Two new Appellate Division cases were released on Thursday, May 16, 2024, involving New York Workers’ Compensation.
Evans v. Northeast Logistics, CV-23-0355 3rd Dept. (5/16/24):
The claimant, a delivery driver, who was hurt the first day on the job was determined by the Board to be an employee in a General/Special relationship of two named employers. “General” referring to a party who hires and pays. “Special” being an entity to whom an employee is loaned and controls the work. Both can be found liable. In this case, the carriers appealed the General/Special determination. The Board Panel rejected the appeal because it was not served on the Uninsured Employment Fund (UEF) who was also an interested party. The 3rd Dept. held that this error did not warrant rejection of the appeal. The 3rd Dept. held here that, in part, because the UEF filed a timely rebuttal, they had demonstrated actual notice of the carrier’s appeal and was, therefore, not prejudiced. The 3rd Dept. also found persuasive that the Board Panel’s underlying Notice of Decision which was the subject of the appeal did not list the UEF as a party. The Appellate Division remitted the case back to the Board to determine the merits. This decision, while having extenuating circumstances, might strategically give a party pause before submitting a timely rebuttal if they believe that the notice requirement was not satisfied.
Garrow v. Lowe’s, CV-23-0067 3rd Dept. (5/16/24):
In this case, the claimant injured his shoulder while moving a refrigerator in 2004. He had surgery for a torn bicep in 2014. The parties agreed to a SLU award at 45% of the left arm in 2015. In 2020, the claimant received additional treatment and had another surgery on the left shoulder. This time, it was revealed that he had a rotator cuff tear. The claimant sought to have his SLU award increased. The Board Panel determined that it was bound by the Impairment Guidelines special consideration limits on awards, here, at 33 1/3% for the arm. However, the 3rd Dept. reversed and remitted the issue back to the Board because the Court believed that the Board is not limited to the special considerations where there is both a condition encompassed by a special consideration and a diagnosis that is not governed by the special consideration at issue, i.e. a torn rotator cuff.
