A Seven-Case Workers’ Comp Sampler from NY’s 3rd Dept.: Board Discretion Wins the Day

Seven workers’ compensation decisions were released by the New York 3^rd Dept. the week of 2/11/2026:

Matter of Jackson v New York Foundling Hospital

The claimant, a social worker, had a variety of ailments that led to an 81% loss of wage earning capacity. Her benefits ended in 2022, and she sought hardship relief that would allow her to get more benefits. The application was denied and the claimant fired her lawyer, claimed they neglected her claim, and she was subjected to unspecified abuse. The Court did not find that any of these arguments satisfied the extreme hardship proof required to show that she was entitled to extend her benefits.

Matter of Foster v New York State Office of Children and Family Services

Here, the 3^rd Dept. held the Board has the discretion to determine whether multiple injuries qualifies as a series of scheduled loss of use awards or a non-scheduled permanent partial disability. A youth division aide had injuries to his right knee, right elbow, right index finger, right shoulder, and low back in 2015, and then to both of his elbows, hands, hips, knees, ankles, and his right index finger in 2019. The Board agreed with the carrier’s expert that it was “very difficult to reconcile” the schedule loss of use percentages assigned to multiple sites of injury by the other physicians with the claimant’s continued ability to work full time, rendering schedule loss of use awards “inappropriate” under the Workers’ Compensation Guidelines for Determining Impairment and warranting a non-schedule classification instead.

Matter of Hogan v ABF Freight System, Inc.

In this Covid death case, the claimant, a truck driver, died of a heart attack soon after contracting the virus in April 2020. No surprise that the Board found that the claim was established and the 3^rd Dept. affirmed. The employer attempted to argue that its due process rights were violated because it permitted the introduction of testimony from another case by the employer’s witness. The 3^rd Dept. discarded this argument because not only was the Board’s decision not based on the employer’s other case testimony, but the same witness testified in this case.

Matter of Ayars v Navillus Tile Company

The claimant filed an appeal asking the 3^rd Dept. to find that his right knee injury qualified for  a non-schedule permanency classification instead of a schedule loss of use. The claimant’s doctor initially gave a schedule loss of use finding, then changed his opinion that it was more amenable for a non-schedule classification. The claimant’s doctor testified that he could not recall why he changed his opinion. That was sufficient enough basis to establish substantial evidence for the Board, so as to not disturb the award. The 3^rd Dept. affirmed the Board’s decision.

Matter of Laboccetta v Consolidated Edison Co. of New York, Inc.

Here, the 3^rd Dept. affirmed the Board’s decision of 20% schedule loss of use for the bilateral wrists. The claimant sought 30%, and there was substantial evidence in the record to support the Board’s decision.

Matter of Hummer v Riccelli Enterprises, Inc.

The claimant, a laborer, injured his back in 2017 and again in 2022. The carrier in the 2022 claim initially argued no accident occurred and no causation, since the injury was preexisting. The Board found the claim was compensable. But despite establishing the claim, after an Independent Medical Examination (IME) concluded that any aggravation to the prior injury resolved, and that the continuing injury was related to the 2017 accident, the law judge ended benefits. The Board Panel then overturned the Law Judge and found a marked partial disability. The 3^rd Dept. affirmed that decision. In this case, the Board took the expert opinion of the treating Nurse Practitioner over the IME by the orthopedist. Note that in New York, treating Nurse Practitioners can provide opinions on permanency.

Matter of Sheodial v Universal Construction Resources Inc.

Consistent with the Hummer decision issued this same day, the 3^rd Dept. affirmed the Board’s decision denying causal relationship in a back claim, finding that the Board has discretion to weigh the expert opinions. So long as there is substantial evidence, that determination will not be disturbed. Here, the opposite of Hummer, the law judge found that the claimant suffered a causally related low back injury, but the Board panel reversed that ruling, finding that the credible evidence did not establish a causal relationship. In this case, the claimant, a roofer, alleged a low back injury from just walking up and down and around a worksite. The Court found that the Board was within its discretion to weigh what they saw as inconsistent accounts of when and how the accident happened, and importantly that the claimant did not tell his medical providers about treatment he had for lower back problems one year prior to the accident.