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Workers' Compensation Board

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Case # 60503352
Date of Accident: 11/24/2003
District Office: Syracuse
Employer: Fed Ex Ground
Carrier: FedEx Ground Package Sys.
Carrier ID No.: W586259
Carrier Case No.: 0433153518000101331
Date of Filing of Decision: 08/21/2017
Claimant's Attorney: None
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 18, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed December 15, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether there is sufficient medical evidence of causally related disability for the period from February 1, 2011, to November 10, 2015; and,
  2. whether the doctrine of laches bars the self-insured employer (SIE) from asserting that the claimant is not entitled to the previously paid tentative reduced earnings.

The Workers' Compensation Law Judge (WCLJ) issued tentative reduced earnings awards to the claimant for the period February 1, 2011, to November 10, 2015, at the rate of $52.08 per week, and found no medical evidence for the period November 10, 2015, to March 2, 2016.

The Board Panel majority modified the WCLJ decision to find no medical evidence for the period February 1, 2011, to May 18, 2015, issued tentative reduced earnings awards for the period May 18, 2015, to November 11, 2015, at the rate of $52.08 per week, and found no medical evidence for the period November 11, 2015, to March 2, 2016.

The dissenting Board Panel member would find sufficient medical evidence to support awards for the period February 1, 2011, to May 18, 2015.

The claimant filed an application for Mandatory Full Board Review on January 16, 2017, arguing that sufficient medical evidence exists in the record to support the awards from February 1, 2011, to May 18, 2015. The claimant also argues that during the period from 2011 to 2015 when the SIE was paying ongoing awards, it never filed any request to suspend or reduce the claimant's benefits based on a lack of up-to-date medical evidence of causally related disability and, therefore, the doctrine of laches prevents them from now raising the issue.

The SIE filed a rebuttal on February 14, 2017, contending that the Board Panel majority's decision contains no errors of fact or law, should be affirmed in its entirety, and the doctrine of laches does not apply because there is no prejudice to the claimant as he has already received the majority of the awards during the periods in question.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

Claimant filed a C-3 (Employee Claim) on April 5, 2005, alleging that he injured both shoulders as the result of repetitive lifting and stacking of boxes at work in 2003 and 2004, and stopped working due the injury in July 2004. Claimant's treating physician, Dr. Goriganti, diagnosed impingement syndrome in both shoulders.

In a decision filed April 4, 2006, the WCLJ established the claim for "a work related injury to both shoulders-without prejudice." The WCLJ set claimant's average weekly wage at $156.23 and the decision lists November 24, 2003, as the date of injury. To date there have been no permanency findings in this claim.

In a notice of decision filed on February 3, 2011, the WCLJ made awards from May 17, 2010, to September 25, 2010, at the rate tentative rate of $52.08, and for the period September 25, 2010, to February 1, 2011, at the tentative reduced earnings rate of $52.08. The WCLJ directed the SIE to continue payments at the tentative reduced earnings rate of $52.08.

Dr. Neupane, the claimant's treating rheumatologist, opined in medical reports for treatment rendered on January 20, 2011, July 20, 2011, March 4, 2013, June 19, 2013, October 21, 2013, November 11, 2014, May 18, 2015, and August 11, 2015, that the claimant was temporarily totally disabled. In those reports, in addition to noting a history of work-related bilateral shoulder injuries, Dr. Neupane indicated that claimant was being treated for various other non-related conditions, including fibromyalgia, neck and back pain, degenerative joint disease, gout, and knee pain related to another compensation claim (WCB # 60409554). The only discussion of claimant's shoulder injuries is in Dr. Neupane's July 20, 2011, report, in which the doctor noted that claimant's chief complaint was significantly increased right shoulder pain and diffuse muscular pain. On examination, Dr. Neupane noted decreased range of motion of the right shoulder on internal rotation, external rotation and abduction. Dr. Neupane indicated that he injected claimant's right shoulder with Depo-Medrol.

The SIE filed a C-8.1-B (Notice of Treatment Issue[s]/Disputed Bill Issue[s]) on November 7, 2015, objecting to a bill for laboratory testing performed on August 11, 2015. Based on the C-8.1-B, the Board scheduled a hearing for March 1, 2016. The hearing notice indicated that the issues to be addressed at the hearing were the period and extent of disability and the C-8.1-B.

