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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 2022-04-0022
Regular Panel Decision
Dec 18, 2024

Beach, Rhonda v. Hilltoppers, Inc.

Ms. Beach requested an expedited hearing for authorization of a second medical opinion after suffering a left-biceps tear and developing significant shoulder arthritis. Her authorized physician, Dr. Rappe, diagnosed a work-related biceps rupture but considered her end-stage osteoarthritis non-work-related, believing biceps surgery would not alleviate her pain. Although Dr. Rappe referred her for a second opinion to 'provide comfort' due to her dissatisfaction, the employer denied the request. The Court found that Dr. Rappe's medical records rebutted the presumption of medical necessity, as his referral was based on placating Ms. Beach rather than treating a work-related injury. Consequently, the Court denied Ms. Beach’s request for a second medical opinion.

References
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Case No. MISSING
Regular Panel Decision

Claim of Martinez v. LeFrak City Management

Claimant, working as a porter and professional boxer, sustained a left bicep injury during a boxing match on July 30, 2004, which an MRI confirmed required surgery. Despite this, claimant reported a new left arm injury on August 18, 2004, while at work as a porter, and subsequently underwent surgery for the bicep. He filed for workers' compensation benefits, leading to a 30% schedule loss of use award. However, the employer’s carrier alleged a Workers’ Compensation Law § 114-a violation, arguing claimant failed to disclose the prior boxing injury to medical providers. The Workers’ Compensation Board found a violation, disqualifying claimant from the schedule loss of use award but allowing medical benefits. The Appellate Division affirmed the Board's decision, finding substantial evidence supported the conclusion that claimant knowingly misrepresented his medical history.

WorkersCompensationLawFraudulentClaimMisrepresentationOfFactBicepInjuryPriorInjuryMedicalDisclosureCredibilityDeterminationSubstantialEvidenceAppellateAffirmationBenefitsDisqualification
References
4
Case No. 2020 NY Slip Op 06434 [188 AD3d 1403]
Regular Panel Decision
Nov 12, 2020

Matter of Liuni v. Gander Mtn.

Claimant Joseph D. Liuni sustained a left distal bicep tendon rupture in 2007, resulting in a 22.5% schedule loss of use (SLU) award for his left arm. In 2014, he established a workers' compensation claim for his right shoulder, which was later amended in 2016 to include a consequential injury to his left shoulder. A physician determined a 27.5% SLU for the left arm due to the 2016 injury, which, when combined with the prior award, totaled an overall 50% SLU. The Workers' Compensation Board modified a WCLJ's determination, ruling that the bicep and shoulder injuries are not eligible for separate SLU awards as they both fall under awards for the left arm. Consequently, the Board deducted the 2007 22.5% SLU from the 2016 27.5% SLU, resulting in a 5% SLU award for the left arm. The Appellate Division affirmed the Board's decision, emphasizing that Workers' Compensation Law § 15 (3) limits SLU awards to statutorily enumerated members and that separate awards for subparts of a body member would constitute an unauthorized monetary windfall.

Schedule Loss of Use (SLU)Workers' CompensationAppellate DivisionThird DepartmentLeft Arm InjuryBicep Tendon RuptureShoulder InjuryPrior Award DeductionMonetary WindfallStatutory Interpretation
References
5
Case No. VNO 0515904
Regular
Oct 15, 2007

CHRISTOPHER STOKES vs. COUNTY OF LOS ANGELES SHERRIF'S DEPARTMENT

The Appeals Board granted reconsideration, reversing the WCJ's decision and finding that the deputy sheriff's bicep injury sustained while training for an employer-sanctioned boxing tournament arose out of and occurred in the course of employment. The Board applied the *Ezzy* test, finding both subjective and objective reasonableness in the applicant's belief that his participation was expected, despite the injury occurring during off-duty training at a private residence. The matter was returned for further proceedings, deferring other issues.

Workers' Compensation Appeals BoardDeputy SheriffInjury AOE/COELabor Code Section 3600(a)(9)Voluntary Recreational Activity ExceptionImplied Employer EncouragementObjective Reasonable BeliefDepartmental Boxing TeamFundraiser EventSergeant Mike Young
References
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Case No. 2020 NY Slip Op 02919
Regular Panel Decision
May 20, 2020

Giannone v. City of New York

The injured plaintiff, a sanitation worker for the City of New York, suffered a biceps tendon tear while lifting a heavy "sausage bag" with a coworker who lost their grip. The plaintiffs subsequently filed an action alleging common-law negligence against the City and loss of consortium. The Supreme Court granted the City's motion for summary judgment, determining the injury stemmed from a risk inherent in the plaintiff's employment. On appeal, the Appellate Division, Second Department, affirmed this decision. The court concluded that the City had demonstrated its prima facie entitlement to judgment as a matter of law, establishing that the coworker was not negligent and the injury was an inherent hazard of the job.

