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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
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. ADJ6875600
Regular
Nov 18, 2014

Sharon Walter vs. International Capital Group, State Compensation Insurance Fund

The Workers' Compensation Appeals Board granted reconsideration to further develop the record regarding applicant Sharon Walter's diminished future earning capacity. The Board found the vocational expert evidence presented was inadequate to support a finding of total permanent disability or to rebut the future earning capacity factor as required by *Ogilvie*. The case is remanded to the trial level to allow for the selection or appointment of a vocational expert to assess applicant's diminished future earning capacity, and the trial judge may then address claims for increased permanent disability.

Workers Compensation Appeals BoardPermanent DisabilityFuture Earning CapacityVocational ExpertReconsiderationLabor Code Section 4662Labor Code Section 4658(d)(2)OgilvieAgreed Medical ExaminerApportionment
References
2
Case No. MISSING
Regular Panel Decision

Claim of Frey v. Town of Newstead

This case concerns an appeal from a Workers' Compensation Board decision that awarded benefits to a volunteer firefighter, the claimant, for a causally related loss of earning capacity under the Volunteer Firefighters’ Benefit Law. The claimant was injured in a motor vehicle accident while on duty for the Town of Newstead. A Workers' Compensation Law Judge initially determined a permanent partial disability with a 50% to 75% loss of earning capacity, which the Board affirmed. The employer, Town of Newstead, appealed, arguing a lack of substantial evidence. The appellate court reversed the Board's decision, citing that the claimant's treating physician released her to 'regular duty' with only minor restrictions, and her earnings had increased in the same job since the accident. The matter was remitted to the Workers’ Compensation Board for further proceedings.

Volunteer Firefighters' Benefit LawEarning Capacity AssessmentPermanent Partial DisabilityAppellate Court ReversalRemittal to BoardWorkers' Compensation Board DecisionMedical Opinion EvidenceEmployment RestrictionsWage Increase EffectLine of Duty Injury
References
3
Case No. ADJ3600842 (SDO 0363689)
Regular
Jan 27, 2010

THEMAS POULIN vs. COUNTY OF SAN DIEGO

This case involves an applicant who sustained an industrial injury to his heart and hypertension. The initial award granted 65% permanent disability, which the defendant challenged, arguing the assigned Whole Person Impairment was disproportionately high and that Diminished Future Earning Capacity should be zero. The Appeals Board rescinded the original award and returned the matter for a new decision. This is because the trial judge had not yet considered the implications of the recent en banc decisions in *Almaraz II* and *Ogilvie II* regarding the rebuttability of scheduled permanent disability ratings and the evaluation of Diminished Future Earning Capacity. The Board noted concerns about the assigned impairment rating in light of the applicant's return to work and potential future earning capacity.

Workers' Compensation Appeals BoardDeputy SheriffIndustrial InjuryHeart ConditionHypertensionPermanent DisabilityWhole Person ImpairmentAgreed Medical EvaluatorReconsiderationAlmaraz
References
5
Case No. MISSING
Regular Panel Decision

Claim of Griffo v. Onondaga Hill Volunteer Fire Department

Claimant, a volunteer firefighter, sustained two work-related injuries: a back injury in February 1988 and head, neck, and upper back injuries in April 1990. Despite a classification of permanent partial disability by the Workers’ Compensation Board, the Board ruled that the claimant did not suffer a loss of earning capacity under Volunteer Firefighters’ Benefit Law § 3 (8). The claimant appealed this decision. The appellate court affirmed the Board's decision, noting that the claimant returned to his regular job duties after both accidents and that any subsequently imposed restrictions did not prevent him from performing his usual work. The court also clarified that being denied opportunities for advancement is not relevant to a loss of earning capacity under the applicable law.

Workers' CompensationVolunteer FirefighterEarning CapacityPermanent Partial DisabilityBack InjuryHead InjuryNeck InjuryUpper Back InjuryChiropractic CareEmployment Restrictions
References
4
Case No. ADJ3303329 (MON 0363353) ADJ6697361
Regular
Oct 21, 2010

RAMIRO O. VELASQUEZ vs. MOONLIGHT MOLDS, CYPRESS INSURANCE COMPANY, BROOKSHIRE HATHAWAY HOME STATE COMPANIES

The Workers' Compensation Appeals Board rescinded a prior award, returning the case for further proceedings. The original award found the applicant suffered an industrial injury resulting in 64% permanent disability and the need for further medical treatment, including a rebuttal of the future earning capacity component. The defendant challenged the permanent disability rating, arguing the judge improperly applied the Ogilvie standard for assessing diminished future earning capacity. The Board found the applicant's testimony alone insufficient to rebut the scheduled factor, necessitating development of the record on earning capacity.

Workers' Compensation Appeals BoardMoonlight MoldsCypress Insurance CompanyRamiro O. Velasquezsandblasterlaborerindustrial injurylow backfuture earning capacitypermanent disability
References
5
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

Gioia v. Cattaraugus County Nursing Home

The case involves an appeal from a Workers' Compensation Board decision regarding a claimant's reduced earnings award. The claimant, a nurse's aide with a permanent partial disability from a back injury, had her weekly compensation rate adjusted by the Board to be based on her actual reduced earnings from her current job, rather than her degree of disability. The employer and its workers' compensation carrier appealed, arguing that the Board should have considered the claimant's capacity to earn more. The court affirmed the Board's decision, reiterating that for claimants demonstrating labor market attachment, wage-earning capacity must be determined exclusively by actual earnings during disability, as evidence of capacity to earn more or less, including medical evidence of disability degree, is prohibited.

reduced earnings awardpermanent partial disabilitywage earning capacitylabor market attachmentactual earningsworkers' compensation lawappeal decisionjudicial reviewindependent medical examinationemployer appeal
References
6
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