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

Case No. MISSING
Regular Panel Decision

Claim of Kigin v. State of New York Workers' Compensation Board

In 1996, claimant sustained work-related injuries, leading to workers' compensation benefits and a classification of permanent partial disability in 2006. Her treating physician, Andrea Coladner, requested a variance for additional acupuncture treatments beyond the scope of the Workers' Compensation Board's Medical Treatment Guidelines, which went into effect in 2010. The Special Fund for Reopened Cases denied the variance based on an independent medical examination by Peter Chiu, citing a lack of objective findings. A Workers' Compensation Law Judge and the Board affirmed this denial, prompting the claimant's appeal. The court affirmed the Board's decision, holding that the Board lawfully promulgated the Guidelines to predetermine medical necessity and that the variance procedure, which shifts the burden of proof to claimants for treatments outside the Guidelines, is permissible and consistent with due process.

Workers' CompensationMedical Treatment GuidelinesAcupunctureVariance RequestPermanent Partial DisabilityMedical NecessityBurden of ProofDue ProcessStatutory InterpretationAdministrative Law
References
19
Case No. MISSING
Regular Panel Decision

New York State Ass'n of Nurse Anesthetists v. Novello

This is a dissenting opinion challenging the majority's conclusion that an association of New York Certified Registered Nurse Anesthetists (CRNAs) lacks standing to sue the Commissioner of Health. The CRNAs challenged new 'Guidelines' which stipulate that CRNAs should provide services in office-based surgery only under supervision by a physician, dentist, or podiatrist 'qualified by law, regulation or hospital appointment to perform and supervise the administration of the anesthesia.' The dissent argues that the Guidelines, though presented as recommendations, are effectively regulations that will severely injure CRNAs' employment opportunities by requiring the presence of an anesthesiologist, making CRNAs redundant due to cost-prohibitive duplication of services. The dissenting judge criticizes the majority for deeming the CRNAs' evidence of economic harm as 'speculation' despite extensive factual showings from affidavits, asserting that precedent supports standing in such cases.

CRNA supervisionStandingGuidelines as regulationsEconomic injuryNurse anesthetistsAnesthesiologist supervisionOffice-based surgeryHealthcare regulationsJudicial dissentPhysician qualification
References
4
Case No. MISSING
Regular Panel Decision

Bland v. Gellman

A claimant had two workers' compensation claims, one managed by the Special Fund for Reopened Cases and the other by Travelers Insurance Company, with liability equally apportioned. The claimant's treating physician requested a variance for aquatic therapy, which both carriers denied. Although a Workers' Compensation Law Judge approved the treatment, the Workers' Compensation Board reversed, asserting that the variance request form (MG-2) was not properly served on the Board and that the review request was untimely. The Appellate Division reversed the Board's decision, finding substantial evidence that the MG-2 form was timely filed with the Board, referencing both claim numbers, and that the request for review of the denial was also timely. The court concluded that the Board's determination lacked substantial evidence and remitted the matter for further proceedings.

Variance RequestAquatic TherapyClaim DenialMG-2 FormTimely FilingAdministrative LawAppellate ReviewSpecial Fund for Reopened CasesTravelers Insurance CompanySubstantial Evidence
References
3
Case No. STK 0209780 STK 0209781
Regular
Feb 08, 2008

TAMARA JEAN STAFFORD vs. LODI UNIFIED SCHOOL DISTRICT, ALTERNATIVE SERVICE CONCEPTS

The Workers' Compensation Appeals Board denied the Lodi Unified School District's petition for reconsideration, affirming the administrative law judge's award of pain medications and trigger-point injections to applicant Tamara Jean Stafford. The Board found the defendant's utilization review physician improperly applied ACOEM guidelines, which primarily address acute injuries, to the applicant's chronic condition. The Board clarified that while ACOEM guidelines are presumptively correct, variances are permissible when reasonably required to cure and relieve an employee's injury effects, as demonstrated by the applicant's treating physician's recommendations.

Workers' Compensation Appeals BoardLodi Unified School DistrictAlternative Service ConceptsTamara Jean StaffordPetition for ReconsiderationFindings and AwardMedical TreatmentPrimary Treating PhysicianACOEM GuidelinesUtilization Review
References
9
Case No. 07-CR-14(S-1)
Regular Panel Decision
Mar 07, 2014

United States v. Qualls

Thomas Qualls was found guilty by jury verdict on multiple counts of conspiracy to commit mail and wire fraud, mail fraud, wire fraud, and obstruction of justice in 2008, and later pled guilty to failure to appear. During sentencing, Qualls objected to several enhancements to his offense level, including those for loss amount, sophisticated means, and leadership role, and sought a downward departure due to diminished mental capacity. The Court, presided over by Judge Dora L. Irizarry, denied all of Qualls's objections and requests for downward departure or variance. The Court affirmed that the application of the 2013 U.S. Sentencing Guidelines Manual did not violate the ex post facto clause and that a Fatico hearing was unwarranted. Consequently, a sentence within the Guidelines range was imposed, totaling 150 months concurrently for fraud counts and 60 months consecutively for failure to appear.

Criminal FraudWire FraudMail FraudObstruction of JusticeFailure to AppearSentencing GuidelinesEx Post FactoDiminished Mental CapacitySophisticated MeansLeadership Role
References
21
Case No. 3041 0151
Regular Panel Decision

Claim of West v. Titan Express, Inc.

