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NY WCB makes up the law, again?

As a practitioner before the NY Workers Compensation Board it is often to my consternation that I have a perfectly good case or claim from a legal persepective and the powers that be at the WCB make a ruling that seems to bend and twist the legal standards and guidelines, often to the detriment of my client, or even to my advesarys detriment when they have the better (did I say that!) arguement.

Well, in a short but well reasoned decision, the Appellate Division, Third Department (the only Appeals Court that can hear Workers Compensation claims in NY) reversed the WCB (that is overtunred the WCB ruling) and sent the case back to the WCB to be properly reviewed.

The basis of the reversal was pretty simple (and a bit embarrassing). The WCB asserted the correct legal standard – the WCB "has the right to determine conflicting medical evidence if supported by substantial evidence". But the Court went on to note that the WCB, in Carlucci v. Omnibus the WCB

1) Relied on an inaccurate legal standard
2) Based its decision on incorrect factual assertions
3) Based its decision on a misreading of the record

In short, the WCB relied on the WCB Medical Guidelines (1996) for back injuries, but this was NOT a back injury.

Result, reveresed and sent back to the Board.

LESSON — Really, really READ your decisions.

I would add one additional step – check the actual cases the WCB sites in its decisions, they are often wrong!

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0 Response

  1. Doris J Brown

    I have experienced a very similar occurrence with the Federal Workers Compensation Board of Appeals in 2007. The OWCP Board of Appeals denied my job injury claim, by omitting use of my inury medical records for a fall injury to my left knee; and instead used medical records of fall problems with my back, for which no falls ever occurred involving my knees nor was a claim filed for my back. I did however, have squatting or sitting falls to my buttock, yet the record did not specify a location or body part of the falls (I had spinal stenosis at the L-4 to L-5 levels, subsequently causing weakness and decreased strength to lower extremities, resulting in sitting/squatting falls ). The Board of Appeals just made up a decision to dismiss my claim, subsequently, leaving me in major financial distress and lingering medical problems, having had 2 surgeries to my left knee (one 2003, another 2008) with left foot intermittent leg dragging and unresolved/untreated medical problems to left arm/shoulder/hand. I was reviewing workers compensation cases, and came across your case. I am currently tryig to determine a solution to my dilema, as I understand that I have no rights after all appeals have been exhausted, which I feel was done willfully and intentionally for the agency (Department of Veterans Affairs)to favoraly prevail. This decision was a grave and unjust act done to me, causing a forced early retirement to have income to save my home but yet not enough income to live on. I won my workers compensation initial claim and the agency had claim later rescinded.

fnfhn