This week the 3rd Department released three new cases. Learn more below.
Dexter Morgan v. Kinray, Inc., et al. (4/25/24)
In this case, the 3rd Dept. upheld a decision disallowing an occupational repetitive use claim. The claimant was a warehouse worker who alleged an occupational disease to his neck, back, shoulders, hands, hips, knees, and ankles. The claimant failed to prove a causal connection between his injury “and a distinctive feature of his employment The 3rd Dept. found that there was not enough evidence of the specific details of the job duties. The record did not contain details of the methods, frequency, or repetitiveness with which claimant performed various tasks or lifted heavy items. Testimony by his treating doctor indicated that it was “possible” there was causation but that is not a legally sufficient opinion. That coupled with the treater’s concession that other conditions were not ruled out, was enough to find against the claimant.
Here is also a situation where claimant went too far with the number of body parts. The claimant basically listed every part of his body, and the treating physician admitted that was a “very unusual presentation.”
Annette Bosque v. Prime Support Inc., et al. (4/25/24)
The claimant was awarded benefits on default because the carrier did not file a pre-hearing conference statement (PH-16.2). In this case, the claimant, a home health care worker collapsed, inexplicitly in a patient’s home. She suffered a subarachnoid hemorrhage, TBI, and spinal cord injuries. The only evidence in the record were treatment records and the claimant’s testimony. The carrier took the position that even without a PH-16.2, it was the claimant’s burden in the first instance to prove causation. The Court declined to comment on that position, rather finding that the carrier’s inability vis-à-vis the preclusion, made claimant’s unwitnessed accident unrebutted. Since there is a presumption that the claim is compensable [she was undeniably working at the time], where it cannot or is not rebutted, the claimant will be awarded benefits. This is why it is so critical to get a PH-16.2 filed timely.
Delmi Medina v. American Maintenance Inc., et al. (4/25/24)
The Court found that the claimant did not give timely written notice within 30 days of the accident as the claim was filed one year after the accident. The Board found that the claimant failed to provide a sufficient reason warranting excusal for the delay. The decision did not address whether there was constructive notice because, apparently, the claimant’s counsel did not file a timely notice of appeal to the underlying Board Panel decision. Rather, the notice of appeal was filed only after the Full Board’s denial to review the application for appeal. Therefore, the only substantive argument the claimant was able to make was whether the Board Panel abused their discretion by rejecting the application for appeal where there is no dissenting opinion. That is a burden that is almost never able to be satisfied since the Board Panel does not have to review any application except for new evidence that could not have been available prior to the Board’s decision. The claimant did make an interesting argument that the three members of the Board Panel, were the same members of the Appeals Board who issued the original decision. The claimant argued that was a violation of her due process rights. The 3rd Dept. rejected that argument reciting that the statute does not require a different panel, only that they be made up of 3 members.