Somers v. SD Warren

Insurance Company

Constitution State Services

Date Decided

January 29, 2020

Panel Members

Sue Jerome

Evelyn Knopf

Mike Stovall


Durational Limit Res Judicata


Restoration of Benefits Paper Mill Knee Work Restrictions Partial Incapacity

File Size

146 KB


Summary from the Troubh Heisler Attorneys

Somers injured her right knee at work, and Judge Elwin ordered Warren to pay her 100% partial incapacity benefits. In 2013, a year before the durational limit expired, Warren filed a petition for review seeking to discontinue her benefits at the end of the durational limit. In 2014, eight months after the durational limit had expired, Judge Elwin granted the petition and allowed Warren to discontinue payments, which it did.

Five months later, Somers filed a petition for reinstatement of benefits, arguing that Warren failed to give Somers notice, as required by former WCB Rule Ch. 2, §5 (1), of her right to appeal for an extension of benefits for financial hardship due to inability to find suitable work. The rule requires the employer to mail the notice to the address they send the employee’s benefit payments; here, Warren was mailing the weekly checks to Somers’ lawyer, so the notice would also have been sent there and not to Somers directly.

Two years later, in 2017, Judge Elwin issued her decision denying the request for additional benefits, noting that the rule conflicted with Warren’s right to terminate benefits pursuant to the Act, which was an “absurd result.” She also noted that the rule required Warren to tell Somers the date benefits would end, but Warren could not do that, not knowing when she would issue her decision, so Warren could not have complied with the rule. Somers appealed.

Three years later, in 2020, the Appellate Division issued its decision vacating Judge Elwin’s decision and essentially awarding Somers five years of retroactive benefits, based solely on Warren’s failure to notify Somers of her appellate rights, even though she had a lawyer during the entire process. The board amended the rule in 2018, taking responsibility for including in its decrees notice to employees of these rights, but that amendment did not apply to this case.

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