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Q1 / 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 Q1 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:

› Section 21 presumption is not a catch-all crutch that claimants can use to establish otherwise questionable claims (Matter of Gunness v. Prime Piping & Heating Inc., Jan. 9)

› Simply showing a claimant’s monthly expenses exceed his fixed income benefits is not sufficient to prove extreme hardship (Matter of Mystkowski v. Monpat Constr. Inc., Mar. 27)

› In cases involving failure to disclose/omission, it might make sense to waive the claimant’s testimony entirely (Matter of Augone v. Stop & Shop Supermarket Co. LLC, Mar. 27)

MATTERS

January 2025

MATTER OF GUNNESS V. PRIME PIPING & HEATING INC.

234 A.D.3d 1082

January 9, 2025

In this case, the claimant made two claims, apparently arising from the same incident. The initial claim, filed in or around June 2020 for a right foot injury, was established. In the second claim, filed in October 2020, the claimant alleged that a “large piece of concrete” (as opposed to a brick) fell onto his foot which caused additional injuries to his neck, back, and left knee as a result of his “altered gait and cane usage.”

Following trial, the law judge ruled no causal connection was established between the incident and the neck, back, and left knee injuries. The Board affirmed, finding the claimant failed to submit credible medical evidence establishing a causal relationship and further found the claimant was not credible as he provided inconsistent accounts

to medical providers of how the injuries to these additional body parts had occurred.

The court affirmed, holding that the Board acted within its authority in rejecting the claimant’s medical evidence regarding causal relationship. The court additionally held, in a footnote, that the Section 21 presumption does not relieve the claimant of his burden of providing competent evidence of a causally related injury.

PRACTICE NOTE: This case is a good reminder that the Section 21 presumption is not a catch-all crutch that claimants can use to establish otherwise questionable claims that lack sufficient medical evidence.

It is also a good reminder that a claimant’s medical evidence must have a reasonably competent underlying foundation. Here, the court noted that Dr. Ahmed’s opinion “was not based upon an understanding of how the accident or injuries occurred, including whether claimant’s neck, back or left knee were impacted by a falling object or how the concrete falling on his right foot caused injury to the other body parts.” So, if you have a case where the medical evi -

dence itself appears to be flawed, it may be worth an appeal.

MATTER OF BROOKS V. NEW YORK CITY TR. AUTH.

234 A.D.3d 1072

January 9, 2025

Here, the court reversed the Board on its interpretation of the Guidelines Section 1.3[3][b].

The court held, “[W]e agree that evidence of a permanent physical or functional impairment of the contralateral member due to traumatic injury or other condition that does not affect the subject member would render a comparison to the contralateral member when determining range of motion inappropriate. However, comparing contralateral members that have temporary physical or functional impairments, either due to work-related or nonwork-related injuries, would also be inappropriate as such comparisons could equally result in inequitable range of motion findings. In our view, the Board’s interpretation of section 1.3 (3) (b) of

the guidelines to apply only to permanent physical or functional impairments is unreasonable and cannot be upheld[.]”

PRACTICE NOTE: Providers should not use contralateral side comparisons where there is evidence of impairment to that side, regardless of whether it is permanent or temporary. The Board said it had to be permanent impairment to negate the requirement of using a contralateral side comparison, but the court overrules that.

MATTER OF WADDY V. MANHATTAN & BRONX SURFACE TR. AUTH.

234 A.D.3d 1141

January 16, 2025

The claimant, a transit bus operator for 21 years, filed a claim for workers’ compensation benefits alleging post-traumatic stress. The self-insured employer contested the claim.

The law judge found the claimant, who returned to work approximately three months after the incident, suffered a work-related compensable injury and awarded benefits. Upon appeal by the employer, the Board reversed, disallowing the claim.

The claimant alleged post-traumatic stress disorder arising from an incident where a man tried to board the bus while it was stopped at a red light. When he couldn’t get into the bus, he climbed onto the front bumper, pounded on the windshield, bent a wiper blade, broke a side mirror, and verbally threatened the claimant.

