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THE BOARD HAS THE AUTHORITY TO CHOOSE BETWEEN TWO CONFLICTING MEDICAL OPINIONS, HERE DEALING WITH WEANING CLAIMANT FROM OPIOID PAIN KILLERS (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board has the authority to chose between two conflicting medical opinions. Here claimant had significant pain was was taking high doses of opioids. The independent medical examiner (IME) had one opinion about how the claimant should be weaned from the opioids and claimant’s own physician had a different […]

SPECULATIVE MEDICAL OPINION DID NOT SUPPORT FINDING CLAIMANT’S PRIOR EMPLOYER LIABLE FOR ASBESTOS-RELATED MESOTHELIOMA, DESPITE EVIDENCE OF EXPOSURE AT THE PRIOR EMPLOYER (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly found that claimant’s mesothelioma was due to asbestos exposure at Kodak, even though claimant was exposed to asbestos in his prior employment at International Paper. Kodak unsuccessfully sought apportionment of the liability with International Paper. Claimant’s employment at International Paper ended in 1967 and claimant worked […]

CLAIMANT WAS WRONGFULLY TERMINATED AFTER TELLING HIS BOSS HE WAS GOING TO FILE A WORKERS’ COMPENSATION CLAIM, A VIOLATION OF WORKERS’ COMPENSATION LAW SECTION 120 (THIRD DEPT).

The Third Department determined claimant was terminated because he told the executive manager he would be filing a workers’ compensation claim and taking time off after a slip and fall injury, a violation of Workers’ Compensation Law section 120: “Workers’ Compensation Law § 120 prohibits an employer from discriminating against an employee who has filed […]

SECURITIES TRADER IS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, a securities trader who worked for Quad Capital, LLC, was an employee entitled to unemployment benefits: The record establishes that claimant submitted a resume and was interviewed by a managing partner at Quad Capital. After certain criteria, such as a trading license, fingerprints and background check were completed, claimant entered […]

THE CARRIER’S FAILURE TO INDICATE WHEN IT OBJECTED TO THE RULING OF THE WORKERS’ COMPENSATION LAW JUDGE JUSTIFIED THE DENIAL OF THE CARRIER’S APPLICATION FOR REVIEW (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board did not abuse its discretion when it denied the carrier’s application for review because question 15 on the application form did not indicate when the relevant objection to the Workers’ Compensation Law Judge (WCLJ) was made: When the carrier filed its application for Board review … , […]

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WAIVER OF APPEAL INVALID; THERE WAS PROBABLE CAUSE FOR THE DWI ARREST EVEN THOUGH NO FIELD SOBRIETY TESTS WERE CONDUCTED; BETTER PRACTICE WOULD BE FOR THE PROSECUTOR TO PLACE THE EVIDENCE OF DEFENDANT’S GUILT ON THE RECORD AT THE TIME OF AN ALFORD PLEA (THIRD DEPT).

The Third Department, affirming defendant’s DWI conviction by guilty plea, determined the waiver of appeal was insufficient. The Third Department noted that the better practice would have been to place the evidence of defendant’s guilt on the record at the time of the Alford plea, and found the arresting officer had probable cause without conducting field sobriety […]

CLAIMANT’S FAILURE TO COMPLY WITH THE FORMATTING REQUIREMENTS SUPPORTED THE DENIAL OF CLAIMANT’S APPLICATION FOR BOARD REVIEW (THIRD DEPT).

The Third Department determined claimant’s failure to comply with the formatting requirements supported the denial of claimant’s application for Board review: The Board’s instructions for the RB-89 form regarding question number 13 required that claimant specify the date and document ID numbers of “the transcripts, documents, reports, exhibits, and other evidence in the Board’s file […]

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JUDGE WHO WAS THE DISTRICT ATTORNEY WHEN DEFENDANT WAS INDICTED WAS DISQUALIFIED FROM HEARING DEFENDANT’S MOTION TO VACATE HIS CONVICTION (FOURTH DEPT).

The Fourth Department, reversing County Court’s summary denial of defendant’s motion to vacate his conviction, determined the judge, who was the District Attorney when defendant was indicted, was disqualified from handling the motion: The Judge who denied defendant’s motion had been the Niagara County District Attorney when defendant was indicted in 2007 on the charges […]

TRAFFIC STOP WAS NOT SUPPORTED BY PROBABLE CAUSE TO BELIEVE DEFENDANT HAD COMMITTED A TRAFFIC VIOLATION (FOURTH DEPT).

The Fourth Department, reversing the Administrative Law Judge, determined defendant’s driver’s license should not have been revoked. The record lacked substantial evidence that the police officer had probable cause to believe defendant had committed a traffic violation when he made the traffic stop which resulted in defendant’s refusing to submit to a chemical test: A […]

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