Gilbert v. SD Warren
April 20, 2016
CategoriesDurational Limit Res Judicata Findings of Fact
Arm Benefit Holiday Payments Durational Limit Res Judicata
Summary from the Troubh Heisler Attorneys
Gilbert injured his arms at work in 2001, and the WC Board issued a decree granting him partial incapacity benefits and finding 8% PI. In 2008, the Board granted Warren’s petition to reduce Gilbert's benefits to account for his early retirement pension and to take a “holiday” to recoup the offset from his previously-received pension benefits. Gilbert then filed Petitions for Review and for PI to increase his weekly benefits and his PI, and Warren filed its own Petition for Review to discontinue his benefits per the durational limit in §213. Judge Elwin denied both of Gilbert's petitions and granted Warren's petition, discontinuing Gilbert’s partial incapacity benefits; Gilbert appealed.
The Appellate Division affirmed the decision on the grounds that Gilbert’s own testimony that his “condition has worsened” was not credible and that he failed to produce “comparative medical evidence establishing the change in circumstances.” Gilbert’s physician Dr. Pavlak said he was worse, but Judge Elwin discounted that opinion as it was based solely on Gilbert’s oral history and not on an opinion based on a comparison of his present medical condition with his condition when the Board found 8% PI. Gilbert’s grip tests showed a significant strength reduction, but the AD panel held that no medical opinion compared them to the prior test results.