Bosse v. Sargent Corporation & Cross Insurance TPA, Inc.

Decided: March 24, 2021
Topic: Preexisting Condition, Significant Contribution, Average Weekly Wage  

This decision involved several issues, including preexisting conditions and average weekly wage. The employee filed a Petition for Award alleging a gradual work injury arising out of her work for Sargent after experiencing hip and lower back pain. The employee had worked as a truck driver for many years.

Initially, she was self-employed. She then worked for another employer for a couple of years before being hired by Sargent. Notably, the employee had experienced low back problems before her employment at Sargent.

It is also important to note that the employee was subject to seasonal layoffs at Sargent. There was some indication in the record that the same was true during her employment with her prior employer. She worked year-round when she was self-employed, however.

Dr. Bradford’s initial 312 reports concluded that while her hip arthritis was caused by her work as a truck driver, the work did not cause a significant low back problem. However, at deposition, Dr. Bradford testified that her truck driving activities probably contributed to the development of degenerative disc disease in her back.

The ALJ (Goodnough) adopted Dr. Bradford’s deposition testimony and found the employee sustained a compensable gradual injury to both hips and her low back. The ALJ awarded a closed-end period of total incapacity for the hip surgery, recovery, and ongoing partial for the low back.

Because the employee was laid off during the winter months, Sargent argued that the average weekly wage should be calculated using the fallback method in section 102(4)(D) rather than under section 102(4)(B) as that method would unreasonably inflate the employee’s average weekly wage.

The ALJ disagreed, finding that the wage using (B) was not so high as to be per se unreasonable. The reasons she worked less than year-round were linked to the employer’s considerations, and she had worked on a year-round basis before working for the employer.

The Appellate Division affirmed the ALJ’s finding that the work injury included an injury to her lower back but vacated the ALJ’s determination that back injury was compensable without applying the section 201(4) analysis. It remanded for a determination whether the employment at Sargent contributed to the disability in a significant manner.

Finally, the Appellate Division found no competent evidence to support the finding that employment immediately before Sargent was year-round, which is deemed critical in the decision to employ (B) instead of (D). Ultimately, it remanded for determining whether (B) was the appropriate method for calculating the wage.

To discuss how this decision and others like it may affect you as an employer or insurer, please give one of the attorneys at Tucker Law Group a call.

To see the full text of the decision, click here.

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