November 09, 2021

Appealing a decision of the Workers' Compensation Board denying claimant's request to reopen or rehear a prior Board decision

The Appellate Division reversed a decision by the Workers' Compensation Board which denied the claimant's [Claimant] request to reopen or rehear a prior decision.

Whether to grant an application for reopening or rehearing in the interest of justice is a matter left to the Board's discretion and Appellate Division's review of that decision is limited to whether there was an abuse of that discretion by the Board. In this instance the court found that such discretion was abused by the Board.

The court explained, "Notably, while the Board is free to reject the opinion of an expert where it finds such to be unconvincing or incredible, it may not reject an uncontradicted opinion that is properly rendered." Because the only medical opinion before the Board clearly reflects that claimant suffered a 35% SLU of the left shoulder, the Appellate Division found that the Board's denial of the application to reopen the claim to modify the decision in the interest of justice was an abuse of discretion.

Click HERE to access the full text of the court's decision.