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

Case No. 2023 NY Slip Op 00466
Regular Panel Decision
Feb 02, 2023

Matter of Kennedy v. 3rd Track Constructors

Claimant Alastair Kennedy, an operating engineer, sustained work-related injuries in October 2019 after falling into a hole at a job site, filing for workers' compensation benefits for left shoulder, foot, and ankle injuries. The employer's carrier accepted the claim for foot and ankle but contested neck and left shoulder injuries, also raising a Workers' Compensation Law § 114-a violation. A Workers' Compensation Law Judge (WCLJ) and subsequently the Workers' Compensation Board found claimant's testimony regarding the accident and prior injuries not credible, denying the claims for neck and left shoulder injuries and imposing mandatory and discretionary penalties under Workers' Compensation Law § 114-a. On appeal, the Appellate Division, Third Department, affirmed the Board's findings regarding the non-causal relation of neck and left shoulder injuries and the mandatory penalty for misrepresentations. However, the Court reversed the discretionary penalty of total disqualification from future wage loss benefits, deeming it disproportionate to the offense, modifying and affirming the Board's decision as so modified.

Workers' CompensationInjury ClaimCredibility AssessmentMisrepresentationWorkers' Compensation Law § 114-a ViolationMandatory PenaltyDiscretionary PenaltyWage Loss BenefitsCausal RelationshipMedical Evidence
References
16
Case No. MISSING
Regular Panel Decision
Dec 27, 1979

In re the Claim of Jones v. John W. Cowper Co.

On April 26, 1973, the claimant sustained a work-related accident, with an initial employer's report specifying only a left foot injury. Four years later, on May 17, 1977, the claimant filed a compensation claim for injuries to his left ankle and back. While the original foot injury claim was not contested, the claim for the back injury was due to untimely notice. A referee initially allowed the foot injury claim but disallowed the back injury claim on March 5, 1979, due to lack of timely notice. The Workers’ Compensation Board, on December 27, 1979, modified this decision, finding that notice and causal connection for the back condition were established. However, the appellate court reversed the Board's decision, citing Workers’ Compensation Law § 28, which bars claims not filed within two years of the accident. The court concluded that the Board lacked the power to amend a claim after two years to include an unrelated condition. The matter was remitted to the board for further proceedings.

Timely NoticeClaim AmendmentStatute of LimitationsBack Injury ClaimWorkers' Compensation AppealBoard Decision ReversalRemittalWork-Related InjuryFoot InjuryJudicial Review
References
2
Case No. MISSING
Regular Panel Decision
Jul 14, 1971

Claim of Brewer v. Thomas Foundry, Inc.

The claimant, who sustained a left foot and ankle injury in 1966 while employed by Aetna Window Cleaning Company, experienced a second incident in 1970. While working for Thomas Foundry, Inc., his left ankle gave out, causing him to fall and injure his back. The Workmen's Compensation Board found that this fall and back injury constituted an accidental injury under the law, resulting in disability. This finding was supported by substantial evidence. The appellate court affirmed the Board's decision.

Workers' CompensationAnkle InjuryBack InjuryAccidental InjuryEmployment InjuryPre-existing ConditionAppellate ReviewSubstantial EvidenceFoundry WorkerWindow Cleaning
References
3
Case No. ADJ8403518, ADJ8928431
Regular
Dec 06, 2016

Marcia Ortiz vs. CITY AND COUNTY OF SAN FRANCISCO, INTERCARE

The Appeals Board affirmed the WCJ's findings for a right elbow injury and its 24% permanent disability award. However, for a left foot/ankle injury, the Board rescinded the finding of industrial sleep disorder due to lack of substantial medical evidence. The Board also amended the permanent disability rating for the left ankle injury, ultimately awarding 12% permanent disability based on the primary treating physician's opinion. This decision corrected Dr. Chen's flawed application of impairment rating guidelines and excluded the sleep disorder from compensable injury.

PQMEDr. Chensleep impairmentindustrial injurypermanent disabilityADJ8403518ADJ8928431WCJDr. MartinovskyAMA Guides
References
7
Case No. MISSING
Regular Panel Decision
Oct 17, 1996

Claim of Page v. Insulpane, Inc.

In May 1986, the claimant suffered a compensable injury to his left foot and ankle and received workers' compensation benefits. He later settled a third-party action for $15,000, with the employer's workers' compensation insurance carrier, the State Insurance Fund, waiving its nearly $25,000 lien and its right to offset future compensation payments. Subsequently, a Workers’ Compensation Law Judge awarded the claimant a schedule award of $7,687.50 for a 25% loss of use of his left foot. The carrier contended no further payments were due, claiming an overpayment. However, the Workers’ Compensation Board determined that no overpayment occurred, excluding certain disability payments made prior to the settlement from the calculation. The carrier appealed this decision. The appellate court reversed the Board's decision, holding that the carrier's waiver of its rights under Workers’ Compensation Law § 29 did not preclude its reliance on Workers’ Compensation Law § 15 (4-a) to take a credit against the schedule award for previously paid disability benefits, as doing so would result in an unjustifiable double recovery for the claimant. The matter was remitted to the Workers’ Compensation Board for further proceedings.

