December 31, 2008 Appellate Division 3rd Judicial Department
Bonner V Brownell Steel
Prevailing party represented by: Theresa Wolinksi of counsel to Foley, Smit, O’Boyle & Weisman (Hauppauge) for Brownell Steel, Inc and another, respondents
the WCB and the law judge decision that (1) the claimant had no further
causally-related disability (FCRD) and (2) the claimant did not
establish a consequential psychiatric disability. Regarding both
issues, the Court affirmed the Board’s discretion to resolve conflicting
medical opinions. As to the consequential disability, the Court
affirmed the Board’s decision to preclude some of the claimant’s medical
evidence submitted with the appeal to the Board as it was never
presented to the law judge, per 12 NYCRR 300.13 [e]  [iii]. Issues: FCRD, Procedural Issued not raised before the appeal.
Young v Pentax Precision Instrument Corp.
Prevailing party represented by: Lawrence Komsky (Cedarhurst) for Pentax Precision Instrument Corporation and another, respondents
WCB and law judge denial of an accidental injury allegedly due to
anxiety and stress from repeated episodes of harassment. The Court
affirmed the Board’s discretion to resolve conflicting medical opinions.
WCL §2(7) was not cited in the Court’s 3-page decision. Issue: Causal relationship.
Early & Verizon v Special Fund For Reopened Cases
Prevailing party represented by:
John Oliver of counsel to Sullivan, Keenan, Oliver & Violando
(Albany) for Verizon (New York Telephone Company) and another,
WCB which ruled that the liability shifted to the Special Fund for
Reopened Cases pursuant to WCL §25a. The Board determined that the last
compensation for this 1992 injury was paid in 1996 after a finding of a
10% SLU although in December 2004 the claimant successfully appealed on
the issue of wage reimbursement (see the Matter of Staruch v NY
Telephone 277 AD2d 830, 833 ). The Board ruled that the December
2004 date was the true closing of the case even though surgery was
performed on the claimant in 2005. Issue: §25-a true closing
December 24, 2008 Appellate Division 3rd Judicial Department
Zucker v Port Authority of NY & NJ
Prevailing party represented by: David Faber of counsel to Cherry, Edson & Kelly (Hempstead) for Zucker v Port Authority of NY & NJ
the WCB decision, which reversed the law judge, that claimant’s filing
of a claim in 1996 for post traumatic stress disorder resulting from the
1993 bombing of the Word trade Center was time-barred under WCL §28.
According to the record, (1) there had been no lost time prior to the
1996 claim and (2) there was no prior payment for medical treatment
related to the claim. As a result there was no advance payment of
compensation or medical treatment which would have waived the two-year
§28 time limit. The simultaneous filing for smoke inhalation was not
controverted by the employer but no benefits were awarded as the
claimant did not have any related lost time or continuing treatment. Issue: §28 time bar.
Giello v Providence Fire District
Prevailing parties represented by:
Michael Joseph of counsel to James Trauring & Assoc (Schenectady)
for Giello and Steven Segall of the Office of Andrew Cuomo, Attorney
General of the State of New York, for the WCB
the WCB decision that WCL §114-a Fraud is inapplicable to Volunteer
Firefighters’ Benefit Law (VFBL) §10. The WCB modified the law judge’s
decision as the law judge rejected the employer’s contention as
untimely; the WCB said it was timely but inapplicable. The Court ruled
that contrary to the employer’s contention, when the Legislature in 1996
added §114-a, no such amendment was made to the VFBL. The Court stated
that §114-a “unambiguously limits the application of the outlined
penalties to wage replacement benefits awarded pursuant to WCL §15. If
the legislature had intended WCL §114-a to apply to wage replacement,
generally, it could have employed less restrictive language.” Issues: §114a Fraud, VFBL.
December 18, 2008 Appellate Division 3rd Judicial Department
Cronk v Lyndaker Excavating
Prevailing parties represented by: Robert E. Geyer of counsel to Wolff, Goodrich & Goldman (Syracuse) for Lyndaker Excavating.
decision of the WCB, who reversed the law judge, that claimant’s
February 2006 injuries were not work-related. The WCB stated that the
record reflected two key facts: none of the claimant’s medical reports
for the first few months (April and May 2006, even after he filed his
claim) had any mention of the work-related nature of his injury and the
claimant’s own practitioner testified to his inability to find causal
relationship. Therefore the Board determined, and the court agreed, that
it had the discretion to reverse the law judge and disallow the claim. Issue: Causal Relationship.
