Third Department Decisions 4-10-14

In Matter of Islam , the Court affirmed a decision establishing a case as work related and awarded benefits.

Claimant, a legal permanent resident, was found to be totally disabled in 2006 as a result of work-related injuries to his head and neck. After his accident, he was convicted of sexual abuse in the first degree and, in 2007, sentenced to 10 years of probation. In 2009, claimant was detained in Texas by the US Bureau of Immigration and Customs Enforcement pending a deportation hearing and, due to his failure to provide updated C-4 medical progress reports during his detention, his workers compensation benefits were suspended. When he was released from custody in 2011, he immediately returned to New York where he was promptly examined by his physician, who then filed a C-4 indicating that claimant continued to be totally disabled due to his work-related head and neck injuries. The Workers Compensation Board then determined that claimant was entitled to benefits covering the time he spent in detention. The employer and its workers compensation carrier (hereinafter collectively referred to as the employer) appeal.

We cannot agree with the employers argument that claimants detention by immigration officials amounts to incarceration upon conviction of a felony, there by rendering him ineligible to receive benefits pursuant to Workers Compensation Law $ 10 (4). That statutory language was enacted in 2007 to codify existing case law (see L 2007, ch 6, $ 37; Governors Program Bill Memo, Bill Jacket, L 2007, ch 6; see also Matter of Derr v VIP Structures, 294 AD2d 793, 793 [2002]). In our view, giving plain meaning to each of the words used, the statute reflects an intent that benefits should not be paid if a sentence of incarceration is imposed as punishment for a felony conviction. While claimant was convicted of a felony, his punishment did not include incarceration. Rather, he was sentenced to 10 years of probation. His confinement for immigration purposes, on the other hand, was civil and non -punitive in nature, and its purpose was to determine whether he should be deported (see 8 USC $ 1226; Zadvydas v Davis, 533 US678, 690 [2001]). Accordingly, we are unpersuaded that claimant was incarcerated upon conviction of a felony as that phrase is used in the statute. Nor can we agree with the with the employer that there is insufficient evidence to support the Boards conclusion that claimant remained totally disabled. While there is no resumption of continuing disability under the Workers Compensation Law and a claimants physician is required to submit progress reports reflecting a continuing disability, the Board has the authority to excuse the failure to provide timely progress reports in the interest of justice (Workers Compensation Law $ 13-a [4] [a]; see Matter of Cary v Salem Cent. School Dist., 91 AD3d 1000, 1001-1002 [2012]; 12 NYCRR 325-1.3 [b]). Here, claimant submitted C-4 forms indicating treatment for his established injuries prior to and immediately after his immigration detention. He also provided medical records reflecting continuing symptoms and treatment for his work-related injuries while he was detained. Under the circumstances, substantial evidence supports the Boards determination and we find no basis to disturb its decision to excuse the filing of timely progress reports (see Matter of Cary v Salem Cent. School Dist., 91 AD3d at 1002; Matter of Kamrowski v Vestal Nursing Ctr., 24 AD3d 1014, 1014-1015 [2005])

In Matter of Kondylis , the Court affirmed the claimant was not entitled to a schedule loss of use despite any medical to the contrary.

Claimant, a painter, was injured in June 2008 while lifting a heavy object, and his resulting claim for workers compensation benefits initially was established for injuries to his back and left knee. A Workers Compensation Law Judge (hereinafter WCLJ) awarded benefits, which continued until claimants death from unrelated causes in July 2009. Thereafter, claimants attorney sought to amend the claim for injuries to claimants neck and right shoulder and, in connection therewith, submitted a report from claimants treating physician, Emmanuel Lambrakis, indicating that claimant had sustained a 60% schedule loss of use of both his right shoulder and left knee.

In March 2010, the WCLJ, among other things, granted a posthumous schedule loss of use award to claimants widow based upon Lambrakiss report. Upon the workers compensation carriers appeal, the Workers Compensation Board rescinded the award without prejudice and directed Lambrakis to appear at the deposition for the purpose of being cross-examined by the carrier. When the carrier failed to pursue the deposition, the WCLJ deemed the carriers rights in this regard to be waived and reinstated the schedule loss of use award. The carrier appealed the WCLJs decision, contending that such award was not supported by substantial evidence. The Board agreed, finding, among other things, that the report submitted by Lambrakis failed to identify any specific guidelines or any specific findings on clinical evaluation to support the schedule loss of use award.