Workers' CompensationSchedule AwardThird-Party ActionSettlementLien WaiverOffsetDouble RecoveryRecoupmentDisability BenefitsJudicial Review
References
4
Case No. MISSING
Regular Panel Decision

Claim of Hughes v. Indian Valley Industries, Inc.

In October 1996, the claimant sustained a work-related injury while lifting a 500-pound tarpaulin, leading to claims of left foot, leg, low back injuries, and nerve damage. Initially, a Workers’ Compensation Law Judge (WCLJ) recognized causal relationship only for the left foot injury, later amending the findings to include the back injury and left foot drop. The Workers’ Compensation Board subsequently rescinded the portion regarding the left foot drop for further medical evaluation but affirmed the causal relationship for the back injury and rejected the carrier's fraud allegations. The employer and its carrier appealed this Board decision. The Appellate Division affirmed the Board’s determination, noting that resolving conflicting expert medical testimony falls within the Board’s authority and concluding that the Board’s findings on the back injury and fraud issue were supported by substantial evidence.

CausationBack InjuryLeft Foot DropMedical EvidenceConflicting TestimonyWorkers' Compensation FraudPreexisting ConditionSubstantial Evidence ReviewAppellate AffirmationJudicial Review of Administrative Decision
References
4
Case No. ADJ2308109 (OAK 0275439) ADJ01058712 (OAK 0275438)
Regular
Apr 29, 2011

LINDA BURT-FOSS vs. CHILDREN'S FAIRYLAND, STATE COMPENSATION INSURANCE FUND

This case involves a workers' compensation claim for a zoo keeper injured in 1999. The applicant sustained a left foot and ankle injury that led to a Charcot foot condition, resulting in total permanent disability. The defendant argued for apportionment of disability, citing a medical opinion suggesting pre-existing conditions contributed to the Charcot foot. However, the Board affirmed the applicant's total permanent disability, finding the industrial injury was a contributing cause and therefore not subject to apportionment. The Board also found that the defendant waived issues regarding the overlap of disabilities from prior knee injuries by failing to raise them in their petition for reconsideration.

Workers' Compensation Appeals BoardJoint Findings and AwardReconsiderationPermanent Total DisabilityApportionmentAgreed Medical EvaluatorCharcot footIndustrial InjuryInciting EventCompensable Consequence
References
11
Case No. MISSING
Regular Panel Decision

Claim of Jweid v. Vicks Lithograph & Printing

Claimant injured his back at work in February 1999, leading to multiple diagnoses and back surgeries. Following surgeries, he developed a consequential left foot drop injury. A workers' compensation claim was established and later amended to include the foot drop. Medical evidence supported a 40% loss of use of the left foot and a permanent partial disability of his back, with the claimant having reached maximum medical improvement. The Workers’ Compensation Law Judge made a schedule loss award for the 40% loss of use of the left foot, which the Workers’ Compensation Board affirmed. The employer and carrier appealed, arguing against a schedule loss award. The court affirmed the Board's decision, finding it supported by substantial evidence, as a schedule loss of use award is appropriate when there is no continuing need for medical treatment and the condition is stable.

Workers' CompensationSchedule Loss of UseBack InjuryFoot DropMedical ImprovementPermanent Partial DisabilityAppellate ReviewSubstantial EvidenceMedical OpinionCausal Relationship
References
5
Case No. ADJ13011053
Regular
Sep 08, 2025

NORBERTO GARCIA vs. DOMINATION COLLABORATION, INC., AMERICAN ZURICH INSURANCE COMPANY

Norberto Garcia, a cook, sustained multiple industrial injuries including to his psyche, spine, shoulders, left ankle, lower extremities/gait, kidneys, and in the form of hypertension, anemia, diabetes, and left foot amputation. The WCJ awarded 100% permanent disability, finding that the impairments should be added due to their synergistic effects. Defendants petitioned for reconsideration, arguing errors in combining impairments and apportionment. The Appeals Board denied the petition, affirming the WCJ's findings that Dr. Lonky's medical opinions supported the additive approach for disability calculation and that even with minor adjustments, the applicant's permanent disability still exceeded 100%.

Petition for ReconsiderationFindings and AwardPermanent DisabilityApportionmentHypertensive Cardiovascular DiseaseRenal DiseaseDiabetes MellitusLeft Foot AmputationGait DerangementVocational Evaluation
References
17
Case No. MISSING
Regular Panel Decision

Claim of Dinger v. K-Mart Corp.

This case involves an appeal from a Workers’ Compensation Board decision filed on November 14, 1996. The claimant sustained a left ankle injury in April 1994, which required reconstructive surgery and resulted in a 20% schedule loss of use of his left foot. The Board awarded benefits, delineating periods of temporary total disability and permanent partial disability with a future wage expectancy rate. The claimant contended that the entire schedule loss-of-use award should be calculated at the future wage expectancy rate from the date of injury, arguing that the Board's calculation reclassified all prior periods as permanent partial disability. The court, however, found no such reclassification and no statutory mandate supporting the claimant's argument. Citing substantial medical evidence, the court affirmed the Board's decision, upholding its classification of the claimant's medical condition and benefit calculation.

workers' compensation benefitsschedule loss-of-usewage expectancytemporary total disabilitypermanent partial disabilityappellate reviewBoard decision affirmedmedical condition classificationsubstantial evidenceleft ankle injury
References
3
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