Court: Appellate Division of the Supreme Court of the State of New York; April 10, 2014; New York; State Appellate Court
An appeal was made regarding a decision by the Workers’ Compensation Board from May 30, 2012, which denied a schedule loss of use award to the claimant, a painter injured in June 2008 while lifting a heavy object. Initially, the claim was established for back and left knee injuries, and benefits were awarded until the claimant's death from unrelated causes in July 2009. After his death, the claimant's attorney sought to amend the claim to include neck and right shoulder injuries, supported by a report from the treating physician, Emmanuel Lambrakis, who indicated a 60% schedule loss of use for both the right shoulder and left knee. In March 2010, a Workers’ Compensation Law Judge (WCLJ) granted a posthumous award to the claimant's widow based on this report.
However, the workers’ compensation carrier appealed, leading the Board to rescind the award without prejudice and require Lambrakis to be deposed for cross-examination. When the carrier did not pursue this deposition, the WCLJ reinstated the award, which was again contested by the carrier on the grounds that it lacked substantial evidence. The Board found Lambrakis's report insufficient, lacking specific guidelines or clinical findings to support the award.
The appeal affirmed the Board's decision, noting that whether a condition warrants a schedule loss award or continuing disability benefits is a factual question for the Board, upheld if supported by substantial evidence. The ruling emphasized that a schedule loss of use award is appropriate when there is no ongoing medical treatment needed and the condition is stable, while continuing benefits are warranted in cases of ongoing pain or unsettled medical conditions. Evidence indicated that the claimant reported severe knee pain and required physical therapy until shortly before his death, and Lambrakis suggested that surgical intervention would have been necessary if the claimant had survived. Therefore, the Board's conclusion that the claimant had not reached maximum medical improvement and still required treatment was supported by substantial evidence, justifying the denial of the schedule loss of use award.
The Court has established that while the Board cannot create its own expert medical opinions, it is permitted to reject medical evidence as incredible or insufficient even without opposing proof. In the case at hand, the Board found that Lambrakis’s assertion regarding a schedule loss of use award was conclusory and lacked specific clinical criteria, failing to align with the Board's guidelines or findings from clinical evaluations. Consequently, there was no basis to overturn the Board's determination that the medical evidence was inadequate for such an award. Other arguments presented by the claimant were reviewed and deemed meritless. The decision was affirmed without costs. The Board indicated that a formal substitution order should be made by the claimant’s surviving spouse, but this order was not present in the record. Typically, the absence of a legal representative could affect jurisdiction, yet the carrier did not raise this concern, and since the spouse participated in the proceedings, the Court has waived this jurisdictional issue.
