Matter of the Claim of Kimberly Siddon v Advance Energy Technologies et al., Workers' Compensation Board
Attorneys and Parties
Brief Summary
Workers’ compensation — reopening to modify a schedule loss of use (SLU) award based on a material change in condition; effect of noncompliance with Board notice (EC-81.7) by the Special Fund for Reopened Cases (Special Fund); sufficiency of goniometer-based range of motion (ROM) measurements as proof.
The Workers' Compensation Board (Board) denied reopening and rescinded the Workers' Compensation Law Judge (WCLJ) 15% SLU increase, finding claimant failed to show a material change in condition under 12 NYCRR 300.14 [rule requiring that a request to reopen set forth sufficient facts to establish a material change in condition].
The Board’s denial of reopening and rescission of the 15% SLU increase were reversed and the matter was remitted.
The Board failed to address whether the Special Fund waived its right to contest by not complying with EC-81.7, and it improperly rejected an uncontradicted, properly rendered medical opinion using goniometer-based ROM measurements consistent with the Board’s Impairment Guidelines; the Special Fund did not timely or properly contest Dr. Scott’s report, and the Board’s characterization of the ROM data as subjective conflicted with its own guidelines.
Background
Claimant injured her left knee at work in 2006 and underwent arthroscopic surgery. A Workers' Compensation Law Judge (WCLJ) awarded a 12% schedule loss of use (SLU) in 2008, increased by stipulation to 20% after a second arthroscopic surgery in 2009. In 2013, liability was transferred to the Special Fund for Reopened Cases pursuant to Workers' Compensation Law (WCL) § 25-a [provision transferring liability to the Special Fund for Reopened Cases in certain stale claims]. In 2022, orthopedic surgeon Kevin Scott examined claimant for worsening pain and decreased ROM and opined a 35% SLU (a 15% increase) based on goniometer-measured ROM decline. The Board issued an EC-81.7 notice advising the Special Fund to accept, obtain an exam, depose Scott, or submit written arguments within 75 days. The Special Fund requested a hearing but did not properly complete and certify the request and never resubmitted. After claimant renewed her request, a hearing was held; the Special Fund then sought to depose Scott. The WCLJ held the Special Fund waived its contest under EC-81.7 and accepted Scott’s report, finding a 35% SLU.
Lower Court Decision
On the Special Fund’s administrative appeal, the Workers’ Compensation Board rescinded the 15% increase and denied reopening, concluding claimant did not demonstrate a change in condition warranting modification of the prior SLU and dismissing Scott’s numerical ROM findings as merely subjective.
Appellate Division Reversal
The Appellate Division reversed and remitted. It held the Board failed to address whether the Special Fund waived its opportunity to contest by not complying with EC-81.7, impeding review. It further held the Board could not reject an uncontradicted, properly rendered medical opinion and erred by dismissing goniometer-based ROM measurements as subjective, contrary to the Board’s own Impairment Guidelines endorsing goniometer use.
Legal Significance
Clarifies that in SLU reopenings, goniometer-based ROM measurements are objective evidence of change in condition consistent with the Board’s guidelines; the Board must address waiver under EC-81.7 and may not summarily reject an uncontradicted, properly rendered medical opinion. Reinforces that reopening determinations must adhere to 12 NYCRR 300.14’s material-change standard and be supported by reasoned analysis.
A claimant’s verified, guideline-compliant goniometer ROM decline can establish a material change supporting SLU modification, and the Special Fund’s failure to properly respond to EC-81.7 can waive its contest; the Board must address waiver and cannot discard uncontradicted medical proof without valid grounds.