The claimant appealed a November 6, 2012 decision by the Workers’ Compensation Board that denied a variance request for certain medical injections. While the appeal was pending, the Board issued an amended decision in April 2013, superseding the original but reaching the same ultimate conclusion. The Court determined that the Board acted within its statutory authority in issuing the amended decision, as the appeal had not yet been perfected and no prejudice resulted. However, because the amended decision superseded the initial one, the Court found the pending appeal moot. Consequently, the appeal was dismissed without costs.

Workers' Compensation LawMedical VarianceWorkers' Compensation BoardAppellate DivisionMootness DoctrineBoard JurisdictionAmended DecisionProcedural IssuesClaimant AppealTitan Express Inc.
References
16
Case No. MISSING
Regular Panel Decision

Fraioli's Hydro-Power, Inc. v. Department of Environmental Protection

The petitioner, a truck washing business, sought CPLR article 78 relief after its request for a variance to use New York City's water supply during a Stage II Drought Emergency was denied. The petitioner argued that it was denied a hearing and that the denial was arbitrary and capricious, citing economic hardship and previous variances. The court, presided by Judge David B. Saxe, rejected both arguments, finding that a formal hearing was not constitutionally required for a variance denial by an administrative agency. Furthermore, the court found the denial of the variance rational, stating that truck washing is not an essential use, alternatives exist, and granting a variance would contradict water conservation efforts and afford preferential treatment. Consequently, the petition was dismissed.

Drought EmergencyWater ConservationVariance DenialCPLR Article 78Administrative DiscretionDue ProcessEconomic HardshipNon-Essential BusinessJudicial ReviewMunicipal Regulations
References
6
Case No. MISSING
Regular Panel Decision

Matter of Bland v. Gellman, Brydges & Schroff

This case involves consolidated appeals from several decisions by the Workers’ Compensation Board concerning a claimant. The appeals address issues such as a variance request for aquatic therapy for thoracic outlet syndrome, the causal relationship of fibromyalgia and myofascial pain syndrome, the degree of partial impairment and loss of wage-earning capacity, entitlement to Botox therapy for migraines, and reimbursement for medical and travel expenses. The Court affirmed the Board's findings regarding the application of Shoulder Injury Medical Treatment Guidelines, the denial of aquatic therapy, the lack of causal relationship for fibromyalgia, the 50% loss of wage-earning capacity, and the denial of reconsideration for medical/travel expenses and labor market attachment. One appeal related to fibromyalgia care and Botox therapy was dismissed as the claimant was no longer aggrieved.

Workers' CompensationAppellate ReviewAquatic TherapyThoracic Outlet SyndromeFibromyalgiaMyofascial Pain SyndromeWage-Earning CapacityMedical Treatment GuidelinesVariance RequestReconsideration
References
23
Case No. CV-23-1298
Regular Panel Decision
May 30, 2024

In the Matter of the Claim of Michael Garofalo

Michael Garofalo, a lineman, sustained a left hand crush injury in January 2020 while working for Verizon New York, Inc. His workers' compensation claim was established. Following a permanency evaluation, his treating physician, Brian J. Harley, assessed a 35% schedule loss of use (SLU) of the left hand, using the 2012 New York State Guidelines for Determining Impairment. An independent medical examiner, Thomas R. Haher, initially concurred but later revised his opinion to 50% SLU based on the 2018 Guidelines. A Workers' Compensation Law Judge (WCLJ) adopted Harley's 35% SLU opinion, which the Workers' Compensation Board upheld. On appeal, the Appellate Division found that Harley improperly relied on the 2012 Guidelines instead of the applicable 2018 Guidelines, as the first medical evaluation occurred after January 1, 2018. The court determined that the Board's decision, relying on Harley's erroneous application of the guidelines, lacked substantial evidence. The decision was reversed, and the matter was remitted to the Workers' Compensation Board for a new determination of the appropriate SLU percentage.

Workers' CompensationSchedule Loss of UseLeft Hand InjuryMedical Guidelines2018 Impairment GuidelinesAppellate ReviewRemittalMedical Opinion ConflictTraumatic InjuryFractures
References
7
Case No. 2020 NY Slip Op 03966 [185 AD3d 1263]
Regular Panel Decision
Jul 16, 2020

Matter of McKay v. Southampton Hosp.

The case concerns an appeal by Jacqueline McKay (claimant) from a Workers' Compensation Board decision. The Board had affirmed a Workers' Compensation Law Judge (WCLJ) ruling to consider weaning the claimant from opioid medications based on an independent medical examiner's opinion under the Non-Acute Medical Treatment Guidelines (NAPMTG). The claimant argued that the Board exceeded its authority in promulgating these guidelines. The Appellate Division, Third Department, affirmed the Board's decision, holding that the Board properly exercised its broad regulatory power under the Workers' Compensation Law to issue the NAPMTG. The court found the guidelines rational and not unreasonable, arbitrary, capricious, or contrary to the statute, emphasizing that the NAPMTG furthered the aim of ensuring prompt and appropriate medical care for injured workers by expanding existing treatment guidelines to address comprehensive pain management, including the safe use of narcotics.

Medical Treatment GuidelinesOpioid WeaningRegulatory AuthorityAdministrative LawAppellate ReviewPain ManagementOccupational DiseasePermanent Partial DisabilityWorkers' Compensation BoardIndependent Medical Examination
References
5
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