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

Case No. 2018 NY Slip Op 08227
Regular Panel Decision
Nov 29, 2018

Matter of Kelly v. New York State Workers' Compensation Bd.

In 2006, claimant Grace Kelly established a workers' compensation claim for an occupational disease. The State Insurance Fund (SIF) repeatedly sought to transfer liability to the Special Fund for Reopened Cases, which was denied by Workers' Compensation Law Judges. The Workers' Compensation Board affirmed these denials and assessed $500 penalties against both SIF and its counsel, Walsh and Hacker, for filing an application for review without reasonable grounds. Walsh and Hacker appealed the penalty imposed against them to the Appellate Division, Third Department. The Appellate Division found insufficient evidence to support the Board's finding that Walsh and Hacker's application lacked reasonable grounds, and therefore reversed the penalty against them, modifying and affirming the Board's decision.

PenaltiesAppellate ReviewSpecial Fund for Reopened CasesWorkers' Compensation Law § 25-aWorkers' Compensation Law § 114-aAttorney SanctionsAdministrative LawBoard DecisionJudiciary Law § 431
References
4
Case No. MISSING
Regular Panel Decision
May 06, 2011

Claim of Sola v. Corwin

Claimant sustained a left foot injury while working for the employer and was awarded workers' compensation benefits. The employer's Independent Medical Examination (IME) report was deemed inadmissible by the Workers' Compensation Law Judge for non-compliance with Workers' Compensation Law § 137, specifically regarding submission timelines. The Workers' Compensation Board affirmed this decision, accepting the treating physician's opinion of a 35% schedule loss of use of the foot. The employer appealed this affirmation. The Appellate Division affirmed the Board's decision, concluding that the IME report was properly excluded and the Board's determination was supported by substantial evidence from the treating physician's testimony.

Schedule loss of useWorkers' Compensation BoardIME report preclusionWorkers' Compensation Law § 137Admissibility of evidenceTreating physician testimonyFoot injuryMaximum medical improvementAppellate reviewSubstantial evidence
References
4
Case No. MISSING
Regular Panel Decision

Matter of Fetahaj v. Starbucks Corporation

Claimant alleged retaliatory discharge under Workers’ Compensation Law § 120 after being terminated for providing false information about a workplace injury. Claimant and a coworker initially submitted incident reports stating claimant fell due to the coworker moving a bin. However, surveillance video revealed the coworker intentionally lifted claimant's legs, causing the fall. Both employees were terminated for falsifying reports. A Workers’ Compensation Law Judge and the Workers’ Compensation Board denied the retaliatory discharge claim, finding the termination was due to misconduct. The Appellate Division affirmed the Board's determination, concluding that substantial evidence supported the finding that claimant was discharged for misrepresenting the accident's circumstances, not in retaliation for a workers' compensation claim.

retaliatory dischargeworkers' compensation lawfalsification of recordsemployee misconductincident reportsurveillance videocausal nexusboard determinationappellate reviewsubstantial evidence
References
9
Case No. MISSING
Regular Panel Decision

Claim of Hazzard v. Adams Russell Cable Services

Claimant, a line technician, sustained a left knee injury in January 1987 but did not file a workers' compensation claim until August 1995. The employer's carrier argued the claim was time-barred under Workers’ Compensation Law § 28, a contention upheld by the Workers’ Compensation Law Judge and subsequently affirmed by the Board. On appeal, the claimant argued that a C-4 medical report from 1987 or an advance payment of compensation should have prevented the claim from being time-barred. The Appellate Division affirmed the Board's decision, finding no evidence that the C-4 report was filed with the Board within the two-year statutory period, nor that the employer or carrier made an advance payment to waive the statute of limitations.

Workers' CompensationTime-barred ClaimStatute of LimitationsAdvance PaymentMedical ReportBoard AffirmationAppellate ReviewKnee InjuryLine Technician
References
2
Case No. MISSING
Regular Panel Decision

Claim of D'Addio v. Peter Annis, Inc.

A widow filed a claim for workers' compensation death benefits after her husband, who had an established claim for asbestosis, died. A Workers' Compensation Law Judge (WCLJ) found a work-related death and ordered the employer's carrier to deposit funds into the aggregate trust fund (ATF) in July 2010. The carrier did not appeal this initial decision. After a subsequent WCLJ decision in December 2010 reiterated the ATF deposit, the carrier sought review, arguing the deposit was unwarranted. The Workers' Compensation Board denied the carrier's application as untimely. The appellate court affirmed the Board's decision, holding that the 30-day appeal period for the July 2010 decision had expired and the later WCLJ decision did not extend that timeframe. The court found no abuse of discretion by the Board.

Workers' CompensationUntimely ApplicationAggregate Trust FundDeath BenefitsAsbestosisOccupational DiseaseAppellate ReviewBoard DiscretionTimelinessAppeal Denial
References
5
Case No. 532391
Regular Panel Decision
Nov 18, 2021

Matter of Richman v. New York State Workers' Compensation Bd.

