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

Case No. MISSING
Regular Panel Decision
Jun 22, 2015

Claim of Barrett v. New York City Department of Transportation

The case involves an appeal from a Workers’ Compensation Board decision regarding a claimant injured in a 2011 work-related motor vehicle accident. A WCLJ classified the claimant with a permanent partial disability and a 25% loss of wage-earning capacity, ruling that he would be entitled to 250 weeks of benefits if his full wages ceased. The Board affirmed this, leading the employer to appeal, arguing that the claimant's current full wages meant a 100% wage-earning capacity, rendering the 25% loss finding unlawful. The court affirmed the Board’s decision, distinguishing between 'loss of wage-earning capacity' (fixed, for benefit duration) and 'wage-earning capacity' (fluctuating, for weekly rates).

Workers' CompensationPermanent Partial DisabilityWage-Earning CapacityLoss of Wage-Earning CapacityBenefit DurationAppellate ReviewStatutory InterpretationMotor Vehicle AccidentNew York Workers' Compensation BoardDisability Classification
References
2
Case No. MISSING
Regular Panel Decision

Claim of Martone v. Niagara Frontier Transportation Authority-Metro

In 2005 and 2007, a bus driver (claimant) suffered work-related neck and back injuries. Initially, a Workers’ Compensation Law Judge found him permanently totally disabled. However, the Workers’ Compensation Board modified this, determining he had a permanent partial disability with a 75% loss of wage-earning capacity based on medical evidence and other factors. The claimant appealed this decision, arguing a lack of substantial evidence for the partial disability finding. The Appellate Division affirmed the Board's decision, noting medical reports indicating submaximal efforts, high medication dosages, symptom magnification, and the ability to ambulate, which supported the finding of partial disability. The court also upheld the 75% loss of wage-earning capacity, finding it supported by substantial evidence after considering the claimant's impairment, work restrictions, age, education, and work experience.

Permanent Partial DisabilityWage-Earning CapacityChronic Pain SyndromeLumbar Spine SurgeryMedical EvidenceSubmaximal EffortsSymptom MagnificationAppellate ReviewBoard DecisionMedical Treatment Guidelines
References
2
Case No. MISSING
Regular Panel Decision

Matter of Paez v. Lackman Culinary Services

Claimant, an immigrant, injured his lower back while working as a food service worker in 2010. His workers' compensation claim was established, leading to surgery in 2012 for a herniated disc. Despite surgery, he continued to experience pain and was unable to return to his job. A WCLJ determined he had a permanent partial disability and an 80% loss of wage-earning capacity, which was affirmed by the Workers' Compensation Board. Claimant appealed, arguing the Board failed to consider total industrial disability, an issue he had raised before the WCLJ. The appellate court found that the Board did err by not addressing the total industrial disability claim and remitted the matter for further proceedings, as total industrial disability can have a more favorable outcome than loss of wage-earning capacity.

Permanent Partial DisabilityWage-Earning CapacityTotal Industrial DisabilityLumbar DiscectomyLaminectomyMedical ExaminationRemittalAppellate ReviewBack InjuryFood Service Worker
References
4
Case No. MISSING
Regular Panel Decision
Dec 30, 2015

Matter of Curcio v. Sherwood 370 Management LLC

The claimant, a building engineer, sustained a work-related back and neck injury, initially classified as a permanent total disability by a Workers' Compensation Law Judge (WCLJ) with awarded counsel fees. The Workers' Compensation Board (Board) modified this, finding a permanent partial disability with a 90% loss of wage-earning capacity and reduced counsel fees due to an improperly completed application. The appellate court affirmed the Board's decision, citing substantial medical evidence supporting a partial disability and a 90% loss of wage-earning capacity based on the claimant's age, education, work history, and functional abilities. The court also upheld the reduction of counsel fees due to the attorney's failure to accurately complete the required fee application form.

Permanent Partial DisabilityWage-Earning Capacity LossWorkers' Compensation BenefitsCounsel FeesMedical EvidenceVocational FactorsOC-400.1 ApplicationAdministrative AppealAppellate DivisionMedical Impairment Guidelines
References
12
Case No. MISSING
Regular Panel Decision
Oct 26, 2015

Matter of Newbill v. Town of Hempstead

Claimant, a sanitation crew chief, injured his right ankle and foot at work and was awarded disability benefits. His self-insured employer paid his full weekly wages during a period of disability and timely sought reimbursement for these advanced payments. A Workers’ Compensation Law Judge granted the employer's reimbursement request against a 20% schedule loss of use award for the right foot. The Board affirmed this decision, and the claimant appealed, arguing that reimbursement should not cover periods where no compensation awards were initially made. The court affirmed the Board's decision, reiterating that an employer is entitled to full reimbursement from a schedule loss of use award for advanced wages paid during disability, as schedule awards are not allocable to specific periods of lost work.

Schedule Loss of UseReimbursementAdvanced Wage PaymentsDisability BenefitsEmployer RightsAppellate ReviewWorkers’ Compensation BoardStatutory InterpretationPermanent Partial DisabilityTimely Claim
References
10
Case No. MISSING
Regular Panel Decision
Dec 31, 2015

Drake v. SRC, Inc.

