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Rare Split Decision from Appellate Division in LWEC Case

On 3/30/17, the Appellate Division, Third Department, in a split decision with a 3-2 majority, decided Burgos v. Citywide Central Insurance Program, et. al., affirming a Board decision finding the claimant to have a permanent partial disability with an 85% loss of wage earning capacity. The claimant wanted classification with a permanent total disability, based on the opinion of her treating physician, who opined that she suffered a total disability due to difficulty with prolonged walking, standing, and sitting, an inability to lift anything, and difficulties with transportation and personal hygiene. Moreover, the treating physician opined on a C-4.3 form that the claimant had an exertional ability of performing "less than sedentary work."

The Court cited the rule that a permanent total disability is appropriate "where the medical proof shows a claimant is totally disabled and unable to engage in any gainful employment." Relying on this, it dismissed the claimant's reliance on her physician's opinion that she was capable of only "less than sedentary" work in arguing for a permanent total disability. The Court said that although this fact would be relevant in determining the claimant's loss of wage earning capacity and the durational limit of the claimant's permanent partial disability benefits, it would not be dispositive "in the context of establishing the claimant's overall disability."

The Court's majority ruled that substantial evidence supported the Board's decision of a permanent partial disability, which credited the conclusions of the employer's independent medical examiner, who found the claimant to have few restrictions on work than the treating physician.

The dissenting justices felt that the Board should have found the claimant to have a permanent total disability since it found her to be capable of only "less than sedentary work" and determined that she had the highest medical impairment rating available under the 2012 Guidelines for a low back injury. The dissenting justices opined that such findings invite the question of what gainful employment the claimant could possibly perform with that level of medical impairment and functional loss, noting that the record identified none and that they were unaware of any such employment either. It appears to us that the dissenting justices confuse the concept of total industrial disability with the separate issue of total medical disability. 

Because of the split decision, the claimant will have the opportunity to take an appeal by right the Court of Appeals, the highest court in the State of New York.

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