Matter of Sanchez v Sts Steel, 2017 N.Y. App. Div. LEXIS 7001 (N.Y. App. Div. 3d Dep’t Oct. 5, 2017)
Issue: Apportionment to prior non-work-related injury
Facts: The claimant underwent right knee arthroscopy to repair a non-work-related meniscus tear in 2005. He then returned to work. In 2007 he injured his right knee at work while exiting the back of a truck. He had a second right knee arthroscopy. A doctor who had performed an IME on behalf of the carrier concluded that the claimant’s prior right knee surgery involved excision of the meniscus and would have resulted in a 7 ½ % SLU even if his symptoms had fully resolved before the work injury in 2007. After deposition testimony from two doctors was taken, the WCLJ awarded a 30% SLU of the right leg with 33% attributable to the non-work-related 2005 incident.
The claimant appealed, arguing that his initial 2005 non-work injury would not have resulted in a SLU finding if it had been compensable so apportionment should not have been applied.
Determination: Affirmed. The WCB had properly found that apportionment applied. The Board was entitled to credit the IME physician’s findings. It also noted that the opinion on apportionment was not contradicted by any other proof.
Comment: Generally, apportionment is not applicable where the pre-existing condition was not the result of a compensable injury and the claimant is able to effectively perform his or her job duties at the time of the work-related accident. However, there is an exception to this rule when the prior injury would have resulted in an SLU finding. In cases where the claimant had a prior injury to the same body part, it is important to have an IME opinion on apportionment when the claimant has reached MMI.
Matter of Lavigne v Hannaford Bros. Co. 2017 N.Y. App. Div. LEXIS 6082 (N.Y. App. Div. 3d Dep’t Aug. 10, 2017)
Issue: Unwitnessed death at work, Heart attack caused by work-related stress
Facts: The decedent was found at work lying on the floor, unresponsive. She was taken to the hospital and pronounced dead. The emergence department report noted that the probable cause of death was acute coronary syndrome and cardiac arrest. The report also indicated that the decedent had told her co-workers that “her job was stressing her out” and causing her chest pains shortly before she died. Her death certificate listed the cause of death as cardiac arrhythmia due to arteriosclerotic heart disease with obesity as a contributing factor.
The claimant filed an application for workers’ compensation death benefits. The WCLJ found that the death was causally related to her employment. The claimant had presented a report from an internal medicine physician who opined that work-related stress was a “significant contributing factor” that caused her sudden cardiac death. The employer/carrier appealed, arguing that their cardiologist had concluded the death was most likely due to pre-existing coronary artery disease rather than stress and not causally related.
Determination: Affirmed. Under WCL § 21, an unwitnessed or unexplained death at work provides a presumption of compensability that the death arose out of the decedent’s employment. This presumption may be rebutted if substantial evidence shows the death was not work-related. Upon such rebuttal, the claimant is required to establish that the death was causally related. Here, the carrier’s cardiologist opinion had sufficiently rebutted the presumption, shifting the burden back to the claimant. The Court noted that a decedent’s work-related illness need not be the sole cause of death as long as the compensable illness was a contributing factor. It was within the Board’s power to weigh conflicting medical evidence in the claimant’s favor and conclude that work-related stress contributed to the decedent’s heart attack and that the resulting death was causally related.
Comment: This case demonstrates the strong presumption that a carrier/employer needs to overcome when a worker dies on the job. In this case the decedent had told co-workers shortly before her heart attack that her job was stressing her out and causing her to have chest pain. Stress is common in many occupations so this scenario is not atypical with heart attacks that occur at work. In this particular case, it may have been the statements that the decedent made prior to her heart attack that were the deciding factor. A thorough investigation and interview of witnesses who had contact with a decedent prior to a heart attack at work needs to take place to discover other possible factors. A decedent may have stress at home or participated in strenuous activity outside of their employment that contributed to the heart attack. This may be enough to defend against a claim for a work-related heart attack/death.
Matter of Villalobos v RNC Indus. LLC, 151 A.D.3d. 1156 (N.Y. App. Div. 3d Dep’t Jun. 1, 2017)
Issue: Attachment to the labor market, loss of wage earning capacity
Facts: The Court considered two issues here. The claimant appealed from the WCB’s findings that he had a 40% LWEC and was not attached to the labor market. The claimant was a laborer who sustained injuries to his head, neck, and back after falling from a ladder. The claimant waived his right to produce a permanency report. An IME report found him to have a class 2, severity A impairment of the lumbar spine. The WCLJ also ruled that he was not attached to the labor market. The case was then continued for further testimony regarding vocational training and re-attachment to the labor market due to the claimant’s upcoming appointment with Workforce One. At the next hearing, the WCLJ determined that the claimant was capable of light duty work and had a 73.5% LWEC. He also found that he had reattached to the labor market.
On appeal, the WCLJ’s determinations were reversed. The claimant’s LWEC was reduced to 40% and the claimant was found to not be attached to the labor market. The Board found the claimant’s testimony to be contradictory. He had one meeting with Workforce One, but then failed to attend additional appointments that had been set up for him. He then moved to Puerto Rico and claimed that he had done an independent job search. However, he failed to provide any documentation. With respect to LWEC, the claimant was capable of medium work with lifting restrictions of 35 pounds. Mitigating factors included the claimant’s age, proficiency in English, and ability to be retrained.
The claimant appealed.
Determination: Affirmed on both issues. The WCB’s determinations were supported by substantial evidence. The claimant’s assertion that he was only capable of light duty work was contradicted by the IME report. Although the IME report conceded that the claimant could not continue as a laborer, his ability to lift up to 35 pounds put him in the medium work category. With respect to labor market attachment, the Court took note of the failure to follow up with Workforce One and failure to provide documentation of an independent work search.
Comment: The WCLJ should not have found the claimant was re-attached to the labor market without a showing of active engagement with Workforce One. The claimant only attended one appointment and then stopped participating. Furthermore, he failed to document his independent work search. On the issue of LWEC, it appeared that the WCLJ put too much emphasis on the claimant’s inability to continue work as a laborer in arriving at a 73.5% loss of wage earning capacity. Even though he could no longer work as a laborer, he could still lift up to 35 pounds. The Board properly concluded that someone with the claimant’s age, background, and ability to be retrained should not be found to have a high LWEC of 73.5%. The claimant’s earning capacity would be diminished, but not that drastically.