You are here: / / THE BOARD ACCEPTED ONE EXPERT’S OPINION AND REJECTED THE OTHER BASED...

THE BOARD ACCEPTED ONE EXPERT’S OPINION AND REJECTED THE OTHER BASED ON AN ISSUE THE EXPERTS WERE NEVER ASKED ABOUT; DECISION REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board relied on an issue the experts were never asked about. One expert (Katz) found that claimant lost 3.3% of his hearing and the other (Alleva) found claimant had lost 45.3% of his hearing. The Board rejected Alleva’s opinion and adopted Katz’s concluding claimant had not explained how he could have done his job with a 50% hearing loss, an issue not discussed by the experts:

Although ‘[t]he Board’s authority in assessing the credibility of witnesses includes the power to selectively adopt or reject portions of a medical expert’s opinion, . . . as with any administrative determination, the Board’s decision in this regard must be supported by substantial evidence” … . There is no evidence in the record that Alleva was asked to explain how claimant was able to work with a 45.3% loss of hearing. Nor is there any evidence in the record that the issue of whether claimant’s hearing loss would have affected his job performance was ever raised by either party or their medical experts before the Workers’ Compensation Law Judge. In light of the dearth of evidence supporting the conclusions reached by the Board, we cannot say that its decision was supported by substantial evidence in the record. Matter of Mogilevsky v New York City Tr. Auth., 2022 NY Slip Op 01088, Third Dept 2-17-22

 

You might also like
Release Precluded Civil Rights Action; No Showing Release Signed Under Duress; Releases Signed Under Duress Are Voidable Not Void
PARALEGAL IN SMALL LAW OFFICE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS.
JURY SHOULD HAVE BEEN INSTRUCTED ON THE “INNOCENT POSSESSION OF A WEAPON” DEFENSE, CONVICTIONS REVERSED (THIRD DEPT).
PLAINTIFF, AN EXPERIENCED MOTOCROSS RIDER, ASSUMED THE RISK OF LOSING CONTROL OF HIS BIKE UPON LANDING AFTER A JUMP; PLAINTIFF WAS AWARE THAT SOME ASPECT OF THE LANDING AREA CAUSED HIM TO LOSE CONTROL OF THE BIKE ON A PRIOR PRACTICE RUN BUT DID NOT INVESTIGATE (THIRD DEPT).
Judge’s Failure to Apply the “Prejudice versus Probative” Balancing Test to Evidence of Uncharged Bad Acts and Crimes, Combined with the Judge’s Failure to Give the Jury Limiting Instructions About How Such Evidence is to Be Considered by Them, Required Reversal of Defendant’s Conviction
FAILURE TO INCLUDE THE APPROXIMATE TIME OF THE COMMISSION OF THE OFFENSE IN THE SUPERIOR COURT INFORMATION (SCI) IS NOT A JURISDICTIONAL DEFECT (THIRD DEPT). ​
HEARING OFFICER’S REFUSAL WITHOUT EXPLANATION TO CALL A WITNESS TO THE INCIDENT REQUIRED ANNULMENT AND EXPUNGEMENT.
THE EVIDENCE DEMONSTRATED RESPONDENT, WHO HAD ENTERED A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT TO RAPE, ASSAULT AND OTHER CHARGES, SUFFERED FROM A DANGEROUS MENTAL DISORDER REQUIRING CONTINUED PLACEMENT IN A SECURE FACILITY, SUPREME COURT REVERSED (THIRD DEPT).

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALLOWING THE PEOPLE’S INVESTIGATOR TO GO INTO THE JURY ROOM DURING DELIBERATIONS... THE NOTICE OF TERMINATION OF A LEASE DID NOT COMPLY WITH THE HUD REGULATION...