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

Case No. ADJ8883423; ADJ11327965

Regular

Feb 21, 2023

MICKEY THORNTON vs. NORTHWEST LINEMAN COLLEGE/GRID TRAINING CORPORATION, ALASKA NATIONAL INSURANCE COMPANY, LASSEN MUNICIPAL UTILITY DISTRICT, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board granted reconsideration to review the finding of "new and further disability" to the applicant's low back stemming from a 2013 cervical spine injury. The Board found the current medical evidence insufficient to establish a causal link between the 2013 injury and the low back condition. Therefore, the issue of new and further low back disability is deferred for further development of the record with substantial medical evidence. The Board stressed its duty to ensure substantial justice by not leaving undeveloped matters.

New and further disabilityReconsiderationStipulated awardAgreed medical evaluatorSubstantial evidenceMedical opinionRecord developmentCervical spineLow back injuryApportionment

References

Case No. 2023 NY Slip Op 02915 [217 AD3d 1027]

Regular Panel Decision

Jun 01, 2023

Matter of Pernice v. Harlan Elec. Co.

Cody Pernice, a lineman, sustained injuries when a bucket truck, driven by an intoxicated coworker, rolled over. He applied for workers' compensation benefits. The employer and carrier controverted the claim, citing Pernice's own alcohol consumption during lunch, violating company policy. A WCLJ and subsequently the Workers' Compensation Board found that Pernice was acting within the scope of his employment and his prior deviations from policy did not cause the accident, nor was he the driver. The Appellate Division, Third Department, affirmed the Board's decision, concluding that substantial evidence supported the finding of a compensable injury, as his alcohol consumption was not a cause of the accident and he remained on standby status.

Workers' compensationCompensable injuryAlcohol consumptionEmployer policyScope of employmentStandby statusAutomobile accidentIntoxicationDeviation from workThird Department

References

Case No. MISSING

Regular Panel Decision

Claim of West v. Niagara Mohawk Power Corp.

This is an appeal from a Workers’ Compensation Board decision from February 11, 2005, which denied the claimant's application for postretirement benefits, ruling he voluntarily withdrew from the labor market. The claimant, a lineman for Niagara Mohawk, sustained a back injury in October 2000, underwent surgery, and returned to full duty by April 2001. He retired in December 2001, claiming his disability compelled his retirement. However, the Board found his retirement voluntary, citing evidence like his ability to perform his job, working overtime, supervisors being unaware of difficulties, and his doctor not advising retirement. The Appellate Division affirmed the Board's determination, finding substantial evidence supported the conclusion that the claimant voluntarily withdrew from the labor market.

Voluntary Withdrawal from Labor MarketPostretirement BenefitsBack InjuryFunctional Capacity EvaluationSubstantial EvidenceAppellate ReviewRetirement DecisionMedical RestrictionsLineman DisabilityWorkers' Compensation Appeal

References

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

Case No. 534832

Regular Panel Decision

Jun 01, 2023

In the Matter of the Claim of Cody Pernice

Claimant Cody Pernice, a lineman, sustained injuries in a bucket truck rollover accident caused by an intoxicated coworker. Despite consuming alcohol himself in violation of employer policy, Pernice applied for workers' compensation benefits. The Workers' Compensation Law Judge and subsequently the Workers' Compensation Board ruled that Pernice's injuries were compensable because he was acting within the scope of his employment, was not the driver, and his alcohol consumption was not the cause of the accident, therefore not barred by Workers' Compensation Law § 10 (1). The Appellate Division, Third Judicial Department, affirmed the Board's decision, finding substantial evidence that Pernice remained on standby status and his prior deviations did not lead to the accident or render him unable to perform his duties.

Workers' CompensationScope of EmploymentAlcohol Policy ViolationAccident CausationIntoxication DefenseEmployer LiabilityStandby StatusAppellate ReviewSubstantial EvidenceWorkers' Compensation Law § 10 (1)

References

Case No. 2025 NY Slip Op 00258

Regular Panel Decision

Jan 16, 2025

Scaletta v. Michels Power, Inc.

