October 2018 Newsletter

Matter of Santangelo v. Seaford U.F.S.D., 2018 N.Y. App. Div. LEXIS 6753, (3rd Dept. October 11, 2018)

Issue:               WCL Section 114-a

Facts:               The Claimant, sustained a work injury to his back and right leg while lifting timber.  He underwent lumbar fusion surgery which resulted in him using a cane and knee brace to walk.  He was classified with a permanent total disability in November 2014.  In June 2016 the WC carrier re-opened the claim and raised the issue of a violation of WCL Section 114-a. Surveillance video taken between August 2015 and March 2016 showed the Claimant walking without a limp, standing for long periods of time, bending over, and lifting heavy items.  The carrier’s medical expert testified that the activities observed on video were inconsistent with the Claimant’s reports of pain and limitations expressed during examinations.  The WCLJ ruled that the Claimant had made false representations regarding material facts and disqualified the Claimant from receiving future indemnity benefits.  The Board affirmed the decision and denied a request for Full Board review and/or reconsideration.

Decision:         Affirmed.  The Court noted that the Claimant’s medical records had indicated that he was in constant pain and his ability to stand and walk was severely diminished.  However, the surveillance showed the Claimant had grossly exaggerated his disability.  Notably, the Claimant was only seen using a cane to walk when attending medical appointments.  The finding that the Claimant had made false representations regarding material facts was supported by substantial evidence.

Comment:       Surveillance video can be very valuable in claims involving permanent total disability.  Here, the Claimant would have been entitled to uncapped permanent total indemnity payments were it not for the finding that he had violated 114-a.  It is possible that the Claimant “let his guard down” after the finding of permanent total disability.

Matter of Saintval v. AMN Healthcare, 2018 N.Y. App. Div. LEXIS 6752, (3rd Dept. January 11, 2018)

Issue:               Loss of Wage Earning Capacity

Facts:               The Claimant was a surgical technologist who sustained injuries to her neck, back, right shoulder, right wrist, and left knee after slipping and falling in an operating room. The Claimant was found to have a 66% loss of wage earning capacity by the WCLJ.  The Board modified the WCLJ’s decision, reducing LWEC to 45%.

Decision:         Affirmed.   The Court noted that an LWEC determination is based on three types of input: medical impairment, functional ability/loss, and non-medical vocational factors.  The third factor concerns matters such as education, skill, age, and literacy.  The Board noted that a credible medical opinion had found the Claimant to have an overall 33% disability and was capable of full time sedentary work that did not involve excessive walking, standing, kneeling, or climbing. The Claimant’s age of 42 and college certification were mitigating factors.  Although the Claimant could not return to her former employment, she possessed computer skills and had experience as a secretary which would allow her to work full time in a sedentary position.

Comment:       Where a Claimant’s permanent limitations prevent a return to their former employment, the possession of transferable skills serve as a mitigating factor.  A Claimant’s personnel file and resume/job application will contain valuable information that identifies the Claimant’s skills and employment history and should be closely examined prior to LWEC testimony.

Matter of Lanese v. Anthem Health Servs., 2018 N.Y. App. Div. LEXIS 6751, (3rd Dept. 2017)

Issue:               Mental Stress/Anxiety.

Facts:               The Claimant, a registered nurse case manager, alleged a relapse of pre-existing depression and anxiety caused by harassment and bullying by her managers.  The WCLJ disallowed the claim and the Board upheld, noting that the Claimant had failed to demonstrate that the stress she was exposed to was greater than that experienced by similarly situated workers.

Decision:         Affirmed.  The Court stated that it is well settled that mental injuries caused by a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith, are not compensable.  Here, the Claimant’s job transfer was voluntary, and even though her needed accommodations were not immediately communicated to her new supervisors, there was no evidence that her accommodations were intentionally denied.  There was also no evidence that the Claimant had been bullied or singled out in any way.  Her supervisors had engaged in normal oversight practices in attempting to correct the Claimant’s job deficiencies.

Comment:       This ruling was in line with previous Court rulings which require that claims for depressive/anxiety conditions be caused by stressors greater than what other similarly situated employees would encounter in a normal work environment.  However, where a claimant is subjected to bullying or harassment, a claim could succeed.  Special attention and documentation needs to take place around disciplinary actions, transfers, or terminations to show that the action was not retaliatory in nature, but rather was based upon lawful personnel decisions.