A “closed” PPD case can be reopened, and the prior award can be increased or decreased. In recent decisions, the Board has signaled that prior PPDs can be reopened if there is evidence of a lack of attachment, and there is new guidance on how that can be done.
How can we use this to reopen old PPDs and posture for §32 closure?
We will use the terms “reopening” or “rehearing” interchangeably with “modification.” The relevant Statutes and Regulations use these terms without distinction, and so will we. (See §§ 22, 123, 142 and 12 N.Y.C.R.R. 300.14, 12 N.Y.C.R.R. 300.23)
The reader should be aware that not all sources of law are equal: The Statutes, Regulations, and decisions of the Court of Appeals are granted the most deference, and then the rulings of the Appellate Division (3rd Department). Less reliable are the decisions of the Full Board. Least reliable and the worst source of guidance: published decisions of the Board, and any reserved decisions issued by a workers’ compensation law judge.
The Law of Reopening.
The Law Provides for Modification of Prior Awards.
A “closed” PPD case can be reopened. Workers’ Compensation Law § 22 states:
Upon its own motion or the application of any party in interest, on the ground of a change in condition or proof of erroneous wage rate, the board may [subject to limitations] review any award, decision or order and, on such review, make an award ending, diminishing, or increasing the compensation previously awarded.
Under the relevant section, the review will not affect moneys already paid, but if the revised award increases the rate, then it may be made effective from the date of injury. If the award decreases the rate, the payments already made in excess of the revised rate are deducted from the unpaid compensation.
A partially disabled claimant must seek work within their restrictions, and the Judge of Compensation does not have to presume that the partial disability is the cause of the reduced earnings.
There is also reference in §142 (“General Powers and Duties of the Workmen’s Compensation Board”) stating that the Board “shall have power . . . to modify or rescind awards.”
There is a Time Limit on Modification.
As per §123, the Board has continuing jurisdiction over a closed PPD case. There are two different statutes of limitation that apply, depending on how the case was closed.
“No payments made” situation: According to the first half of §123 if the case was closed “on the merits” (meaning after trial or hearing and for cause shown) it can be reopened within seven (7) years from the date of injury or death. If the case was “otherwise disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits.” In that case, a closed case can be reopened within seven (7) years from the date of injury or death.
If an award was made: the application to reopen must be filed within 18 years of the date of injury and eight (8) years of the date of the last payment of compensation.
How a claimant gets a rehearing – medical change.
As per 12 N.Y.C.R.R. 300.14 (“Application of Rehearing”) any party in interest may make a request for rehearing or reopening.
The Application must state that a rehearing is necessary because:
- Material evidence was not available at the time of the hearing;
- Material proof of a change in condition; or
- It would be in the interest of justice.
A “change in condition” must be in the form of a verified medical report – signed by a treating physician. This report must come from after the case was closed and contain “objective” medical findings.
The Board has promulgated two forms (Form C-25 & Form C-27 for use by a claimant in asking for modification of an old claim. Form C-27 is to be used when the request for modification is made within seven (7) years from the date of injury or death. Form C-25 is to be used when more than seven years has elapsed. These forms require that a doctor’s report be filed at the same time.
If the Board grants a rehearing, the case will be returned to the trial calendar.
How the employer gets a rehearing – Request for Further Action to Suspend or reduce compensation benefits.
An employer/carrier seeking to suspend or modify benefits where the Board has made an award for permanent partial disability, the following steps must take place:
- An application must be made;
- Accompanied by supporting evidence;
- along with filed proof of service on the claimant, his representative, and his doctor; and
- the Board has ruled on the application (i.e., following a hearing). See 12 N.Y.C.R.R. 300.23(c)(1).
There is no “self-help” – the stopping of ordered benefits without court intervention -unless one of the following two conditions are met (1) where supporting evidence demonstrating proof of incarceration upon conviction for a felony; or (2) when the claimant has reached the maximum number of weeks under WCL §15(3)(w). See 12 N.Y.C.R.R. 300.23(c)(2).
The Voluntary withdrawal defense.
Under the New York Workers’ Compensation Law, a claimant who has voluntarily withdrawn from the labor market is not entitled to receive workers’ compensation benefits. The burden of proof of this defense falls upon the employer. For example, if an employer can show that the claimant retired from the workforce, the claim for compensation can be defeated. However, the WCB can find that the claimant’s retirement was not entirely voluntary if the retirement was caused by the injury; in that case the employer will have to pay compensation.
In order to demonstrate attachment to the labor market, the claimant must show:
- the many places they have looked for work within their restrictions AND
- provide documented evidence of active participation in at least one NYSDOL re-employment service.
“Active Participation” is defined in the case law as
- calling for an appointment at OneStop or VESID;
- attending an orientation session;
- meeting with a One-Stop counselor to develop a resume;
- registering a resume in the One-Stop system;
- following up to determine whether there were any job matches; and
- following up on all job referrals and matches.
The case law instructs that merely signing up for VESID is insufficient; the injured worker must also follow through with all of the additional steps in order to receive Workers’ Compensation benefits.
If the claimant is not working: Zamora.
In Zamora v. New York Neurologic Associates, 19 N.Y.3d 186 (2012) New York’s highest court (“The Court of Appeals”) decided that a claimant must look for “alternative work consistent with his or her physical limitations, or at least show reasonable efforts at finding such work” to “prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again.”
In reaching its decision on this question, the Board will, of course, consider the circumstances under which claimant originally stopped full-duty work. “If the Board determines that a workers’ compensation claimant has a permanent partial disability and that the claimant retired from his or her job due to that disability, an inference that his or her reduced future earnings resulted from the disability may be drawn.”