Claimant, Rebecca Richman, appealed three decisions from the Workers' Compensation Board regarding her claim for a work-related right shoulder injury. She alleged a fall at work on January 19, 2018, but did not seek medical treatment for 19 months. A Workers' Compensation Law Judge initially established the claim, but the Board reversed, finding that Richman failed to submit sufficient, credible medical evidence to demonstrate a causally-related injury and denied her claim. The Board subsequently denied her application for reconsideration and/or full Board review. The Appellate Division affirmed the Board's decisions, concluding that the Board's finding of no causally-related injury was supported by substantial evidence and that the Board did not abuse its discretion in denying reconsideration.

Workers' Compensation ClaimCausation (Medical)Shoulder InjuryMedical Evidence SufficiencyBoard ReversalAppellate Division ReviewBurden of ProofCredibility of EvidenceOsteoarthritis DiagnosisDelayed Medical Treatment
References
8
Case No. MISSING
Regular Panel Decision

Matter of Saratoga Skydiving Adventures v. Workers' Compensation Board

Saratoga Skydiving Adventures appealed a Workers’ Compensation Board decision upholding a stop-work order. The initial order was issued after an investigation revealed the company lacked workers' compensation coverage, with owner Bob Rawlins asserting his workers were independent contractors. Following a hearing, a Workers’ Compensation Law Judge denied Saratoga Skydiving's application to lift the order. The appellate court affirmed this denial, determining that substantial evidence supported the finding of an employer-employee relationship for pilots and jump instructors, given their integral role in the business and Rawlins' control over their work. Consequently, Saratoga Skydiving was required to maintain workers' compensation coverage for these individuals.

Workers' CompensationStop-Work OrderEmployer-Employee RelationshipIndependent ContractorSkydiving BusinessHazardous EmploymentUninsured Employers’ FundAppellate ReviewSubstantial EvidenceLabor Law
References
7
Case No. MISSING
Regular Panel Decision
Oct 09, 2012

Claim of Schuss v. Delta Airlines, Inc.

Claimant sustained a work-related injury in February 2010 and received workers' compensation benefits. The employer’s carrier subsequently alleged claimant violated Workers’ Compensation Law § 114-a by misrepresenting her work activity while receiving benefits. A Workers’ Compensation Law Judge and the Workers’ Compensation Board found a violation and disqualified her from future benefits. The Appellate Division affirmed this decision, finding substantial evidence in surveillance videos and a private investigator’s report showing claimant working at a chiropractor’s office. The court rejected the claimant's due process arguments, stating she was aware of the evidence and made a late request for rebuttal testimony.

Workers' CompensationFraudMisrepresentationSurveillance EvidenceDue ProcessAdministrative LawBenefits DisqualificationWork ActivityJudicial ReviewAppellate Review
References
4
Case No. MISSING
Regular Panel Decision

Claim of Roselli v. Middletown School District

A maintenance worker sustained injuries to his shoulder, knee, and rib area after falling from a ladder. Initial medical reports indicated no permanent disability. However, the employer's insurance carrier later sought apportionment of the award due to a pre-existing knee injury. A subsequent report by the Board's Medical Examiner, Dr. Shera, indicated a permanent partial disability. The Workers' Compensation Law Judge (WCLJ) apportioned the award, but the Workers’ Compensation Board modified this, finding the disability entirely accident-related. On appeal, the carrier contested the Board's decision, arguing it should have been allowed to call its physician and cross-examine Dr. Shera. The appellate court upheld the denial to call the carrier's physician but found it arbitrary and capricious to deny cross-examination of Dr. Shera, reversing and remitting the case for further proceedings.

Workers' Compensation LawApportionmentPermanent Partial DisabilityMedical Examiner ReportCross-examination RightsDue ProcessPre-existing InjurySchedule Loss of UseAdjournment DenialSubstantial Evidence
References
7
Case No. MISSING
Regular Panel Decision
Jun 11, 1993

Empire Insurance v. Workers' Compensation Board

Empire Insurance Company denied Hugh Wofsy's no-fault benefits claim, alleging he was a Dial-a-Car, Inc. employee requiring Workers' Compensation. An Administrative Law Judge later found Wofsy an independent contractor, denying him Workers' Compensation. Empire sought to reopen the Workers' Compensation claim to participate, which the Board denied. Empire then initiated a CPLR article 78 proceeding, where the IAS Court allowed the reopening and ordered Empire to pay Wofsy, with potential reimbursement. The Appellate Division subsequently reversed this judgment, dismissing Empire's petition, emphasizing that Workers' Compensation Law § 23 vests exclusive appeal jurisdiction with the Third Department and precludes article 78 proceedings for reviewing Board decisions' substance.

No-fault insuranceIndependent contractor disputeEmployee status determinationCPLR Article 78 proceedingAppellate Division jurisdictionWorkers' Compensation Law § 23Judicial review of administrative decisionsInsurance coverage disputeAdministrative Law Judge rulingReimbursement claim
References
2
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