Workers’ Compensation Appellate Roundup
Q2 / 2025 Workers’ Compensation Appellate Roundup
In addition to their potential to impact ongoing cases, appellate court decisions can provide us with insight into how the law has been interpreted and applied which, in turn, can inform future legal strategies and arguments.
Today’s Workers’ Compensation Appellate Roundup is a compendium of the Q2 2025 appellate decisions we found most interesting, along with the perspective of our highly experienced appellate attorneys. We hope you will find it a helpful and practical resource.
IN THIS ISSUE:
› The practice of issuing subpoenas for deadlines where the doctor’s unavailability is already known is called into question (Matter of Pressimone v. New York City Housing Authority, May 1)
› A decision on benefits passing posthumously to the decedent’s son faces scrutiny when the state of the law at the time of the initial decision changes on appeal (Matter of Coyle v. W & W Steel Erectors LLC, May 8)
› When an intoxicated employee suffers a worksite accident, the carrier must show his injuries were caused solely by his intoxication (Matter of Ramales v. Frank & Nino’s Pizza Corp., May 29)
MATTERS
April 2025
SCHULZE V. CITY OF NEWBURGH FIRE DEP’T.
2025 N.Y. LEXIS 438 (Ct. App. 2025) April 10, 2025
In this case, involving an on-duty injury to a paid firefighter for the City of Newburgh, the Court of Appeals ruled on the question of whether a municipality may recoup its alleged overpayment from the claimant by receiving payments directly from the Workers’ Compensation system.
The court determined that, under the plain language of the statute, municipalities making payments under General Municipal Law § 207-a(2) are not making payments of “salary or wages,” and may not receive reimbursement through Workers’ Compensation Law § 30(2). Accordingly, the court held that the City of Newburgh Fire Department is not entitled to reimbursement directly from Mr.
Schulze’s workers’ compensation award for its prior payments to him under General Municipal Law § 207-a(2).
The court stated that the city could have avoided this “by asking the WCLJ to award workers’ compensation benefits beginning … when Mr. Schulze retired.”
PRACTICE NOTE: Municipalities must be proactive in managing the interplay between a disabled firefighter’s multiple sources of benefits with the statutory reduction methods available under Workers' Compensation Law §§ 25(4)(a) and 30(2).
MATTER OF JEHLE V. DOCCS
COXSACKIE CORR. FACILITY
2025 N.Y. App. Div. LEXIS 2224 April 17, 2025
The claimant, a corrections officer, sustained a work-related injury and, during his absence from work, the employer continued to pay his full wages.
Here, the court reiterated its holding, as set out in prior cases, that an award that compensates for a previous period of time where benefits had yet to be awarded is an “increase” under § 24(2)(b). Therefore, the 15% counsel fee was properly calculated and awarded based on that increase as approved counsel fees shall become a lien upon the awarded compensation. The fact that an award provided to a claimant is subject to a reimbursement request by the employer does not affect counsel’s entitlement to a fee.
PRACTICE NOTE: The court has decided a few cases with this fact pattern recently and in each case they have consistently held that claimant’s counsel is still entitled to a fee where benefits are awarded even if the award is for a period of time that was subject to employer reimbursement. When dealing with any case that involves periods of time during which the employer paid wages, be sure to be proactive in making the request for reimbursement as soon as possible.
May 2025
MATTER OF STABILE V. CATHOLIC HEALTH SYS. OF LONG IS.,
INC.
2025 N.Y. App. Div. LEXIS 2700
May 1, 2025
The claimant, a nurse, experienced an unwitnessed medical event in the parking lot while leaving work. The claimant alleged a claim for head trauma and “multiple complications including cardiac arrest.” The carrier controverted the claim.
The law judge established the claim, but the New York State Workers’ Compensation Board reversed on appeal and disallowed the claim, finding that the carrier had successfully rebutted the Section 21 presumption with its IME, who testified that the claimant’s condition was not workrelated. The court affirmed the Board’s disallowance of the claim.
PRACTICE NOTE: This case is not novel, but it is a good reminder of two points. First, the statutory presumption cannot be used to establish that an accident occurred in the first place. And second, the Section 21 presumption can be rebutted if the employer provides substantial evidence to the contrary.
