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THE CITY CANNOT SEEK REIMBURSEMENT FROM WORKERS’ COMPENSATION AWARDED TO A DISABLED FIREFIGHTER WHERE THE FIREFIGHTER RECEIVED BENEFITS FROM MORE THAN ONE SOURCE WHICH, IN TOTAL, EXCEEDED THE FIREFIGHTER’S FORMER SALARY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the city (Newburgh) could not recoup payments made to a disabled firefighter (Mr. Schulze) from workers’ compensation awards. The opinion is too complex to fairly summarize here:

​Pursuant to a complicated statutory scheme, paid firefighters outside New York City who become disabled at work may receive benefits from different sources: their local governmental employer, New York State, and the Workers’ Compensation System. Adam Schulze is a retired paid firefighter who, when employed by the City of Newburgh, was disabled in the performance of duty. He received benefits from all three sources. This case concerns whether the City can compel the Workers’ Compensation Board to pay Mr. Schulze’s workers’ compensation benefits to the City, as a way to allow it to recoup an overpayment it claims to have made to Mr. Schulze. Based on the clear language of the relevant statutes, the City cannot do so. * * *

Neither Workers’ Compensation Law § 25 (4) (a) nor Workers’ Compensation Law § 30 (2) allows reimbursement from workers’ compensation awards for payments made under General Municipal Law § 207-a (2). The provision that prevents Mr. Schulze and other firefighters like him from receiving duplicative benefits is General Municipal Law § 207-a (4-a). The City of Newburgh Fire Department is therefore not entitled to reimbursement directly from Mr. Schulze’s workers’ compensation award for its prior payments to him under General Municipal Law § 207-a (2). Matter of Schulze v City of Newburgh Fire Dept., 2025 NY Slip Op 02101, CtApp 4-10-25

Practice Point: Consult this opinion for a breakdown of the sources of disability payments available to an injured firefighter who was employed outside New York City.​

 

THE WORKERS’ COMPENSATION BOARD’S CONCLUSION THAT CLAIMANT DID NOT PARTICIPATE IN THE WORLD TRADE CENTER RESCUE AND CLEANUP OPERATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board’s conclusion that claimant did not participate in the rescue, recovery and cleanup operations at the World Trade Center (WTC) was not supported by the evidence:

… [C]laimant testified that, during her October 2001 and December 2001 assignments, she was assigned to the NYPD’s command center for the rescue, recovery and cleanup operations. The command center was located 600 feet from the WTC site and there were areas set up at the command center for claimant and others to provide mental health support to police and fire department personnel working on the rescue, recovery and cleanup operations at the site. According to claimant, she would respond to calls concerning distressed workers and those individuals would be brought to the command center or claimant would go the rubble pile where they were working. Claimant would do an assessment as to the extent of the individual’s mental health condition and determine whether the individual could continue working or be taken off line and provided mental health treatment through the NYPD employee assistance program. McArdle [NYPD on-site coordinator] testified that he remembered claimant being at the command center and providing support to those working in the rescue, recovery and cleanup operation and that she was “well received” by the NYPD. McArdle further testified that identifying those individuals who needed to be taken off line for treatment was instrumental in continuing the operation and that many of those individuals were able to return to the operation after treatment. Matter of Goss v WTC Volunteer, 2025 NY Slip Op 01413, Third Dept 3-13-25

 

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HERE THE ADMINISTRATOR OF PLAINTIFF’S DECEDENT’S ESTATE BROUGHT A WRONGFUL DEATH ACTION IN SUPREME COURT AND DEFENDANTS MOVED FOR SUMMARY JUDGMENT ARGUING PLANTIFF’S EXCLUSIVE REMEDY WAS WORKERS’ COMPENSATION; RATHER THAN DECIDE THE MOTION, SUPREME COURT SHOULD HAVE REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD WHICH HAS PRIMARY JURISDICTION RE: THE APPLICABILITY OF THE WORKERS’ COMPENSATION LAW (SECOND DEPT).