Richter v Ramistain Systems #504774
Prevailing party represented by: Estelle Krausher of the Office of Andrew Cuomo, Attorney General New York State, for the WCB.
the decision of the WCB and the law judge that Zurich American (for
Ramistain) failed to preserve its right to future offsets against
claimant’s net recovery in a third-party action pursuant to WCL §29 (4).
Zurich, also the liability carrier in that action, waived its rights at
the settlement hearing. When payment was made to the claimant two years
later, Zurich for the first time stated it was preserving these offset
rights; it then refused to reimburse any of the claimant’s new medical
expenses. Based on the earlier waiver at the settlement hearing and
facts relating to constructive knowledge of the settlement by Zurich’s
WC department, the Court affirmed the WCB and law judge decision. Issue: §29 (4) liens Click here to read the full decision…
December 11, 2008 Appellate Division 3rd Judicial Department
Peterson v Faculty Student Association
Prevailing parties represented by:
George Panebianco of Lewis & Lewis (Jamestown) for the Faculty
Student Association and Steven Segall of the Office of Andrew Cuomo, the
Attorney General of the State of New York, for the Workers’
the decision of the WCB and the law judge that apportionment of medical
expenses between the work-related injury of April 2005 was not
sufficiently related to a 1992 non-work related automobile accident and
two 1995 work-related accident to warrant apportionment of medical
expenses. The carrier argued that “since the claimant’s own physician
concluded that the current accident was only 15% responsible for the
need for a total knee replacement, it should only be required to pay
that percentage of the total cost of the medical procedure.” The Court
disagreed, concurring with the Board “that the claimant’s preexisting
condition ‘was not disabling for workers’ compensation purposes,’ adding
that ‘while her knee was at times symptomatic, she was not disabled.
Moreover this case does not involve a schedule loss of use.” The Board’s
“determination that the apportionment is not appropriate enjoys ample
support in the record.”
Reece v City of New York
Prevailing parties represented by: Mordecai Newman for Michael Cardozo, Corporation Counsel for the City of New York, respondent.
the decision of the WCB that the claimant’s wage loss was unrelated to
her compensable injury.The key issue was whether or not the claimant
failed to provide up-to-date medical evidence of her continuing
inability to return to work. The period of time at issue started the
effective date the claimant was fired by her employer for failing to
supply any up-to-date medical evidence support her claim of a continuing
disability. The Court affirmed the law judge’s determination, affirmed
by the Board, that the claimant did in fact fail to timely submit any
medical evidence to support her allegation. The Court also rejected
claimant’s additional assertion that her due process rights were
December 4, 2008 Appellate Division 3rd Judicial Department
Beers v Jump Start Advanced Academics
Prevailing parties represented by:
Stanley A Tomkeil III of Tomkiel & Tomkeil (New York City) for Gary
Beers and Estelle Kraushar of the Office of Andrew Cuomo, Attorney
General of the State of New York, for the Workers’ Compensation Board.
the decision of the WCB that the carrier, who failed to appear to a
hearing in which the case was established, was not denied due process
when they argued that they never got the notice, which was mailed to the
address they had registered with the Board. Per 12 NYCRR 300.10 (b),
the Court also denied the carrier’s claim that they were denied due
process when the law judge did not adjourn the hearing or attempt to
contact the carrier. And, finally, the Court noted that the carrier’s
challenge of specific findings in the law judge’s decision are
unpreserved inasmuch as they were not raised in the carrier’s
application for appeal to the Board.
Bentvena v City & Suburban
Prevailing party represented by: Iris Steel of the Office of Andrew Cuomo, Attorney General of the State of New York, for the Workers’ Compensation Board.
the decision of the Board, which reversed the law judge, determining
that the claimant did not voluntarily withdraw from the labor market.
The claimant’s doctor submitted medical evidence that the claimant could
only work 5 hours a day and that the employer’s offer of three
eight-hour days was not consistent with this report.
Barth v Hanson Aggregates
Prevailing party represented by: John Hvozda of Falge & McClean (North Syracuse) for Hanson Aggregates, Inc.
the decision of the Board and law judge that the claimant’s death was
not work-related. A major issue of contention was whether or not the
medical report of the employer’s doctor was filed timely per 12 NYCRR
3.002 (d) (12) after both the Board and the law judge ruled it was
timely. Although the claimant was not formally served with a copy of the
medical report, they did have access to it for six months prior to the
hearing and used it to cross-examine the employer’s doctor. The Court
also affirmed that §21  relating to unwitnessed deaths did not apply
because the decedent’s collapse was witnessed by a coworker.