At the hearing on March 1, 2016, the WCLJ made awards from February 1, 2011, to November 10, 2015, at the tentative reduced earnings rate of $52.08, and found no medical evidence from November 10, 2015, forward. The WCLJ directed the claimant to file clarifying medical evidence regarding whether his treatment is for a causally related injury, or for fibromyalgia. The SIE objected to all awards. The findings and awards made at the March 1, 2016, hearing are reflected in a notice of decision filed on March 4, 2016.

The SIE requested administrative review, arguing that the WCLJ decision should be modified because the medical evidence did not support awards from February 1, 2011, to November 10, 2015.

In rebuttal, the claimant argued that the WCLJ decision should be affirmed in its entirety and the carrier should be precluded by the doctrine of laches from attempting to designate a period of nearly four and a half years as no medical evidence.

LEGAL ANALYSIS

The equitable doctrine of laches can be applied in the workers' compensation forum to estop a party from raising an issue after an inexcusable delay (see Matter of Mangum v National Union Fire Ins. Co., 14 AD3d 968 [2005]). "[T]he failure to assert a defense for an unreasonable and unexplained length of time, accompanied by other circumstances causing prejudice to an adverse party, operates as a basis for the doctrine of laches" (Matter of Finchum v Colaiacomo, 55 AD3d 1084 [2008] [internal quotation marks and citations omitted]). "Such circumstances include a change of position, intervention of equities, loss of evidence or other disadvantage" (id. [internal quotation marks and citations omitted]).

Pursuant to 12 NYCRR 300.23(b)(1) and (2), if there has been a direction for continuing awards, a carrier may not suspend or reduce payments until a notice of intention to suspend or reduce benefits, along with supporting evidence, has been filed in a format prescribed by the Chair, and a WCLJ determines at a hearing that the suspension is justified. "A copy of the notice and supporting evidence shall be transmitted to the claimant and his or her attorney or licensed representative, if any, on the same day it is submitted to the Board or if submitted electronically within one business day of the date it is filed electronically with the Board" (12 NYCRR 300.23[b][1]). A carrier may only unilaterally suspend continuing payments in limited circumstances, such as when the record contains evidence of the claimant's return to work, based on two weeks of payroll records; when the claimant's treating physician has provided an opinion of no disability; or when the carrier obtains and submits "proof of incarceration upon [the claimant's] conviction of a felony" (12 NYCRR 300.23[b][3][i]-[iv]).

Initially, although the awards and the direction to continue payments in the WCLJ decision filed February 3, 2011, were designated as "tentative" awards, that designation was inappropriate. Awards are designated tentative when there is a dispute concerning those awards, such as when the carrier raises labor market attachment or when there is conflicting medical evidence on degree of disability, and awards are made at a tentative rate pending development of the record and resolution of the dispute. Here, it is unclear why the WCLJ designated the awards in the February 3, 2011, decision as tentative. The case was clearly not continued to resolve an issue in dispute concerning awards and no action took place the next five years with respect to the claim while benefits continued at that "tentative" rate. Nor did the SIE request at any time that awards be suspended or reduced. Therefore, based on the Board's authority under Workers' Compensation Law § 22 to modify prior awards, it is recommended that the Full Board designate the awards made in the decision filed February 3, 2011, as permanent, rather than tentative.

Here, pursuant to 12 NYCRR 300.23(b)(1) and (2), the SIE continued to pay the claimant during the subject period in compliance with the WCLJ decision filed on February 3, 2011. The SIE did not take any action to suspend payments to the claimant until the hearing on March 1, 2016, when it objected to the WCLJ bringing the claimant's awards up to date. The SIE's unreasonable and unexplained delay in requesting that benefits be suspended, if granted, would cause substantial prejudice to the claimant. Had the SIE asserted earlier that claimant had failed to produce up-to-date evidence of causally related disability, claimant would have been on notice that a controversy existed and had the opportunity to obtain clarifying or supplemental medical evidence of causally related disability.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the doctrine of laches applies in this case due to the unreasonable and unexplained delay in time, as well as the prejudice this delay caused the claimant.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed March 4, 2016, is MODIFIED to find that awards are final, not tentative, but otherwise is affirmed. The case is continued for the parties to produce evidence of permanency as directed in the WCLJ's March 4, 2016, decision.