Brandon Scaletta, a helicopter lineman, sued Michels Power, Inc., the general contractor, after sustaining serious injuries when the helicopter he was working outside of crashed. Plaintiff alleged negligence and violations of New York Labor Law. Defendant sought dismissal, arguing plaintiff's claims were preempted by the Federal Aviation Act, which occupies the field of air safety. The Supreme Court denied dismissal, ruling the helicopter functioned as construction equipment. The Appellate Division affirmed, holding that the claims arose from the state's police power over occupational health and safety, not air safety, and did not conflict with federal regulations. A dissenting opinion argued the accident was inextricably linked to air safety, warranting federal preemption.

Federal PreemptionAir SafetyLabor LawNegligenceOccupational Health and SafetyAppellate DivisionHelicopter AccidentConstruction WorkGeneral Contractor LiabilityWorkplace Safety

References

Case No. MISSING

Regular Panel Decision

Claim of Grant v. Niagara Mohawk Power Co.

The claimant, a 60-year-old lineman, suffered a left leg and back injury in December 2000 while working for Niagara Mohawk Power Company, receiving initial benefits. He later underwent surgery for an unrelated right foot injury and subsequently retired in June 2002, receiving disability retirement benefits. The Workers’ Compensation Board reversed a WCLJ decision, finding that the claimant voluntarily withdrew from the labor market because he lacked a finding of permanency and failed to provide sufficient medical documentation to prove a continuing disability causally related to his initial work injury. The appellate court affirmed the Board's determination, concluding that substantial evidence supported the finding that his retirement was due to the unrelated right foot injury and not the work-related back and leg injury, and that he failed to meet the burden of demonstrating a continuing disability for permanency classification.

Workers' CompensationLabor Market AttachmentVoluntary WithdrawalPermanent Partial DisabilityMedical EvidenceAppellate ReviewInjury CausationRight Foot InjuryBack InjuryLeft Leg Injury

References

Case No. 2024 NYSlipOp 01329 [225 AD3d 730]

Regular Panel Decision

Mar 13, 2024

Wittenberg v. Long Is. Power Auth.

William Wittenberg, a journeyman lineman, sustained injuries from an explosion while working on electrical lines for Haugland Energy Group, LLC, under a contract with Long Island Power Authority, Public Service Enterprise Group, Inc., and PSEG Long Island, LLC. Wittenberg sued the defendants for negligence and Labor Law violations. The defendants subsequently initiated a third-party action against Haugland for contractual indemnification. The Supreme Court initially granted summary judgment dismissing the Labor Law § 241 (6) claim and the complaint, also dismissing the contractual indemnification claim. The Appellate Division, Second Department, reversed this judgment, finding the defendants' cross-motion for summary judgment untimely for certain claims, and that Haugland and the defendants failed to establish prima facie entitlement to judgment regarding the Labor Law § 241 (6) violation and contractual indemnification. Consequently, the complaint and the cause of action for contractual indemnification were reinstated.

Summary JudgmentLabor Law ViolationsPersonal InjuryContractual IndemnificationAppellate ReviewConstruction AccidentElectrical SafetyTimeliness of MotionPrima Facie EntitlementIndustrial Code Violation

References

Case No. MISSING

Regular Panel Decision

Matter of Riescher v. Central Hudson Gas Electric

A claimant suffered two left knee injuries, first in 1999 and second in 2009, both while working as a lineman for a utility company. The first injury, covered by Alliance National Insurance Co., resulted in a 30% schedule loss of use for the left leg. The second injury, covered by Travelers Indemnity Company of America, led to a total bilateral knee replacement. The cost of left knee surgery was initially apportioned 80% to Alliance and 20% to Travelers. A Workers' Compensation Law Judge (WCLJ) later ruled that this apportionment applied only to the *increase* in the schedule loss of use award, not the overall award. The WCLJ found an overall 50% loss of use, representing a 20% increase, and applied the apportionment to this increase, resulting in Alliance being responsible for 46% and Travelers for 4% of the overall award. Alliance appealed, arguing for apportionment of the overall award, but the Workers’ Compensation Board affirmed the WCLJ's decision. The appellate court further affirmed the Board's decision, declining to reconsider the method of apportionment.