Of course, in these unwitnessed event cases, the claimant still bears the burden of proving that his or her condition is causally-related to employment. However, simply trying to poke holes in claimant’s medical evidence may not be enough. A good IME opinion may be the difference between winning and losing in a case like this, as it was here.
MATTER OF PRESSIMONE V. NEW
YORK CITY HOUS. AUTH.
2025 N.Y. App. Div. LEXIS 2698 May 1, 2025
This decision arises out of permanency litigation on a left shoulder claim. The claimant’s doctor, Dr. Guttman, gave an opinion of 45% SLU of the left arm, and the carrier’s consultant opined 20%. Given the differing opinions, the Board issued an administrative decision directing the parties to reach an agreement, or produce deposition transcripts within 90 days. The decision
specified that extensions could be requested, but any such extension request must be received prior to the date on which transcripts were due.
The carrier issued subpoenas for three dates for the deposition of Dr. Guttman. Dr. Guttman failed to appear for the first two dates. His deposition was eventually completed about a month after the date transcripts were due. However, no extension request was ever filed.
The law judge’s decision precluded Dr. Guttman’s opinion based on his failure to appear for the first two (timely) scheduled deposition dates and awarded the claimant a 20% SLU, per the carrier’s IME opinion. On administrative appeal, the Board affirmed.
However, on appeal to the Third Department, the court reversed the Board’s preclusion finding. The court was particularly focused on the fact that the employer knew, prior to issuing the subpoenas, that Dr. Guttman was unavailable for the first two dates, but that he had confirmed his availability for the date that was past the deadline. Despite that knowledge, the employer failed to request an extension of the deadline.
Additionally, the court affirmed the Board’s recission of the $20,000 counsel fee award, since the fee application was untimely and the employer had already paid out the SLU award, so a lien would unfairly prejudice the employer since no further money was moving.
PRACTICE NOTE: The issue of preclusion (or, in some cases, lack thereof) based on a doctor’s failure to appear for subpoenaed deposition dates is coming up for appellate review with increasing frequency. This decision from the court affirms and cements the existing Board practice of requiring a timely extension request to be filed for any cross-examination outside of the deadline set by the law judge/Board.
The bottom line here is that, despite the Court of Appeals precedent in Matter of Lazalee v. Wegman's Food Mkts., Inc., 40 N.Y.3d 458 (2023) (which held that a timely request for cross-examination “shall” be granted), once a deadline for depositions has been set by the law judge, failure to timely request an extension of that deadline (if necessary) will result in a waiver of that right of cross-examination.
It is also worth noting that the court was very interested in the fact that the employer was aware that Dr. Guttman was not going to appear for the first two subpoenaed deadline dates. This calls into question the standard practice of issuing subpoenas for deadlines where the doctor’s unavailability is already known.
This practice arose in the first place because of concern that the law judge might deny the extension request. The subpoenas are then issued in order to support an argument for preclusion based on the doctor’s non-appearance. However, this decision shows that the court does not condone this practice, and practitioners should reconsider their deposition procedures accordingly.
MATTER OF EPSTEIN V. WALDBAUMS
2025 N.Y. App. Div. LEXIS 2688 May 1, 2025
This case involves an extreme hardship redetermination request pursuant to WCL § 35(3). Here, the claimant was classified with a permanent partial disability and an 81% LWEC, entitling her to a 450-week benefits cap under WCL § 15(3)(w). The law judge initially denied the claimant’s extreme hardship request, finding that she had not demonstrated that her loss of benefits would constitute “undue extreme hardship.”
On administrative appeal, the Board reversed, granting the claimant’s request for extreme hardship classification. The carrier appealed to the Third Department. The court affirmed the Board’s holding.
PRACTICE NOTE: This case does not change the legal standard for obtaining an extreme hardship determination. However, it does take the relatively rare step of actually granting a claimant’s extreme hardship redetermination request. And the court affirmed.
The Board’s holding was largely based on the fact that—absent workers’ compensation benefits and after paying her rent—the claimant would be left with less than $200 per month to cover her basic needs. A monthly shortfall, alone, is not enough to constitute financial hardship. However, other factors “weighed heavily” in the claimant’s favor, including her age (75 years old), limited education, and overall state of health, including a
cancer diagnosis and a history of two COVID-19-related hospitalizations.