However, the Court of Appeals went on to instruct that the inference may be drawn that the inability to find a job is caused by the disability – but that inference is not a presumption.
Reopening a PPD.
Refusing a light duty job within their doctor’s restrictions.
Any material evidence of the claimant’s failure to accept a light duty job within restrictions will be sufficient to support an application to reopen a “closed” permanent partial disability claim.
Evidence of retirement.
Voluntary retirement can form the basis for an application to reopen. Of course, savvy claimants will resign or retire after submitting a letter citing their “inability to continue on” and reference their work injury as the motivating factor.
In one recent case, Matter of Syracuse Pool & Patio, 112 N.Y.W.C.L.R 169 (Full Board, Decided June 12, 2012), claimant testified he made no effort to search for employment within his restrictions after March 2007 because he was applying for social security disability benefits. Even after the claimant was awarded social security disability benefits, the Social Security Administration provided him a back-to-work ticket in August 2007 which would allow him to go to VESID for retraining purposes; however, he did not taken advantage of this opportunity. The Board found he was not attached.
Refusing to cooperate by applying for identified jobs.
In a decision filed March 7, 2013, a Full Board reviewed whether the carrier presented sufficient evidence to warrant the reopening of a claim on the issue of voluntary removal from the labor market. See Matter of Siding Restoration of CNY, WCB Case # 69517433, decided March 7, 2013. In Siding Restoration, the claimant had a “moderate to marked” classification entered in 1998. The case was “closed” by way of “no further action” direction on October 29, 2003.
Nine (9) years after the case was closed, the carrier (OneBeacon) filed an RFA-2 seeking to suspend lost wage benefits. In support of the request, the reports of CBI Employment, a vocational assistance firm, were attached, demonstrating voluntary removal. That Request for Action was ultimately denied, because some of the subject correspondence to the claimant had not been copied to his attorney.
Although the original attempt was thrown out, the carrier persisted, and filed a second RFA-2, asserting that the claimant did not sufficiently cooperate with the carrier’s efforts. The carrier attached the report of CBI Employment, a vocational assistance firm, stating that the claimant “was not applying for jobs in good faith.” Specifically, that in a job application for Hertz rentals he listed limited availability to work and “could not work in adverse weather conditions.” He failed to actually complete a job application for Autozone, and stated he was unable to read another job application. The carrier was able to present evidence that 13 job leads were supplied to the claimant from the vocational assistance firm. The carrier was able to show that the claimant applied for only two of the positions identified.
The Board Panel ruled that the case should be reopened based upon the evidence presented by the carrier.
Failing to respond to an offer of retraining.
Evidence of the claimant’s failure to respond to a retraining offer can be used to support an application to reopen a “closed” permanent partial disability claim.
Failing to look for work with businesses that are actually hiring.
In Matter of EGW Temporaries, WCB # G0033039, decision filed October 10, 2012, (decided after Zamora) a full Board Panel refused to consider whether a PPD claimant had performed a “valid work search” when there was no other issue or documentation other than the claimant’s C-258 showing he was primarily looking for work at places that were not even hiring.
In that case, the claimant was classified with a 75% permanent partial disability by way of Decision filed October 27, 2010. The carrier was under direction to continue payments at $165 per week and the case was marked “no further action.”
The carrier’s Request for Further Action attached the claimant’s work search form results, stating that he applied for work with 14 employers over a two month period. According to the claimant, 9 of the 14 employers were not hiring.
The Full Board denied the application to reopen, stating that the supporting evidence was insufficient to support a reopening.
Failing to respond to offer of job search assistance.
The claimant’s failure to accept an offer of job search assistance will be sufficient to support an application to reopen a “closed” permanent partial disability claim.
Voluntarily leaving a light duty job.
Evidence that the claimant voluntarily left a light duty job raises a triable issue of fact sufficient to support a reopening.
Practical tips on modification.
We have not discussed the potential for reopener where the claimant is able to demonstrate a material change in medical condition. In general, those applications are fact sensitive. (In fact, in one recent case (Pucci v. DCH Auto Group, 2011 NY Slip Op 09052 decided Dec. 15, 2011, 3rd Dep’t App. Div., the Board was affirmed in denying a reopener in a case closed in 2005 where the claimant had a 2007 back surgery.) Cases in which the claimant’s case was closed and later attempts to reopen and include new body parts were denied (and affirmed) are legion. (See two cases decided the same day: Burris v. Adirondack Satellite, 944 N.Y.S.2d 775 (May 17, 2012, 3rd Dep’t App. Div.)(later attempt to bring in neck injuries); Francis v. Jewelry Box Corp., 945 N.Y.S.2d 767 (May 17, 2012, App. Div. 3rd Dep’t)(attempt to reopen to add psychiatric injury to closed claim).
The “attachment” defense applies anytime the claimant has a partial disability. The attachment defense applies in cases where the claimant is classified – as in Zamora – and in cases were the claimant is temporarily partially disabled.
Situations the adjuster does not control where the defense applies:
- Claimant voluntarily retires.
- Claimant leaves a light duty job (voluntary resignation).
- Claimant refuses a light duty job within their restrictions.
Setting up an attachment defense.
- Offer the claimant a light duty job. If the claimant refuses, seek to suspend benefits.
- Send claimant work search forms (C-258) to obtain a record of the locations where employment was sought.
- Use subpoenas to follow up on the claimant – seeking the employment application (if available). If the claimant is not applying in “good faith” – raise the defense.
- File an RFA-2 to bring matter to the attention of the workers’ compensation law judge.
- Use a “vocational assistance” firm to generate job leads to claimant. If the claimant fails to cooperate or respond, raise the defense.
- Develop evidence of “lack of good faith” in applying for or following up for provided job leads.