December 2021 New York  Workers’

Compensation Law Reporter Highlights

Behavior of claimant, spouse warrant permanent disqualification of benefits

Case Name:  Lopez v. Clean Air Quality Services Inc, 121 NYWCLR 161  (N.Y. App. Div, 2021).

Ruling: The Appellate Division affirmed the Board’s decision assessing mandatory and discretionary penalties on the claimant for violation of WCL Section 114-a.

What it means:  Where the claimant’s wife falsely testifies on an intake questionnaire and at the hearing, and the claimant fails to disclose a subsequent motor vehicle accident at any independent medical examination of sufficient evidence supports a discretion award of permanent disqualification benefits.

Video of work accident dooms claim for benefits

Case Name:  C&S Wholesale Grocer Inc., 121 NYWCLR 168 (N.Y. W.C.B., Full Board 2021)

Ruling: Upon mandatory review, the Full Board held that the claimant, who alleged he injured his back and right shoulder when the forklift he was operating slid and hit another forklift, did not sustain an accident injury arising out of and in the course of his employment.

What it means:  Where there is a discrepancy between the claimant’s testimony regarding how an alleged accidental injury occurred and video evidence depicting the incident which indicates that the claimant exaggerated the incident, the claim will be disallowed.

Reports of treating, examining doctors support PTD ruling

Case Name:  Arias v. U.S. Concrete Inc., 121 NYWCLR 157 (N.Y. App. Div, 2021).

Ruling: Upon review, the Appellate Division affirmed the Board’s ruling that the claimant, who sustained multiple injuries in a 2016 work accident, sustained a permanent total disability.

What it means:  Where both a treating doctor and an independent medical examiner opine that the claimant should never engage in lifting, pulling, pushing, climbing, kneeling, bending, or squatting as a result of his work accident, sufficient evidence supports a determination that the claimant is permanently and totally disabled.