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

Case No. 2021 NY Slip Op 07401
Regular Panel Decision
Dec 23, 2021

Matter of Carola B.-M. v. New York State Off. of Temporary & Disability Assistance

Petitioners Carola B.-M. and Tiara M. challenged the denial of their supplemental nutrition assistance program (SNAP) benefits by the New York State Office of Temporary and Disability Assistance and the Orleans County Department of Social Services. The benefits were denied because they were deemed ineligible college students. The Appellate Division, Fourth Department, reversed this determination, holding that participation in the Adult Career and Continuing Education Services, Vocational Rehabilitation program (ACCES-VR) qualifies as a Job Training Partnership Act (JTPA) program. This status exempts the students from certain SNAP eligibility requirements. The court found that the original determination was based on an unreasonable interpretation of relevant regulations, annulled the decision, granted the petition, and remitted the case for a calculation of retroactive benefits.

SNAP benefitscollege student eligibilityJob Training Partnership ActACCES-VRvocational rehabilitationCPLR article 78regulatory interpretationpublic assistancefood stampsAppellate Division
References
28
Case No. MISSING
Regular Panel Decision

Claim of Bruzzese v. Guardsman Elevator Co.

In 1994, the claimant sustained head, neck, and back injuries at work, leading to an award for permanent partial disability, which included a wage expectancy adjustment under Workers’ Compensation Law § 14 (5). Following back surgery in 1998, the case was reopened, and the claimant was found to be temporarily totally disabled. Benefits for this temporary total disability were calculated based on the claimant's average weekly wage at the time of injury, without applying the wage expectancy adjustment. The claimant appealed, arguing that since the permanent partial disability preceded the temporary total disability, the wage expectancy adjustment should also apply to the latter period. The court disagreed, affirming the Workers’ Compensation Board's decision, citing established case law that Workers’ Compensation Law § 14 (5) is applicable only to awards for permanent partial disability and not temporary disability.

Wage expectancyTemporary total disabilityPermanent partial disabilityWorkers' Compensation benefitsBack injuryAppellate reviewDisability calculationWorkers' Compensation BoardAverage weekly wage
References
1
Case No. ADJ9570277
Regular
Mar 07, 2018

WILLIAM SERA vs. CITY OF LOS ANGELES, TRISTAR RISK MANAGEMENT

The Workers' Compensation Appeals Board granted the defendant's petition for reconsideration and rescinded the award of continuing temporary disability benefits. The applicant, William Sera, a retired police detective, claimed temporary disability following lumbar surgery for a presumed industrial injury. The Board found that Sera had voluntarily retired from the labor market for reasons unrelated to his injury and therefore had no demonstrated earning capacity post-retirement to be replaced by temporary disability benefits. Because he did not establish an intent to continue working after retirement, he was not entitled to temporary disability indemnity after his surgery.

Petition for ReconsiderationTemporary Total DisabilityCumulative Trauma InjuryLumbar SurgeryService RetirementLabor MarketEarning CapacityVoluntary RetirementIndustrial InjuryFindings of Fact and Award
References
3
Case No. ADJ394938 (OAK 0328377)
Regular
Dec 16, 2015

LONDON MORROW vs. GOLDEN GATE BRIDGE HIGHWAY AND TRANSPORTATION DISTRICT

This case concerns an applicant who sustained a right shoulder injury in 2003 and was awarded temporary disability indemnity for a new period of disability in 2015. The defendant challenged this award, arguing the Board lacked jurisdiction to grant temporary disability more than five years after the injury date, as the applicant had not been continuously disabled. The majority of the Board denied reconsideration, adopting the WCJ's report. However, a dissenting commissioner argued that Labor Code section 4656 and prior case law preclude jurisdiction for a new temporary disability period initiated more than five years post-injury, especially when disability was not continuous.

Workers' Compensation Appeals BoardPetition for ReconsiderationTemporary Disability IndemnityDate of InjuryJurisdictionLabor Code Section 4656Nickelsberg v. Workers' Comp. Appeals Bd.Continuous DisabilityNew Period of Temporary DisabilityPermanent and Stationary
References
1
Case No. ADJ2522693 (POM 0260474)
Regular
Apr 17, 2019

MALCOLM CHISUM vs. BROWN INTERNATIONAL, LIBERTY MUTUAL INSURANCE

The applicant sustained a lumbar spine and bilateral lower extremities injury on October 4, 2001, for which he received a stipulated settlement. Subsequently, the applicant sought additional temporary disability indemnity, arguing his temporary disability commenced within five years of the injury and has been continuous. However, a prior order found the applicant permanent and stationary on February 23, 2015, which remains a binding final order. Therefore, the Board affirmed the prior finding, determining it lacks jurisdiction to award further temporary disability benefits as the applicant cannot establish continuous temporary disability post-February 23, 2015.

