Reversed and Remitted: 3rd Dept. Checks the Board Twice

Not a banner day for the Workers’ Compensation Board. Only 2 decisions issued by the 3rd Dept. last week, and both were very critical of the Board’s legal jurisprudence. Both reversed Board Panel decisions.

In Badzio v. New York City Health & Hospitals Corporation, the 3rd Dept. reversed the Board’s finding that a claimant did not meet the standard for an occupational repetitive use injury, because the Board used the wrong standard. The claimant, a nurse, sought recovery for an occupational disease to her right shoulder, right knee, and left wrist. The Board in its wisdom decided the case by specifically saying that the claimant failed to establish an accidental injury at work. Since it was obviously not an accident case, the Appellate Division remitted it back to the Board.

In Martin v. D’Agostino Supermarkets Inc., the Appellate Division reversed the Board Panel’s decision denying extreme hardship relief to a claimant because they found they thought claimant spent too much on things like takeout food. A person who has a greater than 75% loss of wage earning capacity may apply for extreme hardship relief to be reclassified to total disability within one year of their benefits expiring if they can show the loss of the benefit will be an extreme hardship. Usually, the 3rd Dept. will not disturb the discretion of the Board on this issue, but here, the Appellate Division found that there was no substantial evidence to support the Board. Claimant demonstrated her modest costs of living would exceed her income, that she could not afford basic groceries, and the stipend for adopting her son was expiring since he became 21. “The Board did no analysis, and gave no explanation, as to how the future reduction of claimant’s income to an amount significantly below the most basic of living expenses did not result in a financial hardship.”

Overall, not earthshattering decisions but good that the 3rd Dept. is scrutinizing the Board and taking issue with how they are ruling on cases.