IN RE: the Claim of Mark ST. REMY (2019)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers' Compensation Board, filed August 7, 2018, which ruled, among other things, that claimant was required to demonstrate an ongoing attachment to the labor market and denied his request to reinstate his award of workers' compensation benefits.

Claimant has an established workers' compensation claim for injuries to his back, neck and right shoulder and consequential gastric ulcer stemming from a 2012 accident.  Claimant was classified in July 2015 with having a permanent partial disability under Workers' Compensation Law § 15(3)(w) and entitled to continuing awards based upon his loss of wage-earning capacity.  The case was continued to address issues of claimant's labor market attachment, which had been raised at the hearing.  Following an October 2015 hearing, the continuing awards were suspended based upon a finding that claimant was not attached to the labor market.  No appeal was taken from that decision.

Workers Compensation Law § 15(3)(w) was thereafter amended, effective April 10, 2017, to provide, in relevant part, that, in certain cases of permanent partial disability, “compensation ․ shall be payable during the continuance of such permanent partial disability, without the necessity for the claimant who is entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market.”  In reliance on the 2017 amendment, claimant filed a request for further action, contending that the recent amendment dispensed with the requirement that he establish attachment to the labor market and, therefore, he was entitled to reinstatement of his permanent partial disability award.  A Workers' Compensation Law Judge directed that claimant produce evidence of reattachment to the labor market before awards could be reinstated.  The Workers' Compensation Board affirmed, and claimant appeals.

For the reasons stated in our recent decisions addressing the same issues (see Matter of Santos v. Brickens Constr. Inc., 175 A.D.3d 1742, 1743, 110 N.Y.S.3d 94 [2019];  Matter of Pryer v. Incorporated Vil. of Hempstead, 175 A.D.3d 1663, 1665–1666, 108 N.Y.S.3d 494 [2019];  Matter of Scott v. Visiting Nurses Home Care, 172 A.D.3d 1868, 1869, 101 N.Y.S.3d 767 [2019], lv dismissed 34 N.Y.3d 1011, 2019 WL 6271507 [Nov. 25, 2019] ), we affirm.  Here, claimant was classified with a permanent partial disability in 2015 and, in October 2015, was found not to be attached to the labor market, as was required by the then-governing precedent.  The final decision as to claimant's failure to remain attached to the labor market was made well in advance of the effective date of the 2017 amendment.  Accordingly, under these circumstances, “this is not a situation in which retroactive application of the amendment is appropriate,” and the Board's decision will not be disturbed (Matter of Pryer v. Incorporated Vil. of Hempstead, 175 A.D.3d at 1666, 108 N.Y.S.3d 494;  see Matter of Santos v. Brickens Constr. Inc., 175 A.D.3d at 1743, 110 N.Y.S.3d 94;  Matter of Scott v. Visiting Nurses Home Care, 172 A.D.3d at 1869, 101 N.Y.S.3d 767;  cf. Matter of O'Donnell v. Erie County, 162 A.D.3d 1278, 1280–1281, 78 N.Y.S.3d 506 [2018], lv granted 32 N.Y.3d 907, 89 N.Y.S.3d 114, 113 N.E.3d 948 [2018] ).

ORDERED that the decision is affirmed, without costs.

Egan Jr., J.

Garry, P.J., Lynch and Devine, JJ., concur.