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

Case No. CV-23-1451
Regular Panel Decision
Nov 07, 2024

Matter of Amato v. Patchogue Supermarkets LLC

Domenico Amato, a claimant, sustained work-related injuries to his bilateral shoulders and biceps in May 2019, leading to two arthroscopic surgeries. Following these, medical evaluations for permanency by two orthopedic specialists, Frank Hudak and Lee Kupersmith, yielded differing schedule loss of use (SLU) percentages for Amato's arms. A Workers' Compensation Law Judge initially found a bilateral 42.5% SLU. However, the Workers' Compensation Board subsequently rejected both physicians' permanency opinions, deeming them unreliable due to inconsistent range of motion (ROM) measurements. Instead, the Board relied on earlier ROM measurements from Dr. Kupersmith, taken before Amato reached maximum medical improvement (MMI), to determine a 20% SLU for each arm. Amato appealed this decision. The Appellate Division, Third Department, modified the Board's decision, finding that it was improper for the Board to determine SLU percentages based on premature medical reports that did not confirm MMI or adhere to proper ROM measurement guidelines. Consequently, the matter was remitted to the Workers' Compensation Board for further consideration.

Workers' CompensationSchedule Loss of UseMaximum Medical ImprovementRange of MotionAppellate DivisionThird DepartmentMedical EvidenceBoard ReviewRemittalOrthopedic Surgery
References
8
Case No. ADJ1498961
Regular
Sep 23, 2010

DALE ARNOLD vs. RALPH'S AKA KROGER

This case involves an applicant's claim for workers' compensation benefits for a right shoulder injury. While the initial award recognized industrial injury to the applicant's left shoulder, right elbow, and right forearm, the defendant sought reconsideration, arguing the right shoulder injury was not work-related. The Appeals Board granted reconsideration, finding the applicant failed to meet the burden of proof for the right shoulder injury. They disagreed with the primary treating physician's opinion and found the agreed medical evaluator's opinion more persuasive, ultimately reversing the finding for the right shoulder.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardCumulative TraumaIndustrial InjuryLeft ShoulderRight ElbowRight ForearmRight ShoulderPrimary Treating Physician
References
0
Case No. SFO 0425862 SFO 0425863
Regular
May 14, 2008

William Bishop vs. IGC POLYCOLD SYSTEMS, ROYAL & SUN ALLIANCE

This case involves a workers' compensation applicant claiming injury to his right shoulder and seeking a new vocational rehabilitation plan. The Appeals Board affirmed the WCJ's denial of a new vocational plan and the finding of no industrial injury to the right shoulder. However, they reversed the WCJ to award benefits resulting from right shoulder surgery, deeming it a consequence of the compensable left shoulder injury.

Workers' Compensation Appeals BoardReconsiderationVocational Rehabilitation PlanIndustrial InjuryRight ShoulderLeft ShoulderTemporary DisabilityQualified Medical EvaluationCausationNon-Industrial
References
8
Case No. CV-23-1672
Regular Panel Decision
Apr 24, 2025

In the Matter of the Claim of Jozo Vujeva

Jozo Vujeva, a mechanic, sustained shoulder injuries in March 2021, leading to a workers' compensation claim. His physician assessed a 40% schedule loss of use (SLU) for the right arm and 30% for the left, while the carrier's consultant found a 34.5% SLU for the right arm and 27% for the left. A Workers' Compensation Law Judge (WCLJ) and subsequently the Workers' Compensation Board affirmed the carrier's consultant's findings, rejecting the claimant's physician's report due to non-compliance with 2018 guidelines regarding goniometer use and repeat ROM measurements. The Appellate Division affirmed the Board's decision, concluding that the Board was entitled to discount the claimant's physician's opinion due to methodological deficiencies and to credit the carrier's consultant's findings, which were supported by substantial evidence.

schedule loss of useshoulder injurymaximum medical improvementrange of motiongoniometer usageWorkers' Compensation Board decisionAppellate Division reviewmedical evidence admissibilityexpert medical opinionevidentiary support
References
11
Case No. CV-23-1516
Regular Panel Decision
Jan 30, 2025

In the Matter of the Claim of Marnie Johnston

Marnie Johnston, a factory metal worker, sustained a work-related left shoulder injury in June 2020. After two surgeries and several medical evaluations, a Workers' Compensation Law Judge (WCLJ) initially found her injury reached maximum medical improvement (MMI) and awarded a 50% schedule loss of use (SLU) for her left arm, a decision affirmed by the Workers' Compensation Board. Johnston appealed this decision. The Appellate Division, Third Judicial Department, modified the Board's decision, ruling that it was improper to determine the SLU percentage based on medical reports not specifically conducted for permanency evaluation or without proper Range of Motion (ROM) measurements as per the 2018 guidelines. The case has been remitted to the Workers' Compensation Board for further proceedings consistent with the Appellate Division's decision.

