The WC Appellate Roundup for 3/28/25 is as follows:
- Augone v. Shop & Stop: Claimant, a grocery store clerk, was found not to have violated Sec. 114-a for a willful misrepresentation when he said to his doctors that he, “never hurt [him]self before in [his] life,” despite the carrier later finding out that he had a prior accident and MRI. The claimant testified that he forgot the prior accident because it was not serious and he did not lose time from work. The law judge found him credible and both the Board Panel and Appellate Division affirmed.
- Ackerler v. Asplundh: Pursuant to WCL Section 35(3) a claimant may be reclassified to a permanent total disability if he/she has already been classified at least 75% disabled if that claimant can demonstrate an extreme financial hardship. Here the claimant tried for an extreme hardship reclassification but was denied by the Board because he did not include the incomes of the other adult members of his household or why they could not contribute to household expenses.
- Ferra v. Paramount Global: A drunk driver claimant in a fender bender accident got out of his vehicle to exchange information, returned to his car and was rear-ended by another car which caused the most severe injury. The Board did not find that the claimant’s injuries were solely caused by his intoxication [the standard in New York]. The 3rd Dept. rejected the argument that intoxication was a deviation from employment. The Appellate Division also pointed out that the Board never made a finding that the initial accident was solely due to the claimant’s intoxication.
- Davenport v. Oxford Central School District: Ordinarily a claim not filed within 2 years of an accident is not compensable by the claimant. Here a claimant who had 2 prior low back injuries did not file a C-3 claim for a 2020 snow shoveling accident, and a medical report was filed to a prior claim, yet the Board held that Section 28 does not require a C-3 form be filed if there are other documents filed within the 2-year window that would provide sufficient facts of the injury such that a claim might be reasonably inferred. Here the medical report filed to the wrong claim was deemed to be sufficient.
- Serrano v. Bay Park Center for Nursing & Rehabilitation: In this case, claimant, a housekeeper, hurt his back lifting a bag of soiled linen. Claimant’s primary position was that his consequential psychological injury which manifested from his chronic pain made claimant unable to work because he was depressed, had low energy, was irritable and could not tolerate working with people. The Appellate Division however would not disturb the Board’s discretion, finding that claimant was less than 100% permanent total since both the carrier and claimant’s physician found that claimant was capable of some work and gainful employment.
- Tirado v. Symphony Space: Video surveillance showing claimant doing things that he said he could not do at his IME was enough for the Board to find that claimant committed a Sec. 114-a violation, including both mandatory and discretionary penalties of permanently barring him from collecting future indemnity benefits. Claimant repeatedly reported at IMEs over 3 years that he was homebound or mostly homebound and “unable to function,” yet the Board saw that claimant was not physically or psychologically limited in the videos. He was seen doing heavy labor, including moving large pieces of furniture into a truck. The Board did not find claimant’s counsel’s argument that the videos were only snapshots of momentary events that did not demonstrate his typically sedentary lifestyle. The law judge said that “this is the most egregious example of false representation I have seen in my years as a [WCLJ].”
- Mystowski v. Monpat Construction. Like the Acklerler case, the 3rd Dept. affirmed the Board’s finding that a claimant did not meet his burden to show an extreme hardship to qualify for total disability pursuant to WCL 35(3). The Board did not buy claimant’s excuse that he needed $700 – $800 per month for takeout food because he was from a “time where … women cook and clean” and cannot be expected to learn to cook at his advanced age of almost 60 years.
[View source.]
