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Appellate Division Extends Taher Rule in New Decision

On 4/14/22, the Appellate Division, Third Department decided Gambardella v. New York City Transit Authority. This decision holds that the Court's previous decisions in Taher v. Yiota Taxi and Arias v. City of New York apply to cases where a claimant is not working and is not receiving indemnity benefits because they have withdrawn from the labor market. As a reminder, Taher and Arias held that claimants may receive both a permanent partial disability classification and schedule loss of use award(s) in the same claim at the same time. For claimants who are working and not receiving lost wage payments at the time of permanency, Taher and Arias allow the claimant to receive a lump-sum schedule loss of use award payment. That award then becomes a credit against any future lost wage benefits flowing from the permanent partial disability classification should they later occur. The Court’s holding in Gambardella shows a willingness to extend the Taher and Arias holdings beyond the original fact patterns in those cases. Gambardella raises the question of whether the Taher / Arias rule will also apply to other fact patterns in which a claimant is not working but also not receiving lost wage payments at the time of permanency.

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