Matter of Covert v. Niagara Cnty., 146 A.D.3d 1065 (N.Y. App. Div. 3d Dep't 2017). · Go Syfert
Matter of Covert v. Niagara Cnty., 146 A.D.3d 1065 (N.Y. App. Div. 3d Dep't 2017). Cases Citing This Book View Copy Cite
11 citation events (11 in the last 25 years) across 1 distinct court.
Cited for
At page 1066 Dismissing appeal from interlocutory board decision8 citing cases“a board decision is interlocutory in nature and does not dispose of all of the substantive issues or reach a potentially dispositive threshold legal question, it is not appealable”2 citing courts quote it
  • Matter of Pena v. Cardinal McCloskey Sch., 217 A.D.3d 1291 (N.Y. App. Div. 3d Dep't 2023).published
    Thus, they are "interlocutory and . . . not the proper subject of an appeal at this time" ( Matter of Perez v Bed, Bath & Beyond , 204 AD3d at 1298 ; see Matter of Navarro v General Motors , 182 AD3d 933, 934 [3d Dept 2020]; Matter of Haug…
  • Matter of Martinez v. MEC Gen. Inc., 198 A.D.3d 1051 (N.Y. App. Div. 3d Dep't 2021).published
    Because the nonfinal decision may be reviewed upon an appeal from the Board's final determination, this appeal must be dismissed ( see Matter of Covert v Niagara County , 146 AD3d 1065, 1066 [2017], lv denied 34 NY3d 910 [2020]; Matter of…
  • Matter of Kristl v. Rome City Sch. Dist., 193 A.D.3d 1121 (N.Y. App. Div. 3d Dep't 2021).published
    The employer and its third-party administrator can appeal, if necessary, from any final decision by the Board on this interlocutory issue ( see Matter of DiPaola v McWane, Inc. , 172 AD3d 1863 , 1865 [2019]; Matter of Covert v Niagara Coun…
  • Matter of Covert v. Niagara Cnty., 172 A.D.3d 1686 (N.Y. App. Div. 3d Dep't 2019).published
    This Court dismissed the appeal by the County and its third-party administrator from the July 2015 decision as interlocutory ( 146 AD3d 1065, 1066 [2014]).
  • Matter of Garner v. Christian Contrs., Inc., 2018 NY Slip Op 3884 (N.Y. App. Div. 3d Dep't 2018).published 2 cites
    Where "a Board decision is interlocutory in nature and does not dispose of all of the substantive issues or reach a potentially dispositive threshold legal question, it is not appealable" ( Matter of Covert v Niagara County , 146 AD3d at 1…
  • Matter of Est. of James Yoo v. Rockwell Compounding Assoc., Inc., 2018 NY Slip Op 878 (N.Y. App. Div. 3d Dep't 2018).published 2 cites
    Auth. , 154 AD3d 1046, 1047 [2017], quoting Matter of Covert v Niagara County , 146 AD3d 1065, 1066 [2017]; see Matter of Ogbuagu v Ngbadi , 61 AD3d 1198, 1199 [2009]).
  • Claim of Bucci v. New York City Transit Auth., 154 A.D.3d 1046 (N.Y. App. Div. 3d Dep't 2017).published
    “In general, piecemeal review of issues in workers’ compensation cases should be avoided” (Matter of Covert v Niagara County, 146 AD3d 1065, 1066 [2017]; see Matter of DePascale v Magazine Distribs., Inc., 116 AD3d 1100 , 1101 [2014]; Matt…
  • Matter of Passero v. Uninsured Employers' Fund, 154 A.D.3d 1037 (N.Y. App. Div. 3d Dep't 2017).published
    Although the WCLJ’s April 2012 reserved decision discharged SIF and removed it from notice as to Pustelak, * the WCLJ did not make any findings therein regarding apportionment or find that UEF was otherwise liable as surety for Pustelak’s…
Retrieving the full opinion text from the archive…
In the Matter of the Claim of Jason Covert, Claimant,
v.
Niagara County Et Al., Appellants. Workers’ Compensation Board, Respondent
523001.
Appellate Division of the Supreme Court of the State of New York.
Jan 5, 2017.
Published opinion
146 A.D.3d 1065
Lynch, Egan, Rose, Clark, Aarons.
Cited by 8 opinions  |  Published
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 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’[*1066] 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 ap-pealable” (Ma tter 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 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.