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Appellate Division Cases of Note

On 6/27/19, the Appellate Division, Third Department, decided Ferguson v. Eallonardo Construction, Inc.  This decision reaffirms the principle that both claimants and carriers have the right to cross-examine the opposite party’s medical professional as long as a timely request is made regardless of whether they have contrary medical evidence. In this case, the Board held that claimant’s counsel waived any right to cross-examine the carrier’s IME consultant by not producing a timely contrary medical opinion. The court held that the right to cross-examine the opposing party’s medical professional is not conditioned on production of a contrary medical opinion. The only requirement is a timely request for cross-examination. The court held that a request to cross-examine an opposing party’s medical professional on permanency is timely when it is made at the first hearing addressing permanency. The court reversed the Board’s decision and remanded for further proceedings.   
On 8/1/19, the Appellate Division, Third Department, decided Donald Marcy v. City of Albany Fire Department. This decision reaffirms the well-established rule that a claimant is not automatically entitled to reduced earnings awards merely because he or she is working and earning less than their average weekly wage. If the reduction in earnings is caused by economic factors or any other reason unrelated to the work injury, the reduction in earnings is not causally related, and claimant is not eligible for reduced earnings awards. In this case, claimant testified that he worked 5 hours per week from home as a salesperson for a wooden boat manufacturer telephoning prospective clients and distributing advertisements. He earned $50.00 per week. Claimant testified that he worked all the hours his employer had available for him. He later tried to assert that his limited hours resulted from a part-time work restriction recommended by his doctor. The Board found claimant ineligible for reduced earnings awards, finding that his reduction in wages resulted from economic factors since his employer only had a few hours of work each week for him. Claimant appealed, and the Appellate Division affirmed. This decision serves as a reminder that claims for reduced earnings must receive close scrutiny to determine if the claimant is actually eligible for awards. Merely earning less money than the average weekly wage by itself is not enough.  
On 7/3/19, the Appellate Division, Third Department, decided Verneau v. Consolidated Edison Co. of New York, Inc. This decision reaffirms prior precedent holding that there is no bar to WCL §25-a relief for death claims after the 1/1/14 cutoff date, as long as the original injury that resulted in death was transferred to the Special Funds under §25-a before the 1/1/14 cutoff date. This decision serves as a reminder than close scrutiny must be given to death claims to determine if a claim for §25-a may be made. The mere fact that the 1/1/14 cutoff date has passed is not a bar to all claims for §25-a transfer. This category of death claims is a small subset of claims for a §25-a transfer can still be requested under appropriate circumstances.

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