The Second Department reversed Supreme Court’s denial of defendants’ summary judgment motion in this wrongful death action and referred the matter to the Workers’ Compensation Board. Whether, as defendants argued in their motion, plaintiff’s decedent’s exclusive remedy is Workers’ Compensation must be determined by the Workers’ Compensation Board before a court can consider the issue:

“The Workers’ Compensation Law ‘is designed to insure that an employee injured in course of employment will be made whole and to protect a coemployee who, acting within the scope of his [or her] employment caused the injury'” … . “[P]rimary jurisdiction” for determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board (hereinafter the Board) … , and it is therefore inappropriate for the courts to express views with respect thereto in the absence of a determination by the Board … . “Where the issue of the applicability of the Workers’ Compensation Law is in dispute, and a plaintiff fails to litigate that issue before the Board, a court should not express an opinion as to the availability of compensation, but should refer the matter to the Board because the Board’s disposition of the plaintiff’s compensation claim is a jurisdictional predicate to the civil action … . Guang Qi Lin v Xiaoping Lu, 2025 NY Slip Op 00309, Second Dept 1-22-25

Practice Point: Here in this wrongful death action defendants argued plaintiff’s exclusive remedy was Workers’ Compensation. Because that issue had not been determined by the Workers’ Compensation Board, Supreme Court could not rule on it and should have referred the matter to the Board which has primary jurisdiction on the applicability of the Workers’ Compensation Law.

 

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DETERMINING SCHEDULE LOSS OF USE BY COMPARING THE RANGE OF MOTION OF LIMBS ON THE INJURED SIDE TO THE RANGE OF MOTION OF CORRESPONDING LIMBS ON THE OTHER SIDE MAY NOT BE APPROPRIATE IF THE OTHER SIDE HAS ALSO SUFFERED INJURIES, WHETHER PERMANENT OR TEMPORARY, IN THE PAST (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined comparison of the ranges of motion of the injured limbs to the corresponding limbs on the other side of the body (contralateral members), which resulted in 0 % loss of schedule use (SLU), was a flawed approach. The Board concluded that such a comparison was not appropriate only if the injuries on the other side of the body are permanent, which was not demonstrated to be the case here. The Third Department disagreed and held that the comparison may also be inappropriate if the prior injuries on the other side of the body were temporary, The matter was remitted:

… [W]e agree that evidence of a permanent physical or functional impairment of the contralateral member due to traumatic injury or other condition that does not affect the subject member would render a comparison to the contralateral member when determining range of motion inappropriate. However, comparing contralateral members that have temporary physical or functional impairments, either due to work-related or nonwork-related injuries, would also be inappropriate as such comparisons could equally result in inequitable range of motion findings. In our view, the Board’s interpretation of section 1.3 (3) (b) of the guidelines to apply only to permanent physical or functional impairments is unreasonable and cannot be upheld … . Here, the Board rejected [the] findings that a comparison of the contralateral members was inappropriate due to a lack of evidence that the injuries that claimant suffered to those members in the 2014 work-related accident resulted in permanent impairments. Under these circumstances, we remit the matter to the Board so that a proper assessment regarding a comparison of contralateral members may occur … . Matter of Brooks v New York City Tr. Auth., 2025 NY Slip Op 00130, Third Dept 1-9-25

Practice Point: Consult this decision for insight into the problems raised by determining a loss of schedule use by comparing ranges of motion on both sides of the body. Comparison of the injured side to the other side may not be appropriate if the other side has been injured in the past.

