PRACTICE TIP: Upon receipt of medical evidence meriting an alteration in continuing indemnity awards, the WCLJ should consider the medical evidence for purposes of implementing awards since the prior hearing with a CCP direction.
WCLJs routinely take the position that they do not want to create an overpayment by modifying awards if they have already been paid at the previous continuing payment rate. However, Board Panel case law and WCB rules contemplate that awards are to be modified based upon the evidence at the time of the hearing.
In Highland Hospital of Rochester, WCB G0532976 (1/23/14), the Board reviewed the issue of indemnity awards after a previous CCP direction. The carrier requested a reduction in indemnity awards and a hearing was scheduled. The Administrative Law Judge implemented awards at the temporary total rate based upon the previous CCP direction until the date of the hearing. The carrier appealed and requested a modification of the awards. Upon review, the Board Panel stated:
“While 12 NYCRR 300.23(b) directs the continuation of payments at a previously designated temporary rate, it does so with the anticipation that there will be changes in the claimant’s condition and upon receipt of a proper request and supporting evidence, allows for the continuation, suspension or reduction of awards by the WCLJ. Nothing in 12 NYCRR 300.23(b) prohibits the WCLJ from directing appropriate awards for a period that pre-dates the Request for Further Action when such awards are supported by substantial evidence.”
The Board Panel modified awards to a mild rate consistent with the medical evidence.
While modification of a prior CCP direction might have the effect of “creating” an overpayment, that does not prevent the WCLJ evaluating the evidence to determine whether the CCP direction should be brought forward without modification.
If you have any questions about this or any other issue, contact David L. Niefer at dniefer@gittolaw.com or (607) 723-0600 or any of the attorneys in our office. If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm.
This information is provided for general guidance only. This information should not be used as a substitute for consultation with legal counsel. Each case presents unique facts requiring individual analysis.