Ewing v YMCA and the Special Fund for Reopened Cases
Prevailing party represented by: Jeremy B. Davis for the State Insurance Fund (New York City) for the YMCA and itself.
the Board’s decision, after reopening the case, to find that liability
has shifted to the SFCC per §25-a. The SFCC argued that an earlier
letter from the claimant raised the issue at hand prior to the time
limits. The Court and the Board disagreed.
November 26, 2008 Appellate Division 3rd Judicial Department
Kim Boni-Phillips v Oliver
Prevailing parties represented by:
James E. Duffy of counsel to Silverman, Silverman & Seligman
(Schenectady) for Kim Boni-Phillips and Iris Steel of the Office of
Andrew Cuomo, Attorney General of the State of New York, for the
Workers’ Compensation Board.
the decision of WCB and the law judge, both of whom ruled that the
death of the claimant’s decedent was causally related to his employment.
The Court stated that although WCL §21 (1) presumption lies with the
claimant in an unwitnessed or unexplained death claim. The employer may
rebut this presumption which the Court felt was done by the employer’s
submission of extensive medical evidence. Since the Board and the law
judge made their decision solely on the basis of §21 (1) and did not
consider the rebuttal evidence, the Court sent it back for
reconsideration of the facts.
Pereni Corporation v Thomas Victor II and Steel Style, Inc<
Prevailing parties represented by:
Lawrence D. Lissauer of counsel to Finkelstein & Partners
(Newburgh) for Thomas Victor II and Iris Steel of the Office of Andrew
Cuomo, Attorney General of the State of New York, for the Workers’
the WCB that Steel Style was the sole employer, that Perini (the
appellant) had no relationship to the claimant who was an employee of
Steel Style but was injured helping Perini unload a delivery to Steel
Style. Also affirmed the WCB’s discretion in refusing to consider
Perini’s untimely reply and sur-rebuttal per 12 NYCRR 300.13 [e] .
November 20, 2008 Appellate Division 3rd Judicial Department
Mary Scodary v Marie Serritella
Prevailing party presented by: John F. Clennan (Ronkonkoma) for Mary Scodary.
the WCB and the law judge. The Court found that the medical reports
submitted by the claimant did qualify as Prima Facia Medical Evidence
for consequential depression even though her treatment with a
psychologist was not based upon a referral from an authorized physician
pursuant to WCL §13-m (2) (a). This is the second time that Court has
made this decision. On December 20, 2007 in the Matter of Van Dam v New
Paltz Cent. School Dist., 46 AD3d at 1195, the Court similarly reversed
the WCB and law judge on the same facts and issue.
Note: Based on a number of comments received on this case, a more detailed discussion of this case can be found in Opinions & Reports, December 12, 2008
November 13, 2008 Appellate Division 3rd Judicial Department
John Fortunato v Opus III VII Corporation
Prevailing party presented by: Leonard Feld of counsel to Vecchione, Vecchione & Connors (Williston Park) for Opus III IV and other respondents.
the WCB Panel which reversed the law judge. The Court agreed that the
claimant failed to prove notice due to his failure to timely file a
claim with his employer after the allegedly work-related MVA, that the
claim was not credible, and that the Board had the right to reject his
request for a Full Board Review.
Michelle Laverghetta v Tug Edge Diary
Prevailing party represented by: Estelle Kraushar of the Office of Andrew Cuomo, Attorney General of the State of New York, for the respondents.
the WCB Panel and the law judge that the carrier had no right to
suspend payments, regardless of any medical report they had, until the
issue was ruled upon by the WCB. Penalties were also affirmed. (12 NYCRR
300.23 [b] )
Scott North v New Venture Gear
Prevailing party represented by: Robert Geyer of counsel to Wolff, Goodrich & Goldman (Syracuse) for New Venture and other respondents.
the WCB Panel and the law judge that the claimant had refused a light
duty job and failed to show any attempt to reattach to the labor market,
warranting suspension of benefits. The Court also refused to hear the
claimant’s appeal of involuntary withdrawal from the labor market
because this was not raised before the Board. (12 NYCRR 300.13 [e] 
November 6, 2008 Appellate Division 3rd Judicial Department
Diane White v Steve Herman
the WCB Panel decision to allow carrier to reopen the case of a
claimant with a permanent partial disability because of their failure to
return certain forms submitted by the carrier periodically to the
claimant. (12 NYCRR 300.14 [a]  and WCL §123)
Cheryl Robideau v Van Rensselaer Manor
WCB Panel and the law judge that the claimant qualified for continuing
benefits because she had to take a job with her employer that, due to
her injuries, paid less money.
