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

Case No. CV-23-0868
Regular Panel Decision
Oct 24, 2024

In the Matter of the Claim of Victor Germano

Claimant, Victor Germano, sustained a right shoulder injury in 2015 and a right arm injury in 2019. He was previously awarded a 27.50% schedule loss of use (SLU) for the 2015 injury. Following the 2019 injury to his right elbow and biceps, his treating physician opined a 33.33% SLU of the right arm, in addition to the prior injury. The Workers' Compensation Board affirmed a decision allowing the State Insurance Fund to credit prior payments, thereby offsetting the new SLU award. Citing *Matter of Johnson v City of New York*, the Appellate Division reversed the Board's decision, determining that it lacked substantial evidence, as the claimant's physician clearly distinguished the 33.33% SLU from the prior shoulder injury. The case was remitted to the Board for further proceedings.

Workers' Compensation Board (WCB)Schedule Loss of Use (SLU)Right Arm InjuryShoulder InjuryBiceps Tendon InjuryMedical Evaluation ReportCredit for Prior PaymentsAppellate Division ReviewSubstantial Evidence StandardMaximum Medical Improvement (MMI)
References
8
Case No. 2020 NY Slip Op 04221 [185 AD3d 1342]
Regular Panel Decision
Jul 23, 2020

Matter of Kleban v. Central NY Psychiatric Ctr.

Claimant Derek Kleban sustained a right shoulder injury in 2013, for which he received a 28.75% schedule loss of use (SLU) award for his right arm. In 2017, he suffered a work-related injury to his right elbow, with his physician finding a 20% SLU of the right elbow. The Workers' Compensation Law Judge and subsequently the Workers' Compensation Board ruled that claimant was not entitled to a further SLU award for the elbow injury because the prior SLU award for the right arm exceeded the current 20% SLU. The Appellate Division, Third Department, affirmed this decision, citing Workers' Compensation Law § 15 (3) and prior precedents, which limit SLU awards based on the injured body member and degree of impairment, and allow multiple awards only for loss of use of more than one member or parts thereof, but not when a subsequent injury to a part of a previously awarded larger member results in a lower SLU.

Schedule Loss of Use (SLU)Workers' Compensation BenefitsRight Shoulder InjuryRight Elbow InjuryImpairment RatingPrior AwardSubsequent InjuryAppellate DecisionAffirmationWorkers' Compensation Board
References
4
Case No. 2024 NY Slip Op 05259 [231 AD3d 1394]
Regular Panel Decision
Oct 24, 2024

Matter of Germano v. Dynamic Appliances, Inc.

Victor Germano, the claimant, appealed an amended decision by the Workers' Compensation Board regarding a schedule loss of use (SLU) award for a right arm injury sustained in 2019. Germano had a prior SLU award for a 2015 right shoulder injury. The Board affirmed a Workers' Compensation Law Judge's decision, which granted the State Insurance Fund credit for prior payments, reasoning that Germano failed to show his 33.33% SLU of the right arm was solely attributable to the 2019 injury. However, the Appellate Division, Third Department, reversed this decision. Citing Matter of Johnson v City of New York, the Court found that Germano's treating physician had clearly distinguished the 2019 biceps injury's 33.33% SLU as separate from, and in addition to, the prior shoulder injury, thereby making an offset inappropriate. The matter was remitted to the Board for further proceedings consistent with the court's finding.

Workers' CompensationSchedule Loss of Use (SLU)Right Arm InjuryPrior Injury CreditMedical EvidenceAppellate ReviewMaximum Medical Improvement (MMI)Biceps Tendon InjuryShoulder InjuryOffsets
References
8
Case No. MISSING
Regular Panel Decision
May 09, 2006

Claim of Atkinson v. Joseph Baldwin Construction

This is an appeal from decisions of the Workers’ Compensation Board, filed March 29, 2006, and May 9, 2006, which clarified an earlier Board decision from April 23, 2002. The claimant sustained a compensable right shoulder injury in July 1998. Subsequently, the claimant alleged problems with his left shoulder were causally related to the 1998 accident. A Workers’ Compensation Law Judge (WCLJ) initially found no causal relationship for the left shoulder injury, a determination affirmed by the Board in April 2002, although the Board's decision ambiguously mentioned developing the schedule of loss of use for 'both arms.' Following further proceedings, the WCLJ reiterated the disallowance of the left arm claim. The Board then clarified its 2002 decision in 2006, stating that it had affirmed the finding of no causal relationship for the left arm and that only the right arm's schedule loss of use was to be developed. The Appellate Division found that the Board's 2006 decisions effectively amended its 2002 decision. Upon review, the court affirmed the Board’s determination, finding substantial evidence supported the conclusion of no causal relationship for the left arm, giving deference to the Board's credibility assessments and resolution of conflicting medical evidence. The court also rejected the argument that the issue of a consequential left shoulder injury remained open, as the Board's prior decision had disallowed any causally related left arm condition.

Workers' Compensation LawCausal RelationshipLeft Shoulder InjuryRight Shoulder InjuryMedical EvidenceCredibility AssessmentAppellate ReviewBoard ClarificationAmended DecisionSchedule Loss of Use
References
6
Case No. MISSING
Regular Panel Decision
Jan 12, 1990

Font v. New York City Board of Education

The claimant, who suffered a work-related right arm injury in 1985, sustained a right knee injury in 1987 after being pushed from a bus while en route to a doctor's appointment for the arm. The employer challenged the Workers' Compensation Board's decision that the knee injury was a compensable consequential injury. The court distinguished this case from prior precedent, noting that the injury occurred during necessary travel for treatment of a prior compensable injury. Citing various New York and other state cases, the court concluded that an accidental injury during a trip for medical care related to a work-connected injury is generally compensable. The decision of the Workers' Compensation Board was affirmed.

