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Case Law Database

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

Case No. MISSING
Regular Panel Decision
Mar 25, 2009

Claim of DeFayette v. Verizon

The claimant suffered a compensable left shoulder injury in May 2002, and later a right shoulder injury in December 2005. The claimant was initially awarded workers' compensation benefits for intermittent lost time from May 17, 2002, to November 18, 2003, and later from September 13, 2007, to November 5, 2008. However, awards for lost time between November 18, 2003, and September 13, 2007, were denied by a Workers’ Compensation Law Judge, a decision that was affirmed by the Workers’ Compensation Board. Upon appeal, the Appellate Division reversed the Board's decision, finding that the determination lacked substantial evidence as no prior Board determinations on this specific issue were found in the record. The matter was remitted to the Board for further fact-finding to resolve the issue.

Workers' CompensationLost Time AwardsShoulder InjuryAppealBoard DecisionSubstantial EvidenceFact-FindingRemittalPrior DeterminationsBenefit Payments
References
5
Case No. 2021 NY Slip Op 04940 [197 AD3d 1379]
Regular Panel Decision
Sep 02, 2021

Matter of Bigdoski v. Bausch & Lomb

Barbara Bigdoski, a customer service representative, developed bilateral shoulder impingement and right lateral epicondylitis, which she attributed to extensive typing. A Workers' Compensation Law Judge found her condition to be a causally-related occupational disease with a disablement date of June 20, 2019, a decision affirmed by the Workers' Compensation Board. The employer and its carrier appealed, contending the condition was related to her workspace configuration rather than repetitive motion. The Appellate Division, Third Department, affirmed the Board's finding, citing competent medical evidence establishing a link between Bigdoski's work and her condition, and rejected the carrier's arguments.

Workers' CompensationOccupational DiseaseShoulder ImpingementEpicondylitisRepetitive MotionCausally RelatedMedical EvidenceSubstantial EvidenceAppellate ReviewJudicial Review
References
7
Case No. 2018 NY Slip Op 05979 [164 AD3d 1505]
Regular Panel Decision
Sep 06, 2018

Matter of Levin v. Rensselaer Polytechnic Inst.

Lew H. Levin, a maintenance worker, sustained a left shoulder injury after slipping on ice and established a workers' compensation claim. He later sought to amend his claim to include a causally-related right shoulder injury after experiencing pain during light-duty work. Both the Workers' Compensation Law Judge and the Workers' Compensation Board disallowed the claim for the right shoulder injury, concluding that the claimant failed to establish a causal relationship. The Appellate Division affirmed this decision, noting that the claimant provided inconsistent histories regarding the incident and that the Board appropriately assessed the credibility of both the claimant's testimony and the medical evidence. The court found substantial evidence to support the Board's finding that the right shoulder injury was not causally related to the work incident.

Workers' Compensation ClaimShoulder InjuryCausality DisputeMedical OpinionCredibility AssessmentAppellate ReviewBurden of ProofInconsistent TestimonyWork-Related AccidentWorkers' Compensation Board Decision
References
11
Case No. MISSING
Regular Panel Decision

Claim of Donovan v. Boces Rockland County

Claimant, a speech therapist, suffered a right shoulder injury and later developed left shoulder issues and psychological conditions. A Workers' Compensation Law Judge made a determination regarding these claims, including that the claimant voluntarily withdrew from the labor market. The Workers’ Compensation Board subsequently rescinded the finding of a causally related left shoulder injury and affirmed the voluntary withdrawal. The claimant appealed this Board decision. The appellate court affirmed the Board's decision, concluding that the Board's assessment of credibility and finding of voluntary withdrawal were supported by substantial evidence, and that the Board acted within its power to modify the WCLJ's decision.

Workers' Compensation AppealsCausally Related InjuryLeft Shoulder InjuryRight Shoulder InjuryRotator Cuff TearPsychological ConditionAnxiety and DepressionVoluntary Withdrawal from Labor MarketCredibility AssessmentSubstantial Evidence
References
13
Case No. MISSING
Regular Panel Decision
Mar 28, 2001

Claim of Viau v. Walsh Trucking Services, LLC

Claimant, a truck driver, sustained two chest injuries in May and September 1997 while working. Later, in February 1998, he experienced neck, shoulder, and arm pain, which he sought to include in his workers' compensation claims. Although a Workers' Compensation Law Judge initially found a causal relationship for these broader injuries, the Workers' Compensation Board reversed, determining that the claimant failed to establish a causal link between the original incidents and his later head, neck, and arm issues. The appellate court affirmed the Board's decision, citing substantial evidence that included inconsistent testimony from the claimant and a lack of early documentation for head or neck injuries in C-2 reports and medical records. The court concluded that physicians' opinions regarding causality were based on later complaints and lacked initial supporting evidence.

