January 17, 2018

Workers' Compensation Board's refusal to direct a further development of the record based on an earlier decision concerning the matter was an abuse of its discretion under the circumstances


Workers' Compensation Board's refusal to direct a further development of the record based on an earlier decision concerning the matter was an abuse of its discretion under the circumstances
Page v Liberty Cent. Sch. Dist., 2017 NY Slip Op 08921, Appellate Division, Third Department


Angela Pageapplied for and was awarded workers' compensation benefits in 2004 based upon her claim for hypersensitivity reaction to the presence of fungi at her worksite. A Workers' Compensation Law Judge [WCLJ] subsequently determined that Page had a causally-related permanent total disability.

The Workers' Compensation Board reversed the WCLJ's finding of a permanent total disability, crediting the opinion of an impartial specialist selected by the Board to examine Page. The specialist had found that Page "had no continuing causally-related disability."

Page initiated a number of appeals and ultimately the Appellate Division affirmed the Board's decision on procedural grounds, finding that Page's failure to timely appeal a Board decision in 2012 precluded her from challenging the Board's finding of no further causally-related disability.

However, in 2014, a physician, Jeffrey Newton, evaluated Page for the purpose of assessing her "psychological treatment needs in connection with her longstanding multiple chemical sensitivity syndrome." Newton diagnosed Page as suffering from consequential adjustment disorder with anxious and depressed mood. Based upon Newton's opinion, Page requested a hearing to address her claim for benefits based on her alleged consequential psychological injury.

A WCLJ found prima facie evidence for consequential depression and directed the employer to obtain an independent medical examination on this issue. Upon review, however, the Board reversed the WCLJ, finding that further development of the record was not proper inasmuch as its December 2012 decision "established that Page did not have a further causally-related disability, without which there could be no consequential condition." Page appealed  the Board's ruling.

The Appellate Division reversed the Board's determination explaining that as a general rule "...the Board's determination of whether or not to allow further development of the record on a particular issue will not be disturbed absent an abuse of discretion," held that in this instance the Board holding that further development of the record was improper because it had determined in 2012 that [Page] no longer suffered from a causally-related disability and, without a further causally-related disability, there could be no disability from which a consequential condition could arise" constituted an abuse of discretion.

The court said that the record reflects that Page's claim was amended to include multiple chemical sensitivity in 2006. Further, in its 2012 decision the Board noted that, although its medical expert "was of the opinion that multiple chemical sensitivity is not a medically-recognized condition, he credibly testified that he was capable of independently determining, based upon a physical examination, whether [Page] was disabled."

Although the Board ultimately relied its medical expert's physical examination in concluding that Page no longer suffered from a causally-related disability, in so doing the Board made no findings suggesting that Page did not suffer from a causally-related disability from 2004 to 2011.

Accordingly, the Appellate Division concluded that the Board's finding that, as of 2012, Page no longer had a causally-related disability did not preclude Page from raising the issue of a psychological injury consequentially related to her prior established claims of hypersensitivity reaction to fungi and multiple chemical sensitivity.

As the record indicated that Page was diagnosed and treated for psychological injuries during that time and that, with regard to the issue of causation, Page's "psychological condition is clearly causally related to [her] . . . work place originating condition," the Appellate Division concluded that the Board abused its discretion by finding that further development of the record on this issue was improper based upon its 2012 decision.

The court reversed the Board's decision and remanded the matter to a WCLJ for the "further development of the record."

The decision is posted on the Internet at:

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