Appellate Division affirmed workers’ compensation order finding an increase in permanency, but not total disability.

In this case, the Appellate Division affirmed the workers’ compensation order for an increase in the petitioner’s permanency award but denied his claim that he was permanently and totally disabled. 

While working as a police offer for the respondent, the petitioner suffered a cardiac injury on July 14, 2004. He filed a claim, and although he asserted that he was 100% disabled, a workers’ compensation judge found he was 33 1/3% disabled after a trial. 

The petitioner then re-opened his claim and joined the Second Injury Fund. The only issue at trial was whether there was any increase in permanent disability as a result of the cardiac event of July 14, 2004. After trial, which included testimony from the petitioner and both sides’ experts and review of medical records, the judge found the petitioner’s disability increased to 45%, but that he was not totally disabled.

The petitioner appealed, arguing he should have been found 100% disabled. For the first time he also argued that the judge should have required the respondent to pay the Medicare lien. Although the Appellate Division indicated the petitioner’s arguments were without sufficient merit to warrant an extended discussion, it was noted the judge thoroughly laid out the evidence and reasoning for his decision. While the petitioner argued the judge should have given more weight to his expert’s opinion, the judge explained his reasons for rejecting same. Finally, the Appellate Division found the petitioner never presented any evidence of the Medicare lien during trial, and as it was not an issue concerning jurisdiction or of great public importance, the Appellate Division declined to address this issue. 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 3, March 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}