NOVEMBER 23, 2021

(1)   Section 123 and Apportionment:

This case was established for the back from a December 6, 2002 accident.  Special Funds took over the responsibility of this claim under Section 25-a.

In July of 2020 the carrier in a subsequent case requested that this 2002 claim travel with it to address permanency and apportionment.  At a hearing in October of 2020, the subsequent carrier stated that it had a permanency evaluation, and was in the process of obtaining an addendum, having just recently received the 2002 file.  Their permanency evaluation made permanency findings as to the lumbar spine, which was established for the 2002 claim, while this later claim was established only for the thoracic spine.

After a lengthy argument, the Law Judge found that there was no evidence of attachment in the Board’s file at that time and marked the 2002 no further action without prejudice to reopening as to apportionment.  The subsequent claim was continued for the IME addendum.

The IME physician found that the lumbar spine injury was 100% related to the 2002 claim, and there was a reopening.  At the next hearing on December 10, 2020, just past the 18th anniversary of the date of accident, Special Funds raised Section 123, and was granted an opportunity for its own IME as to apportionment.  Their own physician apportioned the lumbar spine 75% to the 2002 accident.

In June of 2021, per stipulation, claimant was classified with 33% LWEC, apportioned 75% to the 2002 claim and 25% to the subsequent claim. 

One month later, the Law Judge ruled at a separate hearing that Section 123 was not applicable to this claim.  Special Funds appealed.

Section 123 provides that there can be no claim for compensation in matters where 18 years have elapsed since the date of accident and eight years have passed since the last payment of compensation to claimant.  Moreover, there must have been a “true closing” of the claim.

The Board Panel found that while the October 2020 hearing indicated that no further proceedings were contemplated, the matter would be reopened if evidence of apportionment was produced by the subsequent carrier.  It was indeed filed on November 4, 2020, still within the 18-year deadline.  Accordingly, Section 123 was not applicable.

Saranac Lake Central School District, 2021 WL 553 8012.

(2)   Medical Treatment Guidelines and Exacerbation

This claim is established for the back from a 2008 accident.  Claimant stopped treatment between 2012 and early 2021.  When he resumed treatment, the chiropractor referred to an exacerbation occurring on February 1, 2021.

The carrier filed six Forms C-8.1B, stating that the treatment was not causally related and exceeded the Medical Treatment Guidelines.  The Law Judge resolved them in favor of the providers and the carrier appealed.

The Guidelines are not exceeded when a causally related injury is exacerbated.  However, the treating provider must fully document any exacerbation, specifically when it occurred, how it occurred, the changes from claimant’s baseline, and the expected treatment needed to return to that baseline.  The treating chiropractor only referenced this exacerbation in passing, with none of the required details, so the Panel reversed this decision.

Vicks Lithograph Printing, 2021 WL 5538013.

(3)   Medical Marijuana

This claim was established for the neck and left knee from a 2012 accident.  A treating physician filed an MG-2 requesting authorization to treat neck pain with medical marijuana.  It was supported by medical records documenting claimant’s chronic pain.

SIF denied the MG-2 because there was nothing that indicated specific dosing, frequency, or usage.  The Board filed a Proposed Decision denying the variance request because no “current clinical picture” was demonstrated, and claimant’s counsel objected.

Before the hearing was held, additional documentation was produced demonstrating how the medical marijuana was improving claimant’s condition.  The Law Judge granted the MG-2 and SIF appealed.

The Board has previously held that Title V-A of the Public Health Law, which addresses the medical use of marijuana, is valid.  That statute permits marijuana to treat certain sever conditions, including “pain that degrades health and functional capability [as] an alternative to opioid use.”  The Panel found that the treating physician adequately documented claimant’s chronic pain condition, and that she deferred dosage issues to the claimant’s pharmacist.  There may not have been contemporaneous urine screenings, but there were two urine screenings in the Board’s file demonstrating compliance.  Accordingly, the decision was affirmed.

              SUNY Stony Brook, 2021 WL 5538014

(4)   WTC Date of Disablement

This WTC claim was established for GERD, dyspnea, and COPD, but no date of disablement had been set.

The earliest treatment was from February 24, 2014, when a treating physician found that claimant’s condition was caused by the exposure to toxins.  He continued treating for these conditions for the next few years.

