Civiello v. Covanta Energy
Indemnity Insurance Company / York Risk Services Gruop
December 7, 2016
Pre-Existing Aggravation Total Incapacity Work Restrictions Medical Evidence
Summary from the Troubh Heisler Attorneys
Civiello apparently had a pre-existing back condition which he significantly aggravated at work, rendering him totally disabled. Covanta filed a Petition for Review arguing that the work injury had resolved, but former Hearing Officer Greene denied the petition and allowed Civiello to remain on total incapacity benefits.
Covanta appealed, but the Appellate Division panel affirmed the decision. The panel found that "the medical records and Civiello's testimony" provided support for the underlying decision, but the panel did not describe the evidence further. After the hearing, Civiello's PCP released him to part-time work with restrictions, and Covanta had a labor market survey done showing work available within those restrictions.
Although Civiello did not complete a work search, HO Greene ruled that it was not required because “work capacity was not attributed to him until after the hearing, just before the close of evidence.” The panel found this harmless error, however, because Civiello’s doctor testified Civiello could not do any of the jobs listed on the LMS, so the panel said Civiello “met his burden of production through medical evidence” alone, without doing a work search.