Justice delayed is not always justice denied; and waiting can make it more satisfying than you might imagine.  The Law Offices of Melissa Day won a reversal of the Board before the Appellate Division, Third Department on March 28, 2018 in Matter of Yonkosky v. Town of Hamburg, 2018 NY Slip Op 00586, 158 AD3d 860 (3d Dept. 2018) which may be viewed in its entirety here:  <a href="https://thelomad.com/getmad.today/wp-contentwww.nycourts.gov/reporter/3dseries/2018/2018_00586.htm" target="_blank" rel="noopener">https://thelomad.com/getmad.today/wp-contentwww.nycourts.gov/reporter/3dseries/2018/2018_00586.htm</a>.

Claimant, a seasonal summer worker with the Town’s Highway Department was, apparently, injured while lifting wheelbarrow loads of asphalt and suffered a “rare” rotator cuff tear – rare because the claimant is a young, healthy male.  The claimant treated for this condition, but never reported it to the employer, and even lost time from his employment; and when presenting his doctor’s excuse, did not inform the Town his lost time was related to a work-injury.  Whether the lost time and treatment were, in fact, related to the claimant’s employment could be debated, but the claimant took the position at trial that it was related.  The claimant also sought to prove that, although the condition had allegedly resolved, and then resurfaced months later during a game of basketball with friends, his injury was in the nature of an occupational disease, thus smoothing over the various breaks in temporal causation, and curing a potentially fatal notice defect as the claimant did not notify the Town of his work related injury until at least seven months after the accident occurred, when he filed his C-3 with the Workers’ Compensation Board.  This litigation strategy was certainly thoughtful, but it was equally transparent where the claimant’s own physician could not clearly ascribe causation to a disease process, or even repetitive stress when under intense cross-examination.

The WCLJ, and Board, bit at this quite obvious charade, and in both decisions rendered by the Board demonstrated that they didn’t even bother to consider the Town’s argument that the claimant, having reported the case as an accident on his C-3, described an accident to his physician, and testified under oath to a specific happening – and accident.

The Third Department, the first Court to actually articulate any analysis on the question of “accident versus OD” agreed with the Town that the claimant’s effort to characterize the claim as an OD was not supported by the record, and that the injuries sustained by the claimant, even assuming they were the result of work activity, supported the conclusion that they were not the result of a disease process, or even repetitive stress, and could not be characterized as an occupational disease, but rather the result of an obvious accident.

It was a long haul, but dogged determination and confidence between client and counsel can win the day.  It  is worth noting as a practice point that under the WCL, the Board is obligated to reimburse employers/carriers/SIEs for claims that are, like this one,  established by the Board, but later quashed by higher judicial review since WCL Sec. 23 does not permit a stay on benefits during the pendency of an appeal to the Third Department.   Closing this post, we wonder how many poor decisions rendered by the WCB, decisions begging for higher appellate review, go un-appealed to the Third Department, owing to the time and cost involved.  How many of these poor decisions, by virtue of remaining unchallenged, and thus wrongly reinforced as “settled precedent.”