Claimant was a police officer with the Yonkers Police Department, and he retired in June of 2020 after his lung conditions had worsened.  He filed for both a regular retirement and a disability retirement.  Following his retirement, he started a new job at a hospital.

Claimant’s counsel requested that the date of disablement be set as of claimant’s retirement, but the Law Judge set it on February 24, 2014.  Claimant appealed.

World Trade Center claims, for those involved in the rescue, recovery, and cleanup at the Ground Zero site in lower Manhattan between September 11, 2001 and September 12, 2002 are considered accident claims.  The employer and carrier on claimant’s last date worked at Ground Zero during the period in question are deemed liable, but claimant’s awards are nevertheless to be computed per the rates in effect on the date of disablement.

As is the case with occupational disease claims, the Board has broad discretion in selecting the date of disablement.  Since the issue of involuntary removal from the labor market was never developed or established at the hearing in question, the Panel found that in the absence of contemporaneous medical evidence, the date of retirement could not be set as the date of disablement.  Moreover, claimant’s treatment between 2014 and 2020 was paid for, and setting a later date of disablement could cause an issue regarding said prior treatment.  Moreover, claimant did not actually stop working following his retirement.  Accordingly, the Panel affirmed this decision as to date of disablement.

World Trade Center Volunteer Fund, 2021 WL 5538015

(5)   Permanent Total Disability

The first claim is established for the back, left knee, and right foot drop from a 2015 accident. 

The second claim is established for the back and rib care from a 2018 accident.

The carrier’s IME consultant found that claimant had Severity Ranking G for the back, that claimant could occasionally lift and carry up to 10 pounds and could frequently lift up to five pounds.  He apportioned the injures 40% to the 2015 accident, 30% to the 2018 accident, and 30% to pre-existing injuries,

The treating physician found permanency, and that claimant could only occasionally lift up to five pounds but did not provide a Severity Ranking.  In any event, he could not return to any type of work.

The Law Judge found that claimant was not permanently totally disabled, and claimant appealed.

The Board has held that a claimant is permanently totally disabled when a claimant is totally disabled and unable to engage in any gainful employment.  The record need not be developed on vocational factors under these circumstances.

The Panel noted that the treating physician did not set forth any Severity Rankings and admitted that claimant could occasionally lift five pounds.  Moreover, the treating physician only treated claimant’s back, and not the other sites.  Accordingly, his findings were not credible, and the decision was affirmed.

City of Buffalo, 2021 WL 5538017

(6)   Attachment to the Labor Market

This claim is established to the back and right knee from a 2017 accident.

In 2020, the Board Panel found that claimant was not attached to the labor market as of March 15, 2019, and recommended job retraining and computer classes.

In the summer and fall of 2020, claimant filed documentation of an independent job search, as well as a copy of her resume, but did not indicate the dates and locations of several jobs for which she applied. 

In early 2021, she produced additional evidence, including emails documenting her job applications.  She did not apply for jobs following the total knee replacement she underwent on July 29, 2021.

At trial, the Law Judge found insufficient evidence of re-attachment to the labor market.  Claimant appealed.

Claimant argued that she demonstrated a good-faith work-search, considering the COVID-19 pandemic.  On rebuttal, the carrier argued that she was found unattached prior to the pandemic and was not exempt from the American Axle standard.  Moreover, the appeal was not served on the carrier.

As to the issue of defective service, the Panel noted that a third-party administrator is not a “necessary part of interest” for appeal purposes, but where the TPA is on notice, has participated in the claim, notices were not actually sent to the carrier, and the TPA still filed a rebuttal, the Board finds grounds to excuse the defect.

As to the issue of attachment, the Panel noted that the earlier decision preceded the pandemic, and therefore did not excuse claimant from demonstrating attachment, but given the pandemic, the Panel held claimant to a lower standard.

Since there was no attachment evidence before August 28, 2020, the Panel found no attachment prior to that date.  Further, there was either no evidence of insufficient evidence between August 28, 2020 and March 18, 2021.  Following that date, except for a gap that covered most of May 2021, the Panel found that claimant did engage in a good-faith work-search, despite the pandemic, and found that she was attached.  The matter was remanded for proper awards to be made.

Kohl’s Corp., 2021 WL 5538020