceration from a 1995 accident,  Claimant was classified in 1996 and moved out of state in 2003.

In 2018, osteoarthritis was raised in both hips, but the carrier's IME found that the right hip arthritis was unrelated, and disallowed the claim to amend ANCR.

In 2019, an MG-2 was filed requesting a queen-sized electric adjustable bed frame, but no statement as to causal relationship was attached.  

In 2021, after several re-submissions, the carrier denied the MG-2, citing no evidence of fall risk, or limitations in activities of daily living, or a change in condition.  New notes indicated that claimant needed a cane, slept in a recliner, and stated that an "orthopedic mattress without an industrial frame is useless."

The ECLJ granted the MG-2 and the carrier appealed on the grounds that claimant needed an unrelated right hip surgery, causal relationship was not addressed, and that the burden of proof was not met.  On rebuttal, claimant's counsel referenced a lumbar radiculopathy and difficulty getting in and out of bed.

The Board Panel noted that the MTG's do not pre-authorize any recommendations for sleeping surfaces.  It also noted that causal relationship was not explained, and that the letter did not explain relationship between bed and mattress!

NOTE:  Out-of-state doctors are less likely to understand the MTG's, and are not entitled to additional leniency.  Chances are likely that the treating physicians in Texas, while understanding the need to file an MG-2, were clearly not aware of what the MTG's stated.

Niagara Mohawk Power Corp., 2021 WL 4692231

(2)  Section 114-a

This claim was established to the bilateral wrists and right knee from a 2015 accident.  A schedule loss of use finding was made in 2017.

In May of 2019, the claimant resumed treatment after experiencing pain in her right knee, degenerative arthritis.  She then felt a "pop" in her knee in September of 2019.

An October 2019 MRI revealed degeneration, no acute pathologies, but did show chondralamalacia.  Claimant underwent further treatment in 2019 and 2020, but no surgery was needed and an injection performed.

The carrier objected and raised new accident.  Claimant testified that there had been no new injuries, but she resumed treatment in May 2019 because she was having pain.  In September, she went to the bathroom and got up from the toilet, when she felt a pop in her knee, which actually relieved the her pain.  The treating physicians told her that this was related to the initial accident.

At an IME in December of 2020, the examining physician found that there was no new accident.  His opinion remained the same in an addendum.

The WCLJ found no new accident and no 114-a, but resolved C-8.1B's for the carrier.

On appeal, carrier argued that there was a new accident and that claimant made false statements to providers.  The Board Panel noted that the IME report, taken following claimant's testimony, concluded that there was no new accident.  Moreover, there had already been new treatment to claimant's knee, and a documented increase in symptoms, before it "popped" in September 2019.  Also, the MRI taken following the "popping" incident revealed no new pathologies.

Also, the fact that claimant felt the pop in her knee in September 2019 was "neither material nor a misrepresentation."  No medical provider, even the IME consultant, found that the relief of pain following the popping incident to be relevant.  In finding that the carrier raised Section 114-a to avoid accepting the IME findings, the Board Panel assessed a penalty of $500.00 for a frivolous appeal.

NOTE:  Don't Miss on 114-a.  Make sure that there is a strong basis to bring it, regardless of whether you win or lose, as the Board and the claimant's bar will be very willing to seek penalties and other consequences.

Hamister Group LLC, 2021 WL 4692232

(3)  Permanency

This claim was established to the back for a 2008 accident.  Claimant lost no time from work and retired in 2016.  The treating physician stated in 2016 that claimant was leaving for reasons not related to the back injury.

Several other accidents involving schedulable sites, all with SLU found.

The treating physician performed an IME in 2020, diagnosing claimant with marked permanent partial disability.  In 2021, he found Severity Ranking G and sedentary work, but claimant was not actually examined for that finding.

At a hearing, the carrier raised causally related wage loss and reattachment, since claimant returned to work for the employer after the accident, worked eight more years, and left for an unknown reason.  Accordingly, WCLJ found that no action would be taken until claimant produced medical evidence demonstrating that his condition contributed to his separation from employment.

On appeal, claimant argued that the record should be developed because evidence of permanency was submitted.  In rebuttal, the carrier referenced the 13 years that had passed since the date of accident and the eight years claimant worked for the employer without lost time, as well as the lack of a physical examination addressing permanency.

The Board Panel cited to Murray v. South Glens Falls School District, 166 A.D.3d 1263 (3d Dep't 2018) for the standard rule that where there is evidence reflecting MMI and permanency in a non-schedulable case, the case may be ripe for classification, but it cannot be ripe for classification without such evidence.  Relying on that sole issue, the Panel held that the MMI report from the treating physician entitled claimant to have permanency considered.  It further held that labor market attachment testimony should be provided, and that the Law Judge should consider the large amount of time that elapsed since the accident and claimant's unrelated retirement.  

