Malinowski v. Sikorsky Aircraft Corporation

STEPHEN M. MORELLI, CHAIRMAN. On September 27, 2019, the respondents filed a Motion for Reconsideration and Re-Argument (motion) and a Memorandum of Law in Support of Motion for Reconsideration and Re-Argument (memorandum) from the Compensation Review Board’s Opinion issued on August 26, 2019, bearing the caption “Malinowski v. Sikorsky Aircraft Corporation, 6216 CRB-8-17-8 (August 26, 2019). The respondents contend that the decision is “not supported by the relevant case law,” September 27, 2019 Motion, pp.1-2, and “allows for a subjective analysis of workplace activities that can be exercised by a trial commissioner that goes far beyond the type of injuries previously applying the ‘common knowledge exception’ established in our law.” Id., 2. The respondents also request that the board revisit the commissioner’s denial of their motion for articulation due to “the lack of analysis or explanation as to how the trial commissioner was able to conclude that there was a substantial permanent aggravation of an underlying pre-existing left knee condition....” Id.

Our review of the respondents’ motion indicates that they are essentially reiterating the same, or similar, arguments which were unavailing in their initial appeal of the commissioner’s June 5, 2017 Findings and Orders. The respondents again contend that the expert testimony proffered by the claimant’s treating physician was not based on the evidence, did not sufficiently address the role of claimant’s workplace activities, and failed to establish a causal link between those activities and the claimant’s need for knee replacement surgery. The respondents further aver that the board, in its analysis, misinterpreted pertinent case law, particularly with regard to a commissioner’s discretion to consider other evidence in addition to expert testimony when rendering a decision on causation in complex cases in which the injury is not “a matter of common knowledge.” September 27, 2019 Memorandum, p. 7. The respondents maintain that in the present matter, neither the evidentiary record nor relevant case law provided an adequate basis for the commissioner’s conclusion that the claimant’s repetitive workplace activities aggravated his pre-existing arthritis and resulted in the need for a left total knee replacement.

Having reviewed the respondents’ motion and memorandum, we find that their arguments are no more persuasive at this juncture than they were when we first heard the appeal. The respondents’ September 27, 2019 Motion for Reconsideration and ReArgument is accordingly denied.

Malinowski v. Sikorsky Aircraft Corporation

RULING ON RESPONDENTS’ MOTION FOR RECONSIDERATION AND RE-ARGUMENT