August 2018 Newsletter
In re Robinson, 2018 N.Y. App. Div. LEXIS 5580 (3rd Dep’t Aug. 2, 2018)
Issue: Schedule Losses of Use – Extent of Credit to be Taken
Facts: The claimant injured her right shoulder and received a 42.5% schedule loss of use (SLU) award for the right arm. The disability payments paid to her by the WC carrier totaled $133,807.48 ($14,995.42 for temporary total benefits and $118,812.06 for temporary partial benefits). The gross amount of the SLU award totaled $102,494.50, less payments already made. These prior payments could be recouped by the WC carrier. As a result, no additional money was appreciated by the claimant. She had argued that there was no legal basis for the WC carrier to take credit against the SLU award for the prior periods in which temporary partial benefits had been paid to her. The WCB found that the WC carrier was entitled to apply the entire amount of its prior payments as a credit. There was no basis to distinguish between awarding the temporary total benefits and the temporary partial benefits. The claimant appealed.
Decision: Affirmed. The Court found there was substantial evidence to find that the WC carrier could take credit for the entire amount of the prior payments. However, the Court noted that WCL § 15(4-a) expressly provided that a credit for prior periods of temporary total disability could be taken. On the other hand, WCL § 15(5), which addresses period of temporary partial disability, contained no such provision.
Comment: This case is brand new. It’s very interesting. The claimant was legally correct to argue that there were statutory differences regarding a WC carrier’s ability to claim an entire credit between the periods of temporary total disability and the periods of temporary partial disability. The statutory schemes are indeed different. However, we should be thankful that the Court applied the substantive evidence standard when affirming the WCB. But we may not be out of the woods yet on this issue as there is a chance that the claimant will appeal to the Court of Appeals. We should pay attention.
Taher v. Yiota Taxi, Inc., 2018 NY Slip Op 04414 (3rd Dep’t June 14th, 2018)
Issue: Permanency- whether the receipt of a Permanent Partial Disability classification (PPD) and a Schedule Loss of Use award (SLU) from the same event is permissible.
Facts: This claim had been established by the WCB for compensable injuries involving the neck, back, right knee and right shoulder. The claimant eventually returned to work at his pre-injury wages. Various medical opinions were produced regarding permanency. There were opinions concluding that SLU awards for the extremity injuries (i.e. the right knee and right shoulder) were appropriate. Additionally, there were opinions concluding that a non-schedule PPD for the spinal injuries (i.e. the neck and back) were appropriate. The WCB determined that the claimant was unable to receive both the SLU award and the non-schedule PPD award from the same accident. The claimant appealed and argued that he was entitled to the SLU award.
Decision: Reversed. In reaching its decision the court interpreted WCL § 15(3) which addresses permanency awards. It recognized that an SLU award typically applied to extremity -type injuries, would be allocated to a defined period of disability and would not be contingent upon whether there had been causally-related lost time. It similarly recognized that a non-schedule PPD classification would be based upon the impact that a permanent disability had on one’s future earning power. The court clearly found that both an SLU award and a non-schedule PPD award could not be made if they arose from the same event. But, most importantly, it found that an SLU award could still be considered by the WCB when a PPD classification could have easily been contemplated as well.
Comment: Wow. Just wow. The typical mindset prior to this decision was that a non-schedule PPD would always be implemented over an SLU award in cases where both types of opinions had been rendered. Under that scenario the claimant who had returned to work at their full wages would not receive any form of monetary award. However, because of this decision we should now anticipate that an SLU award will be pursued and that it could be potentially implemented by the WCB in “unique” (as the court defined it) situations where the claimant returned to earning at least his or her pre-injury wages. The claimant just cannot receive both types of awards. This is an important case. Be aware of it.