Workers' Compensation Appeals BoardReconsiderationFindings and OrderTemporary Total DisabilityLumbar SpineBilateral Lower ExtremitiesSheet Metal FabricatorJurisdictionLabor Code Section 4656(b)Petition to Reopen
References
10
Case No. ADJ1718605 (RIV 0018154)
Regular
May 20, 2011

SASON COHEN vs. MORTON'S STEAKHOUSE, ESIS, Inc.

In this workers' compensation case, the Appeals Board granted reconsideration, striking the award for additional temporary disability indemnity. The Board clarified that while jurisdiction exists to award temporary disability beyond five years from the injury date if a timely reopening petition is filed, this only applies to continuous disability that bridges the five-year mark. A new, non-continuous period of temporary disability arising more than five years after the injury, even with a timely filed petition, falls outside the Board's jurisdiction. The Board otherwise affirmed the original findings and award.

New and further disabilityStatute of limitationsTemporary total disabilityReconsiderationFindings and AwardQualified medical evaluatorSubstantial evidenceLabor Code section 5410Labor Code section 5803Labor Code section 5804
References
16
Case No. ADJ1787406 (STK 0157805)
Regular
Feb 24, 2017

BARBARA WRIGHT vs. BROWN & WILLIAMSON TOBACCO COMPANY, Permissibly Self-Insured, Adjusted By CONSTITUTION STATE SERVICES

This case involves a dispute over temporary disability indemnity for an applicant with a 1999 injury. The Appeals Board granted reconsideration and amended the award to provide temporary disability from December 12, 2003, to December 14, 2005, finding continuous temporary disability bridged the five-year jurisdictional limit. The Board also issued a notice of intention to impose sanctions against defense counsel for failing to comply with Board rules regarding petition filings. This amended award corrects the original finding which extended benefits beyond the continuous disability period.

Workers' Compensation Appeals BoardReconsiderationTemporary Disability IndemnityDate of InjuryPetition to ReopenNew and Further DisabilityJurisdictionPermanent and StationaryAgreed Medical EvaluatorContinuous Temporary Disability
References
10
Case No. 5674395Z
Regular Panel Decision
Dec 01, 2011

Baines v. Berlin

Mashon Baines, a homeless and disabled mother of three, initiated a CPLR article 78 proceeding to challenge the New York State Office of Temporary and Disability Assistance's August 31, 2011 decision to discontinue her temporary housing assistance. This decision stemmed from an alleged altercation with a shelter director, Marilyn Gonzalez, during a fire drill, leading to Baines's arrest. Baines argued that her due process rights were violated because the discontinuance notice cited only the assault on Ms. Gonzalez, while the administrative decision was based on multiple uncharged wrongdoings and failed to adequately consider video evidence. The court found that respondents failed to adequately apprise Baines of all charges, thereby violating her due process rights, and consequently annulled the August 31, 2011 fair hearing decision. The court also granted Baines's request for attorneys' fees, costs, and disbursements.

Due ProcessAdministrative HearingHomeless AssistanceShelter BenefitsDiscontinuance of BenefitsNotice RequirementsCPLR Article 78Judicial ReviewAttorneys' FeesSelf-Incrimination
References
8
Case No. ADJ4254212 (SAC 0369491) ADJ3966016 (SAC 0369493)
Regular
Jul 19, 2010

Salem Najjar vs. MEEKS BUILDING CENTER, ZURICH AMERICAN INSURANCE COMPANY

The Appeals Board granted reconsideration, finding that a payment for attending a medical-legal examination under Labor Code section 4600(e)(1) does not trigger the 104-week limit on temporary disability indemnity under Labor Code section 4656(c)(1). The Board clarified that such payments are for wage loss reimbursement, not a commencement of actual temporary disability, distinguishing it from prior cases where other benefit types functionally served as temporary disability. The case was remanded to determine the actual date temporary disability payments began to establish the correct duration of benefits. Applicant's claim for temporary disability from March 17, 2009, and continuing will be re-evaluated.

Labor Code section 4656(c)(1)temporary disability indemnity104 week limitationmedical examinationQualified Medical Evaluation (QME)wage lossreconsiderationWCJLabor Code section 4600(e)(1)aggregate disability payments
References
5
Case No. MISSING
Regular Panel Decision
Sep 08, 1983

Claim of McNeil v. Geary

The claimant, a groom, injured her left knee in 1979 and was initially found temporarily totally disabled. The Workers' Compensation Board later reclassified her injury as a 15% permanent partial disability of the left leg, dating from the time of injury, and increased her benefits based on wage expectancy due to her being under 25. The employer appealed, arguing that wage expectancy benefits should not apply to the period of temporary total disability and that the record didn't substantiate a permanent partial disability ab initio. The court affirmed the Board's decision, stating that reclassification is a factual determination within the Board's sole province and was based on substantial evidence, and that the Board has continuing jurisdictional power to modify findings.

Permanent Partial DisabilityWage ExpectancyWorkers' Compensation LawInjury ReclassificationBoard JurisdictionSubstantial EvidenceLeft Knee InjuryGroomRiding AcademyTemporary Total Disability
References
4
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