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

Case No. 2022 NY Slip Op 05362 [208 AD3d 1565]
Regular Panel Decision
Sep 29, 2022

Matter of Sausto v. Wildlife Conservation Socy.

Claimant Frank P. Sausto was injured while working and received workers' compensation benefits. He was found to have violated Workers' Compensation Law § 114-a for making material misrepresentations concerning his work activities with his custom knife business, FS Blades, while collecting total disability benefits. A Workers' Compensation Law Judge initially imposed both mandatory and discretionary penalties. The Workers' Compensation Board modified this decision, imposing only a mandatory penalty for a specified period and finding a discretionary penalty unwarranted due to the claimant's disclosures and forthright testimony. The employer and its carrier appealed the Board's modification, but the Appellate Division affirmed the Board's decision, concluding that its factual findings were supported by substantial evidence and its decision regarding the discretionary penalty was not an abuse of discretion.

Workers' Compensation FraudMisrepresentation of Work ActivitiesDisability BenefitsMandatory PenaltyDiscretionary PenaltyAppellate ReviewSubstantial EvidenceAbuse of DiscretionWorkers' Compensation LawCredibility Assessment
References
10
Case No. MISSING
Regular Panel Decision

Losurdo v. Asbestos Free, Inc.

The New York Court of Appeals addressed whether Workers’ Compensation Law section 114-a (1) authorizes the Workers’ Compensation Board to disqualify a claimant from receiving wage replacement benefits even when the forfeited compensation is not "directly attributable" to a false statement. The court held that while the mandatory penalty requires a direct link, the Board possesses discretionary power to impose disqualification, which can include forfeiture of all or a portion of benefits, regardless of whether the false statement enabled the claimant to receive compensation. The court defined "material fact" broadly as significant or essential to the issue at hand. In the cases of James Losurdo and Florencia Machado, where the Board had imposed disqualifications for misrepresentations, the court reversed and remitted the matters. It directed the Board to clarify whether mandatory or discretionary penalties were applied and to provide an explanation for the proportionality of any disqualification imposed under its discretionary power.

Workers' Compensation LawFraudWage Replacement BenefitsMaterial FactDisqualificationDiscretionary PenaltyMandatory PenaltyApportionmentPreexisting InjurySurveillance
References
11
Case No. ADJ8990594
Regular
Feb 22, 2000

SHAWN GUTE vs. THE RYAN COMPANY, OLD REPUBLIC WORK COMP

Here's a summary of the case for a lawyer: The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration, upholding the denial of a credit for temporary disability overpayments against the applicant's permanent disability award. The Board found that allowing the credit would effectively eliminate the permanent disability benefits and that such credit allowances are discretionary. The WCAB adopted the WCJ's reasoning, emphasizing that the statutory purpose of permanent disability benefits would be undermined. The defendant's argument that they overpaid temporary disability after the agreed medical evaluator found the applicant permanent and stationary was rejected as a basis to disturb the WCJ's discretionary denial of credit.

Petition for ReconsiderationTemporary DisabilityPermanent DisabilityCreditOverpaymentAgreed Medical EvaluatorMaximum Medical ImprovementDiscretionaryWorkers' Compensation Appeals BoardWorkers' Compensation Judge
References
2
Case No. 533961
Regular Panel Decision
Sep 29, 2022

In the Matter of the Claim of Frank P. Sausto

Claimant Frank P. Sausto, a plumber, was injured and awarded workers' compensation benefits. The employer and carrier alleged he made material misrepresentations regarding his concurrent business, FS Blades, violating Workers' Compensation Law § 114-a (1). The Workers' Compensation Board (Board) found a violation, imposing a mandatory penalty of disqualification from benefits for November 2, 2019, through December 3, 2019, but declined a discretionary permanent disqualification. The carrier appealed, arguing for a more severe discretionary penalty. The Appellate Division affirmed the Board's decision, finding substantial evidence supported the violation and that the Board's penalty decision was not an abuse of discretion.

Workers' Compensation Law § 114-aMaterial MisrepresentationFraudDisability BenefitsConcurrent EmploymentAppellate ReviewPenalty DisqualificationWitness CredibilitySubstantial EvidenceAbuse of Discretion
References
10
Case No. MISSING
Regular Panel Decision

Anderson v. Central New York Developmental Disabilities Service Office

An employer's workers' compensation carrier appealed a Workers’ Compensation Board decision from July 1, 2002, which assessed a 20% penalty for late payment on a Workers’ Compensation Law § 32 waiver agreement. The delay was caused by the closure of the carrier's lower Manhattan office due to the September 11, 2001 terrorist attacks. Initially, the Board felt it lacked discretion to waive the penalty. However, it was clarified that the Board has discretionary power under 12 NYCRR 300.30 to extend time limitations. The appellate court reversed the Board's decision, remitting the case for reconsideration of whether the short delay should be excused under its discretionary authority.

