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COURT DECISIONS
August 27, 2010 (Friday): Weekly postings of court decisions regarding injured workers compensation issues from the New York State Court of Appeals, New York State Appellate Division (1st, 2nd, 3rd, and 4th Departments), and various lower courts as well as decisions from other states that will be of interest to participants in the State of New York Workers Compensation system. Following the list of cases posted for this week is a list of cases. in which the NYS Workers Compensation Board is a party of interest, for which arguments have either already been made at the New York State Appellate Division, 3rd Department and for which decisions have not yet been issued or for cases which have been scheduled but not yet heard. If you would like to be added to our e-mail alert list or have any submissions or suggestions, send them to: TheInsider@InsideWorkersCompNY.com.
THIS WEEK’S POSTINGS: In the Matter of Aides At Home v State of New York Workers’ Compensation Board just issued yesterday (August 5, 2010), the Appellate Court 3rd Department ruled that a member of a group self-insured trust who had left that trust many years earlier was still liable for any deficiencies in the fund created during its membership by ‘mismanagement’ by the manager/trustee of that fund.. This outcome seemed likely when the 3rd Department on June 17 of this year in the Matter of Held v NYS WCB vacated the stay it issued January 15, 2009 to Held, a member of another trust, after a lower court (also in Erie County) ruled, in a Pyrrhic victory for Held, that the assessments were invalid. On the other hand, the 4th Department ruled on April 29, 2009 in the Matter of Metal Goods Mfg Insurance Trust Fund v. Advent Tool & Mold, Inc., et al that the Board could not hold the members of a self-insured trust liable for assessments made due to any deficiencies in the plan. Well, there is always the Court of Appeals.
AUGUST 26, 2010 - FULL BOARD REVIEWS - Now being posted: The New York State Workers Compensation Board announced in March 2010 that it would each month post a few of the 15-20 Full Board Decisions it issues each month. Our FRB page will offer a permanent but brief summary of those decisions with a link to another page in this website to the entirety of the decision issued by the Board. As of today’s date, we have posted the 25 cases made available from the Board.
Aides At Home v State of New York Workers’ Compensation Bd.
August 5, 2010 NYS Appellate Division, Third Department
ATF Compensation for Failed Trust
AFFIRMED a lower court order dismissing petitioner’s application to review a determination of respondent Workers’ Compensation Board imposing a deficit assessment against the petitioner as a member of an underfunded workers’ compensation group self-insured trust.
Petitioner was a member of the New York State Health Care Facilities Workers’ Compensation Trust (hereinafter the Trust) from September 1, 1997 through October 14, 2000. In August 2006, the Board terminated the Trust due to severe underfunding, assumed the administration and distribution of the Trust’s assets and liabilities, and in March 2008, issued a deficit assessment to each current and former Trust member, including petitioner, to cover the costs of fulfilling the Trust’s workers comp claims. Petitioner commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, dismissed by the Albany County Supreme Court March 23, 2009, challenging the Board’s assessment, claiming inter alia that the Board did not have the statutory or regulatory authority to impose the assessment and that the assessment was arbitrary and capricious and violated petitioner’s due process rights, a challenge dismissed by the Albany County Supreme Court on March 23, 2009.