Discussing the standards set out in Matter of Anderson v. City of Yonkers, 227 A.D.3d 63 (3d Dept 2024); accord Matter of Spillers v Health & Hosp. Corp., 225 A.D.3d 1100 (3d Dept 2024), the court affirmed the Board’s disallowance of the claim for posttraumatic stress, holding that substantial evidence supported the Board’s finding that the incident was an event the claimant could reasonably and ordinarily be expected to encounter in her role as a bus operator. In this case, the Board credited the testimony of the employer’s witness, who testified that unruly passengers are reasonably to be expected in the job of a bus driver. The court found no reason to disturb the Board’s factual determination.

Noteworthy is this case had a dissenting justice who argued that “the incident as described by the majority should not in any civilized society be deemed part of the ‘normal work environment’ of a transit bus operator.” It will be worth keeping an eye on whether the Board takes note of the language of this dissent in future stress cases.

PRACTICE NOTE: Unfortunately, this claim was litigated under the old stress claim guidelines; we have not yet seen how the new ones will be litigated at the appellate level. The result is a positive one for claims still in litigation under the old standard, but it is hard to say what effect it will have on stress claims in the future.

MATTER OF SESSA V. ALLEN HEALTH CARE SERV.

234 A.D.3d 1190

January 23, 2025

The claimant established a Workers' Compensation claim for neck and back injuries from a 2006 work-related accident.

At a hearing on September 15, 2022, the Workers' Compensation law judge directed the parties to depose both surgeons and instructed the claimant, who had not worked since 2006, to produce documentation of her search for employment. At a subsequent hearing on February 2, 2023, the judge granted the claimant’s request to update awards to the hearing date at a temporary partial disability rate with the carrier to continue payments, despite the labor market attachment issue being unresolved.

The carrier appealed, arguing its due process rights were violated because awards were made before completing the record on labor market attachment. The Board modified the judge’s decision, holding awards in abeyance from September 15, 2022, pending further development of the record on labor market attachment. The claimant appealed to the Third Department.

The court dismissed the appeal, saying it does not “piecemeal review of the main issues in a workers’ compensation claim.” The law is settled that “[w]here a Board decision is interlocutory in nature and does not dispose of all the substantive issues or reach a potentially dispositive threshold question, it is not appealable.” Thus, be -

cause no determination had been made on the main issue of labor market attachment/ voluntary removal, the court found that the Board’s decision was interlocutory and dismissed the claimant’s appeal.

PRACTICE NOTE: A law judge cannot direct awards with an unresolved labor market attachment issue pending.

MATTER OF JOHNSTON V. HOWMET AEROSPACE INC.

234 A.D.3d 1220

January 30, 2025

In reversing the Board’s award of an SLU, the Third Department found it was improper for the Board to calculate the SLU based on range-of-motion deficits that were taken during regular evaluations of the claimant, before she was considered to have reached MMI. Further, since these range-of-motion measurements were not taken in the context of a permanency exam, the providers did not comply with the Impairment Guidelines. Thus, since the Board ruled other providers opinions on SLU were not credible, there was inadequate evidence on which to render a decision as to SLU, and the Board had impermissibly created its own opinion. The court remanded the matter back to the Board for further proceedings.

In this case the court, citing Board guidance on Frequently Asked Questions about SLU Impairment Guidelines, emphasizes in a footnote that the doctors are entitled to refuse to give SLU opinions if they find the claimant not cooperating with range-of-motion measurements during the exam. The doctor “should note his or her belief that clamant was not cooperating with the exam[ination] in his or her IME-4 report and decline to offer an SLU opinion if claimant’s level of cooperation renders such a task impossible.”

PRACTICE NOTE: The doctor examining a claimant for permanency may not make inferences about findings even in the case of an uncooperative claimant; they need to document the claimant’s intransigence and decline to offer an opinion.

MATTER OF PERALTA V. SUPREME CT.,

1ST JUD. DEPT.

234 A.D.3d 1226

January 30, 2025

An attorney fee is payable on a period of awards labeled “reimburse employer” for which a claimant was already paid (by the employer).

