February Update 2

Matter of Curcio v Sherwood 370 Mgt. LLC, 2017 N.Y. App. Div. LEXIS 1039 (N.Y. App. Div. 3d Dep’t Feb. 9, 2017)

Issue:              Partial vs. Total Permanent Disability

Facts:              The claimant was a 52 year old with a back and neck injury.  The claimant’s doctor opined that the claimant had a permanent total disability, but acknowledged that he could perform daily activities of living and drive himself to medical appointments.  An independent medical examiner opined that the claimant had a permanent marked partial disability and could perform sedentary work.

Decision:         The Appellate Division upheld the WC Board’s finding that the claimant was partially rather than totally disabled and had a 90% loss of wage-earning capacity.  The Board considered multiple factors including the claimant’s work history and educational background.  It found no reason to disturb the findings as the Board had weighed the claimant’s capabilities while also factoring in his ability to perform daily activities of living.

Comment:       A finding of permanent total disability should be a difficult standard to meet.  Where a claimant can still perform daily activities of living, the Board will consider that a factor in finding the Claimant to have a high partial permanent disability as opposed to a total permanent disability.

Matter of White v House, 2017 N.Y. App. Div. LEXIS 1027 (N.Y. App. Div. 3d Dep’t Feb. 9, 2017)

Issue:               Consequential Injury

Facts:               Claimant initially injured her left shoulder in 2010 while lifting a patient.  The claimant began having pain in her right shoulder in 2013.  The claim was amended to include a consequential left shoulder injury after development of the record.  Claimant’s doctor opined that due to years of compensating with the right shoulder, there was causal relationship to the original injury.  An independent medical examiner opined that there was no causal relationship as the claimant had not worked since the date of accident and, therefore, her other shoulder was not being over-burdened.

Decision:         The consequential left shoulder injury was affirmed.  The claimant had submitted competent, non-speculative evidence finding a causal connection between the left and right shoulder injuries.  Additionally, the independent medical examiner acknowledged that he could not know the exact nature of the claimant’s daily activities.  He also admitted that the claimant would at a minimum still be required to use her right arm more than the left as a result of the original injury.

Comment:       Consequential injuries remain easy to establish.  Generally, without contradictory medical evidence of treatment that preexisted the work accident, consequential injuries will be added upon an opinion of causal relationship from the claimant’s doctor.

Matter of Oparaii v. Books & Rattles, 2017 N.Y. App. Div. LEXIS 1029 (N.Y. App. Div. 3d Dep’t Feb. 9, 2017)

Issue:               Additional injury sites

Facts:               The Claimant was a teacher involved in a physical altercation with the parent of a child.  The claim was originally established for injuries to the neck and chest.  Two years later it was amended to include both arms.  The claimant also attempted to amend the claim to his low back and have surgery to his right shoulder authorized.

Decision:         The Appellate Division upheld the Full Board Panel Panel decision which found that the claimant did not sustain a causally related back injury and denied authorization for shoulder surgery.  The medical reports did not corroborate the Claimant’s claims that he had pain in his right shoulder and back right after the altercation.  Also, the C-3 completed by the Claimant did not mention back pain.   Additionally, there were no medical reports describing a shoulder injury or shoulder pain contemporaneous with the altercation.

Comment:       Adding non-consequential injury sites to a claim after a length of time has transpired should not be an easy task.  A claimant should present substantial evidence in the form of medical reports contemporaneous with the initial incident.  A claimant’s recollection of pain in those sites without medical reports to corroborate should not be enough.  Furthermore, the claimant’s treating doctors should look to those initial reports and not just take the claimant’s word for it.