Initially, the Appellate Court’s review of the Board’s determination was is limited to whether it “was affected by an error of law or was arbitrary and capricious or an abuse of discretion“. Or if “the construction given statutes and regulations by the agency responsible for their administration will, if not irrational or unreasonable, be upheld“. Although petitioner was not a member of the Trust when the assessment was levied, petitioner nevertheless remained jointly and severally liable for the liabilities of the Trust that were incurred during petitioner’s membership until such time that those liabilities were satisfied (see WCL §50 [3-a] [former (2), (3)]). [Court Note: WCL §50(3-a)(3) was amended in 2008 to clarify that a member of a group self-insured trust remains jointly and severally liable for unpaid claims that accrued during the period of membership even after the member leaves the trust (see L 2008, ch 139, § 1)]. A key fact supporting the Board’s appropriate interpretation of the statute was that the petitioner, upon joining the Trust, accepted this statutory mandate which was explicitly articulated in the trust and indemnity agreements along with a provision that petitioner was liable for its share of a deficiency assessment “for any Trust year or part thereof that [it] participated in the Trust,” which language the Board reasonably construed as meaning that petitioner could be assessed for the Trust deficiency as of 2000. As to the amount of the assessment, petitioner was held to be responsible only for deficiencies incurred during its membership, amounts supported by detailed actuarial analysis. Prevailing party represented by: Owen Demuth of counsel to Andrew M. Cuomo, Attorney General for respondents.Click here to read the full court decision of the NYS Appellate Division…
PENDING DECISIONS
August 5, 2010 Thursday: Decisions have been issued on all the cases which have been argued before the Appellate Court, Third Department during this session which stated in the Fall of 2009. There are a large number of cases which have been set down for argument for the fall, certainly based on all the motions that have been issued by the Court to allow for continuance.
▼ Posted Friday July 30, 2010 ▼
Hilbrandt v Village of Red Hook
July 29, 2010 NYS Appellate Division, Third Department
§ 28: time bar
AFFIRMED the Board’s ruling that claimant’s application for workers’ comp benefits was time-barred by WCL §28. Claimant, working as a volunteer emergency medical technician, was injured on August 26, 2005 causing her to fall on her back and side. Her workers’ comp claim, was initially established for a left ankle and leg injury and later for consequential injuries to her right shoulder.
In April 2008, claimant was first treated for an injury to her right hip and, based upon the report of her treating physician, sought to amend her claim to include a consequential right hip injury. The Law Judge, affirmed by a Board Panel, dismissed the claim for right hip injury as time-barred pursuant to WCL §28. Claimant contends this claim is governed by the Volunteer Firefighters’ Benefit Law (VFBL), which implements a separate and distinct statute of limitations per VFBL §41. The Court wrote that “This issue, however, is unpreserved for our review due to claimant’s failure to raise it before the Judge or the Board. In any event, while we agree that VFBL §41, rather than WCL §28, should have been applied in this case, we would nonetheless find that claimant’s claim for right hip injury, as presented to the Board, is time-barred under either statute.” In addition, both the Board and the Court rejected the claimant’s contention that the hip injury was consequential rather than directly resulting from the accident, based on (1) claimant’s testimony that she began noticing hip pain as early as November or December 2005, but “just kept going with the pain” and did not seek treatment for that condition until April 2008 and (2) claimant’s treating physician concluded that the hip injury was a direct result of the August 2005. Prevailing party represented by: Glenn M. Forman of counsel to Gregory J. Allen, NYSIF, for Village of Red Hook and another, respondents. Click here to read the full court decision of the NYS Appellate Division…
Wooding v Nestle USA, Inc
July 29, 2010 NYS Appellate Division, Third Department
Disability: Industrial v SLU
AFFIRMED the Board’s ruling that claimant did not have a total industrial disability. Claimant suffered an injury to his left arm performing manual labor in 2003. Later confirmed by a Board panel, the Law Judge found that claimant had sustained a schedule loss of use to his arm and not, as he claimed, total industrial disability. Whether a claimant sustained a total industrial disability is a question of fact, and the Board’s resolution thereof will be upheld if supported by substantial evidence. While one vocational counselor opined that the claimant’s physical condition, when coupled with his age, educational background and employment history, seriously impaired his ability to find employment, the Board accepted a vocational evaluation finding incapable of forming sedentary work in fields such as sales or customer service with appropriate training. The counselor conceded that, despite his doubts as to the likelihood of claimant succeeding in retraining, success was possible. [ED. NOTE: Not addressed in this decision is the question as to what will happen if the claimant is unsuccessful in the retraining program. Would the Board then, as it should, reopen the case?] Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Nestle USA, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division…
