Issue In determining the Schedule Loss of Use (SLU) percentage applicable to a shoulder injury, whether it is appropriate to assign separate loss of use values for deficits in anterior flexion and abduction or if this is duplicative and results in an inflated SLU percentage.
Facts of Case Claimant was a Correctional Officer who injured himself while working in July 2013. The claim was established for a right shoulder injury. At permanency, the claimant’s treating physician opined claimant had 90% SLU of the right arm while an IME opined the claimant had 50% SLU of the right arm. Following litigation of the issue, the law judge credited the IME opinion over that of the treating physician and found claimant to have 50% SLU of the right arm. The Workers’ Compensation Board affirmed the Law Judge’s finding and the claimant appealed to the Third Department.
Decisions of a Workers’ Compensation Judge are appealable directly to the New Jersey Appellate Court. An appeal of the Workers’ Compensation Judge’s opinion must be made within 45 days of the entry of the final order. How does the appeals court rule where there was a disagreement between the doctors who testified in the workers’ compensation case?
The Scope of Review.
The scope of review by the Appellate Division is “the same as that on appeal in any non-jury case, that is, whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.” Close v. Kordulak Bros., 44 N.J. 589, 599 (1965), quoting State v. Johnson, 42 N.J. 146, 162 (1964).
Two attorneys cover the fundamentals of appeals from Board decisions. Presenters Declan Gourley and Joseph Melchionne have years of experience representing employers and carriers before the Board. The presentation is designed to help the attendee answer the following questions:
“Should we appeal the Law Judge’s Decision in a workers’ compensation claim?” and
“Does filing the appeal create a stay?” and
“What are the tactical reasons for appealing the Law Judge?”
“What will the appeal cost?”
At the end of the presentation, the attendees will have a basic understanding of the appeals process, tactical aspects of appeals (stays), and the costs of the various types of appeals available.
Appeals from workers’ compensation courts are directly to the New Jersey Superior Court Appellate Division. R. 2:2-3. The standard for review of a decision of a Judge of Compensation in most instances is governed by Close v. Kordulak Bros., 44 N.J. 589 (1965). In Kordulak, the Supreme Court held that the standard of review for decision rendered by the Division of Workers’ Compensation is:
whether the findings made could reaosnable have been reached on sufficient credible evidence present int he record, considering the proofs as whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and with due regard also to the agency’s expertise where such expertise is a pertinent factor.”
The New York Workers’ Compensation Board has adopted new regulations for Administrative Review, Full Board Review, and Applications for Reconsideration. The new regulations affect all appeals at the Board level.
The regulations were detailed in a Board Bulletin issued last week. The new regulations affect the format of the appeal briefs, page length of the appeal briefs, methods of filing your appeal with the Board, and reasons for Board denial of a request for review.
The Board has again modified the cover pages that must be used when filing an appeal, a rebuttal, or a request for full Board review. The new forms are available directly on the Board website; Application For Board Review (Form RB-89) and Rebuttal of Application for Board Review (Form RB-89.1). After December 1, 2016, the Board will only accept the modified forms. The Board has made it clear that appeals and rebuttals submitted on the old forms after December 1, 2016 will not be reviewed.
The new regulations limit the page length of an appeal brief. According to the Bulletin:
The Board may deny applications when the brief exceeds eight pages, unless the appellant specifies in writing why the legal argument could not have been made within the eight-page limit. In those cases, the brief can be no longer than 15 pages.
The modified cover pages (RB-89, RB-89.1), specify the criteria for margin and font size for legal briefs.
The full text of the new §300.13 can be found here.
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Any final determination of law can be appealed. The requirements for the appeal process in the New York Workers’ Compensation system are found in N.Y. Work. Comp. Law § 23. A party that disagrees with a law judge’s decision under the law can request a review of the decision, if the appeal is timely filed on the proper form within 30 days of the filing of the decision being appealed. Orders of the Chair are not appealable but if a party believes there is an error, a party may request the Board to rescind the Order of the Chair.
Application for Board Review
The first level of appeal is known as an “Application for Board Review.” This appeal is made when a party disagrees with a decision at the hearing level (Notice of Decision or Reserved Decision).
This is an administrative appeal and the appeal is considered by a three member Panel of the Board. The appeal must be filed with the Board within 30 days of the filing date of the decision. The party defending the appeal (respondent) has 30 days to file a rebuttal from the date the appeal is filed with the Board. 12 NYCRR 300.13(b).
An appeal from an award to the Board operates as a stay of the obligation to make payment for disputed indemnity benefits and/or medical bills. N.Y. Work. Comp. Law § 25(c).