Whether a condition warrants a schedule loss award or an award of continuing disability benefits is a question of fact for resolution by the Board, and its determination will be upheld if supported by substantial evidence (Matter of Haight v Con Edison, 78 AD3d 1468, 1468 [2010], lv denied 16 NY3d 708 [2011] [internal quotation marks and citations omitted]; accord Matter of DeGennaro v Island Fire Sprinkler, Inc., 85 AD3d 1513, 1514 [2011]; see Matter of Jweid v Vicks Lithograph & Print., 25 AD3d 930, 930 [2006]; Matter of Dillabough v Jaquith Indus., 305 AD2d 884, 885 [2003]). Generally speaking, [w]here there is no continuing need for medical treatment and the medical condition is essentially stable, a schedule loss of use award is appropriate (Matter of Jweid v Vicks Lithograph & Print., 25 AD3d at 931; see Matter of Grugan v Record, 84 AD3d 1648, 1649 [2011]; Employer: MVP Delivery & Logistics Inc., 2012 WL 3237998, *2-3, 2012 NY Wrk Comp LEXIS 11699, *5-11 [WCB No. 8050 2891, Aug. 7, 2012]). Conversely, [a]n award of continuing disability benefits, rather than one for a schedule loss of use, is appropriate [w]here there is a continuing condition of pain or continuing need for medical treatment or the medical condition remains unsettled (Matter of Haight v Con Edison, 78 AD3d at 1468-1469 [internal quotation marks and citation omitted]; see Matter of Dillabough v Jaquith Indus., 305 AD2d at 884-885). Here, claimants own medical records reflect that he continued to report severe pain in his left knee as of March 2009 and was continuing to receive physical therapy as of April 2009 for his temporary disability. Additionally, in his November 2009 report, Lambrakis although concluding that claimant suffered a 60% schedule loss of use of his left knee and right shoulder nonetheless indicated that if claimant had not passed away[,] both the left knee and the right shoulder would have required surgical intervention. Under these circumstances, the Boards finding that the medical evidence fell short of demonstrating that claimant had reached maximum medical improvement and required no further treatment is supported by substantial evidence; hence, a schedule loss of use award was not warranted.

Our conclusion in this regard is in no way altered by the fact that the report issued by Lambrakis was the only medical opinion evidence before the Board. Indeed, this Court consistently has held that [t]hough the Board may not fashion its own expert medical opinions, it may reject medical evidence as incredible or insufficient even where . . . no opposing medical proof is presented (Matter of Jaquin v Community Covenant Church, 69 AD3d 998, 1000 [2010]; accord Matter of Eber v Jawanio, Inc., 85 AD3d 1520, 1521-1522 [2011]; see generally Matter of Bailey v Binghamton Precast & Supply Co., 103 AD3d 992, 994 [2013]). Here, as the Board aptly observed, Lambrakiss conclusion as to the propriety of a schedule loss of use award was stated in an entirely conclusory fashion, was not supported by any specific clinical criteria and was made without reference to either the Boards own guidelines or any specific findings on clinical evaluation. We therefore discern no basis upon which to disturb the Boards factual finding that there was insufficient medical evidence to support a schedule loss of use award. Claimants remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

In Matter of Perrin, the carrier appealed from a decision of the Workers Compensation Board, filed October 26, 2012, which, among other things, ruled that home health aide services provided to claimant were reimbursable at the rate of $12 per hour. Claimant is receiving workers compensation benefits for work-related injuries. Among those benefits, the Workers Compensation Board approved for him to receive home health aide services 10 hours per day. In May 2008, claimants sister began providing these services. Although the workers compensation carrier initially denied payment to the sister, following a January 2010 hearing a Workers Compensation Law Judge directed the carrier to pay her $20,700 for home health aide services that she provided between May 2008 and December 2008. The Board affirmed that decision. The sister submitted additional bills for 2008, as well as for 2009 and 2010, seeking payment at the rate of $25 per hour. Following a hearing, the Workers Compensation Law Judge determined, among other things, that she was entitled to receive the rate of $12 per hour starting in 2011, and she was not entitled to further payment for any services rendered prior to that time. The Board affirmed. Claimant appeals, addressing only the rate payable for home health aide services.

Claimant is not aggrieved by the rate set for home health aide services; he received the care that he sought, and any disagreement concerning the reimbursement rate is between the care provider here, claimants sister and the carrier (see Matter of Lewis v Lefren, Inc., 234 App Div 513, 513-514 [1932]; see also CPLR 5511; Matter of Clark v Clarkstown Police Dept., 201 AD2d 824, 825 [1994]). As claimant may not raise issues on behalf of his sister, or any care provider, and he has received the relief he sought, we dismiss his appeal (see Matter of Reynolds v Essex County, 66 AD3d 1097, 1098 [2009]; Matter of Curley v Binghamton-Johnson City Joint Sewage 63 AD3d 1387, 1387 [2009]).

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