Is a worker with a history of job-related hernias entitled to temporary total disability benefits if he withdrew from the labor market?
In upholding a lower court decision, the New York Appellate Division, Third Department ruled that the worker’s exit from the labor market was involuntary and fully due to his medical condition.
Suffered several work-related hernias leading to surgeries
Jeffery Kelsey suffered work-related abdominal hernias in 2002 and 2004 while employed by Dean Transportation. These hernias resulted in two separate workers’ compensation claims.
Kelsey filed another claim for a wrist injury he suffered in 2011, and that claim was subsequently amended in 2016 to include an abdominal hernia condition. Another work-related incident in 2016 led to yet another workers’ compensation claim for a hernia, this time in the region of the small intestine.
In 2021, the claim was amended again to include consequential bowel obstruction, which resulted in numerous hospitalizations.
In April 2017, Kelsey underwent hernia surgery and was released back to work with restrictions on Aug. 14 of the same year. However, on Aug. 9, a different doctor said that Kelsey was temporarily totally disabled from returning to work due to the recurrence of an abdominal hernia.
Kelsey underwent further medical treatment, including a hospitalization for small bowel obstruction. He also went into the hospital in April 2018 for his fourth recurrent abdominal hernia repair surgery.
Shortly after his discharge from the hospital for that surgery, Kelsey was again hospitalized for small bowel obstruction.
Judge grants benefits, board affirms
A request to include consequential bowel obstruction on the amended workers’ compensation claim was denied in 2018. That was because the Workers’ Compensation Board found that the opinion of the doctor who declared Kelsey temporarily disabled wasn’t credible because he:
- wasn’t a hernia specialist, and
- didn’t examine Kelsey while he was in the hospital.
After multiple hearings, a workers’ compensation law judge allowed the amended claim to include consequential bowel obstruction.
The judge noted that, due to additional supporting medical opinions related to the hernia claims, the opinion of the doctor who claimed Kelsey was temporarily disabled could be “viewed in a different light.” That meant that this doctor’s opinion could now be deemed credible.
Kelsey was granted workers’ compensation benefits from June 19, 2019 going forward and wasn’t required to establish labor market attachment because he was temporarily totally disabled. The New York Workers’ Compensation Board affirmed the judge’s decision.
Appeals court: Medical evidence supports involuntary withdrawal
On appeal, Dean Transportation argued that the board erred in allowing Kelsey to collect total disability benefits without requiring him to show attachment to the labor market. It also argued that the board relied too much on the opinion of a doctor whose testimony wasn’t credible.
The Appellate Division, Third Department disagreed, upholding the board’s decision based on the fact that medical evidence supported Kelsey’s withdrawal from the labor market was involuntary due to his hernia and small bowel obstruction surgeries.
On the subject of the doctor, the appeals court pointed to the judge’s note on the amended claim that allowed the medical opinion to be viewed in a different light. Further, the evidence proved that despite not being a surgeon and failing to examine Kelsey in the hospital, that particular doctor had been examining Kelsey regularly since 2016.