 

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THE JUSTICE FOR INJURED WORKERS ACT (JIWA), WHICH TOOK EFFECT DECEMBER 30, 2022, AMENDED THE WORKERS’ COMPENSATION LAW SUCH THAT A WORKERS’ COMPENSATION BOARD RULING CANNOT BE GIVEN COLLATERAL ESTOPPEL EFFECT IN A SUBSEQUENT PERSONAL INJURY ACTION; THE FIRST DEPARTMENT HELD THE JIWA APPLIES RETROACTIVELY (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, determined the amendment to the Workers’ Compensation Law (the Justice for Injured Workers Act [JIWA]), which precludes giving a Workers’ Compensation Board’s ruling collateral estoppel effect in a subsequent personal injury action, applies retroactively. Therefore the defendants’ motion for leave to amend their answer to add the collateral estoppel defense should have been denied:

Plaintiff alleges that he sustained neck and back injuries in a construction site accident that occurred on August 6, 2020. He commenced this action on September 28, 2020, and separately applied for workers’ compensation benefits. In a decision filed October 19, 2021, a three-judge panel of the Workers’ Compensation Board held that plaintiff’s claimed injuries were not causally related to his accident. … [D]efendants moved, in effect, for summary judgment dismissing plaintiff’s neck and back claims, based on the Workers’ Compensation Board’s decision to which, they argued, the court should give collateral estoppel effect. * * *

JIWA’s legislative sponsor explained that its purpose was to correct what the Legislature perceived to be an injustice to injured workers caused by Second Department precedent (see Langdon v WEN Mgt. Co. (147 AD2d 450 [2d Dept 1989]) and left unresolved by the Court of Appeals’ decision in Auqui v Seven Thirty One Ltd. Partnership (22 NY3d 246 [2013]) … . Thus, JIWA was intended to return to what the Legislature perceived to have been the rule “for almost 80 years” — namely that courts, in third-party actions, would “reject[ ] attempts by defendants to apply collateral estoppel” to decisions reached in the “swift[ ]” and “cursory” workers’ compensation context — and that workers would not be prevented “from exercising their constitutional right to a jury trial” … . Accordingly, the Legislature clearly intended JIWA to be remedial in nature, to correct an unintended judicial interpretation, and to reaffirm what the Legislature believed the law should be. Garcia v Monadnock Constr., Inc., 2025 NY Slip Op 00154, First Dept 1-9-25

Practice Point: The December 30, 2022, amendment to the Workers’ Compensation Law which precludes giving Workers’ Compensation Board rulings collateral estoppel effect in subsequent personal injury actions applies retroactively.

 

CLAIMANT DEMONSTRATED HE HAD NOT REMOVED HIMSELF FROM THE LABOR MARKET WITH DOCUMENTARY EVIDENCE; CLAIMANT WAS THEREFORE ENTITLED TO BENEFITS FROM THE TIME HE DEMONSTRATED ATTACHMENT TO THE WORKFORCE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, over a dissent, determined claimant sufficiently demonstrated he had not removed himself from the job market and was therefore entitled to benefits:

Claimant submitted extensive evidence of his job search, both through job location services and individually, providing more than 600 pages of proof that he filed applications to numerous job postings. These included applications for positions such as dishwasher, doorman, cook, parking garage attendant, kitchen attendant/helper, juice barista and laundry attendant. However, as claimant testified, despite having applied for innumerable jobs, he did not receive any interviews. He also applied for vocational rehabilitation services and was advised to enroll in English as a second language classes, which he promptly did. The WCLJ found that claimant demonstrated attachment to the workforce as of November 16, 2021, the date his English classes started, and we agree.

We are mindful that the Board “is the sole arbiter of witness credibility” … , but the decision here does not hinge on witness credibility. Rather, documentary evidence amply demonstrates that claimant has engaged in a “diligent and persistent job search so as to demonstrate attachment to the labor market” …, and we find that the Board’s conclusion to the contrary is not supported by substantial evidence…. . Matter of Lapan v Trade Winds Envtl., 2024 NY Slip Op 05929, Third Department 11-27-24

Practice Point: Here there was documentary evidence claimant was trying to find work. The Workers’ Compensation Board’s conclusion claimant had removed himself from the workforce was reversed.