▼ Posted Friday July 23, 2010 ▼
Galanos v Nevada Utils
July 22, 2010 NYS Appellate Division, Third Department
Coverage: Opting out
AFFIRMED the Board’s ruling that the claimant was not a covered employee under the Workers’ Compensation Law, having opted out of coverage as an executive officer of the corporation. After the claim was established, the carrier requested that payments be suspended because, prior to the incident, claimant had signed a C-105.51 form opting out of workers’ compensation coverage due to her status as an executive officer in the employer corporation (WCL §54[6][d]). The claimant countered that (1) she was never an officer of the corporation, (2) the form was filed in error, and (3) since the carrier had been making payments on the claim, it should be estopped from disclaiming coverage. Both the Law Judge and the Board panel found in the employer’s favor. After admitting signing the C-105.51 notice, which stated coverage would not be provided unless and until this election was “revoked by the [employer] corporation” (WCL §54[6][d]), she admitted never revoking it. As to her claim she was not given an adequate opportunity to submit evidence at the hearing supporting her various arguments, the WCB’s decisions noted that she had two months notice of the hearings and that her employment status would be a key factor in the decision. Finally the Court agreed with the Board that, on these facts, the doctrines of laches and estoppel have no application to this proceeding and coverage was properly denied. Prevailing party represented by: Edward Obertubbesing of counsel to Gregory J. Allen, NYSIF, for Nevada Utilities and another, respondents. Click here to read the full court decision of the NYS Appellate Division…
▼ Posted Friday July 16, 2010 ▼
Smallwood v Mereda Realty
July 15, 2010 NYS Appellate Division, Third Department
Employment: Dual?
AFFIRMED the Board’s ruling that a general employment relationship existed between claimant and Pueblo Nuevo Associates. Claimant, the superintendent of a building owned by Pueblo Nuevo and managed by Mereda Realty Corporation, who sustained injuries while providing maintenance at the site, received comp benefits and also commenced an action in Supreme Court against both firms. After a Board Panel modified a Law Judge ruling (claimant was an employee of Mereda) finding that claimant was a general employee of Pueblo and a special employee of Mereda, each responsible for 50%, claimant appealed, contending there was no employment relationship with Pueblo. The Board noted that although Mereda hired claimant, Pueblo retained the authority to fire him. Although his day-to-day activities were directed by Mereda, part of his compensation included a rent-free apartment in Pueblo’s building and his paychecks were from Pueblo’s general payroll bank account, checks noting that they were from Mereda as agent for Pueblo. Added to other indicia, the Court affirmed the Board’s decisions, writing that the existence of an employer-employee relationship, even if there is a written agreement indicating otherwise, is one for the Board to resolve and “its determination in that regard must be upheld if supported by substantial evidence, even if other evidence in the record could have supported a contrary conclusion.” Prevailing party represented by: Rudolph Rosa DiSant of counsel to Gregory J. Allen, NYSIF for Pueblo Nuevo Assoc and another, respondents. Click here to read the full court decision of the NYS Appellate Division…
Poulton v Martec Indus
July 8, 2010 NYS Appellate Division, Third Department
Injury: new or aggravated
REVERSED the Board’s ruling that claimant aggravated a prior injury and awarded workers’ compensation benefits. Claimant, who applied for benefits alleging that he injured his back at work on June 7, 2006, had his claim controverted as he had sustained back injuries in 1998 and 2000 while working for a prior employer; claimant did not apply for workers’ comp benefits in 1998 but the 2000 incident resulted in an established WC claim. The Law Judge, affirmed by a Panel, awarded benefits, concluding that the 2006 incident constituted “an accidental work related aggravation of prior neck and back injuries.” The appeal asserted that the June 7, 2006 incident did not cause a new disability. The Appellate Court determined that “Under the circumstances, ‘the proper inquiry is whether claimant’s employment acted upon [a] preexisting condition in such a way as to cause a disability which did not previously exist’” and concluded it did not, thus reversing the Board.
[ED. NOTE: Not knowing who was on the Panel, it is difficult for me as a former commissioner to speculate as to how, as happens far too often, the Law Judge, the lawyers in the ARD, the Panel, and ultimately the attorneys in the Office of the General Counsel missed the following key indicia used by the Court to support their reversal.]
