NY Workers’ Comp Board may reopen claim when justice supports modification

Court held that Board’s refusal to reopen a claim based on laches was not proper.

On June 4, 2020, the New York Supreme Court, Appellate Division, Third Department, said that the New York Workers’ Compensation Board had been wrong not to grant the request of a deceased claimant’s widow to reopen her deceased husband’s claim. In Jones v. Burrell Orchards, Inc., the surviving spouse of a farmworker whose legs became paralyzed from a 1996 fall from a ladder while picking apples appealed the Board’s denial of her request to reopen her deceased husband’s claim.

Application for claim reopening

She had requested the reopening to correct the average weekly wage amount that had been set in 1997 and for reimbursement for home health care she had provided to him before his death. After his disabling injury, the claimant received permanent total disability benefits until his 2017 death. The wife’s death claim was also later approved, at which time she requested the reopening of her husband’s injury claim.

Both the Workers’ Compensation Law Judge (WCLJ) and the Board on review denied her application to reopen, agreeing with the employer and its insurer that her request was too late based on the laches defense, meaning that she had unreasonably sat on her request for too long, making its consideration unfair.

Board’s denial of reopening must be based on substantial evidence

The court disagreed, explaining that New York law gives the Board continuing power over a claim along with discretion to modify an award if it would be just under the circumstances, including correcting an erroneous wage rate. However, the court may reverse a reopening denial if the Board’s reasoning was not supported by substantial evidence.

The court noted that laches can bar reopening if the party “is guilty of the failure to assert a right for an unreasonable and unexplained length of time, accompanied by other circumstances causing prejudice” to the employer and its insurer.

Legal representation can be beneficial

The court attributed the delay to the claimant’s loss of legal representation just before the average weekly wage was set, leaving no legal counsel to advocate for him in that matter. A decade later, the wife got a new lawyer after the claimant’s death and that attorney immediately took up the reopening issues. Therefore, the court said, the delay was not unreasonable because of the lack of legal representation during the time the claimant was suffering from his injury with his wife providing care.  

The workers’ compensation lawyers at Silverman, Silverman & Seligman, P.C., fight for New Yorkers in their workers’ compensation claims. While we will represent a claimant at any stage of the process, the earlier we become involved, the sooner we can begin our experienced advocacy.

Call Silverman, Silverman & Seligman, P.C., in Schenectady at 518-631-4521 so we can put our decades of experience to work for your claim. Our attorneys will also analyze your injury or illness to determine whether to file a claim for Social Security Disability Insurance (SSDI).

At our law firm, we offer a free initial office or phone conference. Call us to schedule a time to discuss your legal issues related to your work-related injury or illness.