Hamberger & Weiss LLP

Court Affirms Board Refusal to Reopen PPD Case But Rescinds Penalty Assessed Against Carrier

In Andrews v. Combined Life Insurance, decided 1/19/17, the Appellate Division affirmed the Board’s denial of a carrier’s application to reopen a claimant’s permanent partial disability claim to address attachment to the labor market where the claimant failed to respond to inquiries about his efforts to find employment and rejected the carrier’s offer of a vocational assessment.

Where the Board denies a reopening, the standard of review of that decision at the Appellate Division is not one of “substantial evidence” but whether the Board abused its discretion in denying the reopening. The Board has stated in many prior Board Panel decisions that a claimant’s rejection of job search assistance or rehabilitative services could be sufficient to reopen a previously closed permanent partial disability claim.

Relying on these prior decisions, the carrier in Andrews thought that its offer to the claimant of a vocational rehabilitation assessment and the claimant’s refusal to accept that offer was sufficient evidence upon which to request a reopening. The Board disagreed, noting that the carrier’s offer of a vocational assessment which “may” result in the development of a vocational plan and “may include” counseling, job training, and assistance in returning to work was not actually an offer of job search assistance or rehabilitative services sufficient to meet the Board standard. Adding insult to injury, the Board assessed the carrier a $500 penalty under WCL §114-a(3) for requesting the reopening.

The Appellate Division affirmed the Board’s decision denying reopening—finding no abuse of discretion—but rescinded the penalty, agreeing with the carrier’s position that the Board is obligated to assess the evidence submitted and may not assess a penalty merely because it decides that the evidence is insufficient.

The Court’s decision may be legally correct in finding no abuse of discretion but it ignores the underlying fact that the claimant had no interest in even talking to someone about the possibility of returning to the labor market. We question how the courts can continue to insist that partially disabled claimants maintain an attachment to the labor market while at the same time allowing the Board to set an overly high burden for carriers to meet in requesting reopening of cases to review whether claimants are meeting their obligations to maintain that attachment.

In light of Andrews, we would recommend that carriers and their vocational rehabilitation vendors carefully review their correspondence to claimants to make sure, where applicable, that there is a clear offer of vocational assistance should the carrier wish to rely on that correspondence and a claimant’s response to same in requesting a reopening of a closed PPD case.

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