This decision may well draw the attention of claimants’ attorneys. Given the outcome, when dealing with elderly claimants with comorbidities who receive high LWEC findings (greater than 75%), consider increasing efforts at settlement—even prior to engaging in LWEC litigation in the first place.
MATTER OF COYLE V. W & W STEEL ERECTORS LLC
2025 N.Y. App. Div. LEXIS 2889
May 8, 2025
In 2016, the decedent (Michael Coyle) established a workers’ compensation claim for work-related injuries. In 2020, Coyle was classified with a permanent partial disability entitling him to wage-loss benefits capped at 375 weeks. Following his death in January 2021—for reasons unrelated to his work injuries—an RFA was filed in July of 2021 seeking a hearing on behalf of the decedent's minor son (born in 2008) to determine his entitlement to any unpaid amounts of decedent's wage-loss benefits. In December 2021, the law judge found that—pursuant to the Third Department’s holding in Matter of Green —the decedent’s son was entitled to the decedent’s unpaid wage-loss benefits.
In October 2022, the Court of Appeals reversed the decision in Green, holding that unaccrued nonschedule benefits may not pass posthumously. Subsequently, the employer and carrier filed an RFA to reopen the claim and suspend the benefits to the decedent’s son. At the subsequent hearing, the law judge reopened the claim and suspended payments. On administrative appeal by the claimant, the Board reversed, denying the carrier's request to reopen the claim and continuing the payments to the decedent’s son.
The carrier appealed to the Third Department. The court affirmed the Board.
PRACTICE NOTE: While ostensibly this case appears to contradict the Court of Appeals decision in Green that nonschedule benefits may not pass posthumously, this case was really decided on purely procedural grounds. In affirming the Board, the court’s ultimate holding was that carrier’s failure to seek administrative review of the December 2021 decision to continue the payment of the decedent's wage-loss benefits to his son within a reasonable amount of time made that decision final.
A notable takeaway, however, is the court’s finding that the Court of Appeals reversal of Green, which resulted in a change in the law, does not automatically entitle the carrier to reopen a claim in the inter-
est of justice. The carrier’s application was to reopen the claim, and the grounds for reopening were not met.
However, this case does raise an interesting question: if the state of the law at the time of the initial decision to continue benefits was that it was legally proper, then what would have been the basis for the carrier to appeal the law judge’s decision? The court appears to be telling carriers that they would be wise to appeal any decision they may not agree with just in case the law changes later on.
It will be interesting to see if this case is pursued further to the Court of Appeals.
BALSECA V. HUDSON CONCRETE INC.
2025 N.Y. App. Div. LEXIS 3174 May 22, 2025
In a controverted claim, the claimant alleged injuries to his neck, back, right arm, right shoulder, right elbow, right wrist, both hips, and both legs as a result of a fall from a ladder. The claimant testified that he fell about four feet to the floor after the ladder he was standing on moved, causing him to lose his balance. The fall occurred approximately 15- to 30-minutes before the end of his shift and he did not tell his supervisor about the fall that day because he was afraid that he would lose his job. The claimant testified
that when he awoke the day after his fall, he was in a lot of pain and asked a friend to drive him to the hospital, where he was diagnosed with back pain.
Following litigation, the law judge disallowed the claim, finding the claimant’s testimony regarding the accident to be not credible. However, on administrative appeal, the Board reversed and established the claim.
The carrier appealed to the Third Department. Deferring to the Board’s determinations regarding witness credibility and medical evidence, the court affirmed the Board.
PRACTICE NOTE: This case is a reminder that it can be extremely difficult to overcome the standard of review and the court’s deference to the Board’s authority to resolve factual issues and “cull from the record that which it finds believable.”
RAMALES V. FRANK & NINO’S PIZZA CORP.
2025 N.Y. App. Div. LEXIS 3288 May 29, 2025
The claimant, a pizzeria employee, sustained burns to 40% of his body after falling down stairs while carrying a large pot of hot tomato sauce. The employer and carrier argued that the claimant was not entitled to benefits because he was intoxicated at the time of the fall. The law judge disallowed the claim based on intoxication, but, on administrative appeal, the Board reversed and established the claim. The Board ruled that the carrier failed to prove that claimant’s intoxication was the sole cause of the accident.
