Attorney Katherine Caracappa secured a major win for a Jones Jones LLC client before the New York State Appellate Division- Third Department on March 10, 2022.
The case involved a transportation worker with an established occupational disease claim for injury to the elbows, ankles, knees, and wrists. The claimant’s treating doctor submitted medical evidence finding that the claimant was permanently disabled and had reached maximum medical improvement. The doctor ultimately found the claimant presented with 25% schedule loss of use of both hands, 20% schedule loss of use of both legs, and 20% schedule loss of use of both ankles.
While the self-insured employer was precluded from obtaining an independent medical examination on schedule loss of use, the attorneys at Jones Jones LLC did cross-examine the claimant’s treating provider and attacked his opinion on schedule loss of use. During litigation, the following arguments were highlighted:
- That the issue of permanency was premature due to the fact that the claimant had not yet finished treatment;
- The doctor who gave the schedule loss of use opinion failed to review all medical records and was therefore lacking credibility;
- The schedule loss of use determination by the doctor did not conform with the guidelines on permanency; and
- The findings of permanency did not correlate with the claimant’s complaints of pain and physical limitations.
It was argued that awarding approximately a $280,000 schedule loss of use award for a case that concluded with no surgeries and was ultimately a soft-tissue injury only was outside the realm of appropriate assessment of the permanency guidelines as set forward by the Board itself.
The Law Judge found in favor of the claimant’s treating provider and the Board Panel ultimately upheld the doctor’s conclusions on schedule loss of use.Both the Law Judge and the Board appeared to make their decisions based on the lack of independent medical examination and thus did not review the arguments raised in response to the schedule loss of use finding.
Attorney Caracappa drafted an aggressive Appellant Brief attacking the fact that the Board did not entertain any of the issues and arguments raised on behalf of the self-insured employer during the course of litigation. The Third Department was compelled by Attorney Caracappa’s arguments and found, “The Board’s failure to specifically address the claims raised by the employer deprived the employer…of the opportunity to have the Board consider the merits of …issues that were properly preserved and precludes any meaningful review by this Court,” (See decision here).
The Third Department agreed with Attorney Caracappa’s arguments that the Board erred in not addressing the issues raised on our application for review of the Board’s decision and as such the Third Department rescinded the finding of schedule loss of use and sent the case back before the Board for resolution of the arguments raised by Jones Jones LLC.
Jones Jones LLC takes great pride in our Appellate Appeal department. We understand the detail and precision needed to execute a winning appeal to the higher courts. In addition, the litigation and review of claims involving high schedule loss of use awards also requires extra review and intricate knowledge of the permanency guidelines. Jones Jones LLC is very happy to announce this Appellate Division win that will assist other self-insured employers, carriers, and third-party administrators in their litigation on costly schedule loss of use awards.
Contact us today at clientservices@jonesjonesllc.com to discuss litigation planning on permanency cases and any questions you and team may have on the appeals process.
