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New Board Panel Decisions on Post-Classification Awards, Extreme Hardship Redetermination, and Labor Market Attachment after Classification

The Workers’ Compensation Board was busy in early 2019, issuing a few decisions of note relevant to permanent partial disability issues under portions of the 2007 and 2017 reforms. The rulings present significant opportunities for employers and carriers to mitigate liability on some permanent partial disability cases.

First, in Jacobi Medical Center, WCB #00825967 (2/11/19), a Board Panel, at the direction of the Full Board, disavowed the Board’s prior decisions stating that post-classification awards at total don’t count toward the cap on PPD benefits.  The Jacobi Board Panel also, apparently on its own motion, rescinded all total disability awards after the claimant’s post-classification surgery. Instead, it directed awards at the PPD rate, all of which counted against the cap on the claimant’s PPD benefits. Lastly, the Board Panel also said that any requests to reclassify the claimant made after the PPD cap had already expired were untimely and would not be considered.

Next, in Independent Group Home, WCB #G0026199 (2/8/19), a Board Panel denied a claimant’s request for a “extreme hardship” re-determination under WCL §35 (3), noting that although the claimant may be experiencing financial hardship, it was not beyond what was “ordinary, usual, or expected for a retired person living on a fixed income.” The Board Panel also noted that the fact that the claimant’s expenses exceeded her income did not change this analysis. The Board Panel said although the WCL does not define “extreme hardship,” it would apply the dictionary meaning of “extreme,” defined as “existing in a very high degree or exceeding the ordinary, usual, or expected.”

Finally, in VWR International, WCB #G0845023 (1/9/19), the Board ruled that a claimant who was found not entitled to benefits at the time of her classification because she was working and earning wages in excess of her average weekly wage was required to demonstrate labor market attachment before being awarded indemnity benefits. The Board Panel stated that this was a departure from its prior decisions in Dr. John Herman and Catholic Schools of Broome and went so far as to disavow those prior decisions. The Board Panel credited the carrier’s argument that not requiring the claimant to demonstrate labor market attachment would allow claimants to obtain benefits not causally related to their work injuries by simply quitting employment for reasons unrelated to their injuries. Joseph DeCoursey, from our Rochester office, litigated this case and prepared the successful Application for Board Review.

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