The carrier appealed to the Third Department and the court affirmed.
The claimant was entitled to a presumption of compensability under Workers’ Compensation Law § 21(4). Hearsay evidence that the claimant was told “20 times” not to take hot food downstairs or that staff commented that the claimant was too intoxicated to walk, was insufficient to rebut the Section 21 presumption. The court deferred to the Board’s findings regarding the credibility of witnesses.
Further, even if the claimant’s actions—taking the tomato sauce downstairs instead of cooling it upstairs—were not considered normal practice, or he was specifically warned
not to do it, they still fell within the scope of the claimant’s employment as kitchen assistant and do not preclude recovery.
Thus, since the claimant’s duties arose out of his employment, the court held the carrier did not overcome the presumption of compensability by showing that claimant's injuries were caused solely by his intoxication.
PRACTICE NOTE: Intoxication cases remain difficult to prove, as the standard remains that the intoxication must be the sole cause of a claimant’s injury. Further, it serves as a reminder that workers’ compensation is a no-fault system; the claimant’s actions here were egregious on several levels, but ultimately he sustained a serious injury in the course of employment.
MATTER OF JUNCAL V. MASPETH REMODELING CO.
2025 N.Y. App. Div. LEXIS 3298 May 29, 2025
The claimant was awarded benefits at the temporary total disability rate. The carrier obtained an IME, which opined that the claimant had a 50% orthopedic disability. The carrier filed an RFA to reduce the rate of awards based on the IME.
The Board failed to schedule a hearing for approximately 6 months. At the hearing, the law judge brought awards to date at the temporary total disability rate, despite the carrier having filed an RFA six months prior. On administrative appeal, the Board affirmed.
The Third Department affirmed the Board’s holding. Despite the fact that the Board did not schedule a hearing within 20 days pursuant to 12 NYCRR 300.23 (b) (2), the mere existence of the IME opinion did not compel an automatic reduction in claimant’s benefits. Nor did the 20-day period permit the carrier to automatically reduce the ongoing awards.
PRACTICE NOTE: Practitioners should keep in mind that this decision does not require judges to bring a CCP up to the date of the hearing—it only holds that the Board did not abuse its discretion in bringing awards to date.
This decision also suggests that carriers should be proactive in filing second or even third RFA-2s where the Board fails to
take prompt action on an initial RFA-2 requesting a change in the rate of payments pursuant to 12 NYCRR 300.23(b). This raises a question, however: would doing so place carriers at risk for a duplicate filing penalty? While that may be the case, this decision from the Appellate Division leaves carriers with no other recourse to compel the Board to take prompt action on a request to reduce or suspend benefits where a direction to continue payments is in place pursuant to 300.23(b).
MATTER OF FONSECA V. PLATINUM CARPENTRY INC.
2025 N.Y. App. Div. LEXIS 3302 May 29, 2025
The claimant worked as a carpenter for Platinum Carpentry when part of a ceiling collapsed on him and he fell off a ladder. Platinum Carpentry had a contract with Cornerstone Underwriters LLC, a professional employer organization, which provided workers’ compensation coverage to all employees leased by Cornerstone to Platinum. The Board found that the claimant was not a leased employee. Rather, he was a dual employee of Platinum and Cornerstone and was thus not entitled to workers’ compensation coverage. Upon review, the Board’s decision was affirmed because Platinum never notified Cornerstone of the claimant’s employment and instead issued claimant a 1099 form. Thus, the claimant and other employees who received 1099 forms were not enrolled, leased employees, meaning Cornerstone did not have to provide workers’ compensation coverage.
PRACTICE NOTE: Goldberg Segalla has a dedicated team for PEO situations like this and can help when these arise. Please contact Dustin Osborne and Ian Zolty.
