Attached are three 3rd Dept decisions released Thursday, 5/1/25:
- Pressimone v. NYCHA. Cautionary tale. Here, there was a deadline set for medical depositions. The carrier served 3 subpoenas on claimant’s doctor who failed to appear. The Board precluded the doctor’s opinion based on his non-appearance. However, the Appellate Division reversed, finding that it is the onus of the carrier to request an extension to take a claimant’s doctor’s deposition. Even if that doctor fails to appear after he is served with 3 subpoenas, if the carrier does not request an extension pursuant to 12 NYCRR 300.10 (c), the claimant’s doctor’s report will not be precluded. If you have a case where there is a deadline to take depositions, and the claimant’s doctor does not appear pursuant to a subpoena, it is incumbent that the carrier make a request for an extension prior to the deadline for an extension, or will waive the deposition, even if the doctor had no excuse for his/her non-appearance. This case also held that a claimant’s counsel cannot get a fee on an award, if the fee application is filed after the award is paid by the carrier.
- Epstein v. Waldbaums. In this case involving Workers’ Compensation Law § 35 (3) when the loss of wage-earning capacity is greater than [75%], a claimant may request, within the year prior to the scheduled exhaustion of indemnity benefits, the Board may reclassify the claimant to permanent total disability or total industrial disability due to factors reflecting extreme hardship. The burden to prove extreme hardship is on the claimant. Just having a shortfall of income versus expenses does not automatically qualify as a hardship. Here, the claimant was 75, and showed that she could not meet her monthly expenses; she had no likelihood of finding gainful employment to make up for the shortfall given her age and experience as a manual laborer with limited education and her overall health. The Appellate Division affirmed the Board’s decision here to reclassify the claimant as totally permanently disabled.
- Stabile v. Catholic Health System of Long Island, Inc. In this heart attack case, the Board held that claimant, a nurse, who collapsed in a parking lot, did not establish that his claim was compensable. Here, the Court held that substantial evidence existed in the record to affirm the Board’s decision to disallow the claim based on the facts that claimant had multiple underlying non-work related health factors; there was no sign of trauma; and there was nothing unusual about claimant’s shift that day that would have contributed to the event.
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