Claimant appealed the Benefits Review Board’s (“BRB”) decision affirming the Administrative Law Judge’s (“ALJ”) determination that Claimant had a 10% impairment to his lungs. Although awarded benefits, Claimant argued that the ALJ erred by not taking judicial notice of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”). Both the BRB and the United States Court of Appeals, Second Circuit, agreed that the ALJ “most likely erred” but that the error–which was the ALJ’s failure to determine Claimant’s permanent impairment in accordance with the Guides–was harmless.
The Second Circuit also agreed with the ALJ’s determination of the date of permanency. “Permanency can be shown in one of two ways: (1) when the claimant reaches ‘maximum medical improvement’ as demonstrated by the medical evidence; or (2) when the claimant’s disability ‘has continued for a lengthy period, and it appears to be of lasting or indefinite duration, as distinguished from one in which recovery merely awaits a normal healing period.'” Here, substantial evidence, including medical deposition testimony, supported the ALJ’s permanency determination.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)