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

Case No. MISSING
Regular Panel Decision

Claim of Salvet v. Union Carbide Linde Division

Claimant sustained two compensable injuries, leading to a permanent partial disability classification in 1983 with a nonschedule award of $95 per week. Subsequently, in 1984, the claimant was diagnosed with a 24.2% occupational binaural hearing loss, resulting in a schedule award of $105 per week for 36.3 weeks. The Workers' Compensation Board, following an application by the carrier, reduced this schedule award to $10 per week. This reduction was based on Workers' Compensation Law § 15 (6) (a), which sets a maximum of $105 per week for compensation for permanent or temporary partial disability, indicating that the aggregate of both awards should not exceed this statutory limit. The appellate court affirmed the Board's decision, ruling that the statutory maximum applies to the total of all permanent partial disability awards, irrespective of whether they are schedule or nonschedule awards.

Workers' Compensation LawPermanent Partial DisabilityOccupational Hearing LossSchedule AwardNonschedule AwardStatutory MaximumAggregate AwardsWorkers' Compensation Board AppealStatutory InterpretationConcurrent Awards
References
6
Case No. MISSING
Regular Panel Decision

Claim of Kellish v. Kellish Tire Sales, Inc.

The claimant, who suffered a work-related injury in 1999, applied for workers' compensation benefits in 2001. The Workers' Compensation Board initially set his average weekly wage at $126, which was based on his part-time employment where he worked one day a week and received $126 plus health insurance. The claimant appealed, arguing that his average weekly wage should be calculated under Workers’ Compensation Law § 14 (3) and that health insurance payments should be included. The Workers' Compensation Board affirmed the initial finding. The Supreme Court, Appellate Division, Third Department, affirmed the Board's decision, concluding that there was substantial evidence that the claimant voluntarily limited his work availability. The court also held that health insurance payments are not part of the definition of wages under Workers’ Compensation Law § 2 (9).

Workers' CompensationAverage Weekly WagePart-time EmploymentVoluntary LimitationHealth InsuranceWage CalculationAppellate ReviewNew York LawStatutory InterpretationWorkers’ Compensation Law § 14
References
5
Case No. MISSING
Regular Panel Decision

Claim of Barnard v. John Mezzalingua Associates, Inc.

The claimant sustained work-related injuries to both hands in 2004 and applied for workers’ compensation benefits. Initially, a Workers’ Compensation Law Judge set the average weekly wage at $447.10 using a 260-multiple. The employer appealed, arguing for a lower wage based on actual earnings. The Workers’ Compensation Board subsequently determined a miscalculation occurred and established the average weekly wage at $343.92, applying a 200-multiple under Workers’ Compensation Law § 14 (3) because the claimant did not work substantially the whole year. The Appellate Division affirmed the Board's decision, finding the 200-multiple accurately reflected the claimant's earning capacity, as she was a full-time employee who did not voluntarily limit her availability.

Workers' CompensationAverage Weekly WageWage CalculationSection 14MultiplierEarning CapacityAppellate ReviewBoard DecisionOccupational DiseaseNew York
References
5
Case No. 2017 NY Slip Op 27428
Regular Panel Decision
Dec 14, 2017

New York State Workers' Compensation Bd. v. Compensation Risk Mgrs., LLC

This action was brought by the New York State Workers' Compensation Board (WCB), as an assignee of former members of the Healthcare Industry Trust of New York (HITNY), against Compensation Risk Managers, LLC (CRM), HITNY trustees, and auditing firm UHY LLP. The WCB alleged mismanagement, breach of fiduciary duty, and negligent auditing, leading to the Trust's insolvency. Defendants moved to dismiss on grounds of standing, statute of limitations, and pleading particularity. The court dismissed certain derivative claims and negligent misrepresentation claims against some trustees due to standing issues and statute of limitations. All claims against UHY LLP were dismissed for lack of a near-privity relationship or prior precedent. An implied indemnity claim against the trustees was sustained. The WCB's cross-motion to consolidate related actions was denied.

Workers' Compensation LawGroup Self-Insured Trust (GSIT)Fiduciary DutyNegligenceNegligent MisrepresentationStatute of LimitationsStandingDerivative ActionImplied IndemnityAuditing Firm Liability
References
46
Case No. MISSING
Regular Panel Decision
Sep 09, 1998

In re the Claim of Peabody

The claimant appealed a decision by the Unemployment Insurance Appeal Board, filed on September 9, 1998, which ruled that the claimant was not entitled to receive unemployment insurance benefits. This denial was based on Labor Law § 591 (5), a 1996 amendment that limits unemployment benefits when a claimant also receives workers' compensation benefits exceeding their average weekly wage. The claimant contended that the statutory limitation should consider the pre-injury weekly wage used for workers' compensation. However, the Board, and subsequently the court, found no textual basis to interpret 'average weekly wage' in Labor Law § 591 (5) differently from its definition in Labor Law former § 590 (2). Consequently, the Board's conclusion was affirmed.

