March 2018 Newsletter

Matter of Brennan v New York State Dept. of Health, 2018 N.Y. App. Div. LEXIS 1851, (3rd Dept. 2018)

Issue:               Off-premise injury.  To and from work.

Facts:               The Claimant, who worked for a state agency, tripped and fell on a public sidewalk about 20 feet outside of her place of employment.  She had parked in a parking lot owned by the state which was one block away from the entrance to the building. The WCLJ had found the claim compensable and a divided panel of the WCB had affirmed the decision.

Decision:         Reversed.  Generally, accidents that occur in public areas outside of the workplace and outside of work hours are not compensable.  However, there is a “gray area” where the risks of travel and the risks of employment merge and can create a situation where an accident off-premises is compensable.  In this claim though, the area where the Claimant fell was used by the public.  The hazard she had been exposed to (uneven sidewalk) was not related to her employment and the danger existed to the general public.  Importantly, the sidewalk was not controlled by the employer nor did it exist solely to provide access to the workplace.

Comment:       Off premises injuries sustained by claimants coming and going from the job should be closely scrutinized, especially where the accident occurs on a public sidewalk.  The WCB put value in the fact that the parking lot had been controlled by the employer, but the Court held that since the accident occurred on a public sidewalk used by the general public, there was no special hazard to find the claim compensable.

Matter of Corina-Chernosky v Dormitory Auth. of State of N.Y., 157 A.D.3d 1067, (3rd Dept. 2018)

Issue:               Occupational disease.  Onset of symptoms.

Facts:               The Claimant alleged rotator cuff tendonitis and bilateral carpal tunnel syndrome related to repetitive work activities which included data entry and the moving of large files. The Claimant related to her doctors that the symptoms had begun in 2009, but medical records showed that she had sought treatment for symptoms as early as 2007, which was during a period in which she was not working for the employer.  Two of the Claimant’s doctors causally related her symptoms to her work activities to some extent and had relied on the Claimant’s description of her medical history.  Neither of the Claimant’s doctors had reviewed prior medical records as the independent medical examiner had.  The WCLJ had disallowed and the WCB had affirmed that decision.

Decision:         Affirmed.  To establish an occupational disease, the claimant must demonstrate a recognizable link between the condition and a distinctive feature of the occupation through competent medical evidence.  That medical evidence must signify a probability of causal relationship and not a general expression of possibility.  The Court noted that the medical records showed an earlier onset of symptoms than what the Claimant had reported to her own doctors. This inconsistency lessened the Claimant’s credibility.  The Court also emphasized that the independent medical examiner was the only physician who had reviewed prior medical records.

Comment:       This case demonstrated the importance of obtaining any possible related treatment records for the investigation of a claim.  Claimants may be poor historians, sometimes this is due to poor recollection and sometimes it is done willingly.  Occupational diseases such as carpal tunnel syndrome can be caused by numerous factors and conditions not related to employment. Additionally, when considering two conflicting medical opinions, the WCB will give extra weight to the physician who has reviewed prior treatment records.

Matter of Wohlfeil v Sharel Ventures, LLC, 155 A.D.3d 1264, (3rd Dept. 2017)

Issue:               LWEC, permanent total disability.

Facts:               The claim was established for injuries to the Claimant’s back, right hip, ribs and right knee. The claimant had undergone multiple back surgeries including a lumbar fusion.  The Claimant’s doctor assigned a class 5 severity F ranking for the lumbar spine.  An independent medical examiner assigned a class 4 severity G ranking.  The Claimant’s physician, Dr. Ameduri, testified that the Claimant was not capable of performing “gainful employment”.  He had assigned significant work restrictions, but noted that the Claimant was not able to perform sedentary work.  The independent medical examiner, Dr. Corkhill, also testified that it was unlikely that the Claimant would be able to return to meaningful employment.  The WCLJ found the Claimant to have a permanent partial disability and a 75% LWEC.  The WCB affirmed.

Decision:         Reversed, with two dissenting.  The Court found that the Claimant had sustained a permanent total disability.  It held that the finding of a permanent partial disability was not supported by substantial evidence as both physicians had opined that the Claimant was unable to engage in “gainful” employment.  The word “gainful” was given particular emphasis as the possibility that the Claimant could perform some type of limited sedentary work was unconvincing.

The dissenting opinion noted that the Court’s ruling contrasted with previous opinions where claimants who had a functional capability of “less than sedentary work” were not found to be permanently totally disabled.

Comment:       This ruling may make it easier for claimants to demonstrate a permanent total disability.  This should be taken into account when considering permanency.  A physician determination that a claimant is capable of “less than sedentary work” should not be taken lightly as it could lead to uncapped indemnity benefits.  Accepting a higher LWEC or medical rate may be the best option when presented with a possible permanent total disability finding.