Stephen A Danussi v Chateaugy A.S.A.C.T.C.
the WCB Panel and the law judge that the claimant, who had worked up to
the date of his retire, voluntarily withdraw from the labor market,
even though he was, post-retirement, found to have a permanent partial
Samantha Hyland, on behalf of Jerrel Corley, as surviving child of Walter Corley, Jr, deceased
Affirmed the WCB Panel to deny the employer’s request for review due to the application for review being late.(WCL §23)
Juan Long v. Liberty Mutual Insurance Company & Buffalo Destroyers
WCB Panel that claimant, allegedly an employee for both the Destroyers
and Source One was an employee of the Destroyers, whose carrier was
Liberty Mutual. The Panel modified the law judge decision which found
The Appellate Division, First Department 10/21/2008
Silverman v Reisman, Abramson
The Appellate Division, First Department, affirmed
the Order of the Supreme Court, New York County, in an action for legal
malpractice arising out of defendants’ representation of plaintiff in a
workers’ compensation proceeding, granted defendants’ motion for
summary judgment dismissing the complaint, unanimously affirmed, without
Supreme Court, Erie County 10/16/2008
Scheer v. New York State Ins. Fund
In what appears to be a case of first impression, the Erie County Supreme Court has declined to
apply the equitable considerations outlined in the United States
Supreme Court Medicaid-lien case Arkansas Dept. Of Health and Human
Servs. v Ahlborn (547 US 268 ) to set (a) the amount of the
workers’ compensation lien to be enforced against the proceeds of
settlement of the injured employee’s tort or personal injury action, and
(b) of the workers’ compensation carrier’s obligation to make future
compensation payments to the injured employee, instead following the
methodology set forth by the New York Court of Appeals in Matter of
Kelly v State Insurance Fund (60 NY2d 131 ) and Burns v Varriale
(9 NY3d 207 ).
November 5, 2008 Civil Court Of The City Of New York, Kings County
Allstate Social Work a/a/o the Jocelyns v Utica Mut. Ins. Co.
Prevailing party represented by: Bruno, Berbino & Soriano (Melville) for Utica Mutual Insurance
The Court granted the motion for summary judgment
requested by Utica Mutual to dismiss Allstate’s complaint which argued
that the assignors claim should not be dismissed for their failure to
appear at two allegedly improperly scheduled IME exams due to the
defective nature of the notices sent them for the appointments. The
Court ruled that the affidavits submitted by defendant are sufficient to
establish that defendant’s initial IME requests, its follow-up IME
requests and its denial of claim were mailed pursuant to a standard
office practice and procedure, and that the assignors’ failed to appear
for the IMEs. While this was not a Workers’ Compensation case, it is
important to note, including in the many citations in the decision by
this Court, how many other jurisdictions hold to the standard that a
failure to appear for medical examination scheduled by the carrier can
have severe consequences for the injured party. Issue: Medical exams.
December 17, 2008 Supreme Court of the State of New York, County of Kings
Nwankwo v City of New York & NYC Police Dept & Reilly
Prevailing Parties represented by: Stacey Mondschein of the Office of Corporation Counsel for the City of New York
claimant, injured in a motor vehicle accident (MVA) driven by NYC
Police Officer Reilly, pursued a claim against the City in the Supreme
Court and on March 8, 2008 was granted a motion requiring the City to
preserve certain evidence in its possession, pending further review of
the case. At a Workers’ Comp hearing on May 15, 2008, Nwankwo’s won his
claim that the injury was work-related and both compensation and medical
payments were paid as of June 6, 2008. The City then cross-moved for an
order granting leave to amend their answer pursuant to CPLR §3025 to
assert an affirmative defense that Nwankwo’s action is barred by The
Workers’ Compensation Law and for dismissal of the complaint pursuant to
CPLR §3211 or, in the alternative, granting summary judgment pursuant
to CPLR §3212. Upon review of the record the Court granted the
cross-motion and the motion to dismiss. On December 17, 2008, the Court
granted the cross-motion and the motions requested by the City,
stating that “the City’s motion for leave to amend the answer to assert
a defense that the action is barred by Workers Compensation Law is
October 23, 2008 Florida Supreme Court
Murray v. Mariner Health No. SC07-244 (Fla. 10/23/2008) (Fla., 2008)
The Florida Supreme Court has ruled that workers’ compensation clients are entitled to recover “reasonable fees” for attorney services rather than being limited by the statutory formula
of a percentage of benefits. “Reasonable fees” in this context could
include payment of hourly charges at a prevailing market rate. Issue: Legal Fees There are three links for this case which are the formal decision, an excellent analysis from Sedgewick CMS, and an article from the South Florida Business Journal.