May Newsletter

Matter of Novak v St. Luke’s Roosevelt Hosp., 2017 N.Y. App. Div. LEXIS 2437 (N.Y. App. Div. 3d Dep’t Mar. 30, 2017)

Issue:               Work-related stress

Facts:               The claimant alleged PTSD, depression and severe social phobia resulting from harassment from coworkers after being reinstated following a six-month suspension without pay. The claimant, a registered nurse, was suspended for six months after abandoning her post for ninety minutes. After returning to work she claimed that she was harassed by her colleagues.

Decision:         The decision of the WCB that the claimant did not sustain a compensable injury was upheld.  Mental injuries caused by work-related stress are compensable when claimant can establish that the stress that caused the injury was greater than that which other similarly situated workers experienced in the normal work environment.  However, a claim for mental injury will be precluded if it is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer.  In this case, the record showed that the mental injuries stemmed from the claimant’s involvement in a disciplinary proceeding taken in good faith and not her interactions with coworkers upon returning to work.  Specifically, the claimant had treated for psychiatric conditions well before she returned to work following her suspension.

Comment:       Stress-related claims are difficult to establish.  When the claim coincides with a lawful personnel decision such as a disciplinary action, demotion, transfer, etc. the Board will generally find no compensable injury.  Evidence showing prior psychiatric treatment, or an exacerbation of pre-existing mental health conditions after a lawful personnel decision, will be particularly persuasive.

Matter of Reese v Sysco Food Services-Albany, 2017 N.Y. App. Div. LEXIS 2427 (N.Y. App. Div. 3d Dep’t Mar. 30, 2017)

Issue:               Voluntary removal from the labor market

Facts:               The claimant worked as a selector in a warehouse.  He injured his low back and left hamstring while lifting a case.  The claimant was offered a light duty position in the warehouse that would comply with his restrictions.  He initially worked in the light duty position, but later experienced problems with his left knee and he stopped working.  The claimant was subsequently terminated.  He then found a less physically demanding job and made a claim for reduced earnings.  The Board found that the claimant was not entitled to reduced earnings because the reduction in earnings was not related to his established injuries.

Decision:         The decision was affirmed.  Reduced earnings may be denied where the reduction is due to factors other than the causally related disability.  Here, the claimant stopped working because of a knee issue which was not an established injury.  Also, the claimant’s doctor did not impose any medical restrictions that would have prevented him from performing the light duty position.

Comment:       Awards for reduced earnings will not be made when the reduction in earning capacity is caused by factors such as age, economic conditions, or a medical condition that is not established as part of the claim.  If a claimant turns down a light duty position or stops working in that position due to factors other than his work-related injuries, reduced earnings will not be awarded.  The claimant in this type of situation has voluntarily removed himself from the labor market.

Burgos v Citywide Central Ins. Prog., 2017 N.Y. App. Div. LEXIS 2439

Issue:               Loss of wage earning capacity (Determining the duration of weekly benefits for a permanently partially disabled claimant)

Facts:               The claimant injured her low back while working on 6/12/07.  At the time of maximum medical improvement, her physician and the IME physician both concluded that her functional (exertional) ability was at a less than sedentary level.  Her physician had assigned a severity ranking of J, the highest ranking provided with the WCB’s Impairment Guidelines.  The WCLJ credited the opinion of the IME physician who opined that there was a 75% permanent partial disability.  Vocational (non-medical) factors such as the claimant’s age (56), education (8th grade), knowledge of computer use (none), work experience (in the Dominican Republic as a home health aide and a sewer) and ability to read/speak English (limited), were then considered.  The WCLJ found a 75% permanent partial disability (which would dictate the amount of weekly benefit) and that the claimant had an 85% loss of wage earning capacity (LWEC) allowing her to a maximum of 450 weeks of additional wage replacement benefits.

Based upon an appeal, the WCB affirmed the WCLJ’s assessment of the credibility of the medical witnesses regarding whether the claimant had a PTD, the fact that even a severity impairment of J pertains to a claimant who has a PPD and that one’s limited exertional capabilities was only one factor to consider in the LWEC analysis.  The claimant appealed by arguing that she has a PPD.

Decision:         The majority affirmed by finding that there was substantial evidence (i.e., where there had been enough evidence for a “reasonable mind” to support the decision) based upon its review of the WCB’s 2012 Impairment Guidelines.  The exertional capabilities was one factor to consider when addressing LWEC and the ability to perform less than sedentary work was not dispositive of an overall level of disability.  The medical evidence failed to show that the Claimant was incapable of performing any gainful employment and the court deferred to the WCB’s assessment of the claimant’s vocational factors.

The dissenting opinion highlighted the inconsistencies between the WCB’s acceptance that the claimant had been only capable of performing less than sedentary work and finding that the medical evidence had established only a 75% impairment.  There remained a question of whether the claimant was incapable of performing gainful employment because there was no proof of any job that the claimant could possibly perform.  When this is coupled with the ability to perform less than sedentary work, a PTD was warranted.

Comment:       Regardless of the outcome, this case provided a very good explanation of what is needed for an evidentiary determination regarding LWEC.