Matter of the Claim of Bonnie C. Blake v. Niagara Wheatfield Central School District; FCS Administrators; Workers' Compensation Board
Attorneys and Parties
Brief Summary
Workers' compensation—whether a claimant classified with a permanent partial disability (PPD) must demonstrate ongoing labor market attachment after the 2017 amendment to Workers' Compensation Law § 15(3)(w) [provides in PPD nonschedule cases that compensation is payable during the continuance of the disability without the need to show ongoing labor market attachment if the claimant was entitled to benefits at the time of classification].
The Workers' Compensation Board found claimant unattached to the labor market as of April 17, 2023 in Claim No. 2, rescinded awards after that date, and, in an amended panel decision, also required her to prove ongoing attachment in Claim No. 1 because she received no lost‑time awards when classified in 2011.
The Board's requirement that claimant demonstrate ongoing labor market attachment in Claim No. 1 (WCB No. 80016443).
The 2017 amendment to Workers' Compensation Law § 15(3)(w) applies retroactively where the claimant was working (and thus attached) at the time of her 2011 PPD classification and there was no pre‑2017 finding of voluntary withdrawal or lack of attachment; therefore, she is relieved of demonstrating ongoing attachment for Claim No. 1.
Background
Claimant was injured in 2000 (Claim No. 1), established for neck and shoulder. She returned to work at wages exceeding her average weekly wage by 2009; no continuing awards issued. In 2011, she was classified with a permanent partial disability (PPD) but received no indemnity awards because she was working and had no causally related lost earnings. In 2013, liability was transferred to the Special Fund for Reopened Cases (SF) under Workers' Compensation Law § 25-a [transfers liability to the Special Fund and discharges the carrier when certain time and procedural conditions for reopening are met]. In 2017, claimant suffered a new injury while working as a bus driver (Claim No. 2), established for neck and back with temporary indemnity. In 2020, a Workers' Compensation Law Judge (WCLJ) continued temporary partial disability benefits and apportioned liability 50/50 between the two claims. In 2023, the carrier in Claim No. 2 raised labor market attachment; after hearing, the WCLJ classified claimant with a PPD, set a 65% loss of wage‑earning capacity, and found her attached based on a job search within restrictions.
Lower Court Decision
On administrative review in Claim No. 2, the Board modified, finding claimant unattached to the labor market effective April 17, 2023, and rescinded awards thereafter. On reconsideration, an amended Board panel decision further held claimant was not attached in Claim No. 1, reasoning she could not benefit from Workers' Compensation Law § 15(3)(w) because she received no lost‑time awards at her 2011 classification, and therefore had to prove ongoing attachment. The Board treated Claim No. 1 as a closed reference traveling with Claim No. 2; the Special Fund was not noticed or present. Claimant’s procedural due process challenge to the Special Fund’s lack of participation was not preserved under 12 NYCRR 300.13(b)(4)(v) [regulation requiring issues be preserved and properly raised in administrative review].
Appellate Division Reversal
The court modified the Board’s amended decision by reversing the portion requiring claimant to demonstrate ongoing labor market attachment in Claim No. 1 (WCB No. 80016443) and remitted for further proceedings. It held that Workers' Compensation Law § 15(3)(w) [see bracketed overview above] applies retroactively because, at the 2011 PPD classification, claimant was working (and thus attached), there was no finding of voluntary withdrawal or lack of attachment before 2017, and the Special Fund had not raised attachment pre‑amendment. The court found the due process argument regarding the Special Fund unpreserved and, in any event, only the Special Fund would have standing to assert its own due process rights. The Board’s determination in Claim No. 2 was not challenged on appeal and remains undisturbed.
Legal Significance
Clarifies that the 2017 amendment to Workers' Compensation Law § 15(3)(w) applies retroactively to pre‑2017 PPD classifications even where no indemnity was awarded at classification because the claimant was working, so long as there was no pre‑amendment finding of voluntary withdrawal or lack of attachment. Reinforces preservation requirements under 12 NYCRR 300.13(b)(4)(v) and limits standing to assert due process violations to the aggrieved party (here, the Special Fund).
A claimant classified with a PPD before 2017 who was working at the time of classification need not prove ongoing labor market attachment post‑2017 for that earlier claim absent a pre‑amendment finding of voluntary withdrawal or lack of attachment.