Claimant testified that he had experienced the same type of back pain ‘every day’ since 1998. On June 2, 2006, claimant scheduled a June 8, 2006 appointment with his treating physician — who had been seeing claimant for his back problems on a monthly basis — to discuss his desire to cease working [Court’s footnote FN2: While scheduling the appointment, claimant informed personnel in his physician’s office that he had increasing back pain and that it had become hard for him to function at work. On June 6, 2006, claimant contacted his physician’s office again and reiterated his desire to discuss going out on disability. We note, in addition, that claimant made no reference to the June 7, 2006 work-related incident on an application for disability benefits that he completed on June 9, 2006.] “At that appointment, claimant made no mention of an incident at work the prior day and, following the examination, claimant’s physician concluded that claimant was disabled and unable to work ‘[b]ecause of his old injuries and his continued decline.’ … Furthermore, claimant’s supervisor testified that claimant regularly complained of back pain and that, before June 2006, claimant stated that he might stop working and seek permanent disability benefits as a result of a back injury sustained at his former job. Finally, a second physician who examined claimant opined that he suffered from degenerative disc disease and that his disability was caused primarily by preexisting problems.” Prevailing party represented by: Jacklyn M. Penna of counsel to Buckner & Kourofsky (Rochester) for appellants. Click here to read the full court decision of the NYS Appellate Division…
▼ Posted Friday July 2, 2010 ▼
Parkhurst v United Rentals
Lloyd v Kelly
Robinson v Gould Pumps
*Collins v Dukes Plumbing
*Earle v Batavia Nursing Home
*Raynor v Landmark ChryslerJuly 1, 2010 NYS Appellate Division, Third Department[*ED: NOTE: The decision issued in Collins, Earle, and Raynor are identical almost word for word with the exception that in the latter three cases, a constitutional issue was raised. See notes below.]AFFIRMED the Board’s ruling, in these six cases, that the Board’s mandating payment, per WCL §27(2), to the aggregate trust fund (ATF) does apply retroactively to claimants’ injuries even if they were sustained before the amendments effective date. In affirming the Board’s decision, the Court also rejected the carriers’ argument that mandating lump-sum payment of claimants’ uncapped PPD awards is improper because the actual amounts of their future benefits are unpredictable and there is no reliable way to calculate their present values.In each of these cases, claimants’ injuries were classified as a PPD with benefits awarded under §15(3)(w). These PPD awards, however, were not capped because claimants’ injuries all preceded the effective date of the amendment. Because each of these uncapped PPD awards was made after July 1, 2007, the private insurance carriers for claimants’ employers were ordered to make a lump-sum payment of the present value of the award into the ATF pursuant to the amendment to §27(2). The full Board found the language of §27(2) as amended to be unambiguous and to evince a clear intent to require payment into the ATF of all §15(3)(w) awards made after July 1, 2007 regardless of the date of injury.The Court wrote that “We do not view these cases as presenting an issue of the retroactive application of the amendment to §27(2).” They then followed with their interpretation of the statute and and legislative intent, including in their decision, “Here, the plain language of the statutes and the legislative history of their amendments persuades us that the inclusion of a reference to §15(3)(w) in §27(2) was intended to expand the types of awards to which the latter’s mandatory payment provision applies rather than to restrict it to awards that are capped by the amendment to §15(3)(w) . … Nor do the principles of statutory construction permit us to imply the limitation suggested by the carriers. Where, as here, “a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.“
The Court also explained its rejection of the carriers’ contention that the Board’s computation of the present value of each claimant’s award is speculative or arbitrary and capricious because the tables used cannot accurately predict the amount or duration of an uncapped award.
[*ED. NOTE: The following is the Court’s response to the constitutional issues discussed the Matters of Collins, Earle, and Raynor. ]
As for the constitutional arguments made by two of the carriers, “we are not persuaded that the Board’s application of amended Workers’ Compensation Law § 27 (2) violates the Taking Clause of the Fifth Amendment of the US Constitution. To determine whether there has been a compensable taking of private property for public use, we weigh the economic impact of the challenged statute on the carriers, the extent to which it has interfered with their distinct investment-backed expectations and the character of the governmental action involved. Here, the carriers do not claim that the amendment has increased the amount of compensation owed to claimants, and they offer no evidence of an unexpected additional expense other than administration fees, “a necessary consequence of the . . . regulatory scheme.
