There can be many reasons why a work-related medical disability claim is denied by the New York State Workers’ Compensation Board, but there are a few common reasons why denial is provided. These include a finding that the injury was not caused by the type of work involved, it did not take place during normal working hours, or it did not rise to the standard set for disability.
People who work in physically demanding jobs (i.e., construction workers, delivery drivers, mechanics, electricians, carpenters, landscapers, etc.) are particularly prone to injuries, some of which can be debilitating. Back injuries, shoulder strains and joint damage are commonplace. Yet, it can be very difficult for an employee to prove that their injury is work related because a direct causal link needs to be established.
For instance, an auto parts store employee is stacking tires in the back when his back gives out. The employee has been working at the store for 10 years without so much as a twinge before the injury takes place. The doctor finds a bulging disc in the employee’s back during a CT scan, which sidelines the employee for several weeks. The employee applies for medical disability, but his claim is denied because he is unable to prove the bulging disc was directly related to his work. His employer’s insurance company claims he may have had a pre-existing condition that made him susceptible to such an injury.
The pre-existing condition defense is a common argument in medical disability claims. Unless the injury was due to an on-the-job accident, it is nearly impossible to achieve a consensus relating to the injury’s origin. The employee’s doctor may believe the injury was sustained through repetitious motion throughout the workday over many years, but an independent medical expert can point to lifestyle choices (i.e., lack of additional physical activity, overeating, etc.) as a factor.
There is also the question of whether the injury is, in fact, debilitating. Employees will argue that the daily pain they endure as a result of their injuries prevents them from performing their tasks as they had successfully done in the past. However, a medical expert may counter that argument by stating the injury itself is not a disability. For example, someone who develops tennis elbow from repetitious motion over years of working at a beer distribution center might claim it prevents them from doing their job. However, since tennis elbow is treatable through medication and physical therapy, a doctor or an examiner could conclude that, though limiting, it does not rise to the level of disability.
Then, there is the timing issue. Employees who are injured while arriving or leaving their work sites have attempted to claim workers’ compensation, only to be rejected by the state Workers’ Compensation Board and/or the courts. Likewise, for workers who have been injured during lunch breaks and have filed claims, the vast majority of those are rejected. In these instances, the prevailing argument is that the injury did not take place on site during the employee’s stated working hours. Therefore, it is not a work-related injury.
So, how can attorneys help their clients overcome these arguments and win their disability appeals? It comes down to gathering the right documentation from the client to counter what the employer and/or insurer are stating, and establishing the narrative of the job causing the injury.
In order to prove an injury is debilitating, there has to be indisputable medical evidence that the employee’s condition is so severe that they are unable perform the basic tasks of their job. X-rays, CT scans and MRIs can provide conclusive proof of the injury’s existence and its severity, as well as its progress over a period of weeks, months or years. Tying the injury to the employee’s job makes it a worker’s compensation case.
Even when there is indisputable medical proof of a medical condition, an employer can take issue with the narrative. In the Matter of Robert Manocchio v. ABB Combustion Engineering, 150 A.D.3d 1343 (2017), Manocchio had been diagnosed in May 1999 with pleural plaque consistent with exposure to asbestos after it turned up in a chest X-ray. Manocchio had been a boilermaker at various companies for more than 30 years—a fact his company used to suggest that his previous work could have also contributed to his condition, and those companies should share in paying worker’s compensation. However, Manocchio had received a previous chest X-ray in 1992 that did not show the presence of pleural plaque, and there was no evidence that he experienced symptoms until he was diagnosed in 1999. Both the Workers’ Compensation Board and the state Supreme Court’s Appellate Division ruled that ABB Combustion Engineering was solely responsible for paying Manocchio worker’s compensation.
That Manocchio won his initial appeal and subsequent appeals by ABB Combustion Engineering shows the power that conclusive medical evidence has in these matters. However, it doesn’t always ensure a claimant gets the benefits he or she is seeking.
In the matter of James Curcio v. Sherwood 370 Management, 147 A.D.3d 1186 (2017), a building engineer sustained work-related injuries to his back and neck, and the Workers’ Compensation Judge ruled that the injuries were severe enough to constitute a permanent total disability classification. However, the full Workers’ Compensation Board ruled, on administrative appeal, that Curcio only had a permanent partial disability and a loss of wage-earning capacity of 90 percent.
Curcio filed an appeal in State Supreme Court in 2017. At trial, Curcio’s doctor said Curcio was permanently, totally disabled, but the claimant was also able to take care of himself and drive himself to medical appointments. An independent medical examiner additionally testified that Curcio could work at a desk job with his injury, as long as he changed sitting positions frequently. Therefore, the court upheld the Board’s adjusted ruling.
Here, we see an example of how clear medical evidence doesn’t always work in the claimant’s favor. Though it was obvious to the Workers’ Compensation Board that Curcio’s back and neck injuries prohibited him from continuing to work as a building engineer—a position he held for 27 years—it did not meet the standard for permanent total disability because he could still take care of himself and work in a different capacity.
It should be noted that there is a subtle but important financial distinction between permanent total disability and permanent partial disability. If the Workers’ Compensation Judge’s ruling had been sustained, Curcio would have received worker’s compensation benefits through the rest of his life. Because the Board adjusted the decision to a permanent partial disability, his worker’s compensation payments were capped at 500 weeks. The number of weeks depends on the percentage of loss of wage-earning capacity assigned by the Workers’ Compensation Board. For example, someone with a loss of wage-earning capacity of 75 percent would get more weeks of worker’s compensation than someone with a loss of wage-earning capacity of 50 percent.
Ultimately, painting the clearest medical picture possible and creating a narrative that establishes the job as the cause of the injury will go a long way towards granting worker’s compensation on appeal. Attorneys should encourage their clients to maintain an up-to-date personal medical file to document the injury’s origin and progression.
Robert J. Rock is the managing partner of Tully Rinckey PLLC in Albany.