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Workers’ Compensation – Due Process (2002)

Neck injuries can be caused by a variety of actions ranging from motor vehicle accidents to awkward sitting positions. Our client injured her neck and shoulder on the job. The employer claimed that there was no further disability to her neck and that the case should be closed with a finding of a “schedule loss of use” of her arm. After litigation, the judge agreed with the employer, and we appealed the decision. The Workers’ Compensation Board refused to consider the appeal because it found no formal “exception” was taken to the judge’s decision.

We appealed the Board’s decision to the Appellate Division, Third Department. The Court agreed that there was no requirement “to take an exception to the” judge’s decision where the issue and our position was made clear by the litigation. The Court went on to say that the Board’s decision was inadequate because there was no evidence the Board read the record before making its decision, which it is obligated to do.

The Court therefore sent the case back to the Board to read the record and make a decision on the issues we had raised.

Read the Spector decision here.

NOTE: In 2017, the Workers’ Compensation Board changed its regulations to specifically require attorneys to “note their exception” to a judge’s decision. In view of the decision in Spector, there is some question about whether the Board’s regulation is valid.


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