In passing, the Panel also referenced the Arias and Taher decisions, despite the fact that the SLU findings were all in other claims, separate from the accident involving the back.

NOTE:  It appears that the Board is willing to accept permanency findings that are not supported by an actual physical examination.  Perhaps this issue would remain relevant for cross-examination.

Hudson Industries Corp., 2021 WL 4692233

(4)  SLU Calculation

This claim was established to the right shoulder, right elbow, and right wrist from a 2015 accident.

The IME physician found 70% SLU Right Arm for the shoulder, 33.39% SLU based on the elbow, and 47.5% SLU to the hand based on the wrist.

The treating physician found 77.5% to the right upper extremity overall.

At his deposition, the IME physician conceded that there should be an overall 80% SLU to the right arm as to all findings.  The treating testified that he added 70% SLU for the arm to 7.5% for the hand.

WCLJ applied Special Consideration 8 from Section 5.5 of the 2018 Impairment Guidelines, where the shoulder was the highest part of the extremity, and awarded 70% SLU, and then added an additional 10% for the elbow and hand, resulting in a finding of 80% SLU overall.  

Claimant appealed, arguing that a separate 47.5% should be awarded for the hand, as an SLU for the arm does not encompass the hand.  Neither party appealed the issue of how the SLU for the arm was calculated.

The Panel cited to Genduso in stating that an SLU award may be given for "the residual permanent physical and functional impairments to statutorily-enumerated body members."  Special Consideration 8 from Section 5.5 states that the schedule is given "on the highest valued part of the extremity.  In case of a schedule for one given part of the extremity calculate first for the major loss in part involved."  The example provided is that amputation of a hand is 100% SLU of the hand or 80% of the arm, but if there are additional deficits to the elbow or shoulder, add 10% to bring 80% to 90%.

The Panel highlighted the fact that Special Consideration 8 treats the wrist, elbow, and shoulder differently than the statutes, regulations, and the rest of the 2018 Impairment Guidelines.  Specifically, Section 15(3) separates the arm from the hand, and while the shoulder and elbow are considered "sub-parts" of the arm.  However, Special Consideration 8 appears to consider the hand and the arm to be part of the same extremity.  Applying it as indicated results in a lower SLU award for the shoulder/elbow/wrist than the higher value of a hand SLU combined with an arm SLU.

Nonetheless, case law has demonstrated how this Consideration is to be applied when addressing the analogous provision in the 2012 Impairment Guidelines.  Following Bell v. Glens Falls Ready Mix Co., 169 A.D.3d 1145 (3d Dep't 2019), the Panel noted that it was appropriate to add only 10% to a shoulder SLU, since the elbow is not considered a separate site, but that the impairment of this extremity was "encompassed by awards for the loss of use of the arm."  In that matter, a 50% SLU to the shoulder warranted only an increase of 10%, and not the 30% separate SLU found to the elbow.  Citing to an earlier Panel decision, it was clear that an SLU is considered "high" if it is 50% or more.  Suffolk County Sheriff's Department, 2018 NY Wrk Comp G114 5115.

In this case, both doctors found a 70% SLU to the shoulder, rendering it the "high" schedule, accordingly the finding of only 80% SLU to the arm includes the shoulder, elbow, and wrist.

The Panel affirmed the WCLJ in finding that claimant was not entitled to a separate SLU for the wrist.

NOTE:  Apparently, a hand SLU can be included as 10% of an arm SLU!

Howroyd Wright Employment, 2021 WL 4692235

(5)  Section 114-a

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

In 2018, claimant was classified, but no awards due to Section 1114-a violation, mandatory penalty only (ending October 2018).

In April of 2020, claimant's counsel filed an RFA-1LC, claimant returned to work for Gypsum Express in April 2019, and sought reduced earnings.

At an office visit of 5/13/20 claimant was reported as "struggling" at work

At a June 4, 2020 hearing, claimant testified that he was hired in 2019 as as tractor-trailer driver for Gypsum.  His attorney asked him, "Do you remain employed by them?"  "Yes."  TRE payments were awarded

At a July 1, 2020 Office Visit it was reported that claimant had stopped working one month ago

At an August 23, 2020 IME, claimant stated that he didn't return to wor as truck driver, but was working part time at Gander Mountain until he was taken off work in 2020

On August 31, 2020 an RFA-1LC was filed to reinstate awards at the total rate as of July 1, 2020.