The court rejected the carrier’s argument that the attorney fee can only be awarded on amounts that are both awarded and payable to the claimant. The court held, “The fact that some or all of the benefits awarded to a claimant are subject to a reimbursement request by the employer does not affect counsel’s statutory entitlement to a fee.”

PRACTICE NOTE: The court took up the same issue again in Matter of Olivier (following).

MATTER OF OLIVIER V. NEW YORK

STATE DEPT. OF CORR.

2025 N.Y. App. Div. LEXIS 1847

March 27, 2025

Here, the Board once again affirms the award of attorney fees on periods of awards that are labeled “reimburse employer.” The court held, “although claimant received wages from her employer during the at-issue period, the July 2023 hearing was the first time any compensation awards were made under the Workers’ Compensation Law for claimant’s previous periods of temporary total disability. Thus, the WCLJ’s initial award necessarily was an increase of the amount of compensation awarded under the Workers’ Compensation Law for a previous period or periods of temporary total or temporary partial disability.”

PRACTICE NOTE: It is somewhat unclear how these decisions are going to function in practice. Where a claimant was already paid by the employer, and carrier is only paying the employer back, then in theory either the employer is getting reimbursed less than they paid, or the carrier is paying an attorney fee on top of the reimbursement, which seems to go against the spirit

of the law the court is purporting to uphold (i.e., counsel fees being a lien on awards). Either way, this is something employers and carriers should keep in mind any time there is an employer reimbursement issue in a claim.

February 2025

MATTER OF CAPERS V. JACOBI

MED. CTR.

226 N.Y.S.3d 672

February 6, 2025

Here, the employer paid about six months of wages to the claimant during the period of her disability, from August 2020 to February 2021. The Board issued a Proposed Decision awarding an SLU in May 2022. The employer objected to that Proposed Decision, so it never became final. The employer then filed its request for reimbursement on June 14, 2022. The employer’s request for reimbursement was ruled to be timely, in that it was made prior to the final SLU award.

PRACTICE NOTE: Make sure all loose ends are taken care of before a Proposed Decision is finalized.

MATTER

OF CARPENTER V. ALBANY DIALYSIS CTR.

226 N.Y.S.3d 682

February 6, 2025

A Board finding of Workers' Compensation Law § 114-a(1) permanent disqualification was upheld by the court. Here, the claimant made representations to treating doctors that were disproven with surveillance.

PRACTICE NOTE: While there isn’t anything novel here, the case is simply a good reminder about the efficacy of thorough surveillance in fraud cases.

MATTER OF TUDOR V. WHITEHALL CENT. SCH. DIST.

227 N.Y.S.3d 476

February 13, 2025

The claimant, a teacher, filed a claim for Workers' Compensation benefits contending that she suffered a stroke at home in April 2022, allegedly precipitated by a verbal disagreement with her school principal some days earlier. The claim was disallowed after trial, and the Board affirmed the disallowance.

The court affirmed the Board. While “a viable claim in the event of a heart attack or stroke may be based on work-related stress even where the medical event occurs outside of normal work hours,” the court found that substantial evidence supported the Board's finding that the claimant’s proof was insufficient to establish a compensable injury.

The claimant also alleged that her condition was based on “the cumulative effect of the stress allegedly experienced while working for the employer,” but the court, in affirming the Board’s disallowance, held “that assertion is belied by the C-3 form filed in this matter. Accordingly, we agree with the WCLJ and the Board that claimant's numerous lawsuits and grievances filed against the employer were not part of the instant workers’ compensation claim.”

PRACTICE NOTE: The holding here is a positive one for the consideration of future stress claims, but the fact pattern likely means the applicability is limited.

March 2025

MATTER OF GOSS V. WTC VOLUNTEER

2025 N.Y. App. Div. LEXIS 1406

March 13, 2025

In this WTC Article 8-A case the claimant, a crisis response services provider, initially worked from September 12 to September 22, 2001, under paid employment providing mental health services to first responders following the World Trade Center attacks. After her paid assignment ended, she volunteered for an additional 10 days in both October and December 2001 at the request of John McArdle, the NYPD on-scene coordinator. During this time, she provided mental health support to first responders engaged in rescue, recovery, and cleanup operations.

