Brown-Smith v. Ross Manor Associates

Insurance Company

Cross Insurance

Date Decided

June 29, 2020

Panel Members

Elizabeth Elwin

Sue Jerome

Evelyn Knopf


Medical Evidence


Low back §207 work capacity total incapacity medical evidence comparative medical evidence

File Size

169 KB


Summary from the Troubh Heisler Attorneys

Brown-Smith injured her low back in 1999 assisting patients in direct health care, and Ross Manor voluntarily paid her WC benefits until 2013, when her condition got worse. Dr. Kimball examined her pursuant to §207 and gave her a full time work capacity with restrictions, but Brown-Smith’s doctor said she was totally disabled because of foot drop. In his 2016 decree, Judge Hirtle found she was totally disabled and ordered payment of total incapacity benefits.

Less than 18 months later, Ross Manor filed a Petition for Review and argued that her work-related back condition had improved if not resolved. Dr. Curtis examined her pursuant to §207 and “did not document” foot drop or abnormal gait. In addition, Ross Manor had surveillance showing Brown-Smith walking normally. Judge Hirtle denied the petition, however, because Ross Manor did not present “comparative medical evidence” showing that her condition had improved since the 2016 decree.

Ross Manor appealed, arguing that they did not need comparative medical evidence, because they had demonstrated that Brown-Smith had no work incapacity at all. The Appellate Division disagreed, noting that Brown-Smith’s treatment records showed she still had foot drop symptoms. The panel found that Ross Manor could not substitute facts and argument for “a medical opinion comparing Ms. Brown-Smith’s condition as it existed at the time of the 2016 decree to her present condition,” and it affirmed Judge Hirtle’s decision.

Page |