Lyman v. N.Y.S. Canal Corp.

• Docket Number: 534239
• Decision Date: 29 September 2022
• Citation: 208 A.D.3d 1571,175 N.Y.S.3d 374
• Parties: In the Matter of the Claim of Lorna LYMAN, Respondent, v. NEW YORK STATE CANAL CORP. c/o New York Power Authority et al., Appellants. Workers’ Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 1571
175 N.Y.S.3d 374

In the Matter of the Claim of Lorna LYMAN, Respondent,
v.
NEW YORK STATE CANAL CORP. c/o New York Power Authority et al., Appellants.

Workers’ Compensation Board, Respondent.

534239

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 8, 2022
Decided and Entered: September 29, 2022

175 N.Y.S.3d 375

Law Office of Melissa A. Day, PLLC, Amherst (Alexis D. Hatten of counsel), for appellants.

Connors & Ferris, LLP, Rochester (Christopher Mesh of counsel), for Lorna Lyman, respondent.

Letitia James, Attorney General, New York City (Alison Kent–Friedman of counsel), for Workers’ Compensation Board, respondent.

Before: Lynch, J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

208 A.D.3d 1571

Appeal from a decision of the Workers’ Compensation Board, filed April 7, 2021, which ruled that claimant's work-related injury was amenable to a nonschedule classification.

In January 2018, claimant, a motorized snow operator, sustained injuries, including to her lower back and right outer foot, when she slipped on ice while shoveling a path to a boat. Her subsequent claim for workers’ compensation benefits was accepted by the self-insured employer and its third-party administrator (hereinafter collectively referred to as the employer) for a temporary aggravation of a prior right foot condition and was ultimately established for a work-related injury to the right foot. In June 2018, surgery (Kidner procedure with reattachment of the posterior tibial tendon) was performed on claimant's right foot with continued treatment thereafter.

175 N.Y.S.3d 376

In May 2020, Carrie O'Neil, claimant's treating podiatrist, evaluated claimant's injury for permanency and schedule loss of use, opining that claimant's injury to her right foot warranted a 65% schedule loss of use award based upon a moderate loss of plantar flexion of 15%, a moderate loss of dorsiflexion of 15% and a loss of inversion and eversion of 35%. In August 2020, Robert Karpman, an orthopedic surgeon who performed an independent orthopedic medical examination of claimant, diagnosed claimant with a right foot sprain (with posterior tibial tendon insufficiency status post removal of accessory navicular, and reattachment of the tendon with poor result) and found that she had reached maximum medical improvement and that she had sustained a 20% schedule loss of use of the right foot based upon claimant's loss of inversion. Following hearings and the depositions of O'Neil and Karpman, a Workers’ Compensation Law Judge found that claimant's injury had reached maximum medical improvement and that claimant had a continuing chronic painful...