A New York State Supreme Court, Appellate Division, Third Department decision recently came out reversing a Workers’ Compensation Board (“WCB”) Decision based on the fact that Dr. David Capiola did not review all of the claimant’s medical records, his medical opinion did not comply with the Workers’ Compensation Guidelines, and his medical findings were inconsistent with Plaintiff’s complaints of pain and physical abilities. See Matter of Ippolito v. NYC Transit Auth., 2022 NY Slip Op 01493 (App. Div.)
In this case, the self-insured employer was precluded from producing an independent medical examination (“IME”), so the only permanency opinion was from the claimant’s treating physician, Dr. Capiola. Id. at 2. Following Dr. Capiola’s deposition, the employer filed a written summation challenging Dr. Capiola’s permanency report, arguing that the finding of permanency was premature as the claimant did not exhaust conservative treatment, the doctor did not review all of the claimant's medical records, the schedule loss of use (“SLU”) opinion did not comply with the 2018 Workers' Compensation Guidelines (“Guidelines”) and the medical findings were inconsistent with the claimant's complaints of pain and physical abilities. Id. The Workers' Compensation Law Judge (“WCLJ”) found that the claimant had reached maximum medical improvement and was entitled to lump-sum awards based upon Dr. Capiola’s SLU opinions, with the exception of each hand, which the WCLJ reduced to 10% based on the special considerations set forth in the Guidelines as well as the mild limitations in claimant's range of motion. Id. Upon administrative review, the WCB affirmed, which led to this Third Department appeal in which the employer contended that the WCB “erred in not addressing the issues raised in its application for administrative review,” which the Third Department agreed with. Id.
The Third Department found that the decisions of the WCB and WCLJ did not address the substantive issues raised by the employer. Id. at 3. The Third Department reasoned that, “[a]lthough there was no opposing medical opinion and the Board ‘may not reject an uncontradicted opinion that is properly rendered,’ the issues raised by the employer in its application for review challenged the propriety and reliability of Capiola's permanency findings.” Id. (quoting Matter of Taylor v Buffalo Psychiatric Ctr., 199 AD3d 1110, 1112 [2021]). The Third Department further explained that the WCB’s failure to address the claims raised by the employer deprived the employer of the opportunity to have the WCB consider the merits of issues that were properly preserved. As such, the matter was remitted to the WCB for resolution of those issues.
This decision stresses the importance of continuing to fight medical opinions when you have lost the ability to obtain your own. However, confronting claimant’s doctors’ range of motion findings, reported physical abilities, and exhausted treatment courses opinions with the Guidelines is a tool that carriers and self-insured employers should utilize in defending workers’ compensation claims whether or not they have an IME. Furthermore, this decision solidifies the importance in raising and maintaining these issues at hearings and preserving your right to appeal WCLJ and WCB decisions.