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Decisions Recent Appellate Court Decisions

June 23, 2022

In the Matter of the Claim of Portia Blanch
Appeal of Full Board Review moot.

In the Matter of the Claim of Anthony Brancato
Occupational disease established.

In the Matter of the Claim of Robert Diamond Jr.
No apportionment of schedule loss of use.

In the Matter of the Claim of Jerome Hernandez
No voluntary removal from the labor market.

In the Matter of the Claim of Douglas Kromer
Per Johnson/Liuni, and issue of extension deficit in left arm, matter remitted to Workers' Compensation Board.

In the Matter of the Claim of Anne O'Donnell
15(8) pretrial conference statement not binding on Workers' Compensation Board.

In the Matter of the Claim of Brenda Sanchez
No occupational disease.

In the Matter of the Claim of Danielle Sequino
C-81b decisions.

In the Matter of the Claim of Michael Spinelli
No violation of Workers' Compensation Law 114-a (1).

June 9, 2022

In the Matter of the Claim of Sandra Anthony
Employer/employee relationship. Construction Industry Fair Play Act.

In the Matter of the Claim of Wesley Harmon
Occupational disease established.

June 2, 2022

In the Matter of the Claim of Maurice Blue
Where injury results in both chondromalacia patella and a meniscal tear, special consideration 4 does not preclude losses from the meniscus from being added to ultimate schedule loss of use value.

May 26, 2022

In the Matter of the Claim of Juan Bidot
Stress claim disallowed. Appeal from FBR denial affirmed.

In the Matter of the Claim of David Bonet
Insufficient medical evidence of occupational disease.

In the Matter of the Claim of Paula Cunningham
Public school principal in New York City employed in a pedagogical capacity and not a covered employee under Workers' Compensation Law § 3 (1).

In the Matter of the Claim of Bernadette Davenport
Medical evidence supported a finding of no schedule loss of use.

In the Matter of the Claim of Howard Alphonso Fuller
Laches does not apply. Awards suspending pending production of evidence that claimant complied with conditions of consent to 3rd party settlement.

In the Matter of the Claim of Thomas Hogan
Workers' Compensation Law § 120.

In the Matter of the Claim of Edward Hopeck
Workers' Compensation Law § 123. Case truly closed despite awards held in abeyance.

In the Matter of the Claim of Christine Kelly (Kelly, Kevin (dec'd)
Special Fund (25-a) not liable for consequential death claim filed after the fund was closed.

In the Matter of the Claim of Alan Richburg
Issue on appeal moot. Appeal dismissed.

In the Matter of the Claim of Stacy Seymour
No occupational disease. Insufficient medical evidence.

May 20, 2022

In the Matter of the Claim of Mohammed Ali
Workers' Compensation Law section 114-a(1).

In the Matter of the Claim of Glenn Hedges
No medical evidence for period prior to classification.

In the Matter of the Claim of Alex Ryan
Affirmed voluntary removal finding, despite medical showing total after the Workers' Compensation Law Judge's direction to show labor market attachment was made.

In the Matter of the Claim of Christian Vasquez
Credible evidence of a work-related accident.

In the Matter of the Claim of Jermaine White
Disallowed per Workers' Compensation Law section 18.

May 12, 2022

In the Matter of the Claim of IRA Jason Lucks, as Executor of the Estate of Julius Lucks, Deceased, Claimant
25-a [1-a] prohibits transfer of liability to Special Funds Group for any application made after closing date.

In the Matter of the Claim of Donato Nappi
Workers' Compensation Law 114-a (1) finding, and discretionary penalty, affirmed.

April 26, 2022

In the Matter of the Claim of Thomas Johnson; In the Matter of the Claim of Joseph D. Liuni
Court of Appeals: Where lifetime claim shifted to Special Funds per 25-a, the carrier is liable for consequential death claim, not Special Funds.

April 21, 2022

In the Matter of the Claim of Juan Abad
Liability apportioned equally between general and special employers.

In the Matter of the Claim of Simon Butler
Reduced earnings not causally related to claimant's compensable injuries.

In the Matter of the Claim of Peter Giglia
Workers' Compensation Law § 114-a(1); mandatory and discretionary penalties.

In the Matter of the Claim of Richard Mallen
Reopening of claim barred by Workers' Compensation Law § 123.

In the Matter of the Claim of Alexandra Minichino
Accidental neck injury.

In the Matter of the Claim of Jose Perez
Board decision deferring further action for 90 days to permit parties to negotiate an agreement pursuant to Workers' Compensation Law § 32 was non-final; appeal dismissed.

In the Matter of the Claim of Andrezej Szymanski
Late payment penalty not warranted when awards stayed based on filing of an application for administrative review.

April 14, 2022

In the Matter of the Claim of Portia Blanch
Labor market attachment.

In the Matter of the Claim of Vincent Gambardella
Court expands Arias rule to encompass claimant's who have voluntarily retired.

In the Matter of the Claim of Veronica Garland
Schedule Loss of Use appropriately not increased.

In the Matter of the Claim of Albert Olszewski
Multiple filing of RB-89 in each file not stated in guidance; will be updated.

In the Matter of the Claim of Quinton Waters
Board must evaluate 'special errand' exception in rendering a decision.

March 17, 2022

In the Matter of the Claim of Wayne Charles Belfiore
300.13; carrier did not appear at hearing, and thus did not timely interpose an objection

In the Matter of the Claim of Charles Mascali
Reconsideration properly denied

In the Matter of the Claim of Leonel Reyes
Workers' Compensation Law § 114-a (1)

March 10, 2022

In the Matter of the Claim of Ryszard Cala
Binaural hearing loss, and preclusion of independent medical examination.