The claimant appealed a Workers’ Compensation Board decision from December 31, 2015, which ruled he sustained a permanent partial disability and a 15% loss of wage-earning capacity after a December 2010 work injury. The claimant argued for a 32% loss of wage-earning capacity, which would extend benefit duration, based on post-injury wages. The court affirmed the Board's decision, distinguishing between calculating loss of wage-earning capacity for benefit duration based on vocational factors and wage-earning capacity based on actual earnings. It found substantial evidence supported the 15% loss of wage-earning capacity, considering the claimant's functional abilities, impairment severity, age, education, and language proficiency.

Permanent Partial DisabilityLoss of Wage-Earning CapacityWorkers' Compensation BenefitsVocational FactorsAppellate ReviewSubstantial EvidenceBenefit DurationWork InjuryNeck InjuryBack Injury
References
10
Case No. 2018 NY Slip Op 00368 [157 AD3d 1145]
Regular Panel Decision
Jan 18, 2018

Matter of Oyola v. New York City Dept. of Sch. Food & Nutrition Servs.

Claimant Olga Oyola, a cafeteria worker, suffered work-related injuries to her back, left elbow, left knee, and left shoulder. A Workers' Compensation Law Judge classified her with a permanent partial disability and a 70% loss of wage-earning capacity, granting 375 weeks of wage loss benefits. The employer appealed, arguing that her return to work at preaccident wages precluded a finding of wage-earning capacity loss. The Workers' Compensation Board affirmed the WCLJ's decision, which the Appellate Division, Third Department, also affirmed. The court held that loss of wage-earning capacity is determined at the time of classification and sets a fixed limit on potential benefits, irrespective of current wages.

Workers' CompensationPermanent Partial DisabilityLoss of Wage-Earning CapacityWage Loss BenefitsAppellate Division Third DepartmentWorkers' Compensation BoardWork-Related InjuryCafeteria WorkerBenefit ClassificationPre-Accident Wages
References
4
Case No. 2017 NY Slip Op 03999
Regular Panel Decision
May 18, 2017

Claim of De Ruggiero v. City of New York Department of Citywide Administrative Services

The claimant, Frank J. De Ruggiero, was injured in two work-related accidents and classified with a permanent partial disability. Initially, a Workers' Compensation Law Judge determined a 50% loss of wage-earning capacity, which the Workers' Compensation Board later modified to 35%. The employer appealed, arguing that since the claimant returned to work at preaccident wages, his wage-earning capacity was 100%. The Appellate Division, Third Department, affirmed the Board's decision, differentiating between 'wage-earning capacity' and 'loss of wage-earning capacity,' and found that the Board's determination was supported by substantial evidence, noting that loss of wage-earning capacity is fixed for setting durational limits on benefits, irrespective of current employment status.

Permanent Partial DisabilityLoss of Wage-Earning CapacityAppellate ReviewWorkers' Compensation Board DecisionWage Loss BenefitsWork-related InjuryImpairmentJudicial ReviewAdministrative ReviewDisability Benefits
References
2
Case No. MISSING
Regular Panel Decision
Jul 24, 2015

Matter of Maddox v. Baumann Sons Buses

The claimant appealed a decision by the Workers’ Compensation Board regarding a permanent partial disability and a 40% loss of wage-earning capacity. The Workers' Compensation Law Judge (WCLJ) initially found an 80% loss of wage-earning capacity and modified prior temporary partial disability awards, but the Board reduced the capacity loss to 40% and rescinded the WCLJ's award modifications. The court upheld the Board's finding of a 40% loss of wage-earning capacity, citing substantial evidence from medical opinions and vocational factors. However, the court reversed the Board's rescission of the WCLJ's modification of temporary awards, as the Board's reasoning was based on an inaccurate reading of the record, mistakenly believing the WCLJ based modifications on wage-earning capacity rather than medical impairment. The matter was remitted to the Board for further proceedings concerning the temporary disability awards.

Permanent Partial DisabilityLoss of Wage-Earning CapacityWorkers' Compensation BenefitsTemporary Partial Disability AwardsMedical ImpairmentVocational FactorsOrthopedic Surgeon ReportCredibility AssessmentSubstantial EvidenceAppellate Review
References
7
Case No. MISSING
Regular Panel Decision

Matter of Till v. Apex Rehabilitation

The claimant, a nursing assistant, sustained a work-related back and left shoulder injury in 2012, leading to an award of benefits. Initially, a Workers’ Compensation Law Judge classified her with a 40% loss of wage-earning capacity. Upon administrative review, the Workers’ Compensation Board affirmed a permanent partial disability but reduced the loss of wage-earning capacity to 15%. The claimant appealed, arguing that Workers’ Compensation Law § 15 (5-a) prohibited a determination of less than a 25% loss for nonworking claimants, suggesting a conflict with Workers’ Compensation Law § 15 (3) (w) (xi) and (xii). The court rejected this argument, clarifying that 'wage-earning capacity' (for weekly benefits) and 'loss of wage-earning capacity' (for benefit duration) serve distinct purposes and are not inversely related. The court affirmed the Board's determination, finding it supported by substantial evidence.

Permanent Partial DisabilityLoss of Wage-Earning CapacityWorkers' Compensation LawStatutory InterpretationBenefit DurationWeekly Benefit RateUnemployed ClaimantsAdministrative ReviewAppellate ReviewStatutory Conflict
References
20
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