The Start of Another Year – January Newsletter

Martone v. Niagara Frontier Transp. Authority-Metro, 2017 NY Slip Op 00357 (N.Y. App. Div. 3d Dept. Jan 19, 2017)

Issue:               Loss of Wage Earning Capacity

Facts:               The WCLJ classified the Claimant with a permanent total disability in two apportioned claims involving the neck and low back.  There had been a class 4 medical impairment and aggravating factors such as the Claimant’s age, education level and work experience were considered.  On appeal, the WCB found a permanent partial disability and a 75% loss of wage earning capacity (LWEC).  The Claimant’s residual functional capabilities had included the ability to ambulate with a walker for short distances as well as the ability to perform some activities of daily living.  Both claims were continued in order to address the Claimant’s labor market attachment.  The Claimant appealed.

Decision:         Affirmed.  The Court found substantial evidence to support the WCB’s determination regarding permanency and LWEC.  It was significant that the Claimant’s attending physician had submaximal effort regarding the Claimant’s recovery and that the employers IME had noted the Claimant’s symptom magnification.

Comment:       This decision highlights the Court’s deference to the WCB regarding credibility assessments on issues involving medical determinations, work restrictions and LWEC.  More importantly, this decision emphasizes how much weight can be placed upon the medical evidence presented when an LWEC analysis is being undertaken by the WCB.

Qualls v. Bronx Dist. Attorney’s Office, 2017 NY Slip Op 00365 (N.Y. App. Div. 3d Dept. Jan, 19, 2017)

Issue:               Medical Evidence – Burden of Proof

Facts:               The Claimant maintained that he had emotional stress at work which had caused him to suffer an ischemic stroke at home.  During his testimony, the Claimant’s attending physician confirmed that the Claimant possessed a number of risk factors for a stroke including diabetes, hypertension and hyperlipidemia.  Despite acknowledging that the Claimant’s emotional stress could have contributed to his stroke, the physician testified that there would be no way to prove this proposition objectively or medically.  Also, based upon the Claimant’s multiple risk factors the physician testified that any emotional stress experienced by the Claimant would not have been the only contributing factor.  The WCLJ established the claim but it was reversed by the WCB.  In reaching its determination, the WCB found that the Claimant had not satisfied his burden of providing competent medical evidence establishing a causal link between the development of his stroke and the stress from work.  His physician had only expressed a possibility regarding the role of the stress as a potential contributor.

Decision:         Affirmed.  The Court recognized the need for the Claimant to have produced competent medical evidence in order to move his claim forward.  Specifically, the medical opinion needed to signify a probability that was supported by rational basis.  The testimony of the physician had only been equivocal and had been characterized by words such as “may” and “could” with regards to the role of the stress.

Comment:       This case is a good illustration regarding the Claimant’s burden to provide sufficient medical evidence.  If the opinion of the attending physician in this case had contained words such as “likely” or “more likely than not” then the Claimant’s burden may have been satisfied.  It had also been significant that the Claimant’s stroke had occurred at home as opposed to while he was working.  Therefore, the presumptions of WCL Section 21 were not applicable.  Finally, this case also shows the importance of determing whether a Claimant has any risk factors that would have caused or contributed to the development such as a stroke.  At a minimum, copies of any and all treatment records should be obtained from a Claimant as soon as possible if you are faced with such a claim in the future.

Maffei v. Russin Lbr. Corp., 2017 NY Slip Op 00362 (N.Y. App. Div. 3d Dept. Jan. 19, 2017)

Issue:               Procedure Regarding Expedited Hearings, Adjournments and Video Surveillance

Facts:               An established claim had been designated by the WCB for an expedited hearing in order to address permanency in 5/13.  A hearing had been scheduled in 9/13 for the Claimant’s testimony regarding his loss of wage earning capacity.  Prior to taking the Claimant’s testimony at this hearing defense counsel had advised the parties that the WC carrier had surveillance footage of the Claimant.  After his testimony the defense attorney requested that the surveillance be admitted into evidence in order to address the Claimant’s degree of disability.  A copy of the footage had not been provided at the hearing as the attorney did not believe that the contents of the surveillance would be discussed.  The WCLJ noted that the case had been on the expedited calendar and denied the request.  The Claimant was then classified with a permanent total disability.  A majority of the Board Panel decided that the surveillance should be admitted into evidence.  However, the Full Board found that the surveillance should not have been permitted because there had been an expedited hearing scheduled and there had been no emergency presented which would have permitted an adjournment.

Decision:         Affirmed.  In its analysis, the Court provided a very informative explanation of the “non-adjournment rules” associated with expedited hearings pursuant to WCL Section 25-3(d) as well as 12 NYCRR 300.34(f) and 300.3(a).  Unless there is an emergency, there will not be any adjournment grated.  Further, the Court recognized that any adjournment request, must be accompanied by a supporting affirmation as required by 12 NYCRR 300.38(i).

Comment:       This case illustrates the need to be aware of the time constraints associated with the expedited hearing process.  The defense attorney in this case did not provide a sufficient reason for a continuation.  If surveillance footage is going to be used then it should be provided as soon as possible or, at a minimum, please keep copies should have been provided at the hearing in question so that it could be considered by the WCLJ at that time.


Another successful Ed Talks in the books.  Thank you to all who attended and participated.  Looking forward to the next one.


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