Board erred in dismissing permanency petition at the outset based on evidence presented at a prior hearing on a petition alleging a recurrence of total disability.

The Supreme Court reverses the lower court’s decision, holding that the Board erred in dismissing the claimant’s permanency petition at the outset based on evidence that had been presented at a prior hearing on the claimant’s petition alleging a recurrence of total disability.

Leshawn Washington v. Delaware Transit Corp., (No. 333, 2019 - Decided Mar. 2, 2020)

This case involved an appeal by the claimant from the Superior Court’s decision that had affirmed the Board’s decision granting a motion by the employer to dismiss the claimant’s permanency petition. The claimant was employed as a bus driver and on August 4, 2016, sustained a work injury to his left shoulder while driving. The claim was accepted as compensable, and the claimant underwent surgery on his left shoulder. He was paid compensation for a closed period of temporary total disability. After returning to work, he had problems with his shoulder, and his treating physician put him on no-work status.

The claimant filed a DACD petition, alleging a recurrence of total disability. He presented testimony from Dr. Rinow as the treating chiropractor. Dr. Rinow testified that the claimant had an increase in his symptoms that necessitated him being put on no-work status. The employer presented testimony from Dr. Tadduni, who had evaluated the claimant on two occasions and who concluded that the claimant could return to work and was fully recovered from the work injury. The Board issued a decision denying the claimant’s DACD petition and explicitly accepting the testimony of Dr. Tadduni. The Board concluded that the claimant was no longer totally disabled after December 5, 2016.

In the litigation on the permanency petition, the claimant took the deposition testimony of Dr. Bandera, who testified that the claimant had a 16% permanency. The employer took the deposition testimony of Dr. Gelman, who testified that the claimant had a much lower permanency of only 3%. At the hearing on the permanency petition, the employer made a motion at the outset for dismissal of the petition on the basis that the Board had already concluded in the prior decision to deny the recurrence of temporary total disability, that the claimant’s shoulder had returned to normal and he was fully recovered. The Board granted that motion and dismissed the permanency petition without considering any of the medical testimony the parties had taken on the permanency issue.

The claimant initially appealed to the Superior Court, which affirmed the Board’s decision. The claimant then appealed to the Supreme Court, which held that the Superior Court had erred in affirming the Board’s decision by relying solely on expert testimony presented in connection with the recurrence of temporary total disability petition. The Supreme Court concluded that the claimant should have had the opportunity to present his evidence at the permanency hearing.

The legal reasoning as to why the Supreme Court found error by the Board in dismissing the petition was that, whether a work injury causes temporary total disability or permanent partial disability are two totally distinct questions. The issue before the Board on the total temporary disability recurrence petition was whether the claimant had suffered a recurrence of total disability and the expert testimony focused on whether the claimant was able to return to work. The reference in the testimony of Dr. Tadduni’s finding that the claimant fully recovered was still related to whether there had been a recurrence of total disability and whether the claimant could return to work. In contrast, the nature of the inquiry at the permanency hearing was whether and to what degree the claimant had suffered permanent impairment. Therefore, the Supreme Court ordered that the case be remanded so that the claimant would have an opportunity to present medical evidence on the issue of permanent impairment.

_{What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2020 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}