Workers' Compensation LawLate Payment PenaltySection 32 Waiver AgreementSeptember 11 AttacksDiscretionary Power12 NYCRR 300.30Excusable DelayAppellate ReviewRemandAdministrative Law
References
4
Case No. 533663
Regular Panel Decision
Apr 21, 2022

In the Matter of the Claim of Peter Giglia

Claimant Peter Giglia appealed a Workers' Compensation Board decision that found he violated Workers' Compensation Law § 114-a by making misrepresentations on work activity reports. Giglia failed to disclose side jobs he performed while receiving benefits between September 7, 2018, and May 16, 2019. The Board assessed mandatory and discretionary penalties, including forfeiture of benefits and permanent disqualification from future wage replacement benefits. The Appellate Division affirmed the finding of a violation and the discretionary penalty but modified the mandatory penalty, specifying that benefits should be rescinded only from September 7, 2018, to April 29, 2019, rather than the entire period of lost wages.

Workers' CompensationMisrepresentationFraudWage Replacement BenefitsPenaltiesAppellate DivisionFalse StatementWork Activity ReportsForfeitureDisqualification
References
11
Case No. MISSING
Regular Panel Decision
Jul 21, 1999

Fisher v. Giuliani

The case challenges recent zoning amendments in the Manhattan Theater District, specifically regarding the requirement for an Environmental Impact Statement (EIS). Petitioners argued the City's Department of City Planning (DCP) failed to adequately assess environmental impacts before implementing changes to the New York City Zoning Resolution (ZR). The court found that while no EIS was needed for as-of-right development transfers and design controls, the City erred by not analyzing the potential impact of amendments allowing special permits and discretionary authorizations. Consequently, the provisions related to discretionary grants of Floor-to-Area ratio (FAR) were annulled and severed, and the matter was remanded for further proceedings consistent with the opinion.

Zoning AmendmentsEnvironmental Impact Statement (EIS)State Environmental Quality Review Act (SEQRA)City Environmental Quality Review (CEQR)Theater District ZoningDevelopment Rights TransferManhattan Zoning ResolutionSpecial PermitsDiscretionary AuthorizationsEnvironmental Assessment Statement (EAS)
References
14
Case No. MISSING
Regular Panel Decision

Claim of Turdo v. Dellicato Vineyards

The case addresses whether the New York State Insurance Department Liquidation Bureau is required to make a mandatory deposit into the Aggregate Trust Fund (ATF) for workers' compensation death benefits. The Workers' Compensation Board had ruled that the deposit was mandatory, reversing its previous stance. However, the appellate court found that the plain language of Workers' Compensation Law § 27 does not mandate such deposits for the Liquidation Bureau, as it is not a 'stock corporation or mutual association'. While the Board possesses discretionary power to require deposits from 'insurance carriers', the court noted that the Board's decision was solely based on the mandatory provision. Therefore, the matter was remitted to the Board to consider if a discretionary deposit would be appropriate.

Workers' Compensation Law § 27Aggregate Trust FundLiquidation BureauDeath BenefitsMandatory DepositDiscretionary DepositInsurance CarrierStatutory InterpretationAppellate ReviewRemand
References
10
Case No. 2025 NY Slip Op 03229 [238 AD3d 1437]
Regular Panel Decision
May 29, 2025

Matter of Alzate v. Quality Bldg. Servs. Corp.

Adriana Alzate appealed a Workers' Compensation Board decision that found she violated Workers' Compensation Law § 114-a and disqualified her from receiving future indemnity benefits. Alzate sustained a work injury in October 2019, leading to a claim for benefits. During subsequent hearings and independent medical examinations (IMEs), she denied having prior injuries to her neck and back, despite a significant medical history of such injuries. The Board found these denials constituted knowing false statements of material fact, imposing mandatory and discretionary penalties. The Appellate Division, Third Department, affirmed the Board's decision, concluding it was supported by substantial evidence and that the discretionary penalty of permanent disqualification was not an abuse of discretion.

Workers' Compensation Law § 114-aFalse RepresentationDisqualification from BenefitsPrior Injuries DisclosureCredibility AssessmentSubstantial EvidenceAppellate Division Third DepartmentIndemnity BenefitsMedical History OmissionsWage Replacement Benefits
References
10
Case No. MISSING
Regular Panel Decision

Claim of Greenough v. Niagara Mohawk Power Corp.

The claimant appealed a Workers' Compensation Board decision that denied review of a Workers' Compensation Law Judge's ruling regarding a 15% schedule loss of use and reimbursement. The Board's denial was based on the claimant's failure to comply with 12 NYCRR 300.13 (a) concerning proof of service. The court determined that although the claimant did not provide proper proof of service, the employer was not prejudiced as they filed a timely rebuttal and did not claim lack of notice. Consequently, the court held that the Board possessed the discretionary authority under 12 NYCRR 300.30 to review the application despite the administrative rule violation. The decision is reversed, and the matter is remitted to the Board to consider exercising its discretionary power.

AppealWorkers' CompensationAdministrative RulesProof of ServiceDiscretionary PowerReimbursementSchedule LossPrejudiceRemittalBoard Review
References
2
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