Workers' CompensationConsequential InjuryMedical Treatment TravelCompensabilityOff-Premise InjuryCausationEmployer LiabilityAppellate ReviewDoctor's VisitInjury En Route
References
12
Case No. 2020 NY Slip Op 05276 [187 AD3d 1285]
Regular Panel Decision
Oct 01, 2020

Matter of Covington v. New York City Dept. of Corr.

Claimant Simod Covington, a correction officer, sustained a work-related injury to his right elbow while restraining an inmate. A Workers' Compensation Law Judge (WCLJ) initially awarded a 22.5% schedule loss of use (SLU) of the right elbow. However, the WCLJ deducted prior SLU awards totaling 25% for previous right elbow and shoulder injuries, resulting in a 0% SLU for the instant claim. The Workers' Compensation Board affirmed this decision, finding that the prior SLU awards were properly credited toward the current claim. The Appellate Division, Third Department, affirmed the Board's decision, emphasizing that SLU awards compensate for loss of earning power from permanent impairments to statutorily-enumerated body members, and that prior awards for the right arm were properly credited regardless of whether they involved the same or separate parts of the arm.

Workers' CompensationSchedule Loss of Use (SLU)Right Arm InjuryPrior SLU AwardsCredit for Prior InjuriesLoss of Earning PowerCorrection Officer InjuryAppellate ReviewWorkers' Compensation BoardJudiciary Law
References
5
Case No. 529417
Regular Panel Decision
Feb 06, 2020

Matter of Johnson v. City of New York

Thomas Johnson, a patient care technician, sustained work-related knee injuries in a February 2006 fall. He subsequently sustained additional work-related injuries in November 2009 to his neck, back, shoulder, and hips, for which he received schedule loss of use (SLU) awards for his right arm, left leg, and right leg. The Workers' Compensation Board later ruled on the permanency of his 2006 injuries, finding an 80% SLU for his left leg and a 40% SLU for his right leg. However, the Board reduced these new awards by his previously received SLU awards for the 2009 injuries, resulting in a final 30% SLU for his left leg and a 0% SLU for his right leg. The Appellate Division affirmed the Board's decision, confirming that SLU awards for the knee and hip are encompassed within leg awards, and prior leg SLU awards must be deducted from subsequent leg SLU awards.

Schedule Loss of UseKnee InjuriesHip InjuriesLeg ImpairmentPrior SLU Award DeductionAppellate Division ReviewIndependent Medical ExaminationTreating Physician ReportPermanent Impairment GuidelinesWork-related Accident
References
9
Case No. 527101
Regular Panel Decision
Feb 07, 2019

Matter of Bell v. Glens Falls Ready Mix Co., Inc.

Walter Bell, a diesel mechanic/driver, appealed a Workers' Compensation Board decision regarding his schedule loss of use (SLU) of his right arm. Bell sustained work-related injuries requiring surgery and received workers' compensation benefits. While a Workers' Compensation Law Judge initially found an 80% SLU, the Board, crediting Dr. Maloney's opinion, determined a 50% SLU of the right shoulder and added 10% for elbow defects, resulting in a 60% SLU of the right arm based on the New York State Guidelines. The Appellate Division, Third Department, affirmed the Board's decision, finding it supported by substantial evidence and consistent with the guidelines for calculating SLU awards for combined upper extremity injuries.

Schedule Loss of Use (SLU)Right Arm InjuryShoulder InjuryElbow InjuryMedical EvaluationTreating PhysicianIndependent Medical Examination (IME)Appellate ReviewWorkers' Compensation BoardPermanent Impairment Guidelines
References
8
Case No. 530457
Regular Panel Decision
Jun 04, 2020

Matter of Blair v. Suny Syracuse Hosp.

Jeffrey Blair, who previously received a 25% schedule loss of use (SLU) award for a 1995 right elbow injury, sustained a 2017 work-related right shoulder injury. An independent medical examiner found a 45% SLU of his right arm due to the shoulder injury. The Workers' Compensation Law Judge and subsequently the Workers' Compensation Board, deducted the prior 25% SLU from the 45% SLU, resulting in a 20% SLU award for the 2017 claim. Blair appealed, contending the 45% SLU was solely attributable to his shoulder injury and should not be reduced. The Appellate Division, Third Department, affirmed the Board's decision, holding that impairments to separate parts of a member are encompassed in an overall SLU award for that specified member, making the deduction of a prior SLU award for the same member proper.

Workers' CompensationSchedule Loss of UseRight Arm InjuryPrior Injury DeductionShoulder InjuryElbow InjuryAppellate ReviewPermanent Partial DisabilityMedical ImpairmentNew York State
References
2
Case No. MISSING
Regular Panel Decision

Matter of Campito v. New York State Dept. of Taxation & Fin.

The claimant appealed a Workers’ Compensation Board decision denying her claim for consequential right shoulder injury benefits. In 2008, the claimant sustained a compensable injury to her neck, left elbow, and upper back. She later sought to amend her claim to include a consequential right shoulder injury, attributing it to overuse caused by her established left arm injury. However, both the Workers’ Compensation Law Judge and the Board found no competent medical evidence to support a causal link. An independent medical examiner, James McGowan, attributed the right shoulder issues to adhesive capsulitis related to her diabetic condition, rather than the work accident. The appellate court affirmed the Board’s decision, emphasizing that resolving conflicting medical opinions falls within the Board’s exclusive authority and their determination was supported by substantial evidence.

Workers' CompensationConsequential InjuryRight Shoulder InjuryOveruse InjuryMedical EvidenceCausationAdhesive CapsulitisDiabetesConflicting Medical OpinionsSubstantial Evidence
References
4
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