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

Case No. ADJ417505 (STK 173008)
Regular
Oct 07, 2008

MARSHA CRISWELL vs. COUNTY OF STANISLAUS

The Workers' Compensation Appeals Board granted reconsideration and rescinded the prior award of left ankle surgery for applicant Marsha Criswell. The Board found no substantial medical evidence connecting Criswell's current ankle condition to her 2000 industrial injury, noting the ankle injury resolved and a new injury occurred in 2005. Therefore, the applicant failed to meet her burden of proof for industrial causation of the current ankle problem.

Workers' Compensation Appeals BoardReconsiderationMedical CausationIndustrial InjuryLeft Ankle SurgeryAgreed Medical ExaminerTreating PhysicianPreponderance of the EvidenceReasonable Medical ProbabilityLay Testimony
References
8
Case No. MISSING
Regular Panel Decision

Claim of Dinger v. K-Mart Corp.

This case involves an appeal from a Workers’ Compensation Board decision filed on November 14, 1996. The claimant sustained a left ankle injury in April 1994, which required reconstructive surgery and resulted in a 20% schedule loss of use of his left foot. The Board awarded benefits, delineating periods of temporary total disability and permanent partial disability with a future wage expectancy rate. The claimant contended that the entire schedule loss-of-use award should be calculated at the future wage expectancy rate from the date of injury, arguing that the Board's calculation reclassified all prior periods as permanent partial disability. The court, however, found no such reclassification and no statutory mandate supporting the claimant's argument. Citing substantial medical evidence, the court affirmed the Board's decision, upholding its classification of the claimant's medical condition and benefit calculation.

workers' compensation benefitsschedule loss-of-usewage expectancytemporary total disabilitypermanent partial disabilityappellate reviewBoard decision affirmedmedical condition classificationsubstantial evidenceleft ankle injury
References
3
Case No. 2023 NY Slip Op 00466
Regular Panel Decision
Feb 02, 2023

Matter of Kennedy v. 3rd Track Constructors

Claimant Alastair Kennedy, an operating engineer, sustained work-related injuries in October 2019 after falling into a hole at a job site, filing for workers' compensation benefits for left shoulder, foot, and ankle injuries. The employer's carrier accepted the claim for foot and ankle but contested neck and left shoulder injuries, also raising a Workers' Compensation Law § 114-a violation. A Workers' Compensation Law Judge (WCLJ) and subsequently the Workers' Compensation Board found claimant's testimony regarding the accident and prior injuries not credible, denying the claims for neck and left shoulder injuries and imposing mandatory and discretionary penalties under Workers' Compensation Law § 114-a. On appeal, the Appellate Division, Third Department, affirmed the Board's findings regarding the non-causal relation of neck and left shoulder injuries and the mandatory penalty for misrepresentations. However, the Court reversed the discretionary penalty of total disqualification from future wage loss benefits, deeming it disproportionate to the offense, modifying and affirming the Board's decision as so modified.

Workers' CompensationInjury ClaimCredibility AssessmentMisrepresentationWorkers' Compensation Law § 114-a ViolationMandatory PenaltyDiscretionary PenaltyWage Loss BenefitsCausal RelationshipMedical Evidence
References
16
Case No. MISSING
Regular Panel Decision
May 11, 1990

Claim of Johnson v. New York City Board of Education

This case involves an appeal from a decision and an amended decision of the Workers’ Compensation Board. The Board had ruled that the claimant sustained a consequential injury and subsequently restored the case to the trial calendar. The appellate court affirmed the Board's decision, finding that the claimant's physician's testimony, despite some lack of clarity, met the requirement of signifying a probability as to the cause of the injury and was supported by a rational basis. Specifically, the determination that the claimant’s left ankle fracture was a consequence of an earlier work-related ankle fracture, which left the ankle in a weakened condition, was supported by substantial evidence.

Workers' CompensationAppealConsequential InjuryAnkle FractureMedical EvidencePhysician TestimonySubstantial EvidenceAppellate AffirmationWork-Related InjuryMedical Causation
References
3
Case No. 525196
Regular Panel Decision
Apr 26, 2018

Matter of Derouchie v. Massena W. Wc Smelter

Claimant Gerry J. Derouchie sustained injuries on February 18, 2015, including to his right knee and left hip, after stepping into a pothole on his employer's premises. He filed for workers' compensation benefits, and his case was established for multiple injuries. Having prior injuries and surgeries, claimant sought authorization for total right knee and left hip replacement surgeries, which the employer and carrier denied. A Workers' Compensation Law Judge (WCLJ) granted the authorization, and the Workers' Compensation Board affirmed, finding a causal relationship between the February 2015 accident and the need for surgeries. The Appellate Division, Third Department, affirmed the Board's decision, citing substantial evidence and deference to the Board's assessment of medical witness credibility.