“The argument that the amendment violates the Contract Clause of US Constitution, article I, § 10 also is unpersuasive because their existing insurance contracts already had to account for the possibility of a discretionary direction to pay awards into the ATF. We are similarly unpersuaded that §27(2) violates the carriers’ equal protection rights under the 14th Amendment. To the extent that the carriers also contend that the mandatory deposit violates their substantive due process rights, they have not demonstrated that they were deprived of a protected property interest and “that the governmental action was wholly without legal justification.” Prevailing party represented by: In Parkhurst et al, Diana R. H. Winters and, in Collins et al, Karen Schoen both of counsel to Andrew M. Cuomo, Attorney General for respondent (WCB) Click here to read the full court decision in Parkhurst et al… and here for Collins et al…
THIS WEEK’S MOTIONS
July 2, 2010: The following list Motions ruled upon this week by the 3rd Department:
- Blacknall v Lander et Workers’ Compensation Board
Motion granted to to perfect the appeals is extended to 30 days from the date of this Court’s decision in Matter of Cotugno v Albany Park & Fly, Inc. [#508365]
In each of the following cases, motion has been granted, without costs, and the time to perfect the appeal is extended to August 23, 2010.
- Villa v American Fire Restoration et and James Steffen Doing Business as Professional Cleaning Company. Workers’ Compensation Board.
- Guidice v Herald Company et and Fund for Reopened Cases Workers’ Compensation Board.
- Kakuriev v Home Service Systems LLC et and Special Disability Fund Workers’ Compensation Board
- Baxter v T.g. Peppe Inc. et Workers’ Compensation Board.
- Card v Kendall Company et Workers’ Compensation Board.
- Hamza v Steinway & Sons et Workers’ Compensation Board
- Clark v New York Technologies Corporation et Workers’ Compensation Board
- Falkouski v City of Rensselaer Fire Department et Workers’ Compensation Board
▼ Posted Friday June 25, 2010 ▼
Held v NYS WCB
June 17, 2010 NYS Appellate Division, 3rd Department, Motion Decision
§ 50(5) Assessments
ORDERED that the the motion is granted, without costs, and without prejudice to a motion to vacate the stay in the event appellants-respondents do not file a record and brief on or before August 2, 2010. William Held Jr., as Chair of Contractors Compensation Trust, et al., group self-insured trusts (hereinafter GSITs), commenced that earlier proceeding to annul certain assessments levied against them by respondent New York State Workers’ Compensation Board.
Visic v O’Nero & Sons Constr
June 24, 2010 NYS Appellate Division, Third Department
Disability: Degree of
Decision Inadequately/Poorly Written
In part AFFIRMED the Board’s ruling that the pro-se claimant has a marked permanent partial disability rather than a total disability but ‘CORRECTED’ the Board for reopening an issue (AWW) not being controverted. Following two surgeries necessitated by a 2000 injury to his back, the claimant was classified in 2004 with a permanent partial disability.After the case was reopened in 2007 based on a C-27 from claimant’s doctor opining a total disability, a Law Judge determined that there was no total disability but a marked permanent as previously determined and the parties stipulated as to AWW. On review, the Board agreed with all Law Judge on the Degree of Disability but remitted the matter back to the Judge to reconsider average weekly wage.
