In Matter of Pelaez, The Court affirmed a decision establishing an accident as well as a decision of the Board denying Full Board review.

In December 2007, claimant was injured when he was kicked in the head by a horse and he applied for workers’ compensation benefits, listing Silverbrook Farm, Inc. as his employer.  Alan Silverstone, president of Silverstone Corporation filed a C-2 form regarding the claim, stating that claimant was employed as a casual laborer by Silverstone, which was doing business as Silverbrook. The Workers’ Compensation Board indexed the claim against the State Insurance Fund as the workers’ compensation carrier for Silverstone. SIF contested the claim on various grounds, including challenging the existence of an employer-employee relationship. Ultimately, a Workers’ Compensation Law Judge found, among other things, that claimant was employed by Silverbrook at the time of his injury.  The Court noted, “Whether an employer-employee relationship existed presents a factual issue for the Board, and its determination thereof will not be disturbed if supported by substantial evidence in the record” (Matter of Duma v Baca, 83 AD3d 1228, 1228 [2011] [citations omitted]; see Matter of Mendoza v Dolgetta, 81 AD3d 1043, 1044 [2011]).  Here, there is substantial evidence in the record supporting the Board’s determination that Silverbrook was claimant’s employer at the time of his injury. Claimant’s paychecks from the two weeks  prior to his injury were drawn on Silverbrook’s account. Further, claimant entered into a lease agreement with Silverbrook which provided that the $1,500 monthly rental for a cottage on Silverbrook property would be reduced by $500 in return for claimant, and three other tenants, performing “Night Check Provider” duties at the farm. In opposition, Silverstone relied on the testimony of Alan Silverstone and Janice Silverstone, who served as Silverbrook’s president and vice-president, respectively. They testified that claimant was employed by Silverstone and that Silverbrook was only a real estate holding company with no employees. Janice Silverstone also testified that the paychecks that were issued to claimant by Silverbrook in December 2007 were drawn from that account due to the fact that the Silverstone account did not have the funds available at that time. This testimony created a credibility issue that was within the Board’s authority to resolve (see Matter of Cassaro v Horton, 89 AD3d 1288, 1289 [2011]; Matter of Bran v Wimbish, 73 AD3d 1378, 1379-1380 [2010], lv dismissed 15 NY3d 818 [2010]). Accordingly, despite proof in the record that would support a contrary determination, the Court found no basis to disturb the Board’s decision that claimant was employed by Silverbrook at the time of his injury. The carrier/employer also appealed the denial for full board review. In its request for review the carrier alleged new evidence. The new evidence was a “service agreement “ the Court noted that it was signed 12 months prior to the accident and the carrier gave no reason for it not being submitted previously Based on same the request was denied as the Court did not find the denial arbitrary or capricious it affirmed.

In Matter of Woods , the Court affirmed a denial ( from a pro se claimant) for Full Board Review/Reconsideration.  In 1993, claimant suffered a work-related injury to his back and was awarded workers’ compensation benefits. Claimant was found in violation of Workers’ Compensation Law § 114-a in 2003 and the Workers’ Compensation Board rescinded claimant’s benefits and disqualified him from receiving future wage replacement benefits.  In 2007, claimant raised the issue of acausally related injury to his neck, arising out of the 1993 incident. Ultimately, in a decision filed June 12, 2009, the Board ruled that the claim regarding the neck injury was time barred pursuant to Workers’ Compensation Law § 28. Claimant did not appeal from that decision, but subsequently applied for reconsideration and/or full Board review. The Board denied the application and claimant appealed.  The Court stated ,”Inasmuch as claimant has appealed from only the decision denying [his] application for reconsideration and/or full Board review, the merits of the underlying decision are not properly before us” (Matter of Nikolaeva v Cattaraugus County Nursing Home, 37 AD3d 969, 969 [2007] [citations omitted]; accord Matter of Malone v VRD Decorating, 68 AD3d 1570, 1570 [2009], lv dismissed 14 NY3d 825 [2010]). Rather, “our review is limited to whether the Board’s denial of the application was arbitrary and capricious or otherwise constituted an abuse of discretion” (Matter of Kaja v Siller Bros.,Inc., 74 AD3d 1511, 1512 [2010]; accord Matter of Marks v Evergreen Country Club, 27 AD3d 914, 915 [2006]). Here, our review of the record reveals that the Board considered all of the evidence and issues before it and claimant did not seek to present newly discovered evidence or allege a material change in condition in support of his application for reconsideration and/or full Board review (see Matter of Nikolaeva v Cattaraugus County Nursing Home, 37 AD3d at 969; Matter of Marks v Evergreen Country Club, 27 AD3d at 915).  Accordingly, we cannot conclude that the Board’s denial of the application was arbitrary and capricious or an abuse of discretion.

