Opinion
534976
10-27-2022
In the Matter of the Claim of Crystal MCCREA, Appellant, v. CITY OF BUFFALO et al., Respondents. Workers’ Compensation Board, Respondent.
Cole, Sorrentino, Hurley, Hewner & Gambino PC, Buffalo (Vivian P. Roche of counsel), for appellant. Law Office of Melissa A. Day, PLLC, Amherst (Shannan Mackey of counsel), for City of Buffalo and another, respondents.
Cole, Sorrentino, Hurley, Hewner & Gambino PC, Buffalo (Vivian P. Roche of counsel), for appellant.
Law Office of Melissa A. Day, PLLC, Amherst (Shannan Mackey of counsel), for City of Buffalo and another, respondents.
Before: Garry, P.J., Lynch, Aarons, Pritzker and McShan, JJ.
MEMORANDUM AND ORDER
McShan, J. Appeal from a decision of the Workers’ Compensation Board, filed August 8, 2021, which ruled, among other things, that claimant voluntarily withdrew from the labor market.
On February 25, 2020, claimant, a systems support analyst for the self-insured employer, injured her lower back while lifting a chair at work, and her subsequent claim for workers’ compensation benefits was established for an injury to the lower back. She was thereafter awarded workers’ compensation benefits from February 28, 2020 through March 19, 2020 at temporary partial and temporary total disability rates. On or about March 25, 2020, claimant returned to work on a full-time basis notwithstanding her temporary partial disability because she was allowed to work from home as a result of the COVID–19 pandemic. Claimant continued to work from home until October 9, 2020, at which approximate time she was informed by the employer that employees were required to resume working in the office on a rotating basis. Claimant thereafter advised the employer that she was unable to return to the office to work due to her ongoing temporary partial disability. The employer subsequently asserted that claimant's lost time after October 9, 2020 was not causally related to her disability. Following an independent medical examination, the deposition of claimant's treating physician and hearings, a Workers’ Compensation Law Judge found, among other things, that claimant did not voluntarily withdraw from the labor market and that she, as a result of her temporary partial disability, was therefore entitled to continuing benefits from October 9, 2020. Upon administrative review, the Workers’ Compensation Board disagreed, finding that claimant had refused to accept a light duty assignment and had therefore voluntarily withdrawn from the labor market. Accordingly, the Board determined that claimant had no causally-related lost earnings as of October 7, 2020. This appeal ensued.
While this appeal was pending, the Board filed an amended decision on September 13, 2022. The Board again determined that claimant had no causally-related lost earnings, but did so upon a different legal analysis (see Matter of Donovan v. DOCCS Coxsackie Corr. Facility, 178 A.D.3d 1268, 1270, 112 N.Y.S.3d 602 [3d Dept. 2019] ). Further, the Board's September 2022 decision expressly notes that its prior August 2021 decision is amended and superseded (see Matter of Casamento v. Rochester–Genesee Regional Transp. Auth., 178 A.D.3d 1218, 1219 n., 115 N.Y.S.3d 524 [3d Dept. 2019] ; Matter of Watts v. Arnot Ogden Med. Ctr., 132 A.D.3d 1024, 1025 n., 17 N.Y.S.3d 512 [3d Dept. 2015] ; Matter of Bland v. Gellman, Brydges & Schroff, 127 A.D.3d 1436, 1437, 7 N.Y.S.3d 657 [3d Dept. 2015], lv dismissed 26 N.Y.3d 948, 17 N.Y.S.3d 66, 38 N.E.3d 809 [2015] ). Accordingly, we find that the instant appeal from the August 2021 decision is moot and must be dismissed (see Matter of Djukanovic v. Metropolitan Cleaning LLC, 177 A.D.3d 1060, 1060–1061, 109 N.Y.S.3d 917 [3d Dept. 2019] ).
Garry, P.J., Lynch, Aarons and Pritzker, JJ., concur.
ORDERED that the appeal is dismissed, as moot, without costs.