The 3rd Department released several key Workers’ Compensation Board decisions this week.
Bonitto v. Vivid Mechanical:
In this case, the 3rd Dept. affirmed the Board’s decision to rely on the claimant’s causal opinion reports despite the physicians’ failure to appear for depositions. The Board put the onus on the Carrier to ask for extensions regardless of the sufficiency of the subpoenas.
Practice tip: Serve subpoenas for depositions then follow-up for mutually agreeable dates, document the efforts and request extensions prior to the deadline in any case a claimant doctor does not show. To do any less, puts you in jeopardy of losing the opportunity to cross examine the claimant’s physician.
DiPippo v. Accurate Signs and Awnings:
This case involved a pro se claimant, who tried to qualify himself as an expert to give a causation opinion on whether his leg amputation was causally related to his original injury, 8 years prior. The Board refused to accept his opinion because the claimant could not establish he possessed the requisite skill, training, education, knowledge or experience despite the many years he received treatment and his stated online research. Moreover, the medical records in the Board file only at best demonstrated that causation was “possible” or “plausible”, but that is not enough to establish the connection.
Wright v. Elmer W. Davis Inc:
The Court affirmed a 45% Schedule Loss of Use for the right leg (knee) for an orthoscopy with chondroplasty. The Law Judge initially found a 51.667 SLU. The Board Panel reduced it to 45% and the 3rd Dept. affirmed, holding the 2018 Guidelines for flexion and extension deficits were properly considered.
Linane v. Gristede’s Food Inc:
The 3rd Dept declined to find a Sec. 114-a fraud where the Board found that video surveillance was not sufficient enough to demonstrate a material misrepresentation of claimant’s capabilities. Surveillance showed the claimant driving and lifting small objects. There was one questionable time where the claimant was seen lifting soil bags, but the investigator who testified admitted that he did not read a weight written on the bags or attempt to lift them. The investigator believed them to be 40 pounds. The claimant had a 20 pounds lifting restriction. The Board recognized that the claimant “may have downplayed his abilities” but that it was not so inconsistent with his medical restrictions as to rise to a level of 114-a fraud.
[View source.]