In the Matter of Searchfield, an appeal was taken to a Board Decision that ruled that claimant’s application for workers’ compensation benefits was timely filed and awarded benefits.

In October 2005, claimant was injured at his workplace while lifting a hot water heater. The initial diagnosis by the emergency room physician was “myofascial strain of legs [and]
hips.” Later physician reports, however, focused on claimant’s complaints of groin, lower back and leg pain. In July 2006, a Workers’ Compensation Law Judge (hereinafter WCLJ)
established a work-related injury to claimant’s lower back, found prima facie medical evidence of groin strain and awarded workers’ compensation benefits. Subsequently,
an MRI of claimant’s sacrum revealed signs of, among other things, “a possible paralabral or synovial cyst.” Claimant was referred to an orthopedic surgeon, Michael
Wiese, who, in a January 2009 report, opined that claimant had, among other things, a right hip labral tear and requested authorization for surgery. According to Wiese, claimant was
originally misdiagnosed and he had, in fact, sustained injuries to his right hip as a result of the October 2005 accident. Claimant sought to amend his claim to include the injuries to his
right hip. Following the submission of competing medical proof, a WCLJ found that the claim was time-barred pursuant to Workers’ Compensation Law § 28 and, in any event,
the condition was not causally related to the subject accident. Upon review, the Workers’ Compensation Board reversed the WCLJ and issued a decision and an amended decision
holding that claimant’s right hip condition is properly included in the claim as a work-related injury, which was not time-barred.

The Court was unpersuaded by the employer’s contention that the Board should have dismissed as untimely the claim for a causally-related right hip condition. Pursuant to Workers’
Compensation Law § 28, a claim that is not filed within two years of the date of the accident is time-barred. He Court noted, “[w]hether a claim has been filed in a timely manner presents a factual
issue for the Board to resolve, and such determination, if supported by substantial evidence in the record as a whole, will not be disturbed” (Matter of Schley v North State Supply, 309
AD2d 1092, 1093 [2003]). While the employer maintains that the amendment to the claim is time-barred, we disagree. Not only do the early medical reports reflect initial concerns relating to
claimant’s hips, there was competent medical proof supporting the Board’s finding that claimant’s ongoing pain “was the result of a labral tear in the right hip, a condition which is often
misdiagnosed as a low back injury.” Thus, the Board did not, as argued by the employer, conclude that the hip condition was consequential in relation to the original diagnosis of low back
injury (see e.g. Matter of Jones v Cowper Co., 80 AD2d 685, 685 [1981]). Instead, the Board amended the original claim to reflect the correct diagnosis of a directly-related hip
condition. Since claimant could not have filed a claim for causally-related hip injuries until this condition was properly identified and diagnosed in the latter months of 2007, we are
persuaded that this matter is not time-barred.

The Court then turned to the employer’s final contention that the Board erroneously found that the right hip condition is causally related to the October 2005 accident, the Court was
Unpersuaded by this argument. “The Board is empowered to determine the factual issue of whether a causal relationship exists based upon the record, and its determination will not be disturbed when
supported by substantial evidence” (Matter of Virtuoso v Glen Campbell Chevrolet, Inc., 66 AD3d 1141, 1142 [2009] [citations omitted]). Here, the Board specifically credited the testimony
of claimant’s physicians as to causation. While the independent medical expert disagreed, the Board noted that this expert also acknowledged that it was possible for hip problems to be
misdiagnosed in situations where they originally manifest in low back complaints. Given that “the resolution of conflicting medical opinions is within the province of the Board,
particularly where the conflict concerns the issue of causation” (Matter of Ciafone v Consolidated Edison of N.Y., 54 AD3d 1135, 1136 [2008]), the Court found substantial evidence supporting the Board’s
ruling as to causation.

