Divided NY Appellate Court Finds Claimant's Need of Surgery Insufficient to Show Worsening Condition
In a divided decision, a New York appellate court recently affirmed a Board determination that a claimant, who had earlier been awarded PPD benefits and whose condition apparently worsened so as to require additional back surgery, had not shown that her compensable condition had actually changed from PPD to TTD [Matter of Robinson v. New York City Health & Hosps. Corp., 2020 N.Y. App. Div. LEXIS 3061 (3d Dept. May 21, 2020)]. The majority’s decision rested primarily on the broad power of the Board to weigh the medical evidence. The dissent countered that the Board (and the majority) had disregarded the only medical evidence in the record.
Background
In 2009, Claimant established a claim for a work-related injury to her back. In 2015, claimant was classified with a permanent partial disability. At that time, the parties stipulated to an 80 percent loss of wage-earning capacity for claimant, and she was awarded workers’ compensation benefits for 425 weeks. On June 1, 2018, claimant underwent additional back surgery. Claimant submitted a request to the Board seeking, among other things, that her classification be modified to a temporary total disability rate. Following a hearing, the WCLJ awarded claimant payments at the TTD rate from the date of the back surgery through the date of the hearing, but returned payments thereafter to the PPD rate. The Board affirmed the WCLJ’s decision on administrative appeal and found that the evidence did not support claimant’s assertion that the June 2018 surgery worsened her condition. In particular, the Board concluded that the post-surgery reports merely indicated that there was a continued disability and treatment without “other trauma” or “significant reinjury.” Claimant appealed.
Majority Opinion
Justice Aaron wrote for the majority. She initially indicated that claimant had asserted that the WCLJ arbitrarily concluded, and without medical evidence, that her TTD terminated as of the hearing date. Justice Aaron noted, however, that such a claim tested on the premise that the WCLJ actually found that the June 2018 surgery rendered claimant temporarily totally disabled from the date of her surgery in June 2018 to the hearing date. According to the justice, however, the claimant had mischaracterized the record. The WCLJ never actually made a finding that claimant had a TTD.
Rather, the judge’s award stemmed, in part, from “an agreement” made by the workers’ compensation carrier. At the hearing, the carrier stated that it could agree to payment at the TTD rate, but only from the June 2018 surgery to the hearing date. Furthermore, indicated Justice Aaron, after considering the post-surgery reports, the WCLJ set the award at the TTD rate for the period from the June 2018 surgery to the hearing date and returned it thereafter to the PPD rate. As such, contrary to claimant’s representation, there was never a finding by the WCLJ that claimant had a temporary total disability.
The justice continued that the evidence credited by the Board indicated that claimant’s condition was not worsened as a consequence of the surgery or that such surgery caused any trauma or significant reinjury. Citing earlier decisions, the justice acknowledged that the Board could not fashion its own expert medical opinions, but it could reject medical evidence as incredible or insufficient even where no opposing medical proof is presented. According to the majority, that is exactly what had been done in the case.
Dissent
Justice Lynch dissented, indicating that the majority had both mischaracterized claimant’s request and disregarded the only medical evidence presented. Unmentioned by the majority, said the justice, was a pre-surgery, May 1, 2018 progress report of claimant’s treating physician and surgeon that found claimant had a temporary impairment of 100 percent. The report also found claimant was was unable to work and was totally permanently disabled. The justice acknowledged that the Board had considerable authority in weighing medical evidence. Here, according to the justice, the Board’s determination that the temporary total disability terminated as of the date of the hearing had ignored the only medical evidence in the record.