Workers' Compensation BenefitsCausal RelationshipKnee Replacement SurgeryHip Replacement SurgeryPreexisting ConditionsAggravation of InjuryMedical AuthorizationSubstantial EvidenceCredibility AssessmentAppellate Review
References
10
Case No. MISSING
Regular Panel Decision

Claim of Jweid v. Vicks Lithograph & Printing

Claimant injured his back at work in February 1999, leading to multiple diagnoses and back surgeries. Following surgeries, he developed a consequential left foot drop injury. A workers' compensation claim was established and later amended to include the foot drop. Medical evidence supported a 40% loss of use of the left foot and a permanent partial disability of his back, with the claimant having reached maximum medical improvement. The Workers’ Compensation Law Judge made a schedule loss award for the 40% loss of use of the left foot, which the Workers’ Compensation Board affirmed. The employer and carrier appealed, arguing against a schedule loss award. The court affirmed the Board's decision, finding it supported by substantial evidence, as a schedule loss of use award is appropriate when there is no continuing need for medical treatment and the condition is stable.

Workers' CompensationSchedule Loss of UseBack InjuryFoot DropMedical ImprovementPermanent Partial DisabilityAppellate ReviewSubstantial EvidenceMedical OpinionCausal Relationship
References
5
Case No. MISSING
Regular Panel Decision
Nov 24, 1982

Claim of Burroughs v. Goshen Public School

Claimant, an industrial arts teacher, sustained a compensable injury to his left eye on June 22, 1976, resulting in a traumatic cataract and industrial blindness. A 100% schedule award for loss of use of the left eye was initially granted but later rescinded by the Workers' Compensation Board after the carrier appealed, arguing the award was premature as vision might improve with surgery. The case was restored to the Trial Calendar, and an administrative law judge reinstated the award after hearing testimony. The Board unanimously affirmed, finding the claimant's refusal to undergo eye surgery reasonable due to potential problems. The employer and carrier appealed this affirmance, contending the refusal was unreasonable as a matter of law. The court affirmed the Board's decision, stating that the Board's determination on the reasonableness of refusal to undergo surgery is a factual finding supported by substantial evidence and cannot be disturbed.

Workers' Compensation BoardIndustrial InjuryLeft Eye InjuryTraumatic CataractIndustrial BlindnessSchedule AwardSurgery RefusalReasonableness of RefusalSubstantial EvidenceFactual Finding
References
1
Case No. MISSING
Regular Panel Decision
Jul 14, 1971

Claim of Brewer v. Thomas Foundry, Inc.

The claimant, who sustained a left foot and ankle injury in 1966 while employed by Aetna Window Cleaning Company, experienced a second incident in 1970. While working for Thomas Foundry, Inc., his left ankle gave out, causing him to fall and injure his back. The Workmen's Compensation Board found that this fall and back injury constituted an accidental injury under the law, resulting in disability. This finding was supported by substantial evidence. The appellate court affirmed the Board's decision.

Workers' CompensationAnkle InjuryBack InjuryAccidental InjuryEmployment InjuryPre-existing ConditionAppellate ReviewSubstantial EvidenceFoundry WorkerWindow Cleaning
References
3
Case No. MISSING
Regular Panel Decision

Meyers v. Epstein

This case concerns a motion in limine filed by the plaintiffs, Samara Meyers and her parents, in a 'ghost surgery' case. The plaintiffs allege that a different surgeon, Dr. Ira Richmond Abbott, performed brain surgery on Samara than the one they consented to, Dr. Fred Epstein. Following the surgery, Samara experienced severe complications including left side paralysis and cognitive impairments. The plaintiffs sought to recover damages for these complications, arguing that they were proximately caused by the unauthorized surgery. However, the court denied their motion, ruling that under New York law, a plaintiff cannot recover for injuries that would have foreseeably resulted from the surgery even if performed by the consented doctor, especially without evidence of negligent performance. The court limited potential recovery to nominal damages and mental anguish for the unauthorized act itself, not the inherent risks or consequences of the surgery.

Ghost surgeryBatteryMedical malpracticeInformed consentCausationDamagesMotion in limineBrain surgery complicationsProximate causeIntentional torts
References
18
Case No. ADJ8403518, ADJ8928431
Regular
Dec 06, 2016

Marcia Ortiz vs. CITY AND COUNTY OF SAN FRANCISCO, INTERCARE

The Appeals Board affirmed the WCJ's findings for a right elbow injury and its 24% permanent disability award. However, for a left foot/ankle injury, the Board rescinded the finding of industrial sleep disorder due to lack of substantial medical evidence. The Board also amended the permanent disability rating for the left ankle injury, ultimately awarding 12% permanent disability based on the primary treating physician's opinion. This decision corrected Dr. Chen's flawed application of impairment rating guidelines and excluded the sleep disorder from compensable injury.

PQMEDr. Chensleep impairmentindustrial injurypermanent disabilityADJ8403518ADJ8928431WCJDr. MartinovskyAMA Guides
References
7
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