In the Matter of McLeod an appeal was filed to the finding which ruled that claimant’s injury did not arise out of and in the course of her employment and denied her claim for workers’ compensation benefits. Claimant was en route to her job as a special servant agent at the Westchester Airport when she was injured in an automobile accident on Airport Access Road, a county road. Thereafter,
claimant sought workers’ compensation benefits for her injury. Following a hearing, a Workers’ Compensation Law Judge ruled that claimant was traveling to work at the time of the accident and,
therefore, her injuries arose out of and in the course of her employment. Upon review, the Workers’ Compensation Board reversed. Claimant appealed.

The Court noted, accidents that occur on a public street away from the place of employment and outside working hours generally are not considered to arise out of and in the course of employment (see
Matter of Littles v New York State Dept. of Corrections, 61 AD3d 1266, 1267 [2009]; Matter of Harris v New York State Off. of Gen. Servs., 13 AD3d 796, 796 [2004]).
However, where, as here, the accident occurred near the claimant’s place of employment, “there develops a gray area where the risks of street travel merge with
the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation”
(Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 144 [1976] [internal quotation marks and citation omitted]). In order for a compensable incident and risk of employment to
exist, “there must be (1) a special hazard at the particular off-premises point and (2) a close association of the access route with the premises, so far as going and coming are concerned”
(Matter of Fiero v New York City Dept. of Hous. Preserv. & Dev., 34 AD3d 911, 912 [2006] [internal quotation marks and citations omitted])

The Court stated there was no indication that there was a special hazard at the point where the accident occurred. Although claimant used Airport Access Road to reach the employee parking
lot, the record establishes that the road is a county road used by the general public to get to and from the airport and is not controlled by the employer. The accident, which occurred when
another driver attempted to turn into a parking lot, is not related to any incident or risk of claimant’s employment, but rather was a risk shared by the general public (see Matter of
Littles v New York State Dept. of Corrections, 61 AD3d at 1268). Under these circumstances, the Court found substantial evidence supports the Board’s finding that claimant did not sustain an
injury arising out of and in the course of her employment.

Today the Court of Appeals found that the employer should not have been given an opportunity to produce medical testimony in defense of the claim when a late C-7 was
found in the matter. The decision can be read at: http://www.nycourts.gov/ctapps/Decisions/2012/Feb12/14mem12.pdf

Congratulations to Mr. Gluck on his hard fought victory

In Matter of Capalbo , the Court rejected the carriers appeal of a denial for reconsideration or Full Board review.

Decedent was employed as a steamfitter at the Indian Point nuclear power plant until September 2007, when he passed away
from lymphoma. Claimant, decedent’s wife, filed a claim in August 2009 for workers’ compensation death benefits, asserting
that decedent’s lymphoma was the result of his exposure to radioactive agents during his employment. Following a hearing in
November 2009, a Workers’ Compensation Law Judge found prima facie medical evidence that the death was compensable and ordered
that if the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) wished to
submit an independent medical examination report contesting causality, such report must be submitted within 45 days. At a
hearing in February 2010, the Workers’ Compensation Law Judge extended the carrier’s time for submitting the report. Claimant
appealed and, in July 2010, the Workers’ Compensation Board reversed, finding that the carrier had waived its opportunity to
produce such a report, having failed to do so in the time originally prescribed. The Board further found that the carrier
waived its opportunity to cross-examine claimant’s medical expert, having failed to make such a request. The carrier’s
subsequent application for reconsideration or full Board review was denied and this appeal ensued.

The Court stated that the merits of the Board’s July 2010 decision were not properly before this Court, as the carrier failed to
appeal that decision and appealed only from the Board’s denial of its request for full Board review and/or reconsideration (see
Matter of Dipippo v Accurate Signs & Awnings, 88 AD3d 1044, 1045 [2011]; Matter of Maqsood v McRoberts Protective Agency, 79 AD3d
1547, 1547 [2010], lv dismissed 16 NY3d 871 [2011]). The Court’s analysis was therefore limited to deciding whether the Board’s
denial was the an abuse of discretion or otherwise arbitrary and capricious (see Matter of Siliverdis v Sea Breeze Servs. Corp.,
82 AD3d 1459, 1460 [2011]; Matter of Maqsood v McRoberts Protective Agency, 79 AD3d at 1547). The Court declined to disturb the
Board’s decision, as the record establishes that it addressed all relevant issues and the carrier did not present any evidence that
was previously unavailable (see Matter of Maqsood v McRoberts Protective Agency, 79 AD3d at 1547; Matter of Gentile v Sovereign
Motor Cars, 77 AD3d 1027, 1028 [2010], lv dismissed 16 NY3d 824 [2011]).

