No Ex Parte, Expert No-Show, No Add‑Ons, and a Pandemic Unemployment Aid Payback: This Week’s Decisions from the New York Appellate Division and Court of Appeals

Three New York Appellate Division workers’ compensation decisions plus one bonus Court of Appeals case on pandemic unemployment benefits last week:

1. Matter of Petti v. Asplundh Construction Corp. (3^rd Dept. 12/18/2025): If your medical report says, “lawyer called and asked … ,” that opinion is going to be precluded. Here, in an occupational hearing loss claim, the claimant’s physician’s initial report did not comment on causal relationship. So, apparently the claimant’s lawyer called and asked for an opinion on it. Per WCL 13-a(6), there cannot be ex parte communication with medical providers where the communication is suggestive. Even the appearance to influence is prohibited. The claimant’s hearing loss opinion was precluded and the case disallowed.
2. Matter of Rodin v Department of Parks and Recreation (3^rd Dept. 12/18/2025): The claimant’s counsel subpoenaed the carrier’s orthopedic expert for a deposition. The expert did not appear and the claimant’s counsel asked for the carrier’s report be precluded. The Board refused to preclude it because the claimant’s counsel did not ask for an extension. It is well known now in workers’ compensation that the Board will punish the litigant, not the party whose expert fails to appear, if the litigant does not first ask for an extension. Here, the claimant’s physician found a 7.5% scheduled loss of use (SLU) for a shoulder injury. The carrier’s expert found 0%. The Board adopted the 0%.
3. Matter of Maini v Nassau County Police Department (3^rd Dept. 12/18/2025): Here, the 3^rd Dept. found a 22.5% SLU of the left foot for a ruptured Achilles was sustainable. The claimant’s opinion was 40%. The 2018 Guidelines set 20-25% as an average SLU. The claimant tried to argue that he was entitled to a 15% upgrade because of his loss of range of motion. But the Court held that other deficits cannot be added under the guidelines where a scheduled value is already provided.
4. Klosterman v. NYS Department of Corrections (Court of Appeals 12/16/2025): This is not a workers’ compensation case, but it does involve a wage replacement benefit, through the federally funded pandemic unemployment aid package. The Court of Appeals affirmed the lower court’s rulings that claimants who received pandemic unemployment assistance, without showing “total unemployment,” had to pay back the benefits. The nuance here is that New York’s unemployment law requires “total” unemployment, while the CARES Act that funded state pandemic assistance for unemployment due to the pandemic did not require total unemployment. The Court of Appeals found that the New York law does not fundamentally conflict with the CARES Act.

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