Matter of Covert v. Niagara County , 43 N.Y.S.3d 763 ( 2017 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 5, 2017 523001
________________________________
In the Matter of the Claim of
JASON COVERT,
Claimant,
v
MEMORANDUM AND ORDER
NIAGARA COUNTY et al.,
Appellants.
WORKER'S COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: November 16, 2016
Before: Egan Jr., J.P., Lynch, Rose, Clark and Aarons, JJ.
__________
Law Office of Melissa A. Day, PLLC, Amherst (James B.
Cousins of counsel), for appellants.
Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for respondent.
__________
Lynch, J.
Appeal from a decision of the Workers' Compensation Board,
filed July 6, 2015, which ruled, among other things, that certain
payments made to claimant constituted wages under the Workers'
Compensation Law.
Claimant, who was a public assistance recipient, filed a
claim for workers' compensation benefits after he suffered an
injury while assigned to work for Niagara County as part of a
work experience program (see Social Services Law art 5).
Following a hearing in September 2011, a Workers' Compensation
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Law Judge (hereinafter WCLJ) established the claim for a work-
related injury and determined claimant's average weekly wage to
be $124.62, an amount derived from the benefits that he was
receiving. The claim was kept open for further medical evidence
as to permanency and schedule loss of use. Although claimant did
not return to work, he was not paid a benefit for lost wages
because he was receiving his regular public assistance benefit.
In August 2013, claimant's public assistance benefit was
suspended and he sought to reopen his claim for lost wage
benefits. In a February 2014 decision, the WCLJ held claimant's
request for a lost time award in abeyance and directed the County
to produce medical evidence of permanency and schedule loss of
use. During the pendency of the County's subsequent request for
Workers' Compensation Board review of this determination, a WCLJ
determined that there was insufficient medical evidence to
support an award. In July 2015, the Board affirmed the February
2014 decision, finding, in part, that the payments made to
claimant pursuant to the work experience program were "wages"
pursuant to the Workers' Compensation Law (see Workers'
Compensation Law § 2 [9]). The County and its third-party
administrator now appeal from the Board's decision.
In general, "'piecemeal review of issues in workers'
compensation cases should be avoided'" (Matter of Ogbuagu v
Ngbadi, 61 AD3d 1198, 1199 [2009], quoting Matter of Sawyer v
Orange Motors, 24 AD3d 1117, 1117-1118 [2005]; see Matter of
DePascale v Magazine Distribs., Inc., 116 AD3d 1100, 1101
[2014]). Where, as here, a Board decision is "interlocutory in
nature and do[es] not dispose of all of the substantive issues or
reach a potentially dispositive threshold legal question[, it is]
not appealable" (Matter of Santiago v NY Operators, 139 AD3d
1308, 1309 [2016]; see Matter of Malkin v Love Taxi, 299 AD2d
681, 682 [2002]; compare Matter of Schwenger v NYU Sch. of
Medicine, 126 AD3d 1056, 1056 [2015], lv dismissed 26 NY3d 962
[2015]). Here, the Board did not award claimant a wage
replacement benefit but, instead, deferred resolution of the
claim pending the submission of additional information. Plainly,
the County can seek review of the issues presented if and when
the Board issues a final determination awarding the claimant wage
replacement benefits (see Matter of Bellantoni v City of N.Y.
Sch. Food & Nutrition Servs., 127 AD3d 1350, 1350 [2015]; Matter
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of DePascale v Magazine Distribs., Inc., 116 AD3d at 1100; Matter
of McClam v American Axle & Mfg., 79 AD3d 1315, 1316 [2010]). It
follows that this interlocutory appeal should be dismissed.
Egan Jr., J.P., Rose, Clark and Aarons, JJ., concur.
ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court