Lorri Bossie v. Sargent Corp.
March 24, 2021
CategoriesAverage Weekly Wage Board IME Pre-Existing Injury Average Weekly Wage Board IME Pre-Existing Injury
Summary from the Troubh Heisler Attorneys
Lorri Bosse v. Sargent Corp. (attached) - Ms. Bosse drove a dump truck for Sargent for several years and was always laid off during the winter and rehired in the spring. She developed gradual low back pain and hip pain, and she had left hip replacement and then returned to work. She filed petitions alleging gradual work injuries to her back and hip.
Dr. Bradford’s §312 IME found that her truck driving caused her hip arthritis but not her low back problem. At deposition, Dr. Bradford admitted that her truck driving probably contributed to the degenerative disc disease in her low back. Judge Goodnough granted the petition on both injuries and ordered payment of benefits, including ongoing partial benefits. In assessing her average weekly wage, he used §102 (4) (B), dividing her annual earnings by only the number of weeks she worked, but he ordered benefit payment throughout the year, even during the winter when she did not work.
Sargent appealed, arguing that using subsection B produced an artificially high AWW, and that Judge Goodnough should have used the “fallback” provisions in §102 (4) (D) and considered comparable employees’ wages. More than two years after oral argument, the Appellate Division held that Bosse failed to present evidence of her earnings in the years before she started working at Sargent, so Judge Goodnough lacked competent evidence supporting his decision.
Sargent also argued that there was no “clear and convincing evidence” contrary to Dr. Bradford’s initial report finding no back injury. The appellate panel held that Judge Goodnough was justified in adopting Dr. Bradford's deposition testimony over his initial report and in finding a back injury. Finally, Sargent argued that Judge Goodnough failed to apply §201 (4) to determine whether Ms. Sargent’s back condition and resulting disability were “contributed to by the employment in a significant manner” and therefore compensable under the Act. The panel agreed and remanded the case to the ALJ for further proceedings.