A New York appeals court affirmed a ruling that an injured worker sustained a temporary marked partial disability rather than a permanent total disability.

Geraldine Wolfe suffered a work-related accident in April 2002, and her resulting workers compensation claim was established for injuries to her right shoulder, neck and upper back in May 2003, according to the decision in Matter of Wolfe v. Ames Department Store Inc. published on Thursday by the State of New York Supreme Court, Appellate Division, Third Judicial Department in Albany. In 2009, the employer’s workers compensation carrier was discharged, and the claim became the responsibility of the Special Funds Conservation Committee.

Due to her causally-related injuries, Ms. Wolfe ceased working in November 2011. In June 2014, a workers compensation law judge ruled the injured worker was permanently totally disabled as a result of her 2002 injuries and that a defense of labor market attachment — referring to a claimant considered to be attached to the labor market if he or she is found to be making reasonable efforts to obtain gainful employment consistent with his or her medical restrictions — did not apply. But the committee appealed for review and the Workers’ Compensation Board in February 2015, held the judge’s decision in abeyance and referred the injured worker for evaluation by an impartial specialist — with a directive that the specialist render an expert opinion on the issues of permanency and whether there was support for a finding of permanent total disability.

The injured worker was evaluated by Paul Salerno, a physiatrist who in October 2015 concluded it was premature to classify Ms. Wolfe as permanently totally disabled and that she suffered from a marked medical impairment of 85%. In a May 2016 decision, the board agreed with the physiatrist’s assessment — finding that she suffered from a temporary partial disability, deeming it premature to classify her with a permanent disability and directing that claimant undergo an MRI and nerve conduction study. In light of its finding of a partial disability and claimant’s testimony as to her efforts to find employment or pursue vocational training, the board further concluded that claimant was not attached to the labor market as of Dec. 16, 2013.

The injured worker appealed the decision, but the appellate court affirmed the board’s ruling, citing precedent that to establish a total disability, a claimant must demonstrate that he or she is totally disabled and unable to engage in any gainful employment

Confronted with the conflicting medical opinions of Neal Baillargeon, claimant’s physician, and John Buckner, an orthopedist who conducted an independent medical examination of claimant, the board sought the opinion of Mr. Salerno, an impartial specialist, who diagnosed the injured worker with chronic cervical spine pain secondary to degenerative changes with left upper extremity neurologic symptoms, but found that it was premature to determine the severity rating because the last MRI was conducted in 2012, according to the appeals court.

“Although Salerno did not believe that claimant should be classified as permanently totally disabled at that juncture, he did find that she suffered from a marked medical impairment (85%) that was ‘most likely permanent’,” the court said in its ruling. “During his subsequent deposition testimony, Salerno reiterated that further testing was required before he could render an opinion as to permanency — noting that the fact that claimant drove nearly two hours for her evaluation was suggestive that she was capable of performing some type of work.

“In our view, Salerno’s opinion as to the need for further testing and the board’s subsequent adoption thereof, as well as its finding that claimant suffers from a partial disability, is supported by substantial evidence in the record and, as such, will not be disturbed,” the court added.

The appeals court also found that the claimant’s assertion that she believed that she was totally disabled as of November 2011 was belied by, among other things, her subsequent search for employment in 2013, and that it was “entirely proper” for the board to consider whether she remained attached to the labor market, according to court documents.

Brendan Quinn, a partner with Albany, New York-based law firm Buckley, Mendleson, Criscione & Quinn, which represented Ms. Wolfe, said the courts have accepted the workers comp board’s stance requiring injured workers who are not determined to be 100% disabled to look for work within their limitations, even if their level of temporary disability is as high as Ms. Wolfe’s.  

“If someone has an 85% disability, they’re virtually unemployable,” he said, adding that Ms. Wolfe’s level of permanent disability is still an outstanding issue. “I think (the decision is) wrong. It’s a misapplication of the law and we will keep fighting the fight.”