At a hearing on November 18, 2020, claimant testified that he was working as of the 6/4 hearing, but was taken out of work as of 7/1.  Carrier raised Section 114-a per a statement that claimant was out of work one month before July 1, 2020.  Pay stubs and authorizations were directed to be produced.

An email from Gypsum to the carrier's investigation indicated that claimant worked until May 28, 2020, and then abandoned his job.

At the hearing of December 14, 2020, the carrier showed that claimant's statement was proven false and cross-examination of the employer witness directed.

At the hearing of January 2, 2021, the employer witness from Gypsum testified that claimant was terminated May 28, 2020 after three days of no call/no show.  The last date he actually worked was May 22, 2020, and termination paperwork was mailed June 3, 2020.

The WCLJ held that claimant likely did not receive the termination paperwork when he testified on June 4, 2020, and found that the inaccuracies as to the dates that claimant worked, and stopped working, were not misrepresentations made to obtain compensation, so no 114-a.

On appeal, carrier argued that the claimant had made misrepresentations for the purpose of obtaining payments.  

The Panel noted that a knowing misrepresentation can be based on omission of a relevant fact, exaggeration of symptoms, or failure to disclose work activities.  On June 4, 2020, claimant failed to mention his other employment besides Gypsum, and testified that he remained employed by Gypsum.  He also testified that he was taken out of work on July 1st, despite telling the doctor at that time that he had stopped working one month before.  He also never even mentioned Gypsum to the IME physician, and denied working as a truck driver when he clearly had so worked.

Given claimant's "repeated omission" concerning his last day working at Gypsum, the Panel found that there indeed was a material misrepresentation made for the purposes of obtaining compensation.  The Panel was not persuaded by the fact that claimant may not have yet received his termination papers by June 4, 2020, as he clearly did not work after May 22, 2020, and admitted that on July 1, 2020 he had been out of work about one month.  Also, "the careful wording of the question posed by counsel at the June 4, 2020 hearing, 'And . . . do you remain employed by them?', rather than the straightforward question, 'Are you still employed," may have enabled claimant to misrepresent his employment circumstances without falsely testifying."  Section 114-a was found, and the mandatory penalty assessed.

To assess the discretionary penalty of a lifetime disqualification, the Board must demonstrate that the "underlying deception was egregious or severe, of that there was lack of mitigating circumstances."  Given the failure to disclose that claimant was no longer working as of June 4, 2020, his misrepresentation that he stopped working when his doctor took him out of work, and his outright denial of working as a driver to the IME constituted egregious deceptions that warranted the lifetime disqualification.

Lastly, the Panel admonished claimant's counsel for the "carefully crafted direct examination" question that allowed claimant to misrepresent his work activity.  Citing to the Rules of Professional Responsibility, the Panel reminded counsel that an attorney is prohibited from suppressing any evidence that the lawyer or the client has a legal obligation to reveal or produce, and from participating the creation of evidence when that attorney knows the evidence to be false.  The Panel seemed to believe that claimant's counsel was well aware of the underlying facts, and should have confirmed that claimant had abandoned his job weeks beforehand, and noted that permitting his client to testify otherwise "perilously approached a violation of the Rules."

NOTE:  Watch the statements claimants give to doctors.  When they're true, they tend to not vary.

Penske Logistics LLC, 2021 WL 4692237

(6)  No RFA-2 Needed

This claim was established to the neck, back, and right shoulder for a 2016 accident.

Awards were continued at the total rate from 4/16/20

On July 15, 2020, the treating physiican found a 75% partial disability, and in September 2020, so did the IME physician.

A hearing was set for 4/28/21 to address C-4AUTH denial.  The carrier also requested a reduction in payments, but the WCLJ would only do so as to continuing payments.

On appeal, carrier argued that awards from 7/15/20 to date should have been at the 75% TP rate.  Claimant argued that since no RFA-2 was filed, this issue was not properly raised.

Regulations provide that where there is a CCP direction, there can be no suspension or reduction until a prescribed notice (RFA-2) is filed.  12 NYCRR 300.23(b).  However, case law provides that a verbal application to suspend or reduce may be made at a hearing that was scheduled for another purpose, so long as claimant and/or counsel is present, provided there is sufficient evidence to support such a request.  

Since the Black Car Fund did not raise the issue of reducing payments for nine months, and did so for the first time at the April 2021 hearing, the Law Judge correctly brought awards up to date, but reduced continuing payments.

New York Black Car Operators, 2021 WL 4692238