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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
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. ADJ3481462 (OAK 0297878)
Regular
Sep 24, 2009

KATHRYN MILLS vs. BERKELEY UNIFIED SCHOOL DISTRICT, STATE COMPENSATION INSURANCE FUND

The defendant sought reconsideration of an award finding industrial injury to the applicant's left upper extremity and shoulder, causing temporary disability and need for further medical care. The applicant's treating physician, Dr. Nolan, provided opinions regarding her left shoulder and other body parts, while Dr. Cabayan also provided opinions on the left shoulder and other extremities. The Workers' Compensation Appeals Board granted reconsideration and amended the award, clarifying that future medical care is consistent with Dr. Cabayan's opinions for the left shoulder and Dr. Nolan's opinions for other body parts. The Board affirmed the award with this specific amendment.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardIndustrial InjuryInstructional AssistantLeft Upper ExtremityCompensable ConsequenceTemporary DisabilityFurther Medical CareSubstantial Evidence
References
0
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. CV-23-1672
Regular Panel Decision
Apr 24, 2025

Matter of Vujeva v. Dairy Conveyor Corp.

The claimant, Jozo Vujeva, sustained injuries to both shoulders while working as a mechanic. Following permanency evaluations, a dispute arose regarding the schedule loss of use (SLU) percentages, with the claimant's physician and the carrier's consultant providing differing findings. The Workers' Compensation Law Judge (WCLJ) and the Workers' Compensation Board rejected the claimant's physician's findings due to non-compliance with the 2018 Workers' Compensation Guidelines for Determining Impairment, specifically regarding the use of a goniometer and repeat measurements. The Board instead credited the carrier's consultant's findings, awarding a 34.5% SLU of the right shoulder and a 27% SLU of the left shoulder. The Appellate Division, Third Department, affirmed the Board's decision, emphasizing that the Board's determination was supported by substantial evidence and that opinions not supported by objective findings consistent with the guidelines may have little evidentiary value.

Workers' Compensation LawSchedule Loss of Use (SLU)Shoulder InjuryMaximum Medical Improvement (MMI)Range of Motion (ROM)GoniometerMedical Impairment GuidelinesEvidentiary ValueExpert Medical OpinionSubstantial Evidence
References
10
Case No. 533089
Regular Panel Decision
Oct 07, 2021

Matter of Barden v. General Physicians PC

Claimant, a patient services representative, sought to amend her workers' compensation claim to include left shoulder aggravation after a work-related injury to her right shoulder. The Workers' Compensation Board disallowed this request, finding that claimant failed to provide sufficient credible medical evidence to establish a causal relationship between her employment and the left shoulder condition. The Appellate Division, Third Department, affirmed the Board's decision. The court noted that the claimant's treating physician opined the left shoulder pathology was largely preexisting and unrelated to the work injury, and other medical opinions either lacked sufficient weight or were based on inaccurate information, providing no basis to disturb the Board's finding.

Workers' CompensationShoulder InjuryCausationMedical EvidencePreexisting ConditionAppellate ReviewBoard DecisionClaim AmendmentPatient Services Representative
References
10
Case No. ADJ2566375 (ANA 0382563)
Regular
Dec 21, 2012

JEFFREY FREEMAN vs. CITY OF HUNTINGTON BEACH, ACCLAMATION INSURANCE MANAGEMENT SERVICES

This case involves a fire captain's workers' compensation claim for industrial injuries to his ears, heart, neck, back, and left shoulder/hip. The applicant sought reconsideration of a 76% permanent disability rating, arguing the rating instructions for his left shoulder injury were unclear. The Appeals Board granted reconsideration, deferring the issues of permanent disability and attorney's fees. The matter is returned to the trial level to clarify the medical restrictions for the applicant's left shoulder injury.

Workers' Compensation Appeals BoardFindings Award and OrderPermanent DisabilityReconsiderationAdministrative Law JudgeDisability Evaluation UnitRating InstructionsAgreed Medical EvaluatorOrthopedicLeft Shoulder
References
1
Case No. ADJ8208920
Regular
Aug 16, 2012

TROY HUGHES vs. SHIMMICK CONSTRUCTION COMPANY, ZURICH AMERICAN INSURANCE COMPANY

This case involves two distinct industrial injuries to applicant's left shoulder and right wrist. The defendant appealed an award of temporary disability, arguing the injuries and their periods of disability overlapped. The Board affirmed the award of temporary disability for the left shoulder, commencing August 20, 2010, for up to 104 weeks. Credit was granted for 2.5 weeks of previously paid temporary disability for the right wrist against the left shoulder award. The Board adopted the Arbitrator's reasoning regarding distinct injuries and periods of disability.

Workers' Compensation Appeals BoardIndustrial InjuryLeft ShoulderRight WristCollective Bargaining AgreementLabor Code Section 3201.5Findings and AwardTemporary Disability IndemnityPetition for ReconsiderationArbitrator
References
0
Case No. ADJ9549208 ADJ10548669
Regular
May 16, 2017

GUILLERMO PALACIOS vs. SPEED TRIMS BUSINESS MANAGEMENT, ZURICH NORTH AMERICA, GALLAGHER BASSETT SERVICES

The Board granted reconsideration to amend the original award, overturning the finding that applicant sustained an injury on March 31, 2013. However, the Board found insufficient medical evidence to support the prior permanent disability rating for the applicant's left shoulder. Therefore, the matter is returned to the trial level for further proceedings to determine the extent of disability related to the left shoulder. The award for future medical treatment for cumulative trauma injury to the cervical spine, right and left shoulders, and lumbar spine remains, but permanent disability is deferred.

Petition for ReconsiderationCumulative Trauma InjurySpecific InjuryPermanent Disability RatingLeft Shoulder Rotator Cuff TearApportionmentMedical EvidenceRange of EvidencePanel Qualified Medical EvaluatorWCJ Report
References
3
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
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