New York: Claimant Fails to Establish Worsening Condition Caused by Surgery

Illustrating the broad powers given to New York's Workers' Compensation Board when it comes to weighing medical evidence, a divided Third Department appellate court affirmed a decision by the Board that a claimant, who earlier had been awarded permanent partial disability benefits and whose condition apparently worsened such that she required additional surgery, had nevertheless failed to establish that her disability had changed to temporary total disability status during her recuperation. The majority indicated that the Board had credited evidence that claimant’s condition was not worsened as a consequence of the surgery or that the surgery caused any trauma or significant reinjury. The majority added that while the Board could not fashion its own expert medical opinions, it could reject medical evidence as incredible or insufficient even where no opposing medical proof is presented.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Matter of Robinson v. New York City Health & Hosps. Corp., 2020 N.Y. App. Div. LEXIS 3061 (3d Dept. May 21, 2020)

See generally Larson’s Workers’ Compensation Law, § 128.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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