Permanent Total Disability? NY Worker’s Comp Case Highlights Need to Review All Criteria
In New York Workers’ Compensation Case No. 00427749, the claimant, a driver, sustained injuries to her back, neck, right shoulder, face, and right thumb when she was rear-ended by a van in 2004. In addition to underscoring the requirements a claimant must meet to be classified with a permanent total disability, the proceedings that ensued in this case provide carriers and employers with an important defense against claimants’ physicians who do not properly investigate the true capabilities and daily lives of claimants.
In this case, differing medical opinions were offered with respect to claimant’s degree of disability and, as a result, the judge directed the depositions of attending providers Dr. Boudreau and Dr. Snow, and carrier’s consultants Dr. Hughes and Dr. De La Chapelle. Dr. Boudreau practiced physical medicine and rehabilitation and had treated the claimant since June 16, 2004. He testified via deposition in January 2010 that he believed the claimant was totally disabled due to stiffness and spasm in the lower back. While the claimant’s ability to function in daily life had improved, she still had problems lifting, bending, and pushing, and the doctor still assessed a total disability, which he believed was permanent. He did not inquire as to how the claimant was transported or how she spent her day. The claimant did not complain of bowel or sexual dysfunction, did not use a cane last time he saw her, and the doctor agreed that the claimant had “definitely” improved with treatment. Dr. Boudreau testified that he based his total disability assessment upon “guidelines,” but did not specify the guidelines to which he was referring.
Dr. Snow, the claimant’s treating psychologist, also testified via deposition in January 2010, stating that the claimant was able to communicate clearly, demonstrated good judgment and insight, made good eye contact, and was alert. As of July 27, 2009, he believed the claimant had made a moderate improvement, but still could not work. The doctor was unsure if the claimant could work a part-time job.
In his July 2009 report following his examination of the claimant, Dr. Hughes, the carrier’s neurosurgical consultant, had found that the claimant had a mild partial disability and could do light-duty work with restrictions of no bending, stooping, or carrying greater than 40 pounds. Dr. Hughes testified via deposition in May 2010.
Dr. De La Chapelle, the carrier’s psychiatric consultant, testified via deposition in March 2010 that he believed the claimant could work full time, but agreed that lack of sleep could be a problem with the claimant being employed as a driver.
In a reserved decision filed May, 26, 2010, the judge amended the case to include a consequential psychiatric disorder and classified the claimant with a permanent partial disability. Less than a month later, the claimant filed an application arguing that the record supports classification with a permanent total, as opposed to a permanent partial, disability.
As a result of the appeal, the Workers’ Compensation Board Panel modified the judge’s decision to classify the claimant with a permanent total disability. All the judges did not concur, and Mandatory Full Board Review was taken.
The New York State Workers’ Compensation Board Medical Guidelines of 1996 provide specific criteria which support a finding of a permanent total disability with respect to the back and neck:
- use of an assistive device to ambulate, such as a walker, crutches, and/or wheelchair of more than two years’ duration
- the need for assistance to undress or disrobe and the inability to get up to the examination table without assistance
- the need for assistance to perform the activities of daily living such as self-care, personal hygiene, and transportation
- severe neurological deficit, such as marked muscle weakness, paraplegia, and paraparesis
- disturbance of bladder, bowel, and/or sexual function
A review of the record demonstrated that none of these factors were present in this case. Based on this review, the Full Board found the claimant had a marked permanent partial disability, rather than a permanent total disability, reversing the previous Board decision.
So often in workers’ compensation cases, a claimant’s physician will submit and testify to a total disability on behalf of the claimant — but, when faced with the specific criteria enumerated above, they often must concede that a claimant does not have a total disability.
This decision supports the idea that is unacceptable for a doctor to testify to a total disability with having absolutely no knowledge of how claimants spend their day. This decision supports a finding of a total disability in circumstances where it is warranted and should be relied on when pursuing a finding that a claimant presents with less than a total disability.
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- Or another member of Goldberg Segalla’s Labor and Employment Practice Group