Workers' CompensationSchedule Loss of Use (SLU)Maximum Medical Improvement (MMI)Range of Motion (ROM)Appellate DivisionMedical EvaluationOrthopedic InjuryShoulder InjurySurgical ProcedureMedical Guidelines
References
8
Case No. 2025 NY Slip Op 00504 [234 AD3d 1220]
Regular Panel Decision
Jan 30, 2025

Matter of Johnston v. Howmet Aerospace Inc.

Marnie Johnston, a factory worker, sustained a work-related left shoulder injury in June 2020, leading to two surgeries and temporary indemnity benefits. The Workers' Compensation Board affirmed a 50% schedule loss of use (SLU) award for her left arm, relying on early medical reports from January 2022 that found 90 degrees for forward flexion and abduction. Claimant appealed, arguing that later permanency evaluations showed higher ROM deficits and that the earlier reports were insufficient for SLU determination as MMI had not been established. The Appellate Division, Third Department, modified the Board's decision, ruling that it was improper to base the SLU award on medical reports not conducted for permanency evaluation and without confirmation of MMI. The court reversed the 50% SLU finding and remitted the matter back to the Workers' Compensation Board for further proceedings consistent with its decision.

Workers' Compensation BoardSchedule Loss of UseMaximum Medical ImprovementRange of MotionAppellate ReviewMedical EvaluationTreating PhysicianShoulder InjurySurgical RepairRemittal
References
8
Case No. ADJ3849140 (RDG 0119253)
Regular
Apr 04, 2011

THEMAS TRESLER vs. MOUNTAIN SATELLITE, STATE COMPENSATION INSURANCE FUND

This case involves a dispute over workers' compensation jurisdiction regarding a left shoulder injury. The defendant, SCIF, sought reconsideration of a WCJ's award of treatment for the shoulder, arguing lack of jurisdiction. The Appeals Board granted reconsideration, rescinded the prior award, and returned the matter for further proceedings. This decision acknowledges that the left shoulder claim may not have been definitively resolved by prior stipulations and requires the WCJ to determine if Labor Code section 5815 applies, potentially leading to a full hearing on the shoulder injury.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardIndustrial InjuryLow Back InjuryLeft Shoulder InjuryStipulation with Request for AwardDeclaration of Readiness to ProceedContinuing JurisdictionLabor Code Section 5909
References
5
Case No. ADJ8361032
Regular
Sep 04, 2019

CAROL WORKMAN vs. ST. THERESA/ST. JOSEPH SCHOOL

This case concerns Carol Workman's claim for benefits from the Subsequent Injuries Benefits Trust Fund (SIBTF) due to bilateral shoulder injuries. The Workers' Compensation Appeals Board (WCAB) overturned a prior decision and found Workman entitled to SIBTF benefits. This was based on evidence showing her current work-related shoulder injuries, when combined with prior non-industrial and industrial shoulder issues, met the statutory threshold for SIBTF eligibility. The Board found that the cumulative injury to her shoulders resulted in at least 5% permanent disability before adjustments, satisfying the requirement for SIBTF benefits.

SIBTFSubsequent Injuries Benefits Trust Fundwhole person impairmentcumulative traumaacromegalybilateral shouldersrange of motionmotor deficitapportionmentdiminished future earning capacity
References
17
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. 524823
Regular Panel Decision
Feb 07, 2019

Matter of Napoli v. Edison

John Napoli, a mechanic, injured both shoulders in a 2003 work accident at the World Trade Center site. He was initially awarded a 20% schedule loss of use (SLU) for each shoulder. In 2012, his condition changed, and liability was transferred to the Special Fund for Reopened Cases. A Workers' Compensation Law Judge (WCLJ) found an additional 45% SLU for each shoulder, but the Workers' Compensation Board reversed this finding after an evaluation by an impartial specialist and crediting an independent medical examiner. The Appellate Division affirmed the Board's decision, concluding that the Board's finding that the additional deterioration in the condition of his shoulders was not causally related to the underlying accident was supported by substantial medical evidence.

Workers' CompensationSchedule Loss of UseShoulder InjuryCausationMedical EvidenceIndependent Medical ExaminationImpartial SpecialistReopened CasesAppellate ReviewSubstantial Evidence
References
11
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