 

BECAUSE CLAIMANT SUFFERED PHYSICAL TRAUMA, TO RECOVER FOR PSYCHOLOGICAL INJURIES SHE NEED ONLY DEMONSTRATE A CONNECTION BTWEEN THE PSYCHOLOGICAL INJURIES AND THE PHYSICAL TRAUMA; CLAIMANT WAS NOT REQUIRED TO PROVE A SEPARATE AND DISTINCT WORKPLACE INJURY CAUSED THE PSYCHOLOGICAL INJURIES (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the claimant need only demonstrate a connection between the physical trauma she suffered when a dog jumped on her and the psychological injuries which followed. Claimant did not have to prove the psychological injuries were caused by a separate workplace accident. Claimant, a social worker, was making a home visit when a family dog charged at her:

… [I]t has long been recognized that where a workplace accident is found to have occurred as a result of a physical impact/trauma, resulting physical and psychological injuries are both compensable, so long as the claimant establishes the causal connection between the accident and the alleged injuries … .

Here, the Board established a claim for a physical injury to claimant’s chest based upon the dog jumping on her chest and knocking her into the side of the house. As claimant alleges that her psychological injuries resulted from that same physical impact that the Board found amounted to a workplace accident, the Board erred in requiring that she establish a separate workplace accident comprised of work-related stress to recover for her alleged direct psychological injuries … . Rather, upon finding that a workplace accident had been established, the Board’s inquiry was limited to whether claimant showed, through competent medical evidence, that there was a causal relation between the accident and the injury … . Accordingly, the Board’s decision is reversed, and the matter is remitted to the Board to examine whether a causal connection was established between the workplace accident and the alleged psychological injuries consisting of PTSD, anxiety and acute stress disorder. Matter of Lewis v NYC Admin. for Children Servs., 2024 NY Slip Op 05254, Third Dept 10-24-24

Practice Point: The Workers’ Compensation Law allows recovery for psychological injuries caused by physical trauma.

 

THE WORKERS’ COMPENSATION BOARD SHOULD NOT HAVE OFFSET THE SLU AWARD FOR CLAIMANT’S ARM INJURY BASED ON A PRIOR SLU AWARD FOR INJURY TO THE SAME ARM; THE TWO INJURIES WERE NOT RELATED (THIRD DEPT)

The Third Department, reversing the Workers’ Compensation Board, determined claimant was entitled to a schedule loss of use (SLU) award for injury to his arm, despite a prior SLU award for injury to the same arm. The injuries involved different pathologies:

​”Pursuant to Matter of Genduso [v New York City Dept. of Educ. (164 AD3d 1509 [3d Dept 2018])] and its progeny, the Board may offset an SLU award by previous SLU awards for the same body member, regardless of whether the prior injuries involved the same or separate parts of that member” … . However, the Court of Appeals has held that an offset of an SLU award by previous SLU awards for the same body member “is not required when the claimant demonstrates that a subsequent injury increased the loss of use of [the] body member beyond that resulting from the prior injury” (Matter of Johnson v City of New York, 38 NY3d at 444 …). Such demonstration may include medical evidence that a prior injury and the current injury to the same member are “separate pathologies that each individually caused a particular amount of loss of use of [the subject member]” … and that the current injury resulted in a greater degree of loss of use of the body member in question “beyond that . . . [of] the prior injury” … . * * *

… [C]laimant’s physician clearly stated that claimant had “received a scheduled loss of use of 27% for the right shoulder,” and, in his July 2021 report, claimant’s physician opined that the surgery he had performed for claimant’s 2015 shoulder injury was “unrelated” to the 2019 biceps injury. Claimant’s physician made it clear that the 33.33% SLU that he found claimant had sustained for the biceps injury was separate from, and in addition to, the prior shoulder injury. Thus, in accordance with the holding in Matter of Johnson, the SLU attributable to the prior shoulder injury should not have been deducted from the SLU attributable solely to the biceps injury, and we find that the Board’s determination is not supported by substantial evidence. Matter of Germano v Dynamic Appliances, Inc., 2024 NY Slip Op 05259, Third Dept 10-24-24

Practice Point: A claimant is eligible for more than one SLU award for injuries to the same body part if the injuries are not related and involve different pathologies.

