O'Flaherty v. MRZ Trucking Corp.

• Decision Date: 13 May 2021
• Docket Number: 530257
• Citation: 148 N.Y.S.3d 282,194 A.D.3d 1205
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of the Claim of James O'FLAHERTY, Appellant, v. MRZ TRUCKING CORP. et al., Respondents. Workers' Compensation Board, Respondent.

194 A.D.3d 1205

148 N.Y.S.3d 282

In the Matter of the Claim of James O'FLAHERTY, Appellant,

v. MRZ TRUCKING CORP. et al., Respondents.Workers' Compensation Board, Respondent.

530257

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 21, 2021

Decided and Entered: May 13, 2021

Grey & Grey, LLP, Farmingdale (Brian P. O'Keefe of counsel), for appellant.

Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe of counsel), for MRZ Trucking Corp. and another, respondents.

Before: Lynch, J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J.P. Appeal from a decision of the Workers' Compensation Board, filed March 27, 2019, which, among other things, reduced claimant's earnings award to the permanent partial disability rate for the period October 6, 2016 to June 26, 2018.

Claimant, a tractor trailer driver, has an established claim for a work-related injury to his back sustained in 2010 for which medical care was authorized and benefits were awarded. In 2014, a Workers' Compensation Law Judge (hereinafter WCLJ) classified claimant as having a permanent partial disability with an 81% loss of wage-earning capacity. The employer's workers' compensation carrier was directed to continue payments at the rate of $600 per week, and claimant was instructed to disclose any change in his work status or degree of impairment. By decision filed April 3, 2015, the Workers' Compensation Board modified the WCLJ's decision, finding that claimant had sustained a 30% loss of wage-earning capacity and directing the carrier to continue payments at the rate of $252.68 per week. Claimant's subsequent application for reconsideration and/or full Board review was denied. In the interim, claimant underwent spinal fusion surgery on October 1, 2015.

Claimant subsequently filed a request for further action alleging a change in his medical condition as the result of his surgery – specifically, that he had sustained a 100% temporary total disability. Following a hearing, a WCLJ directed the carrier to make payments at the permanent partial disability rate ($252.68) up to the date of claimant's surgery and to thereafter continue payments at the rate of $600 per week. Although the WCLJ's written decision did not expressly reclassify claimant's disability as temporary, a review of the hearing minutes reflects that payments made after the date of claimant's surgery were at the temporary total disability rate.

At the carrier's request, claimant underwent an independent medical examination (hereinafter IME) in February 2016, at which time the examining physician concluded that claimant was suffering from a marked (75%) temporary partial disability. Throughout 2016, claimant's treating physician continued to assess claimant's condition as unchanged, i.e., 100% temporarily totally disabled. Claimant was reevaluated by the carrier's medical examiner on October 6, 2016, who was of the view that claimant had not yet reached permanency as there were ongoing issues regarding fusion stability and further imaging studies were planned, and the carrier was directed to continue payments at the $600 "tentative rate." In April 2017, the carrier's examiner again concluded that claimant had neither reached maximum medical improvement nor achieved permanency and opined that claimant had "a marked partial temporary disability."

In January 2018, claimant underwent another IME by a different provider, who opined that, despite the need for ongoing treatment, claimant had reached maximum medical improvement and classified claimant as having a permanent partial disability of the lumbar spine (class 4, severity I). As a result, claimant was directed to produce medical evidence of permanency, and the matter was continued. Claimant failed to produce the required documentation and, following a hearing held in June 2018, a WCLJ, among other things, classified claimant as permanently partially disabled effective January 19, 2018 (the date of the most recent IME), awarded benefits at the rate of $600 per week payable for claimant's "[t]emporary partial disability" from October 6, 2016 to January 19, 2018 and found that claimant had sustained an 81% loss of wage-earning capacity. Notably, during the course of the hearing, counsel for the employer and its workers' compensation carrier (hereinafter collectively referred to as the carrier) objected only to the percentage loss of wage-earning capacity assessed. The carrier adopted a similar stance in the context of its administrative appeal of the WCLJ's decision – again arguing only that the WCLJ incorrectly concluded that claimant had sustained an 81% loss of wage-earning capacity.

Upon reviewing the record, the Board found that claimant's loss of wage-earning capacity was 75%, ruled that the effective date of claimant's reclassification was June 25, 2018 (the date of the WCLJ's decision, not the date of the most recent IME) and, on its own motion and without explanation, modified the award made from October 6, 2016 to June 25, 2018 by providing that such payments were to be made at the permanent partial disability rate of $252.68 rather than at the $600 rate previously awarded. This appeal by claimant ensued.¹

There is no question that "the Board has continuing power and jurisdiction over each claim, and it may in its discretion modify or change an award ‘as in its opinion may be just’ " ( Matter of Jones v. Burrell Orchards, Inc., 184 A.D.3d 919, 921, 125 N.Y.S.3d 496 [2020], quoting Workers' Compensation Law § 123 ) – subject to the time limitations applicable to closed cases (see Matter of King v. City of N.Y. Parks & Recreation, 191 A.D.3d 1048, 1050, 142 N.Y.S.3d 119 [2021] ). Additionally, consistent with the provisions of Workers' Compensation Law § 22, the Board may, "upon its own motion or upon the application of any party in interest, on the ground of a change in conditions, ... review any award, decision or order and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded" ( Matter of Hale v....