WCB App. Div. Holds Sec. 201(4) Does Not Require Diagnosis

Raymond Corson v. John Lucas Tree Experts – The Appellate Division has ruled that application of Sec. 201(4) does not require a medical diagnosis of the pre-existing physical condition. In Corson v. John Lucas Tree Experts, Dec. No. 22-25, Mr. Corson had a pre-existing bilateral foot condition. He experienced a worsening of symptoms in 2018 and completed a First Report of Injury. He continued to work light duty until February 18, 2019 when he was sent home because Lucas Tree could no longer accommodate his work restrictions. Mr. Corson filed a Petition for Award and Petition for Payment of medical expenses alleging a gradual bilateral foot injury of November 13, 2018. Two of his medical providers opined that his condition was work related but did not settle on a diagnosis. The ALJ accepted these opinions to find that his bilateral foot condition was work related. Partial benefits were awarded based on the reduced ability to earn minimum wage. Both parties appealed.

Lucas Tree argued the ALJ committed legal error because the record did not contain a medical diagnosis connecting the pre-existing foot condition to the employment. The panel rejected this argument citing case law that medical causation is established when the work activity or incident in fact produces an onset of symptoms. There is no requirement that the pre-existing condition be a work related injury and thus no requirement for a medical diagnosis of the pre-existing condition. Disability due to increased symptoms is sufficient to constitute a work related injury under the Act.

Mr. Corson argued that the ALJ erred by imputing an earning capacity without considering his age, education, time out of work, and lack of computer skills. Further, he argued the ALJ erred by failing to specify the amount of hours he could work each week rather than “ there is no limitation on the number of hours he can work.” The panel agreed. While the ALJ noted his factors of age, education, vocational history and lack of transferable skills she did not connect his retained earning capacity to any of these factors. Additionally, a finding of “no limitation” on the hours he could work was inadequate to create a reviewable record on appeal. Because the ALJ’s findings on earning capacity were inadequate for appellate review, the panel vacated the decision in part, and remanded for further findings regarding Mr. Corson’s retained ability to earn.

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Thomas Getchell
Daniel F. Gilligan