Case name: Cosides v. Oyster Bay, Town of/Sanitation, 120 NYWCLR 109 (N.Y.App. Div., 2020)

Summary: The Appellate Division reversed the Board’s ruling that the claimant was not simultaneously entitled to an award for a schedule loss of use and permanent partial disability classification. Where the claimant sustained both schedule and non-schedule permanent injuries in the same work accident and was working without reduced earnings at the time of classification and therefore, received no award at that time for his non-schedule PPD classification, he is entitled to an SLU award for the permanent partial impairment.

Case name: Cruz v. Suffolk, County of/ Police Dept., 120 NYWCLR 110 (N.Y.App. Div., 2020)

Summary: The Appellate Board held that the Board erred in finding the claimant was not simultaneously entitled to an award for a schedule loss of use and permanent partial disability classification. The claimant who sustained both schedule and non-schedule permanent injuries in the same work-related accident and has returned to work at pre-injury wages and therefore, received no award based on his non-schedule PPD classification, he is entitled to an SLU award.

Case name: Renko v. New York State Police, 120 NYWCLR 116 (N.Y. App. Div. 2020)

Summary: The appellate Division remitted the claimant’s prostate cancer claim for a determination as to whether his cancer is causally related to his work while performing Work Trade Center clean-up. The claimant’s maintenance duties require him to clean vehicles at the World Trade Center by removing toxins, the claimant’s exposure to the WTC toxins derives from the nature of his work, not from an environmental condition of the workplace. Therefore, the claim meets the requirement for an occupational disease claim.

Case name: Cruz v. Aufiero Painting Industries Inc., 120 NYWCLR 121 (N.Y. App. Div. 2020)

Summary: The Appellate Division affirmed the Board’s ruling that the claimant did not sustain a back injury after allegedly falling while moving a scaffold and therefore did not sustain an accidental injury arising out of and in the course of his employment. The claimant provided inconsistent testimony regarding the injury and history of back pain.

Case name: Klenban v. Central NY Psychiatric Center, 120 NYWCLR 122 (N.Y. App. Div. 2020)

Summary: The Appellate Division affirmed the Board’s decision in denying the claimant a schedule loss of use award for the right elbow. The claimant had previously received a schedule loss of House for his right arm for a shoulder injury that exceeded the SLU resulting from the current elbow injury. Therefore, the claimant is not entitled to a further award for the elbow injury.

Case name: Robert Macvie Inc., 120 NYWCLR 130 (N.Y. W.C.B., Full Board 2020)

Summary: The Full Board held that the issue of apportionment was not premature even though the claimant had not yet reached maximum medical improvement. The Full Board also authorized lumbar fusion surgery but the carrier will not be liable for the cost of surgery prior to finding on the issue of apportionment. Nothing in the language of the WCL Section 15(7) or in judicial case law interprets that provision, suggests that apportionment between work-related injuries cannot occur prior to a claimant reaching maximum medical improvement.

New York Workers’ Compensation Law Reporter, August 13 & 27, 2020