June 2018 Newsletter
Matter of Pickerd v Paragon Envtl. Constr., Inc., 2018 N.Y. App. Div. LEXIS 3700 (3rd Dept. 2018)
Issue: Heart attack
Facts: The Claimant suffered a fatal myocardial infarction after operating an excavator and retrieving a pipe wrench from his truck. The Claimant had numerous pre-existing risk factors such as a smoking habit and high cholesterol. The carrier’s medical expert opined that the cause of the heart attack was the decedent’s significant risk factors. A cardiologist who had reviewed the case on the behalf of the decedent’s estate concluded that although the risk factors had contributed, the decedent’s work activities immediately prior to his collapse were significant precipitating factors that had caused the plaque rupture leading to the myocardial infarction.
Decision: The decision of the WCB that the Claimant’s death was causally related to his employment was upheld. It was within the Board’s province to resolve conflicting medical opinions. Even though the Claimant’s work activities that preceded his death were well within his normal duties, if the physical exertion was a contributing factor then it would be compensable.
Comment: A thorough investigation of the claim is crucial in defending against heart attack claims. If it can be shown that the Claimant was experiencing symptoms prior to his work activities, there is a better chance of avoiding liability. However, without such evidence the Board will be inclined to find heart attacks compensable when preceded by even relatively minor routing physical activities such as climbing stairs or pushing and pulling equipment.
Matter of Bloomingdale v Reale Constr. Co. Inc., 2018 N.Y. App. Div. LEXIS 3534 (3rd Dept. 2018)
Issue: Labor market attachment, loss of wage earning capacity
Facts: The 55 year old claimant worked as a heavy equipment operator and had sustained injuries to his neck and back and had post-concussion syndrome. He was classified with a permanent partial disability class 3 impairment with severity ranking of B for the lumbar and cervical spine. The WCLJ determined that the Claimant had a 33% loss of wage earning capacity. The claimant was capable of sedentary work and was limited to operating a motor vehicle for no more than 15 minutes.
With respect to labor market attachment, the Claimant had called his union to inquire about work. He had also attended an orientation session with ACCES-VR, but had made no other efforts to find work. The WCLJ determined that the Claimant was not attached to the labor market.
Decision: The Court upheld the determination of no labor market attachment, but determined that a 33% LWEC was not supported by substantial evidence. The Court agreed that the Claimant had exerted minimal effort in seeking work within his restrictions. After attending one orientation session he had no further engagement.
However, the Court found that the Claimant had numerous aggravating factors which supported a loss of wage earning capacity substantially higher than 33%. His age, lack of transferrable skills, and physical limitations all supported a higher LWEC. The Court remitted the case for further proceedings to ascertain a loss of wage earning capacity in accordance with the guidelines.
Comment: Labor market attachment must be addressed at the time of classification or else the issue is waived. Oftentimes unmotivated claimants will attend one or two sessions with ACCESS-VR at the urging of their attorney and then will fail to do anything else. Records from vocational agencies should be obtained to determine the level of effort made by the claimant in finding suitable employment.
When it comes to LWEC, older claimants with a lack of transferable job skills will generally be found to have a higher loss of wage earning capacity. In this case the Claimant was also limited to sedentary work and will most likely be found to have a loss of wage earning capacity in the 75% range.
Barbella Environmental Technol, 2018 NY Wrk. Comp. LEXIS 3736
Issue: Labor market attachment
Facts: This ruling from the Full Board addressed whether a disabled Claimant who is still employed by the liable employer remains attached to the labor market. The case was established for injuries to the neck and back. The Claimant worked as a truck driver. After the issue of labor market attachment was raised the Claimant testified that he had submitted applications to five employers. Importantly, he had not received any notification from his employer that he had been terminated or laid off. It was his understanding that he still had a job with the employer and that the employer was waiting for him to return to his job.
The WCLJ found that the Claimant was attached to the labor market based upon his continued employment with the liable employer. The carrier appealed, arguing that the Claimant had not demonstrated attachment to the labor market with an adequate work search within his physical limitations. Initially, a Board Panel majority ruling overturned the WCLJ’s finding of labor market attachment because the Claimant did not have a realistic expectation of returning to work with the employer based upon his level of disability.
Decision: The Full Board affirmed the WCLJ’s finding that the Claimant was attached to the labor market. The Full Board affirmed its prior determination in Matter of Cranesville Block Co. Inc., 2014 NY Wrk. Comp. LEXIS 9155 which held that a claimant remains attached to the labor market so long as he remains employed by the employer and the medical evidence shows that the Claimant is unable to return to his job. Under these circumstances a claimant is not required to look for alternative employment.
Comment: The Full Board ruling makes it clear that disabled claimants who technically remain employees of the employer of record are not required to conduct a work search. In those circumstances where there is little to no expectation of an employee returning back to his original position, an effort should be made to find a more suitable position within his work restrictions. However, often this is simply not feasible. In situations where employment is guaranteed for a certain amount of time per policy or contract, the issue of attachment can only be pursued once the claimant is no longer an employee of the company.