March 2020 New York Workers’ Compensation Law Reporter Highlights
Claimant avoids apportionment despite his symptomatic preexisting condition
Case name: Cox v. Suburban Propane LP, 120 NYWCLR 1 (N.Y. App. Div., 2020)
Summary: The Appellate Division ruled that a claimant who worked 18 months while taking prescription pain medication does not warrant an apportionment order. The claimant was able to work full time and effectively perform their job, therefore his condition was not disabling.
Discretionary authority allows counsel fees to be paid out of SLU award
Case name: Enoch v. New York State/Dept of Corrections and Community Supervision, 120 NYWCLR 3 (N.Y. App. Div., 2020)
Summary: The Appellate Division affirmed the Board’s ruling that an award of counsel fees was payable out of the claimant’s schedule loss of use and not out of the employer’s reimbursement credit. The Board may direct counsel fees to be payable out of the claimant’s SLU when there is sufficient funds in which the employer can receive full reimbursement.
Uncontroverted medical opinion helps establish claim for work-related death
Case name: New York Transit Authority, 120 NYWCLR 11 (N.Y. W.C.B., Panel 2020)
Summary: A Board Panel affirmed the WCLJ’s ruling establishing a claim for work-related death as a subway station cleaner. Medical opinion that work contributed to the decedent’s death as the claimant worked several hours and performed strenuous work duties constitutes sufficient evidence to claim casually related death.
Claimant with CRPS migraines secures variance for medical marijuana
Case name: HSBC Arena, 120 NYWCLR 12 (N.Y. W.C.B., Panel 2020)
Summary: A Board Panel approved the variance request for a two-month trial of medical marijuana during which the treating doctor must provide clear documentation of efficacy, self-management of pain, no adverse effects and decreases use of opioids. The New York State Legislature has approved marijuana for specific medical uses to treat conditions or sites of injury covered by the Medical Treatment Guidelines.
Construction worker proves employee status at time of injury
Case name: Hernandez v. KNS Building Restoration, 120 NYWCLR 13 (N.Y. App. Div., 2020)
Summary: The Appellate Division affirmed the WCLJ’s ruling that the claimant, a construction worker, was an employee of the defendant, a construction company when he was injured. The claimant was hired by the defendant and injured on the first day on the job and paid in cash for his work.
Statue, guidelines don’t allow separate SLU award for claimant’s hips, knees
Case name: Johnson v. New York City, 120 NYWCLR 14 (N.Y. App. Div., 2020)
Summary: The Appellate Division affirmed the Board’s ruling that the claimant sustained a 30% schedule loss of use of his left leg and no schedule of his right leg. Neither WCL Section 15(3) nor the New York State Guidelines list the knee or the hip was a statutorily-enumerated member or as body parts or members lending themselves to separate SLU awards.
Miscalculation of Claimant’s PPD cap warrants remand
Case name: Sanchez v. Jacobi Medical Center, 120 NYWCLR 19 (N.Y. App. Div. 2020)
Summary: The Appellate Division reversed the Board’s ruling that the claimant’s periods of temporary total disability after his permanent partial disability classification count towards the durational limit of his permanent partial disability award. The statue does not permit a claimant to be classified with both PPD and TTP at the same time.
Claimant can’t compel reimbursement from employer beyond fee schedule
Case name: New York Police Dept. Traffic Agent, 120 NYWCLR 20 (N.Y. W.C.B., Full Board 2020)
Summary: The Full Board affirmed the WCLJ ‘s ruling that the claimant was reimbursed the full amount under the fee schedule for foot braces and the employer was not required to pay any additional reimbursement. WCL Section 13(a) and 12 NYRR 442.2(a) the amount that an employer or carrier is required to pay for durable medical goods is limited to the fee schedule.
Failure to provide specific job offer nixes ‘voluntary removal’ claim
Case name: North Shore Farms Commack Ltd., 120 NYWCLR 23 (N.Y. W.C.B., Full Board 2020)
Summary: Based on evidence, the Full Board held that the claimant did not voluntarily remove herself from the labor market by declining a valid light-duty offer. The employer must offer the claimant a job with clearly defined job duties that are consistent with her medically documented restrictions.
New York Workers’ Compensation Law Reporter, March 12 & 26, 2020