Garland v. N.Y.C. Dep't of Corr.

204 A.D.3d 1198

167 N.Y.S.3d 216

In the Matter of the Claim of Veronica GARLAND, Appellant,

v.NEW YORK CITY DEPARTMENT OF CORRECTIONS, Respondent.

Workers’ Compensation Board, Respondent.

533107

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 17, 2022

Decided and Entered: April 14, 2022

Rella & Associates, PC, Sleepy Hollow (Alexander S. Ankier of counsel), for appellant.

Sylvia O. Hinds–Radix, Corporation Counsel, New York City (Emma Semerad of counsel), for New York City Department of Corrections, respondent.

Before: Garry, P.J., Lynch, Pritzker, Colangelo and McShan, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a decision of the Workers’ Compensation Board, filed November 2, 2020, which ruled that claimant is not entitled to a schedule loss of use award.

Claimant, a correction officer, has an established claim for work-related injuries to her back, both shoulders, right elbow, right wrist, right knee and right foot, stemming from an incident in 2011. Claimant also has an established claim for injuries sustained in 2009 to her back, right elbow and right shoulder, for which she was found in 2015 to have a 22.5% schedule loss of use (hereinafter SLU) of her right arm. The 2011 claim has been the subject of protracted litigation regarding permanency, loss of wage-earning capacity and claimant's entitlement to an SLU award or a nonschedule award for her permanent partial disability classification. Adrian Cristian, who was appointed in 2015 as an impartial specialist, examined claimant and submitted a report regarding SLU. As relevant here, the Workers’ Compensation Board found, in an April 2017 decision, that claimant had ongoing injuries that were amenable to a nonschedule classification but that she was not yet entitled to an indemnity award given her return to work at full wages. Thereafter, further permanency opinions were submitted.

In a June 2018 decision, a Workers’ Compensation Law Judge (hereinafter WCLJ) reviewed the medical reports to date and reinstated a finding that, as a result of claimant's permanent partial disability, she had a 60% loss of wage-earning capacity; no appeal was filed from that decision. The Board subsequently issued a decision in May 2019, holding that claimant was not entitled to an SLU award for her permanent partial disability although she had returned to work at preinjury wages and was not entitled to a nonschedule award. As pertinent here, claimant moved to reopen her case following our decision in Matter of Arias v. City of New York, 182 A.D.3d 170, 174, 120 N.Y.S.3d 203 (2020), which held that, where a worker sustains both schedule and nonschedule injuries in the same accident and no initial award is made based upon the injured worker's nonschedule classification, the worker may be entitled to an SLU award for permanent partial impairments to statutorily enumerated body parts ( id. ; see Matter of Taher v. Yiota Taxi, Inc., 162 A.D.3d 1288, 1290, 78 N.Y.S.3d 500 [2018], lv dismissed 32 N.Y.3d 1197, 95 N.Y.S.3d 150, 119 N.E.3d 790 [2019] ; Workers’ Comp Bd Release Subject No. 046–1211 [March 13, 2020]).

In a July 2020 decision, a WCLJ recognized that, under Matter of Arias, claimant could be entitled to receive an SLU award given that no initial award was made for her nonschedule classification. The WCLJ considered the report of the self-insured employer's medical examiner, ...