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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. 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. MISSING
Regular Panel Decision

Claim of Knisell v. Treasure Chest Advertising Co.

Claimant sustained a work-related injury on October 12, 1999. Initially reporting an injury to her left arm, she later experienced neck pain and sought workers' compensation benefits for injury to her left arm, shoulder, and neck. A Workers’ Compensation Law Judge initially barred the neck injury claim due to a failure to provide timely notice to the employer under Workers’ Compensation Law § 18. However, the Workers’ Compensation Board reversed this decision, concluding that the employer was aware of the neck, arm, and shoulder injury on the date of the accident. The employer appealed the Board's reversal. The Appellate Division affirmed the Board's decision, finding that the Board's conclusion of employer awareness was supported by substantial evidence in the record.

Workers' CompensationNotice RequirementCausally Related InjuryNeck InjuryShoulder InjuryArm InjurySubstantial EvidenceAppellate ReviewBoard ReversalEmployer Knowledge
References
1
Case No. 2017 NY Slip Op 01454
Regular Panel Decision
Feb 23, 2017

Sokolovic v. Throgs Neck Operating Co., Inc.

This case involves an appeal concerning hold harmless and indemnity agreements. The Supreme Court, Bronx County, initially granted Vision Healthcare Services' motion to enforce a hold harmless agreement and Throgs Neck Operating Company, Inc.'s motion for summary judgment on its contractual indemnity claim against Vision. The Appellate Division, First Department, affirmed these orders. The court held that the plaintiff was obligated to hold Vision harmless from Throgs Neck's indemnification claim due to a hold harmless agreement executed during settlement. It further clarified that a nurse provided by Vision to Throgs Neck remained Vision's general employee, thereby triggering Vision's contractual indemnity obligation, despite being considered a special employee of Throgs Neck for the purpose of Throgs Neck's liability to the plaintiff.

hold harmless agreementcontractual indemnityspecial employeegeneral employeestaffing agreementsettlement agreementsummary judgmentnegligenceagency liabilityappellate review
References
3
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. GOL 0090661
Regular
Jul 26, 2007

JESUS LOBATO vs. FOARM FOLLOWING FUNCTION, INC., VIRGINIA SURETY INSURANCE COMPANY

This case involves an applicant seeking reconsideration of a workers' compensation award. The applicant argued that their neck and left shoulder were injured as a consequence of an admitted industrial injury to their psyche and left hand, and that the permanent disability rating was underestimated. The Appeals Board granted reconsideration, finding that the applicant's neck and shoulder injuries were a compensable consequence of the original injury. The Board remanded the case for further proceedings to determine the extent of permanent disability and attorney's fees.

Compensable consequencepsyche injuryleft hand injurymuscle strain/sprainneck injuryleft shoulder injurypermanent disabilityvocational expertrating instructionssubstantial evidence
References
0
Case No. ADJ1088522 (RIV 0015524)
Regular
Jan 03, 2013

SAMANTHA VAN DUINHOVEN vs. SPA HOTEL & CASINO, CALIFORNIA CASUALTY, Administered by GAB ROBINS NORTH AMERICA

This case involved an applicant who claimed industrial injury to her neck, back, left shoulder, psyche, and associated chronic pain syndrome, resulting in a finding of permanent total disability. The defendant sought reconsideration, arguing the medical evidence did not support injury to the low back or a diagnosis of chronic pain syndrome. The Appeals Board reversed the findings on the low back and chronic pain syndrome, finding no substantial evidence to support them. Consequently, the applicant's permanent disability award was amended to 70%, based on ratings for her neck, left shoulder, and psyche.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardPermanent Total DisabilityChronic Pain SyndromeAgreed Medical EvaluatorQualified Medical EvaluatorMedical Record ReviewIndustrial InjuryPermanent Disability Indemnity
References
0
Case No. MISSING
Regular Panel Decision

Claim of Renz v. Home Depot USA, Inc.

Claimant, an employee of Home Depot USA, Inc., sustained injuries in 2005. Initially, a left shoulder injury was found, later amended to include a right shoulder and a potential neck injury, prompting diagnostic tests. Subsequently, claimant stipulated to a schedule loss of use for her arms, explicitly denying other body parts, leading to a May 2007 decision awarding benefits and closing the case. Despite this, claimant sought to reopen the claim for her neck and other injuries, but both the Workers’ Compensation Law Judge and the Board denied the request, finding the neck claim barred by the prior stipulation due to a lack of forthrightness regarding her neck condition. The appellate court affirmed, concluding that the Board rationally found the stipulation binding, especially considering medical guidelines and evidence that the neck was symptomatic before the agreement, thus also precluding related carpal tunnel syndrome claims.

Workers' CompensationSchedule Loss of UseNeck InjuryStipulationReopening ClaimCarpal Tunnel SyndromeCredibilityMedical GuidelinesAppellate ReviewBoard Decision
References
4
Case No. ADJ361383
Regular
Apr 17, 2009

LINNIE WALLIN vs. COUSIN GARYS FACTORY BUILT HOMES, ZENITH INSURANCE COMPANY

The Workers' Compensation Appeals Board granted reconsideration and amended an administrative law judge's finding, specifically removing the finding of industrial injury to the applicant's left shoulder. While the applicant experienced left shoulder symptoms due to a fall, medical evaluations did not establish causation or a need for treatment for the shoulder itself. However, the Board affirmed the prior finding of 20% permanent disability, based on the applicant's neck injury, as detailed in the judge's report.

Workers' Compensation Appeals BoardLINNIE WALLINCOUSIN GARYS FACTORY BUILT HOMESZENITH INSURANCE COMPANYAmended Findings and AwardRECONSIDERATIONINDUSTRIAL INJURYNECKLEFT SHOULDERPERMANENT DISABILITY
References
1
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
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