McMillan v. Town of New Castle, 2018 NY Slip Op 04801 (3rd. Dep’t June 28th, 2018)
Issue: Work-Related Stress Claims and First Responders
Facts: The claimant, a sworn career police officer, pursued a claim for occupationally -related anxiety associated with blood phobia with a 9/18/15 date of disablement. In a Memorandum of Decision filed 8/18/16 the WCB disallowed the claim by finding that that stressful interactions such as the claimant’s exposure to bloody scenes were a part of an officer’s job duties. The WCB followed the long line of cases which disallowed claims where one’s stress had been no greater than what other similarly situated employees could have faced under similar circumstances. The claimant appealed not only to the Appellate Division but to the WCB’s Full Board requesting reconsideration. The Full Board denied the claimant’s application for reconsideration on 8/2/17.
Decision: Reversed. The court remitted this claim back to the WCB so that it would be established as compensable. In reaching its determination the court referenced the amendment to WCL § 10(3)(b) which became effective 4/10/17 as part of the 2017 WCB reform legislation. This amendment provided that first responders (such as police officers, firefighters and EMT’s) could not have their claim for work-related stress barred where there had been an emergency and where their stress had not been any greater than what other similarly situated members of their profession could have experienced. The court focused on the intervening and substantive changes in the law which became effective, once again, on 4/10/17. Since the claimant’s application for Full Board Review remained pending on 4/10/17 the court found that the amendment to WCL § 10(3)(b) involving stress-related claims was controlling. Accordingly, the change in the law should have been recognized by the Full Board in connection with its determination of 8/2/17.
Comment This decision appears to be the first time the court interpreted the changes associated with WCL § 10(3)(b). It provides a good illustration as to how the “exception” to mental injury claims involving first responders will be applied as opposed to other classes of employees who typically do not respond to emergencies. Regardless, it is important to recognize that these types of claims still require a thorough investigation before making any final determination regarding compensability. At a minimum, it needs to be first determined as to whether an emergency existed as required by the amendment. Finally, please keep in mind that regardless of the enactment of this amendment and the involvement of a first responder, claims involving “solely mental” stress can still be defended where the claimed stress was the result of a lawful personnel decision taken in good faith by employer, or the WCL § 2(7) defense. Such examples would involve a demotion, transfer or reaction on a performance review.
Matter of Sheets v Airy Ridge Farm, LLC, 2018 N.Y. App. Div. LEXIS 5300 (N.Y. App. Div. 3rd Dept’t Jul. 19th, 2018)
Issue: Stipulation to permanent partial disability rate
Facts The claimant, who worked as a dairy farmer, sustained a fractured sternum after a cow backed into him. The injury resulted in a permanent partial disability. At a hearing, the parties stipulated to a 45% loss of wage earning capacity. The claimant was still working at that time and was receiving tentative reduced earnings at $141.50 per week. Before entering into the stipulation the claimant’s attorney explained to the claimant that if he were to go out of work he would receive $169.95 per week based upon his “45% disability”. The WCLJ approved the stipulation and a week later the claimant stopped working. The claimant’s doctor opined that he had an ongoing 75% degree of disability. The claimant’s attorney requested a hearing and argued that the rate should be increased to $282.75, a marked temporary partial disability rate. The WCLJ agreed. The carrier then appealed. The Board overturned the WCLJ’s ruling, holding that the rate should be at the stipulated 45% disability rate of $169.95. The claimant then appealed, arguing that his permanent partial disability rate should have been determined after he stopped working.
Decision: Affirmed. The Court initially noted that a permanent disability rate (wage earning capacity) and loss of wage earning capacity are two distinct concepts. A finding of 45% loss of wage earning capacity would not automatically set the permanent disability rate at 45% as well. However, in this case the parties had specifically agreed to a 45% disability rate and moreover, the claimant had been explicitly informed that if he were to go out of work he would receive benefits at $169.95 per week. Therefore, the Court found the stipulation binding on the parties with no grounds to invalidate the agreement.
Comment: This decision affirms the importance of taking into account possible future outcomes at the time of permanency. It is possible that the claimant here had not contemplated going out of work again for his injury when agreeing to the stipulation. Had the stipulation remained silent on the issue of a permanent disability rate, the claimant may have prevailed in his argument for a higher rate. However, when there is no evidence of mistake, fraud, or duress, stipulations will not be disturbed.