Coro v. Liberty Mutual Insurance Company and Liberty Insurance Corp.

Decided: June 22, 2021
Issues: Findings of Fact, Specific Mandate

On October 21, 2011, while working for Liberty Mutual as an in-house workers compensation defense attorney, the employee’s vehicle was rear-ended while driving to a hearing, resulting in injuries to her neck, back, upper extremities, and head. She continued to work for Liberty Mutual making her regular salary although she continued to have limitations from the injury.  She underwent a cervical disc replacement at C5-6 in October of 2014.

The Employee was unable to recover her pre-injury work capacity after her surgery. In May 2015, she was laid off by Liberty Mutual. Liberty Mutual paid her total incapacity.

One month after being laid off, the Employee started her own company, earning income helping parents with children suffering from addiction and substance abuse navigate the treatment system. During 2015 and 2016, she worked on a contractual basis for an inpatient facility. Then in 2017, after her contract was not renewed by the facility, she was hired independently by parents. In September of 2017, she was hired by a company to provide utilization review services.

In January of 2017, Liberty Mutual reduced her weekly compensation to a partial fixed rate. The sole dispute at hearing was the extent of earning capacity after January 16, 2017. The Employee alleged that the evidence – including an updated labor market survey and deposition testimony from the labor market survey expert – showed that she was entitled to varying partial from January 16 through September 30, 2017, and total incapacity from October 1, 2017 to the present and continuing. Liberty Mutual contended that she should receive benefits for partial from January 16, 2017 to the present and continuing based on an imputed earning capacity of $50,000 per year.

The contract ALJ determined that the evidence as a whole established a work capacity and that there is available employment, within the lower range of the labor market survey evidence for her to earn $40,000 annually. The decree did not contain the customary mandate explicitly granting the petition and instituting a weekly payment scheme. Following a denied Motion for Findings of Fact and Conclusions of Law, the Employee appealed.

The Employee argued on appeal that the contract ALJ erred when failing to issue additional findings of fact and conclusions of law when requested, stating that the original findings are inadequate for appellate review either because they are contradictory and unreconcilable, or fail to explain the legal basis for the finding. The Appellate Division disagreed.

The Employee’s first contention was that she was entitled to a remand for clarification because the contract ALJ based his findings, including findings on work capacity, on the reports of Drs. Kowash, Esponnette, and Omsberg. Dr. Kowash opined that the Employee had no work capacity while Drs. Esponnette and Omsberg opined that she had partial work capacity but could be expected to increase to full time. However, the contract ALJ explicitly stated that he based his findings “most significantly” on the Employee’s testimony regarding the work she performed after the injury. The Appellate Division noted that the contract ALJ clearly found her own testimony describing substantial work activity to be most persuasive.

The Employee further argued that findings with respect to her ability to earn $40,000 per year were inadequate because the contract ALJ did not consider that her law license had lapsed due to the inability to pay for required continuing education courses after being terminated, had overlooked her documented business expenses when establishing the post injury earning capacity, and relied on the labor market report that he also found to have significant shortcomings. The ALJ found that she retained considerable marketable skills during the period when she did not have a current law license. Furthermore, the Appellate Division held that although the Employee’s evidence of net profit from her self-employment arguably met her burden to produce prima facie evidence of her post-injury earning capacity, the contract ALJ was not bound to accept the net figure as conclusive proof of her earning capacity.

The burden then shifted to Liberty Mutual to establish that regular employment at higher wages within her restrictions was reasonably available to her, which it did using the labor market evidence. The Appellate Division then reasoned that despite the contract ALJ acknowledging the shortcomings in the labor market evidence, when viewed in the context of all evidence including her limited work search and her considerable skills and abilities, the testimony of the labor market expert was competent evidence to support the finding that the Employee was able to earn $40,000 per year. Moreover, it was within the contract ALJ’s purview to determine the weight and credibility to assign to the evidence.

Next, the Employee argued that the contract ALJ erred when basing his decision regarding earning capacity in part on the narrow window of her work search efforts without considering the Monaghan factors. However, the Appellate Division found this issue had not been preserved for appellate review and that it lacked merit in any event.

Finally, the Employee claimed that the Appellate Division must remand for further proceedings because the ALJ failed to state explicitly whether the petition was granted or denied, or to mandate a specific payment scheme for fixed partial incapacity benefits based on his determination of her earning capacity. The Appellate Division rejected this argument, holding that the failure to include the typical language is not reversible error as the statute authorizes modification of a decree of an administrative law judge. As such, the Appellate Division modified the decree by adding a specific mandate consistent with the contract ALJ’s findings and conclusions.

To read the full decision, click here:

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