Workers' Compensation AppealSchedule Loss of UseKnee InjuryApportionmentInsurance Carrier LiabilityWCLJ DecisionBoard ReviewJudicial DiscretionLeft Leg InjuryLien

References

Case No. CV-23-1298

Regular Panel Decision

May 30, 2024

In the Matter of the Claim of Michael Garofalo

Michael Garofalo, a lineman, sustained a left hand crush injury in January 2020 while working for Verizon New York, Inc. His workers' compensation claim was established. Following a permanency evaluation, his treating physician, Brian J. Harley, assessed a 35% schedule loss of use (SLU) of the left hand, using the 2012 New York State Guidelines for Determining Impairment. An independent medical examiner, Thomas R. Haher, initially concurred but later revised his opinion to 50% SLU based on the 2018 Guidelines. A Workers' Compensation Law Judge (WCLJ) adopted Harley's 35% SLU opinion, which the Workers' Compensation Board upheld. On appeal, the Appellate Division found that Harley improperly relied on the 2012 Guidelines instead of the applicable 2018 Guidelines, as the first medical evaluation occurred after January 1, 2018. The court determined that the Board's decision, relying on Harley's erroneous application of the guidelines, lacked substantial evidence. The decision was reversed, and the matter was remitted to the Workers' Compensation Board for a new determination of the appropriate SLU percentage.

Workers' CompensationSchedule Loss of UseLeft Hand InjuryMedical Guidelines2018 Impairment GuidelinesAppellate ReviewRemittalMedical Opinion ConflictTraumatic InjuryFractures

References

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Updated Daily

Case Law Database

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

Case No. ADJ8883423; ADJ11327965

Regular

Feb 21, 2023

MICKEY THORNTON vs. NORTHWEST LINEMAN COLLEGE/GRID TRAINING CORPORATION, ALASKA NATIONAL INSURANCE COMPANY, LASSEN MUNICIPAL UTILITY DISTRICT, STATE COMPENSATION INSURANCE FUND

New and further disabilityReconsiderationStipulated awardAgreed medical evaluatorSubstantial evidenceMedical opinionRecord developmentCervical spineLow back injuryApportionment

References

Case No. 2023 NY Slip Op 02915 [217 AD3d 1027]

Regular Panel Decision

Jun 01, 2023

Matter of Pernice v. Harlan Elec. Co.

Workers' compensationCompensable injuryAlcohol consumptionEmployer policyScope of employmentStandby statusAutomobile accidentIntoxicationDeviation from workThird Department

References

Case No. MISSING

Regular Panel Decision

Claim of West v. Niagara Mohawk Power Corp.

References

Case No. MISSING

Regular Panel Decision

Claim of Wilkins v. New York Power Authority

References

Case No. 534832

Regular Panel Decision

Jun 01, 2023

In the Matter of the Claim of Cody Pernice

References

Case No. 2025 NY Slip Op 00258

Regular Panel Decision

Jan 16, 2025

Scaletta v. Michels Power, Inc.

Federal PreemptionAir SafetyLabor LawNegligenceOccupational Health and SafetyAppellate DivisionHelicopter AccidentConstruction WorkGeneral Contractor LiabilityWorkplace Safety

References

Case No. MISSING

Regular Panel Decision

Claim of Grant v. Niagara Mohawk Power Co.

Workers' CompensationLabor Market AttachmentVoluntary WithdrawalPermanent Partial DisabilityMedical EvidenceAppellate ReviewInjury CausationRight Foot InjuryBack InjuryLeft Leg Injury

References

Case No. 2024 NYSlipOp 01329 [225 AD3d 730]

Regular Panel Decision

Mar 13, 2024

Wittenberg v. Long Is. Power Auth.

References

Case No. MISSING

Regular Panel Decision

Matter of Riescher v. Central Hudson Gas Electric

Workers' Compensation AppealSchedule Loss of UseKnee InjuryApportionmentInsurance Carrier LiabilityWCLJ DecisionBoard ReviewJudicial DiscretionLeft Leg InjuryLien

References

Case No. CV-23-1298

Regular Panel Decision

May 30, 2024

In the Matter of the Claim of Michael Garofalo

Workers' CompensationSchedule Loss of UseLeft Hand InjuryMedical Guidelines2018 Impairment GuidelinesAppellate ReviewRemittalMedical Opinion ConflictTraumatic InjuryFractures

References

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