Unemployment benefitsWorkers' compensation offsetStatutory interpretationAverage weekly wage calculationBenefit eligibilityLabor Law § 591(5)Appeal Board decisionJudicial reviewAffirmed decision
References
2
Case No. MISSING
Regular Panel Decision
Mar 06, 1969

Claim of Mangianeli v. New York State Brooklyn State Hospital

This case concerns an appeal from a Workmen’s Compensation Board decision regarding disability benefits for a claimant. The central issue revolves around the proper application of subdivision 2 of section 14 of the Workmen’s Compensation Law to determine the claimant’s average weekly wage. The claimant, a head nurse, voluntarily reduced her work schedule from a five-day to a three-day week in 1964 to care for her mother, subsequently suffering occupational accidents in 1965 and 1967. The Board had incorrectly applied subdivision 2, deeming her absences involuntary, and set her average weekly wage at $127.40. The appellate court found this application erroneous, asserting that subdivision 2 is not applicable when a claimant deliberately limits their work hours. Consequently, the decision was reversed, and the case was remitted for the Board to apply subdivision 3 of section 14 and duly consider the claimant's voluntary work limitation.

Disability benefitsAverage weekly wageWorkmen's Compensation Law Section 14Voluntary limitation of employmentApportionment of benefitsOccupational accidentsRemandStatutory interpretation
References
4
Case No. 2021 NY Slip Op 04073
Regular Panel Decision
Jun 24, 2021

Matter of Jagiello v. Air Tech Lab, Inc.

Czeslaw Jagiello had an established workers' compensation claim for an occupational disease that became disabling in 2017, in addition to a prior claim for World Trade Center site injuries, under which he received $400 weekly in temporary partial disability benefits. The dispute revolved around the amount of additional benefits for the occupational disease claim, with the Workers' Compensation Board (WCB) initially determining $480.71 weekly but capping the concurrent award at $801.32 weekly, leading to an award of $401.32 weekly for the occupational disease. Jagiello argued the statutory cap should be $870.61 weekly, thus seeking $470.61 weekly. The Appellate Division affirmed the WCB's decision, clarifying that while the combined weekly benefit was statutorily capped at $870.61 under Workers' Compensation Law § 15 (6), the appropriate temporary partial disability award, being two-thirds of the difference between pre- and post-accident average weekly wages, was correctly limited to $801.32, which was two-thirds of his average weekly wages at the date of disablement.

Workers' CompensationOccupational DiseaseTemporary Partial DisabilityConcurrent AwardsStatutory Maximum RatesAverage Weekly WageWorld Trade Center ClaimAppellate ReviewDisability BenefitsBenefit Calculation
References
7
Case No. MISSING
Regular Panel Decision

Fletcher v. Wegmans

Claimant sustained a work-related knee injury in November 2002. The Workers' Compensation Board calculated her average weekly wage at $398.49 by applying Workers' Compensation Law § 14 (3) and (4), as the claimant did not work a standard five or six-day week. The employer appealed, arguing improper statutory application. The appellate court affirmed the Board's decision, finding that the Board correctly utilized Workers' Compensation Law § 14 (3) to determine annual average earnings and subsequently Workers' Compensation Law § 14 (4) to establish the average weekly wage.

Work-related injuryAverage weekly wage calculationWorkers' Compensation Law § 14Statutory interpretationKnee injuryBoard decision affirmedWage calculation methodsAppellate reviewEmployer appealWorkers' Compensation benefits
References
3
Case No. MISSING
Regular Panel Decision
Feb 19, 1997

Till v. Chautauqua Opportunities, Inc.

The claimant, a private preschool teacher, suffered a compensable injury. The Workers’ Compensation Board calculated her average weekly wage based on Workers’ Compensation Law § 14 (1), asserting she worked “substantially the whole of the year” despite her 41-week annual employment. The employer contended this was irrational, arguing that predictable seasonal layoffs should be factored into the annual earnings calculation, preventing her from receiving benefits equivalent to a full-time, full-year employee. The court agreed, holding that the formula in Workers’ Compensation Law § 14 (1) was inapplicable when seasonal layoffs are a known incident of employment. Therefore, the average weekly wage should be calculated under subdivisions (3) and (4) of Workers’ Compensation Law § 14. The Board's decision was reversed, and the matter remitted for further proceedings consistent with the court's ruling.

Workers' CompensationAverage Weekly WageSeasonal EmploymentRemittiturStatutory InterpretationSection 14Appellate DivisionWage CalculationEmployment DurationBoard Decision Reversal
References
6
Case No. MISSING
Regular Panel Decision

Claim of House v. International Talc Co.

Arthur House suffered a compensable occupational disease in 1973, resulting in permanent total disability and received workers' compensation benefits based on his 1973 average weekly wage. He died in 1995 from lung disease. His widow, the claimant, filed for death benefits, contending the benefits should be calculated based on the average weekly wage of a comparable employee for the year preceding his death (March 17, 1994, to March 17, 1995). The Workers’ Compensation Law Judge and the Board, however, determined that death benefits should be calculated based on House's average weekly wage from the date of his original injury, April 5, 1973. This Appellate Division affirmed the Board's decision, interpreting Workers’ Compensation Law §§ 2, 14, and 38 to establish that the date of the original injury or accident is the basis for computing both disability and death benefits, not the date of death.

Death BenefitsAverage Weekly Wage CalculationOccupational DiseasePermanent Total DisabilityStatutory InterpretationDate of DisablementAppellate DivisionTalcosisClaimant's Widow
References
6
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