The Board’s medical impairment guidelines were adopted in their entirety from the September, 2010 report from the New York State Insurance Department. The Board has, however, added a “crosswalk” that permits severity ratings for different body parts to be compared on a 0-6 scale.

The 2012 Guidelines repeatedly state that medical impairment does not translate into loss of wage earning capacity, and that worker’s compensation benefits depend on the loss of wage earning capacity, rather than medical impairment. This is a significant shift from present workers’ compensation practice, which tends to minimize the consideration of functional loss and vocational factors except in rare instances (claims for total industrial disability).

The Insurance Department’s Task Force and Advisory Group specifically designed its medical impairment guidelines to prevent comparison of severity rankings across body parts in order to assist in shifting the system’s focus from medical impairment to loss of wage earning capacity. We are concerned that the Board’s creation of a “crosswalk” will undermine this goal. Instead of converting medical impairment into a series of letter rankings that cannot be translated into traditional “degrees of disability” as intended by the Task Force and Advisory Group, the “crosswalk” facilitates such translation. It is to be hoped that the Board will place a strong emphasis on the multiple portions of the 2012 Guidelines that prohibit conversion of medical impairment into compensation benefits and which require consideration of other factors.

Many portions of the 2012 Guidelines mandate evaluation of the impact of functional loss and vocational characteristics on loss of wage earning capacity. The Guidelines recognize that there are few employment options available for many workers who are limited to sedentary work as the result of occupational injury. Such workers have little if any earning capacity and must be protected by the workers’ compensation system.

There is a regrettable lack of guidance in the 2012 Guidelines regarding the respective weight of medical impairment, functional loss, and vocational factors, as well as the specific weight to be accorded to any given vocational factor. This approach permits an individualized assessment of each injured worker. However, the absence of guidance may well result in dissimilar outcomes in otherwise similar cases due to the variability inherent in the litigation process.

If the 2012 Guidelines are applied so that full and fair weight is given to the impact of functional loss and vocational factors on wage earning capacity, then the system may well achieve more substantial justice than it has in the past when inquiry was limited largely to medical impairment. If, however, the Board fails to properly emphasize the impact of functional loss and vocational factors, or if those factors are accorded insufficient weight in the ultimate determination, then substantial loss of benefits may occur due to the minimization of medical impairment under the new guidelines.

We will continue to monitor the implementation of the 2012 Guidelines and comment as appropriate.

1. If it is an emergency, then there is no prior authorization needed. The doctor does what is required, submits the bills and reports to the insurance company, and if they contest the issue of whether it was an emergency or whether the treatment was necessary or related to your case, they will object to the bill. In that event a Judge would decide the issue.

2. If it is not an emergency, then the doctor must read the Medical Treatment Guidelines and make a decision whether the requested treatment is covered and pre-approved on the Guidelines. If it is, then the doctor proceeds without authorization and sends bills and reports to the insurance company. Again, if the insurance company objects, then a Judge will decide the issue.

3. If the doctor concludes that the requested treatment is not covered or pre-authorized on the Guidelines, then the doctor must submit a request for a “variance” using form MG-2. The insurance company will grant or deny the variance. If there is a denial, then your doctor must discuss the denial with you and you must sign the MG-2 form to request a hearing so that a Judge can decide the issue.

Our office does not become involved in the process until there is a denial. In situations (1) and (2), the Board will either schedule a hearing or issue a Proposed Decision responding to the insurance company’s objection to the medical bill, and we will review the Proposed Decision or attend the hearing as indicated.

In situation (3), if we receive a copy of the variance denial (which does not always occur), we will review it. The Board will automatically deny a variance request that does not meet its requirements, which are that the doctor must show why you need treatment not covered by the Guidelines. If we feel that your doctor’s variance request is inadequate, we will write to your doctor to try to get a better request filed. If the variance request appears adequate, then we will execute it for you and file it, requesting a hearing or a decision by the Board’s Medical Director.

Obviously we cannot guarantee that the Board will decide in your favor on any particular medical dispute, and your chances of success depend largely on the quality of your medical reports and your doctor’s willingness to testify on your behalf.