In 2018, the claimant filed for Workers' Compensation benefits, alleging injuries from exposure to toxins at the WTC site. The law judge initially found she was a volunteer and designated the Uninsured Employers Fund as the potentially liable carrier. After further hearings, the WCLJ established the claim under Workers’ Compensation Law Article 8-A for sarcoidosis. However, the Board reversed, finding that the claimant was not a participant in the WTC rescue, recovery, and cleanup operations and disallowed the claim.

The court found that substantial evidence did not support the Board’s determination that the claimant was not a participant in the WTC rescue, recovery, and cleanup operations. The evidence, including testimony from both the claimant and McArdle, established that the claimant directly assisted first responders by providing critical mental health services during the operations. Given the liberal construction of Article 8-A and the claimant’s tangible connection to the rescue efforts, the Board’s denial was not supported by substantial evidence. The court reversed the Board’s decisions filed October 11, 2023, and January 26, 2024, and remitted the matter to the Board for further proceedings consistent with its findings.

PRACTICE NOTE: The Appellate Division continues to construe the 9/11 cases very broadly.

MATTER OF MYSTKOWSKI V. MONPAT CONSTR. INC.

2025 N.Y. App. Div. LEXIS 1840 March 27, 2025

The court affirmed the Board’s ruling that claimant, who had previously been classified with an 81-percent LWEC, failed to prove “extreme hardship” under Section 35(3). In this case, the Board found that the claimant failed to show he was experiencing financial hardship “beyond the ordinary and existing in a very high degree.” Simply showing that a claimant’s monthly expenses exceed his fixed income benefits was not sufficient to prove extreme hardship. And in this case, the claimant testified that he is “from an unfortunate time where he was taught that women cook and clean” so, being unable to cook for himself, he had to purchase all his meals.

PRACTICE NOTE: Simply showing that expenses exceed income is not enough for hardship under sec. 35(3).

MATTER OF FERRA V. PARAMOUNT GLOB.

2025 N.Y. App. Div. LEXIS 1858 March 27, 2025

In this case involving a claimant’s intoxication, the court affirmed the Board’s finding that the accident in which the claimant was injured was not caused solely by his intoxication. Most notably in this case, the Board, as affirmed by the court, rejected the argument that a claimant driving while intoxicated necessarily constituted a deviation from employment. “[C]ontrary to the carrier’s argument, an employee’s intoxicated driving does not, per se, constitute a deviation from employment that relieves the employer from demonstrating that the employee’s intoxication was the sole cause of the ensuing accident and injuries.” The Board, and the court, explicitly rejected this argument as an attempt to avoid the “sole cause” requirement in intoxication cases.

PRACTICE NOTE: The Appellate Division continues to construe sec. 10 intoxication defenses very strictly. Drunk driving is not sec. 10 in and of itself, as the claimant would be home, or elsewhere, while intoxicated, rather than driving for the employer.

MATTER OF AUGONE V. STOP & SHOP SUPERMARKET CO. LLC

2025 N.Y. App. Div. LEXIS 1849

March 27, 2025

The court affirmed the Board’s finding that the claimant did not violate Section 114-a, despite the fact the claimant failed to disclose a prior incident and denied any prior injury to the relevant body site. The Board credited the claimant’s testimony that he did not think the prior incident was significant because he never lost any time from work, so he “just forgot about it.” The Board found that his misrepresentation was not material. The court ruled that the Board’s finding was “grounded upon a credibility determination” and was supported by substantial evidence.

PRACTICE NOTE:

This case presents an interesting question when dealing with a claimant who has failed to disclose prior incidents. The standard procedure in a fraud trial is to take the claimant’s testimony. However, in this case, the claimant’s testimony was used to explain away his omission, and the Board found the claimant’s testimony credible. The court, being bound by the Board’s credibility determinations, affirmed.

This also raises a strategic question for carriers and their counsel: in cases involving failure to disclose/omission, might it make sense to waive the claimant’s testimony entirely? It would be a risky move, but it may be worth considering in cases where the omission is clearly documented in the medical record.

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