You are here: / / THE WORKERS’ COMPENSATION BOARD HAD PREVIOUSLY HELD THAT, IN A HEARING-LOSS...
,

THE WORKERS’ COMPENSATION BOARD HAD PREVIOUSLY HELD THAT, IN A HEARING-LOSS CASE, THE FAILURE TO INCLUDE THE AUDIOGRAM (HEARING TEST) WITH THE INDEPENDENT MEDICAL EXAMINATION RECORD PRECLUDES CONSIDERATION OF THE EXPERT EVIDENCE; THE AUDIOGRAM WAS NOT INCLUDED HERE AND THE BOARD DID NOT EXPLAIN ITS DEPARTURE FROM PRECEDENT (BY CREDITING THE EXPERT EVIDENCE); DETERMINATION REVERSED (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board in this hearing-loss case, determined the carrier’s expert’s (Arick’s) failure to include the audiogram (hearing test) with the independent medical examination (IME) record required that the expert’s evidence be precluded. There was precedent to that effect and the board did not explain its departure from precedent:

Arick could not explain during his testimony, however, why a copy of his audiogram was neither provided with his IME report nor present in the Board’s file, and claimant’s counsel continued to raise this point during the hearing, on administrative appeal to the Board and now again before this Court. As claimant argues, the Board has previously determined that where an audiogram test providing the basis for a physician’s SLU [schedule loss of use] finding does not accompany the IME report and is not submitted to the Board file, that physician’s IME report and findings must be precluded … . …

The Board failed to address claimant’s contention regarding the omission of Arick’s audiogram from his IME and the record and, as such, has not provided a rational explanation for departing from its prior decision requiring that an audiogram be submitted to the Board with the IME report (see Workers’ Compensation Law § 137 [1] [a]; 12 NYCRR 300.2 [d] [4] [iii], [iv]; [12]). Inasmuch as the Board has not provided a rational basis for departing from its own precedent, its decision must be reversed … . Matter of Cala v PAL Envtl. Safety Corp., 2022 NY Slip Op 01498, Third Dept 3-10-22

Practice Point: If the Workers’ Compensation Board departs from its own precedent without explanation, the determination will be reversed.

 

You might also like
THE “ESSENTIAL ELEMENTS” TEST SHOULD BE USED TO DETERMINE WHETHER AN OUT-OF-STATE NON-SEXUAL CONVICTION CAN BE USED TO ASSESS RISK-LEVEL POINTS UNDER SORA (THIRD DEPT).
STATUTE REQUIRING TIMELY NOTICE OF THE ACCIDENT DID NOT REQUIRE NOTICE OF ALL THE INJURIES STEMMING FROM THE ACCIDENT.
ZONING BOARD OF APPEALS’ RULING THAT A NONCONFORMING USE HAD NOT BEEN DISCONTINUED OR ABANDONED SHOULD NOT HAVE BEEN REVERSED.
LAW OFFICE FAILURE WARRANTED VACATING THE DISMISSAL OF THE FORECLOSURE ACTION STEMMING FROM PLAINTIFF BANK’S FAILURE TO APPEAR AT A SCHEDULED CONFERENCE (THIRD DEPT).
ITHACA’S FEE SCHEDULE FOR PERMITS ALLOWING THE CLOSURE OF STREETS AND SIDEWALKS FOR CONSTRUCTION ON PRIVATE PROPERTY IS VALID, SUPREME COURT REVERSED (THIRD DEPT).
THE VOTERS WHOSE ABSENTEE BALLOTS WERE CHALLENGED ON RESIDENCY GROUNDS ARE NECESSARY PARTIES WHO WERE NOT INCLUDED IN THIS PROCEEDING; THE ELECTION LAW PROCEDURES FOR CHALLENGING THE ABSENTEE BALLOTS WERE NOT FOLLOWED; MATTER REMITTED (THIRD DEPT).
FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED.
Slip and Fall in Employee Parking Area Was Compensable

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

TENANTS’ CAUSES OF ACTION FOR TENANT (STATUTORY) HARASSMENT, PRIVATE NUISANCE,... ALTHOUGH THE EMPLOYER WAIVED ITS OWN INDEPENDENT MEDICAL EXAMINATION, THE EMPLOYER...