New York: Board Committed Error in Refusing to Reopen Case to Clear Up Discrepancy in Medical Form

A New York appellate court held that where a physician’s narrative report attached to a Board-adopted C-4.3 form (Doctor’s Report of Maximum Medical Improvement/Permanent Impairment) indicated the injured worker had sustained a 35 percent schedule loss of use (SLU) to the right shoulder—attributing 15 percent to the rotator cuff tear, 10 percent to the distal clavicle excision, and 10 percent to mild loss of internal and external rotation—and yet, the C-4.3 form itself indicated only a 15 percent SLU, it was error for the Board to enter an award of 15 percent and then refuse to allow the claimant to reopen the case to consider the discrepancy. Noting that the employer had not objected to the medical opinion attached to the form, the appellate court said that while the Board was free to reject the opinion of an expert where it found that opinion to be unconvincing or incredible, it could not reject an uncontradicted opinion that was properly rendered and introduced into evidence. The Board has discretion, but it must use that discretion.

Thomas A. Robinson, J.D., the co-Editor-in-Chief and Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law(LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Matter of Taylor v. Buffalo Psychiatric Ctr., 2021 N.Y. App. Div. LEXIS 6049 (3d Dept. Nov. 4, 2021)

See generally Larson’s Workers’ Compensation Law, § 128.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

Sign up for the free LexisNexis Workers’ Compensation enewsletter at www.lexisnexis.com/wcnews.