 

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ALTHOUGH DEFENDANT DID NOT PRODUCE AN EMPLOYMENT CONTRACT WITH PLAINTIFF, DEFENDANT DEMONSTRATED IT WAS PLAINTIFF’S SPECIAL EMPLOYER; THEREFORE PLAINTIFF’S PERSONAL INJURY ACTION WAS PRECLUDED BY HIS ELECTION OF WORKERS’ COMPENSATION BENEFITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant was plaintiff’s special employer and plaintiff’s action for personal injury was precluded by his election of workers’ compensation benefits:

Plaintiff testified that he received all his work instructions from an employee of defendant, the building’s manager … . Both plaintiff and the building’s manager testified that they considered the building manager to be plaintiff’s boss or supervisor … .

The evidence thus showed that defendant “supervised, directed and controlled plaintiff’s work” … . Although defendant has produced no contract between itself and the building owner, such a contract is not a prerequisite for special employment status … . Therefore, defendant has established its prima facie case that it was plaintiff’s special employer, which plaintiff has failed to rebut with any issue of fact…. . Payano v Proto Prop. Servs. LLC, 2024 NY Slip Op 04915, First Dept 10-8-2024

Practice Point: Here defendant was deemed plaintiff’s special employer, despite the absence of an employment contract. Therefore plaintiff’s election to receive workers’ compensation benefits precluded his personal injury action against defendant.

 

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WHETHER THE CHILD VICTIMS ACT (CVA) REVIVES OTHERWISE TIME-BARRED WORKERS’ COMPENSATION CLAIMS AND WHETHER PLAINTIFF’S DAMAGES ARE LIMITED TO WORKERS’ COMPENSATION BENEFITS ARE QUESTIONS OF LAW FOR THE COURT, NOT THE WORKERS’ COMPENSATION BOARD (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, held the court, not the Workers’ Compensation Board, must determine whether damages in this Child Victims Act (CVA) sexual-abuse action against the alleged perpetrator’s employer are limited to Workers’ Compensation benefits and whether claims for time-barred Workers’ Compensation benefits are revived by the Child Victims Act (CVA):​

” ‘As a general rule, when an employee is injured in the course of . . . employment, [the employee’s] sole remedy against [their] employer lies in [their] entitlement to a recovery under the Workers’ Compensation Law’ ” … . “[T]he issue whether a plaintiff was acting as an employee of a defendant at the time of the injury is a question of fact to be resolved by the Board” … .

“[C]ourts defer to [an] administrative agency where the issue involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom” … . However, “[w]here . . . the question is one of pure statutory interpretation, [courts] need not accord any deference to [an administrative body’s] determination and can undertake its function of statutory construction” … . As relevant here, although a factual determination with respect to the applicability of the Workers’ Compensation Law should be referred to the Board, which has primary jurisdiction over that issue, questions of law remain within the domain of the court … . Here, whether the CVA revives otherwise time-barred claims for workers’ compensation benefits, based on allegations of sexual abuse by a coworker, and whether plaintiffs are limited to benefits under the Workers’ Compensation Law even if their claims are revived, are questions of law to be decided by the court, not the Board. Thus, we agree with the plaintiffs that Supreme Court erred in granting defendant’s motion, staying the actions pending review by the Board, and holding plaintiffs’ cross-motions to amend their complaints in abeyance pending the Board’s decision. Bates v Gannett Co., Inc., 2024 NY Slip Op 03999, Fourth Dept 7-26-24

Practice Point: This decision deals with the questions of law raised by applying the Workers’ Compensation Law to sexual abuse claims revived by the Child Victims Act (CVA).​

 

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