Battle of the Forms: NY Board Abuses Discretion in Failing to Reopen Claim
Where there was a clear discrepancy between the schedule loss of use (SLU) percentage indicated on the face of a surgeon’s C-4.3 form (Doctor’s Report of Maximum Medical Improvement/Permanent Impairment) and that specified in the surgeon’s narrative report, which was attached to and referenced within the form, and where the New York Workers’ Compensation Board entered a permanency order based upon the much lower SLU percentage contained in the form, ignoring the surgeon’s narrative, the Board should have allowed the injured worker subsequently to reopen the case in the interest of justice and its failure to do so was an abuse of discretion, held a state appellate court in Matter of Taylor v. Buffalo Psychiatric Ctr., 2021 N.Y. App. Div. LEXIS 6049 (3d Dept. Nov. 4, 2021).
Background
Claimant sought workers’ compensation benefits after injuring her shoulder in a work-related accident during December 2014. The injury resulted in, among other things, rotator cuff repair and distal clavicle excision surgery. When she reached MMI, claimant’s orthopedic surgeon filed a C-4.3 form, as well as an attached medical narrative setting forth his findings and relevant diagnostic test results. The C-4.3 form indicated that claimant sustained a 15 percent SLU of the left shoulder; however, the medical narrative opined that claimant sustained a 35 percent SLU of the left shoulder—attributing 15 percent to the rotator cuff tear, 10 percent to the distal clavicle excision, and 10 percent to mild loss of internal and external rotation.
The Board notified the unrepresented claimant and the carrier that it intended to enter a 15 percent SLU award based upon the surgeon’s medical report. The carrier responded, stating that it accepted the opinion of the orthopedic surgeon and that it would not be scheduling an IME. Thereafter, the Board filed a proposed decision finding, among other things, that claimant sustained a 15 percent SLU of her left arm, noting that any objection to the findings should be filed before June 9, 2016, otherwise the proposed decision would become final. Neither the unrepresented claimant, nor the employer or carrier filed any objections.
Second Injury to Left Shoulder
In September 2016, claimant sustained another workplace injury to her left shoulder, for which she filed a second workers’ compensation claim. This time, however, she obtained counsel. While reviewing the medical records, claimant’s counsel discovered the discrepancy in the SLU percentage between the C-4.3 form and the medical narrative pertaining to prior injury. Claimant thereafter filed an application for a rehearing or reopening of the May 5, 2016 proposed decision, asserting that she was unaware of the findings made by the orthopedic surgeon as she relied on the information provided by the Board and that, in the interest of justice, the Board’s decision should be modified to reflect a 35 percent SLU resulting from the December 17, 2014 work-related accident. The Board denied the application and claimant appealed.
Appellate Court Decision
The appellate court reversed. Acknowledging that the decision to grant or deny an application for reopening or rehearing in the interest of justice was a matter left to the Board’s discretion and that the appellate court’s review of that decision was limited to whether there was an abuse of that discretion, the court indicated that here, such discretion had in fact been abused.
The court stressed that the C-4.3 form had directed the parties (and the Board) to the fact that a medical narrative was attached. As indicated above, the substance of the attached medical narrative clearly set forth in detail that claimant sustained a 35 percent SLU of the left shoulder, not 15 percent. The court added that the carrier, who received the medical narrative along with the C-4.3 form, specifically accepted the medical opinion without objection. The court added that while the Board was free to reject the opinion of an expert where it found such to be unconvincing or incredible, it may not reject an uncontradicted opinion that is properly rendered.
The court concluded that because the only medical opinion before the Board clearly reflected that claimant suffered a 35 percent SLU of the left shoulder, the Board’s denial of the application to reopen the claim to modify the decision in the interest of justice was an abuse of discretion. The court added that it was unpersuaded that the carrier, who received the medical narrative and specifically waived any further evaluation of claimant, was prejudiced under the circumstances.