In the Matter of the Claim of Joseph Ippolito
Board failed to address issues raised by carrier on appeal.

March 3, 2022

In the Matter of the Claim of Frederick Mitchell
Denial of Reopening; detailed decision regarding newly discovered evidence and interest of justice.

February 24, 2022

In the Matter of the Claim of Marian Kretunski
Occupational disease date of disablement.

February 17, 2022

In the Matter of the Claim of Mark Mogilevsky
Binaural hearing loss; Board's credibility finding not supported by evidence.

February 10, 2022

In the Matter of the Claim of Steven Coll
Claimant, laid off due to staffing issues brought on by COVID-19 pandemic (June 2020) did not sustain causally-related lost earnings.

In the Matter of the Claim of Stephen Darcy
Defective application, per 300.13(b).

In the Matter of the Claim of Stacy Eastman
No apportionment of SLU; FBR properly denied.

In the Matter of the Claim of Cathleen Joseph
Voluntary removal; claimant met with various vocational rehabilitation services, including Workforce 1, other Department of Labor and Workers' Compensation Board services, and ACCES-VR, but did not engage in, or enroll in, any specific vocational rehabilitation training, or apply for actual jobs.

In the Matter of the Claim of Jerzy Patalan
Claimant, a retired asbestos handler, did not demonstrate a causally-related multiple repetitive stress OD

In the Matter of the Claim of Michael Powers
Claimant's attorney violated 13-a(6) in a letter to the treating physician, which described the development and onset of symptoms and asked for an opinion on causal relationship. As such, Board's credibility finding re: claimant's physician was upheld.

In the Matter of the Claim of David Yolinsky
Need for knee surgery not causally related to claim.

February 3, 2022

In the Matter of the Claim of Mack Fuller
Voluntary removal moot in schedule loss of use

In the Matter of the Claim of Stephanie Guna
Causal relationship

In the Matter of the Claim of Marek Mendrok
No accident

In the Matter of the Claim of Mary Lou Simmons
Claimant had 25% LWEC PPD, later filed for reclassification; ultimately held at 25% (no increase). Court affirmed the non-increase in LWEC, but reversed on fee, as Board sole reason was non-increase in award. The attorney had previously received a class fee, so on remitter Board must expand rationale re: fee.

In the Matter of the Claim of Nancy Strack
Finding of schedule loss of use at 0% was made despite lack of X-ray required per special consideration; thus, remitted because there is no medical evidence of a schedule loss of use at this time and new medical would be needed.

In the Matter of the Claim of Justin Timperio
Aggravated assault during work hours and on claimant's work premises by a former employee held by Court not to have a nexus to employment. Thus, exclusivity defense will not be available in claimant's federal lawsuit.

In the Matter of the Claim of Brandon Torres
Improper service of admin appeal

January 20, 2022

In the Matter of the Claim of Luis Urena
Out-of-state carrier liable for work in New York, as policy did not exclude NY state.

January 13, 2022

In the Matter of the Claim of Sonya Gorbea
Denial of reconsideration in a section 120 claim

In the Matter of the Claim of Leyda Molina
Occupational disease; cognizable link between uniform and respiratory ailment

In the Matter of the Claim of Yi Sun
Denial of reclassification; and denial of Workers' Compensation Law § 35 (3) application as below threshold

January 6, 2022

In the Matter of the Claim of Joanne Fuller-Astarita
Subject matter jurisdiction

In the Matter of the Claim of Thomas Lazalee
Untimely request for cross-examination

In the Matter of the Claim of Samuel McElroy
Lack of timely notice per Workers' Compensation Law section 18 excused, as not prejudicial to employer

In the Matter of the Claim of Rosemary L Miller (Miller, David J (Dec'd)
Board properly declined repeated request to address the previously resolved coverage issue

In the Matter of the Claim of Jerry Wayne Moore
Accident did not arise out of and in the course of employment

In the Matter of the Claim of Theresa Murphy (Murphy, Patrick M. (Dec'd)
8-A claim, medical evidence sufficient to show causal relationship

In the Matter of the Claim of Scot A Muse
Defective application for review

December 23, 2021

In the Matter of the Claim of Brian Reith
PTSD established for firefighter

In the Matter of the Claim of Michel Salinas
Appeal by carrier based upon purported fraud should be granted

December 9, 2021

In the Matter of the Claim of Katherine King
Reimbursement for Home Health Aide services

In the Matter of the Claim of Keith Whitney
Reduced earnings, and reattachment

November 24, 2021

In the Matter of the Claim of Sonya Gorbea
Denial of FBR arbitrary and capricious

November 23, 2021

In the Matter of Verneau v Consolidated Edison; In the Matter of Rexford v Gould Erectors
Court of Appeals: WCL section 25-a death claims after closure of Fund

November 18, 2021

In the Matter of the Claim of Giovani Garcia
12 NYCRR 300.13, item 15

In the Matter of the Claim of Manuel Ortiz
Workers Compensation Law § 114-a(1), permanent disqualification

In the Matter of the Claim of Stanley G. Phillips
Extreme hardship redetermination; reclassification

In the Matter of the Claim of Thomas E. Quinn
Reimbursement from Special Disability Fund

In the Matter of the Claim of Alroy Richards
Accident

In the Matter of the Claim of Rebecca Richman
Causal relationship

In the Matter of the Claim of Teodor Szewczuk
Failure to serve necessary parties

In the Matter of the Claim of Jose Urdiales
Occupational disease