From the 3rd Dept on Thursday 11/7/24, there were some relatively good decisions for the defense. Learn more in the blurbs below.
In Herrera v. American Badge, a COVID claim was disallowed. This case involves a claimant who was a factory worker. He contracted COVID in April 2020, but he was not working in a position where he would be in contact with the public. His department was confined to a section of the factory where he would only be in contact with limited coworkers. The employer’s human resources director testified that no one in his department tested positive for COVID.
Practice Tip: If we are defending a COVID case, and the job does not require public contact, make sure to get data from the employer on other instances of COVID. If we can show that there were no co-worker cases and/or no contact with those workers, that is a winning argument.
In the case of Amato v. Patchogue Supermarkets, the Board Panel reversed a Law Judge decision finding 42.5% SLU for each arm because the claimant’s range of motion was better at a prior examination than which the claimant demonstrated at his IME. The Board found the claimant to have given less than his best effort and reduced the SLU awards to 20% for each arm. The 3rd Dept. affirmed the Board’s ability to reject the permanency opinions but remanded the case for further development on the issue of SLU because the 20% was based on treating records that were not opinions for the purpose of permanency.
Daniels v. NYCTA was the best decision of the day. In this case, the claimant filed a claim for a right shoulder and right elbow injury. The right shoulder and right elbow were established. However, when the claimant was seen for an IME, the carrier’s orthopedic expert noted complaints to the neck and issued a report finding a causally related neck injury. It is unclear from the decision the timing of claimant’s treatment reports, but claimant’s treating doctor also reported causally related neck complaints. Yet, the Board rejected the neck as a causally related site because neither the claimant’s initial claim form, nor the employer’s accident report noted the neck being injured. And the claimant denied any injury other than to her arm during questioning from the Law Judge.
Practice Tip: It is not game-over if the carrier’s report notes a causally related injury that was not previously pled in the claim. Don’t be afraid to challenge it.
In Rizzo v. The Springnut Group, this case was a closer call than you might expect. A bartender sadly had a heart attack and died in his sleep many hours after returning from work. He was working earlier that night at the Lilac music festival. After work, he went out for drinks, then went home. While he was sleeping his wife observed him in distress and noticed his breathing stopped. After a trial on the issue of causal relationship, the Law Judge established the claim and awarded benefits. But the Board Panel reversed recognizing that the weight of the testimony of several co-workers was that the decedent did not engage in strenuous labor during his shift. The claimant’s medical expert opinion was based on incorrect factual assumptions including the extent of the decedent’s work activity and the timing of the onset of his symptoms. The carrier’s expert found that his underlying coronary artery disease was the cause. There were many other comorbidities that caused or contributed to the decedent’s death that had no connection to his work.
While this decision appears to be the correct result, what makes this decision a closer call is that the Appellate Division in its holding found that Board Panel’s findings were supported by substantial evidence which may have also been upheld if the Board went the other way. Do not take a case like this for granted. What seems almost impossible to believe could be a plausible compensable death, still requires a full defense work-up and the carrier must get an expert opinion.
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