Waters v. SD Warren

Insurance Company

Constitution State

Date Decided

September 18, 2014

Panel Members

Timothy Collier

Elizabeth Elwin

Tom Pelletier


Partial Incapacity


Multiple Injuries Shoulder Wrist Elbow Back Durational Limit §213 Appellate Procedure

File Size

120 KB


Summary from the Troubh Heisler Attorneys

The WCB had previously awarded Waters partial incapacity benefits for his 1998 bilateral shoulder injury, 1999 bilateral shoulders, wrists and elbows injury, and 1999 back injury. Upon expiration of the 520-week durational limit in §213, S.D. Warren filed petitions to terminate his partial incapacity benefits. Dr. Bradford’s §312 IME rated 11% PI for the bilateral shoulders and 0% PI for the wrists, elbows and back, and Dr. Lobozo’s psychological §312 IME rated 7% PI for his pre-existing psychological condition.

H.O. Jerome granted S.D. Warren’s petition, holding that under §213(1-A)(A) PI includes only “permanent impairment resulting from the work injury at issue in the determination and any preexisting physical condition or injury that is aggravated or accelerated by the work injury at issue in the determination.” Waters appealed, and the Appellate Division held that the WCB must interpret §213 according to its “plain meaning,” that sub-§ (1-A)(A) does not allow the WCB to include PI for a pre-existing psychological condition, and that H.O. Jerome was correct in declining to stack the 7% psychological PI onto the 11% physical PI to get Waters over the 11.8% PI threshold.

Waters also argued that H.O. Jerome erred in not considering the constitutional challenges he raised in response to SD Warren’s position paper, when Waters had first suggested that interpreting §213 to differentiate between physical and mental conditions violated the due process and equal protection clauses of the federal and state constitutions. H.O. Jerome ruled that Waters waived this argument by first raising it after the evidence had closed. The Appellate Division (H.O. Collier dissenting) agreed, holding that Waters failed to give S.D. Warren and H.O. Jerome adequate notice of the issue so that evidence could be introduced and considered on it.

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