New York 3rd. Department Update: Tell Us Why, Tell Us How, Show Us You Tried

Three New York 3rd Dept. workers’ compensation cases dropped today:

Fuller-Astarita. A bus driver’s assistant was hit by a bus owned by her employer. This is the rare case where an injured person does not want the workers’ compensation benefits, because if she was not employed at the time, she would be able to seek personal injury damages in civil court. In this case, the claimant argued that she was not employed; rather, she was unemployed and on unemployment insurance at the time of the accident. The claimant initially appealed, but that appeal was rejected because the appeal form was not filled out properly. The Appellate Division affirmed that decision. The claimant then filed an application to reopen the case in the interests of justice, which the Board rejected because no new evidence or issues were presented. But the Board did not address that portion of the application on the issue of interests of justice. The Appellate Division remitted this back to the Board to specifically comment on why the interests of justice do not demand the case be reopened. As a practice tip, it is a good idea to use “interests of justice” in your appeal, because there is no harm in raising it. It allows the opportunity for the Board to use that issue when there is a procedural hurdle, and the Board must state why the interests of justice standard does not apply. This case reached the Appellate two prior times, first in 2019. Check back in two years when we can expect another appellate decision.

Howard v. NYC Dept. of Education. The claimant was assaulted at work in May 2018 and received compensable benefits for his neck, back, face, nose, right shoulder, chest, right thigh, right knee, right inguinal hernia, left shoulder, left hip, post-concussion syndrome and injuries to the head, posttraumatic stress disorder, pain disorder, and depression. In March 2021, the claimant’s doctor found features consistent with bilateral carpal tunnel syndrome. The claimant requested to add the bilateral carpal tunnel. The Board denied the amendment and disallowed the wrists, weighing the experts competing testimony. The 3^rd Dept held that, although the claimant reported bilateral wrist pain in 2021 to his treating physician, who conducted an EMG nerve conduction study in 2022 and found the claimant’s mild bilateral carpal tunnel syndrome to be causally related to the underlying accident in 2018, the physician did not, as found by the Board, explain how this condition was causally related based upon the EMG study conducted four years after the underlying accident.

Ryan v. City of Albany Water Dept. The claimant had a work-related back injury in 2018. He was found to be partially temporarily disabled and would have been entitled to continuing temporary benefits as long as the claimant was attached to the labor market. In December 2019, the claimant did not produce evidence of a job search within his limitations. In February 2020, the claimant did not produce evidence of a job search within his limitations. In May 2020, the claimant did not produce evidence of a job search within his limitations. In 2024, after the claimant was found 71% permanently disabled, the claimant again did not produce evidence of a job search within his limitations, and the Board denied permanency benefits because the claimant did not show attachment to the labor market at the time of classification. The 3^rd Dept. affirmed this decision, holding that once a claimant is found to have voluntarily removed himself from the labor market, it is incumbent upon the claimant to demonstrate reattachment to the labor market at the time of classification. The failure to produce any evidence of a job search at the multiple hearings prior to permanency was fatal.