Matter of Town of Union, Employer
No. 99405668
New York Workers Compensation
November 8, 2019
Date
of Accident: 06/29/1994
Issue:
Classification
District
Office: Binghamton
Carrier:
Special Funds Sec 25-A Carrier ID No.: W997001 Carrier Case
No.:___
Claimant's Attorney: Hinman, Howard & Kattell, LLP
Panel:
Clarissa M. Rodriguez
MANDATORY FULL BOARD REVIEW FULL BOARD MEMORANDUM OF
DECISION
The
Full Board, at its meeting on October 8, 2019, considered the
above captioned case for Mandatory Full Board Review of the
Board Panel Memorandum of Decision filed March 6, 2019.
ISSUE
The
issue presented for Mandatory Full Board Review is whether
the record supports a finding of permanent total disability.
The
Workers' Compensation Law Judge (WCLJ (Workers'
Compensation Law Judge)) found that the claimant has a
permanent total disability and awarded benefits from February
26, 2018, to June 12, 2018, at the temporary total disability
rate of $188.90 per week, and directed continued benefits at
the permanent total disability rate.
The
Board Panel majority found that the record reflected a
permanent partial disability and returned the matter to the
hearing calendar on the issues of loss of wage earning
capacity and labor market attachment. The Board Panel
majority also modified awards for the period from February
26, 2018, to June 12, 2018, to the temporary partial
disability rate of $165.29 per week. Awards were continued at
the tentative rate of $165.29 per week.
The
dissenting Board Panel member would affirm the WCLJ.
The
claimant filed an application for Mandatory Full Board Review
on April 1, 2019, arguing that the record supports a finding
of a permanent total disability.
A
timely rebuttal was not filed.
Upon
review, the Full Board votes to adopt the following findings
and conclusions.
FACTS
This
claim is established for injuries to the right foot, low
back, right hip, and complex regional pain syndrome stemming
from a work-related accident on June 29, 1994. The average
weekly wage was set at $283.35. By a decision filed February
5, 2002, liability for this claim was transferred to Special
Funds pursuant to Workers' Compensation Law (WCL
(Workers' Compensation Law)) § 25-a.
In a
decision filed July 21, 2014, the Board Panel found that the
claimant had not reached maximum medical improvement (MMI),
rescinded the WCLJ's finding that claimant was
permanently partially disabled, made awards at the temporary
total disability rate, and continued the case.
In a
reserved decision filed on February 29, 2016, the WCLJ noted
that the claimant had been awarded and paid temporary total
disability benefits at $188.90 per week for the past 12 years
and directed the production of up-to-date medical evidence
addressing the issues of MMI and permanency. The WCLJ kept in
place the direction that benefits continue at the temporary
total disability rate. Special Funds requested administrative
review, arguing that awards should be modified at the rate of
$70.84 per week and that the matter should be returned to the
hearing calendar for the claimant's testimony on the
issue of labor market attachment.
In a
decision filed on October 7, 2016, the Board Panel modified...