Personal InjurySanitation WorkerCommon-law NegligenceLoss of ConsortiumSummary JudgmentInherent Hazard DoctrineEmployer DutyAppellate ReviewBiceps Tendon InjuryCoworker Negligence
References
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Case No. 535483
Regular Panel Decision
Oct 12, 2023

In the Matter of the Claim of Jaime Espinoza

Claimant, a safety manager, was injured in a parking area adjacent to his construction site after his shift while pulling a gate, sustaining a bicep and rotator cuff injury. He filed for workers' compensation benefits, which were denied by the Workers' Compensation Law Judge and affirmed by the Workers' Compensation Board, concluding the injury did not arise out of and in the course of employment as the parking area was not part of the job site or controlled by the employer. The Appellate Division reversed the Board's decision, finding that claimant's uncontradicted testimony established he was instructed to park in that area and that construction materials were stored there, creating a sufficient nexus between the construction site and the parking area to extend the employment premises. The matter was remitted to the Workers' Compensation Board for further proceedings.

Workers' CompensationScope of EmploymentParking Area InjuryPremises DoctrineArising Out of EmploymentCourse of EmploymentConstruction SiteEmployer ControlNexusRemittal
References
20
Case No. MISSING
Regular Panel Decision

Claim of Wilkins v. New York Power Authority

The claimant, a lineman, sustained a shoulder injury in July 2007. Despite a diagnosis of biceps tendonitis and adhesive capsulitis, he declined prescribed medication and discontinued physical therapy, not missing work. He subsequently applied for workers’ compensation benefits based on a 45% schedule loss of use. A Workers’ Compensation Law Judge initially denied benefits, citing the claimant's unreasonable refusal of treatment. The Workers’ Compensation Board reversed, finding the refusal reasonable. However, the appellate court reversed the Board's decision, concluding that the Board’s determination was not supported by substantial evidence given the unanimous medical opinion that treatment was needed and claimant's refusal was unreasonable, remitting the matter for further proceedings.

Shoulder InjuryBiceps TendonitisAdhesive CapsulitisSchedule Loss of UseRefusal of Medical TreatmentUnreasonable RefusalWorkers' Compensation BenefitsMedical OpinionSubstantial EvidenceAppellate Review
References
3
Case No. 526796
Regular Panel Decision
Oct 03, 2019

Matter of Barker v. New York City Police Dept.

Claimant Nielda Barker, an evidence property control specialist for the New York City Police Department for 29 years, filed a workers' compensation claim in November 2016 for injuries to her shoulders, bicep, elbow, wrist, and forearm. She attributed these injuries to repetitive overhead activities and lifting heavy objects. A Workers' Compensation Law Judge denied her claim, finding she did not sustain an occupational disease or a repetitive stress accidental injury. The Workers' Compensation Board upheld this determination, which was subsequently affirmed by the Appellate Division, Third Department. The court found that neither the claimant's testimony nor the medical evidence sufficiently established a recognizable link between her injuries and a distinctive feature of her work, or that the conditions resulted from unusual environmental circumstances.

Occupational DiseaseAccidental InjuryWorkers' Compensation BenefitsRepetitive Stress InjuryShoulder InjuriesEvidence Property Control SpecialistPolice DepartmentSubstantial EvidenceCausally-RelatedMedical Evidence
References
9
Case No. 530839
Regular Panel Decision
Jul 07, 2022

In the Matter of the Claim of Robert Strohschein

Claimant Robert Strohschein, an iron worker, filed for workers' compensation benefits due to a right biceps injury. The Workers' Compensation Board (WCB) modified a WCLJ's decision, finding that the claimant violated Workers' Compensation Law § 114-a by misrepresenting his medical condition and exaggerating symptoms during an independent medical examination. Surveillance video showed activities inconsistent with his reported limitations. The Board assessed mandatory penalties and permanently disqualified him from future wage replacement benefits, also finding he failed to demonstrate attachment to the labor market. The Appellate Division affirmed the WCB's decision, finding substantial evidence supported the Board's determination regarding the claimant's knowing material misrepresentations and upholding the discretionary penalty as not an abuse of discretion.

Workers' Compensation Law § 114-aMisrepresentation of medical conditionDisqualification of benefitsWage replacement benefitsLabor market attachmentSurveillance video evidenceIndependent Medical Examination (IME)Appellate reviewAbuse of discretionSubstantial evidence
References
16
Case No. 2020 NY Slip Op 06431 [188 AD3d 1395]
Regular Panel Decision
Nov 12, 2020

Matter of Gallagher v. Hines Interests Ltd. Partnership

Claimant Edward Gallagher established a workers' compensation claim for a right bicep tear and right carpal tunnel injury. Initially, the Workers' Compensation Board approved a stipulation for a 33 1/3% schedule loss of use (SLU) of the right arm and no SLU of the right hand. Claimant later sought to reopen the claim for a 30% SLU of the right hand, presenting new medical reports. However, the Board rescinded an award previously made by a Workers' Compensation Law Judge, finding that the claimant did not demonstrate a sufficient change in condition to warrant reopening the claim. The Appellate Division, Third Department, affirmed the Board's decision, concluding that the medical records did not establish a change in condition sufficient to alter the terms of the stipulation.

Workers' CompensationSchedule Loss of Use (SLU)Right Arm InjuryRight Carpal TunnelReopening ClaimChange in ConditionStipulationAppellate ReviewMedical OpinionJudicial Discretion
References
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