Workers' CompensationCausal RelationshipDisability ClaimTruck Driver InjuryChest PainNeck PainShoulder PainHerniated DiscMedical EvidenceInconsistent Testimony
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
Case No. 534171, 534534
Regular Panel Decision
Oct 06, 2022

In the Matter of the Claim of James Banish

James Banish, a patrol officer, appealed two decisions by the Workers' Compensation Board concerning his claim for workers' compensation benefits. Initially, his claim for jaw and head injuries resulting from an on-duty assault was established, but he later sought to amend it to include a causally-related left shoulder injury. The Workers' Compensation Law Judge, affirmed by the Board, found no causal relationship for the shoulder injury and denied the claim; subsequently, his application for reconsideration and/or full Board review was also denied. The Appellate Division, Third Judicial Department, affirmed both decisions, concluding that substantial evidence supported the Board's determination that the shoulder injury was not causally related to his employment. The court also found no abuse of discretion in denying reconsideration, clarifying that Workers' Compensation Law and General Municipal Law § 207-c are distinct statutory schemes, and a prior award under one does not dictate the other.

Workers' Compensation BenefitsCausal RelationshipLeft Shoulder InjuryGeneral Municipal Law § 207-cWorkers' Compensation LawSubstantial EvidenceAbuse of DiscretionReconsideration DenialFull Board ReviewPatrol Officer
References
17
Case No. 533556
Regular Panel Decision
Feb 02, 2023

In the Matter of the Claim of Alastair Kennedy

Claimant, an operating engineer, sustained work-related injuries in October 2019 after falling into a hole at a job site. He initially filed for workers' compensation benefits, which were accepted for left foot and ankle injuries. He later alleged neck and left shoulder injuries, which the carrier contested, also raising a Workers' Compensation Law § 114-a violation due to alleged misrepresentations. A Workers' Compensation Law Judge (WCLJ) found claimant's testimony not credible regarding the accident and prior injuries, disallowed the neck and shoulder claims, and imposed both mandatory and discretionary penalties under § 114-a. The Workers' Compensation Board affirmed these findings. On appeal, the Appellate Division affirmed the Board's decision to disallow the claims for neck and shoulder injuries and upheld the mandatory penalty for misrepresentation, finding it supported by substantial evidence. However, the Court reversed the imposition of the discretionary penalty of total disqualification from future wage loss benefits, deeming it disproportionate to the offense, thereby modifying the Board's decision.

Workers' Compensation BenefitsCausally-Related InjuriesCredibility DeterminationMisrepresentationWorkers' Compensation Law § 114-aMandatory PenaltyDiscretionary PenaltyWage Loss BenefitsAppellate ReviewSubstantial Evidence
References
16
Case No. 2020 NY Slip Op 06434 [188 AD3d 1403]
Regular Panel Decision
Nov 12, 2020

Matter of Liuni v. Gander Mtn.

Claimant Joseph D. Liuni sustained a left distal bicep tendon rupture in 2007, resulting in a 22.5% schedule loss of use (SLU) award for his left arm. In 2014, he established a workers' compensation claim for his right shoulder, which was later amended in 2016 to include a consequential injury to his left shoulder. A physician determined a 27.5% SLU for the left arm due to the 2016 injury, which, when combined with the prior award, totaled an overall 50% SLU. The Workers' Compensation Board modified a WCLJ's determination, ruling that the bicep and shoulder injuries are not eligible for separate SLU awards as they both fall under awards for the left arm. Consequently, the Board deducted the 2007 22.5% SLU from the 2016 27.5% SLU, resulting in a 5% SLU award for the left arm. The Appellate Division affirmed the Board's decision, emphasizing that Workers' Compensation Law § 15 (3) limits SLU awards to statutorily enumerated members and that separate awards for subparts of a body member would constitute an unauthorized monetary windfall.

Schedule Loss of Use (SLU)Workers' CompensationAppellate DivisionThird DepartmentLeft Arm InjuryBicep Tendon RuptureShoulder InjuryPrior Award DeductionMonetary WindfallStatutory Interpretation
References
5
Case No. ADJ7620353
Regular
Mar 13, 2013

HECTOR BECERRA vs. CITY OF FRESNO

The applicant sustained an admitted industrial injury to his left shoulder. He was later unable to work due to a psychiatric disability stemming from a separate, denied claim, despite modified work being available for his orthopedic injury. The Board found the applicant not entitled to temporary partial disability for periods he was disabled by the denied psychiatric claim. However, the applicant is entitled to temporary total disability for a specific period following shoulder surgery, subject to credit for net earnings from his self-employment janitorial business.

ReconsiderationTemporary Partial Disability (TPD)Temporary Total Disability (TTD)Self-Employment IncomeCredit for EarningsPsychiatric DisabilityCumulative Stress ClaimIndustrial InjuryLeft Shoulder InjuryPolice Officer
References
12
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