May 2021 New York
Workers’ Compensation Law Reporter Highlights

Delay in providing notice of injury proves costly

Case Name:  Abdallah v. New York City Transit Authority, 121 NYWCLR 25 (N.Y. App. Div. 2021).

Ruling: The Appellate Division affirmed the Board’s decision disallowing the claim based on the claimant’s failure to provide timely notice of injury.

What it means:  A claimant’s contention that he did not provide timely notice because he did not think the injury was serious enough to warrant a workers compensation claim may not carry much weight where, as here, the claimant has already received medical treatment for the injury.

Claimant’s 114-a violation doesn’t warren permanent disqualification

Case Name:  Dunleavy v. Federated Fire Protection (Turner Construction), 121 NYWCLR 28 (N.Y. App. Div. 2021)

Ruling: Upon review, the Appellate Division affirmed the Board’s ruling that the claimant violated WCL Section 114-a but it did not merit a permanent disqualification of wage-loss benefits.

What it means:  Although a claimant’s testimony, written questionnaires, and the activities depicted on surveillance video reflect that he has understated the extent of his recreational endeavors, it does not necessarily require permanent disqualification of further wage-loss benefits where, as here, the claimant’s conduct was not egregious, flagrant or pervasive to compel such penalty.

Claimant’s injuries from extensive burn injuries warrant nonschedule classification

Case Name: Mayewski v. Superior Plus Energy Services, 121 NYWCLR 31 ( N.Y. App. Div. 2021)

Ruling:  Upon review, the Appellate Division affirmed the Board’s ruling that the claimant’s injuries, including scarring on his arms and legs from second- and third-degree burns, were amenable to a nonschedule classification.

What it means:  Where the claimant’s injuries include not only scarring on his arms and legs from burns, but also a skin disorder, which results in a limitation in some activities and a requirement for over-the-counter pain medication and use of skin care products, the claimant’s injuries are amenable to a nonschedule classification.

Trial court’s reliance on inapplicable case law forces reversal

Case Name:  Morales v. New York State Dept. of Corrections & Community Supervision, 121 NYWCLR 32 (N.Y. App. Div. 2021).

Ruling:  The Appellate Division reversed the trial court’s decision dismissing a correction sergeant’s application in a proceeding pursuant to CPLR article 78.

What it means:  In determining whether a correction officer has been assaulted by an inmate under Civil Service Law Section 71, there is no requirement that a punch thrown by the inmate makes contact with the officer.