June 2025
MATTER OF QUOMA V. BOB’S DISCOUNT FURNITURE
2025 N.Y. App. Div. LEXIS 3688 June 12, 2025
In 2017, the claimant was involved in a work-related accident and suffered injuries to his back, thoracic spine, and shoulders. He began receiving benefits for those in -
juries, and by 2021, both his pain management specialist and the carrier’s consultant opined that he had reached maximum medical improvement (MMI). Pursuant to WCL 15(3)(w), the law judge found the carrier was entitled to a credit against the number of statutory cap weeks based upon its payment of 78.8 weeks of awards to claimant past the 130th week after the accident. The claimant appealed, arguing that the carrier needed to have paid for 130 weeks before they could claim the credit and that all the conditions were met for WCL 15(3) (w)’s safety valve provision to be invoked. The Board affirmed the law judge’s holding that the carrier could take its 15(3)(w) credit and the safety valve did not apply.
Upon review, the Appellate Division rejected the claimant’s argument that 130 weeks of benefits needed to be paid before the credit could be claimed. The court affirmed that the 130-week limit is “strictly a time calculation.” However, it reversed the holding that the safety valve provision does not apply and remanded the case because the Board failed to consider medical evidence relevant to determining whether the safety valve requirements had been met, such as a causally-related surgery claimant had just after the 130th week.
PRACTICE NOTE: The takeaway here is that the 130-week cap still applies to total weeks, not paid weeks; the Appellate Division is in agreement with the apparent goal of moving claimants to permanency after 2.5 years.
HURLEY V. LAWRENCE SCH. DIST.
2025 N.Y. App. Div. LEXIS 3726 June 18, 2025
The claimant established a claim for Workers’ Compensation benefits in 2018 due to his asthma, for which his physician has advised he should not be exposed to mold, dust, or pollen. He taught remotely during the 2020-2021 school year due to the COVID-19 pandemic but was told he had to return to in-person teaching the following year. He was given an air-conditioned room to teach in and did not have to leave the classroom to escort the students to other classes or lunch, but he claimed that ongoing construction in the building made him too sick to work. He was offered a position in the library of another building, but he never reported for work. The WCLJ found the claimant’s contention that he was too sick to work was not supported by medical evidence, and that he had voluntarily withdrawn from the workforce—a decision which was then affirmed by the Board. Upon review, the Appellate Division affirmed. Although the claimant’s physicians opined he should not return to work, their opinions were based on the claimant’s feelings rather than objective medical testing, thus indicating his withdrawal from the workforce was voluntary.
PRACTICE NOTE: This is a narrow holding, given the facts, but it shows that there is real value to an employer being able to accommodate light duty/restricted duty.
MATTER OF COOPER V. NEW YORK CITY HEALTH & HOSP. CORP.
2025 N.Y. App. Div. LEXIS 3734
June 18, 2025
The claimant was injured when he was attacked by a patient in 2020, causing him to be out of work for almost 2 years. During his absence, his employer paid his full wages. A WCLJ established the claim for the claimant’s right knee and right shoulder, granted him 15% schedule loss of use (SLU) awards, and directed that the employer be reimbursed for the wages paid while the claimant was out of work. The claimant would receive approximately 12% of the gross SLU award, and his attorney would receive 15% of the net SLU award as a fee. The claimant’s attorney appealed, arguing fees should have been 15% of the gross SLU (irrespective of the amount being subtracted for employer reimbursement). The Board Panel agreed, reversing the WCLJ’s decision. However, on further appeal, the Full Board rescinded the Board Panel decision and remanded the matter back to the Board Panel to address the attorney fee issue. On remand, reviewing the issue for the second time, the Board Panel affirmed the original attorney fee award by the law judge (15% of the net SLU).
Upon review, the Appellate Division affirmed, reasoning that WCL 24(2)(c) states that employers’ previous payments, including wages, must be deducted before calculating attorneys’ fees. The gross SLU award was enough to pay back the employer while still allowing for a net SLU award to be paid to the claimant, and the Board has discretion to require attorney’s fees be payable as a lien against the net—rather than gross—award to prevent the employer from subsidizing the claimant’s legal fees and the claimant from receiving a windfall.
PRACTICE NOTE: From the employer and carrier perspective, the important part of this is to make sure that any request for wage reimbursement is properly documented, such that the WCLJ and WCB can properly consider those at the time of permanency. Note that this decision is not a broad declaration that an attorney fee can never be awarded as a lien against an employer’s reimbursement credit. Rather, the Court is clear that the Board has discretion on this issue, so it is unclear what the Court might have done if the issue had been decided differently at the Board level.
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