December 2020 New York Workers’ Compensation Law Reporter Highlights

Prior awards nullify claimant’s current award for SLU of her arm

Case name: Covington v. New York City/Dept. of Corrections, 120NYWCLR 157 (N.Y. App. Div. 2020)

Ruling: Upon review, the Appellate Division affirmed the Board’s ruling that the claimant was entitled to a zero percent schedule loss of use award of the right arm after deducting a prior 10 percent SLU award for the right elbow and a 15 percent SLU award for the right shoulder.

What it means: Neither the elbow nor shoulder is listed in WCL Section 15(3) or the workers’ compensation guidelines as a statutorily enumerated member or as body parts lending themselves to separate schedule loss of use awards. In this case, because the claimant’s previous awards were for the loss of use and impairment of the right arm, the Board property credited the total of those prior SLU awards toward the instant claim involving the right arm, regardless of whether the prior injuries involved the same or separate parts thereof.

Claimant’s failure to disclose personal business disqualifies him from future benefits

Case name: Horn v. New York City Transit Authority, 120NYWCLR 159 (N.Y. App. Div. 2020)

Ruling: In affirming, the Appellate Division held that substantial evidence supported the Board’s ruling that the claimant violated WCL Section 114-a and was disqualified from reeving future wage replacement benefits.

What it means: A claimants failure to disclose on the daily activities questionnaires that he had a garden supply business that was active during the time he was receiving benefits represents a violation of WCL Section 114-a and justified a disqualification from future wage replacement benefits.

Claimant wins SLU award along with permanent partial disability classification

Case name: Garrison-Bey v. Dept. of Education, 120 NYWCLR 158 (N.Y. App. Div. 2020)

Ruling: The Appellate Division reversed the Board’s determination that the claimant was not simultaneously entitled to an award for a schedule loss of use and a permanent partial disability classification.

What it means: A claimant who sustains both schedule and nonscheduled permanent injuries in the same work-related accident and returns to work at preinjury wages-and, thus, has not received a reduced-earnings award based upon a nonscheduled permanent partial disability classification – is entitled to an SLU award for permeant partial impartments to the statutorily enumerated body parts.

Insufficient testimony of claimant, examining doctor nix award for upper extremities

Case name: Somers Manor Rehab, 120 NYWCLR 167 (N.Y. W.C.B., Panel 2020)

Ruling: A Board panel affirmed the WCLJ’s decision denying benefits to the claimant, who alleged she sustained an exacerbation of bilateral carpal tunnel syndrome and left elbow lateral epicondylitis due to her work duties as a nurse’s aide.

What it means: Where the claimant’s examining doctor is not aware of the claimant’s specific work duties or work history,, he does not specifically opine that work was the primary cause of the claimant worked as a nurse’s aide, and he does not inquire as to her outdo actives, there is insufficient medical evidence to connect the claimant upper extremity problems to her work as a nurses’ aide.

Carrier properly credits previous SLU award against current award

Case name: Rickard v. Central New York Psychiatric Center, 120 NYWCLR 162 (N.Y. App. Div. 2020)

Ruling: The appellate Division affirmed the Board’s ruling that the claimant was entitled to a 7.5 percent schedule loss of use award of his left leg.

What it means: Because neither WCL Section 15(3) nor the Board’s guidelines for determining impairments set forth separate schedule loss of use awards for the knee or hip, a claimant’s previously awarded SLU award for his left leg due to a work-related hip injury can be properly credited against a current SLU ward for the left leg.

Inmates’ threats fail to support compensable claim for mental disability

Case name: Rivernburg v. Albany, County of 120 NYWCLR 163 (N.Y. App. Div. 2020)

Ruling: In affirming, the Appellate Division held that Board not err in denying benefits to the claimant, a correction officer, who alleged he sustained post- traumatic stress disorder, anxiety, insomnia and depression due to stress caused by inmates who threatened to harm the claimant’s daughter.

What it means: Given the nature of the work required of correction offers and the character of the individual under confinement, the street created by dealing with the inmates, resulting from threats made to a claimant of harming his family, is no different for the claimant than for other correction officers.