In a Board panel decision decided September 12, 2013, the Board clearly delineates the grounds for scheduling a hearing on a “re-opener” case.
What is a Reopener case?
A re-opener case is one where PD has been set by prior deciion, and the carrier is attempting to have the old deciion re-opened to discontinue or reduce benefits. The most common example is where the claimant is refusing to respond to ongoing work-search information requests, or where the claimant is not responding to “alive-and-well” checks.
The carrier/employer has the burden of presenting a triable issue of fact that something other than the permanent partial disability is the reason for the post-classification loss of wage earning capacity.
When will the Board allow a hearing on Re-opener?
Some communications from the employer/carrier, if not responded by the claimant, will be deemed sufficient to “give rise to a triable issue of fact” and have the case set down for a hearing:
- an employer’s offer of light duty work;
- an offer for retraining assistance;
- an offer of job search assistanceby a firm in the business of providing such services;
- Evidence of claimant’s retirement from all employment; or
- change in the claimant’s physical (medical) condition.
An unemployed claimant’s failure to respond to such offers, or an unexplained rejection of such offrs, raises an issue of fact that something other than the claimant’s disability may be the reason for the continued loss of wages. Matter of Eastern Suffolk BOCES, 113 NYWCLR 170 (September 12, 2013). Any offer of light duty work, retraining, job placement assistance, etc., must be copied to claimant’s representative. Matter of Rochester Business Alliance, 2011 NY Work Comp 70511177. If the Request for Further Action seeking re-opener does not incude evidence that claimant’s attorney was copied on the correspondence to the claimant, the evidence will be deemed inadmissible. Matter of Eastern Suffolk BOCES, 113 NYWCLR 170 (September 12, 2013).
What will not be considered sufficient grounds to request a re-opening?
In this case, the Board found that failure to respond to an “alive-and-well” check does not provide sufficient grounds to list the case for a hearing.
Case: Matter of Eastern Suffolk BOCES, 113 NYWCLR 170 (September 12, 2013). [Note: this decision is not yet published outside of the New York Workers’ Compensation Law Reporter (NYWCLR), which is a paid subscription and not linkable.]