This week appeared to be a busy docket for New York workers’ compensation cases. The 3rd Dept. released four opinions on Thursday May 30, 2024. Read their summaries below.
Garofalo v. Verizon CV-23-1298.
In this case, the 3rd Dept. reversed the Board’s reliance on a medical expert opinion who used outdated Impairment Guidelines. Here, the carrier’s expert found 35% SLU for the left hand based on 2012 Impairment Guidelines, instead of the more current 2018 Guidelines. Since the exam took place after 2018, the 3rd Dept. found this to be reversible error, and remitted the case back to the Board.
As a practice tip, when a carrier’s report references the wrong Impairment Guidelines, an addendum should be requested. If the claimant’s doctor uses the wrong guidelines, the carrier should move for it to be precluded.
Patterson-Djalo v. Cold Spring Acquisition, LLC. CV-23-0571, CV-23-1310.
The Appellate Division affirmed the Board’s finding that a guarantor of the employer’s insurance premiums has no standing to participate in the case. Here, a management company who had a contractual obligation to pay the employer premiums was not allowed a seat at the table. Pursuant to 12 NYCRR 300.13(a)(4) only “claimants, self-insured employers, private insurance carriers, the state insurance fund, special funds, no-fault carriers … or any surety, including but not limited to the uninsured employer’s fund, and the liquidation bureau” are necessary parties allowed to actively participate in the claim. The 3rd Dept. here did not find that this entity qualified.
Moreover, any dispute between the insurance carrier and the guarantor of the premiums must be handled in civil court, not through the workers’ compensation system.
Brown v. Van Liner Insurance, CV-22-2103.
Here, the Appellate Division was called upon to rule on an issue of fraudulent misrepresentation. The Court found that the Board was justified in not issuing penalties against the claimant. The 3rd Dept. found that the Board’s wide discretion in judging credibility would not be disturbed where they found a claimant who initially indicated on his C-3 claim form that he did not recall his prior injuries, but told the examining physician about motor vehicle accidents was not in violation of Sec. 114-a. The 3rd Dept. recognized that it was the Board’s discretion to determine if the claimant made a false statement for the purpose of obtaining benefits. An opposite decision would likely have been upheld.
Interestingly, here, the workers’ compensation Law Judge made a finding that separate counsel for the employer needed to be assigned by the carrier. The claimant’s counsel raised a frivolous controversy argument against the employer by submitting contradictory payroll records. This issue, however, was not preserved for the appeal.
Hill-Holley v. Kings County Hospital, 535778.
Occupational repetitive use bilateral carpal tunnel was disallowed and affirmed by the 3rd Dept in this case. To prove a compensable occupational disease, the claimant must demonstrate a recognizable link between his or her condition and a distinctive feature of his or her employment. The Board has wide latitude to decide on the evidence. Here, the claimant, a medical billing and coding specialist could not establish through her medical experts that her condition was caused by a distinctive feature of her employment. Further, because the treating physicians did not address claimant’s relevant treatment history and failed to rule out other causes, including the claimant’s diabetes, the Court did not disturb the Board’s finding.
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