The Board relied on the medical reports of physicians Edward Simmons, who performed claimant’s surgery in 2004, and Jerry Tracy whereas the claimants testifying physicians gave conflicting testimony and the doctor who supplied the C-27 did not base his opinion on the Board’s Medical Guidelines of June 1996. In summary, the Court, while knowledge and conflicting medical information found that the Board’s decision was adequately supported. However, in returning the case to the Judge to reconsider the AWW, the Court noted the parties reached a stipulation on the AWW. “Inasmuch as a timely appeal was not filed on that decision, and given the absence of circumstances justifying revisiting the issue, the decision is final and binding per WCL §23.” Prevailing party represented by: Thomas P. Etzel of counsel to Gregory J. Allen, State Insurance Fund for O’Nero & Sons Construction Company and another, respondents. Click here to read the full court decision of the NYS Appellate Division…
Perez v Licea
Moreno v Licea
June 24, 2010 NYS Appellate Division, Third Department
Employment: Who is
Procedure: Denial Full Board Review
AFFIRMED the Board’s rulings in these two related cases which (1) determined that an employer-employee relationship existed and (2) which denied claimants’ requests for reconsideration or full Board review. In 2006,Edelman, as the owner and sole officer of 2180 Realty Corporation, asked Luis Licea to perform maintenance work on his company’s building. Licea requested that Edgar Ruano Perez and Jorge Moreno, claimants and appellants in these two cases, assist him shortly after which all three sustained injuries in an explosion while work was being performed. After hearings were held to determine whether claimants were employees of Licea or 2180 Realty, a Law Judge ruled Licea the general employer liable for 75% and 2180 Realty special employer liable for 25%. After both claimants and Rochdale Insurance Company (2180 Realty’s workers’ comp carrier) sought review of that decision,the Board affirmed the Law Judge and denied both parties’ requests for full Board review or reconsideration.
The Board’s factual determination that a general employee of one employer is a special employee of another must be upheld if it is supported by substantial evidence. While no single factor is dispositive, “it has been held that the key to the determination is who controls and directs the manner, details and ultimate result of the employee’s work.” Licea testified that Edelman instructed him to employ additional workers such that the two claimants and Licea were doing so when the explosion occurred. Both Edelman and Licea testified as to their conversation regarding their relationships with the two claimants to investigators for the NYC Fire Department as well as adding additional information in their testimony before the Board, information the Board used to make it determination. In supporting the Board, the Court wrote, “To the extent that evidence in the record might support a different result, we note only that ‘the Board was entitled to resolve the conflicting evidence based upon its assessment of the witnesses’ credibility and the reasonable inferences drawn therefrom.’”
The Court addressed the denial for reconsideration or full Board review in a footnote: “Although claimant[s] and Rochdale have each appealed from the Board’s underlying decision, only claimants have appealed from the Board’s denial of request for full Board review or reconsideration; however, claimants’ appeals from that denial are deemed abandoned as they did not raise any issues with respect thereto in the brief on appeal.” Prevailing party represented in both cases by: Amy L. Fenno of counsel to O’Connor Redd (White Plains) for 2180 Realty Corporation, respondent and Kim Stuart Swidler, Uninsured Employers’ Fund, Albany, for Uninsured Employers’ Fund, respondent. Click here to read the full court decision in Perez v Licea… and Click here to read the full court decision in Moreno v Licea…
Grill v Fashion Inst. of Tech
June 24, 2010 NYS Appellate Division, Third Department
§ 15(8)(e) 2nd Injury Fund
Procedure: Denial Full Board Review
AFFIRMED the Board’s ruling (1) that because claimant did not have a ‘dust disease’, WCL §15(8)(ee) did not apply and (2) which denied the application of the employer and its third-party administrator for full Board review. After the claim was established for a compensable occupational disease (interstitial pulmonary fibrosis and lung disease) the question thereafter arose as to whether the condition constituted a dust disease entitling the employer to reimbursement from the Special Disability Fund (Fund) per WCL§15 [8] [ee]), the Board determined that it did not.
Whether a condition constitutes a dust disease within the ambit of WCL §15(8) (ee) depends “upon the pathological distinction between pneumoconiosis (diseases caused by the inhalation of dust particles which affect the parenchyma, or essential functioning aspects, of the lungs) and those diseases which affect the pleura, or lining, of the lungs. If a lung disorder arises from pneumoconiosis, it is properly viewed as a dust. Here, claimant’s treating pulmonologist determined that she suffered from pneumonitis arising from her exposure to aerosolized paint, but did not find that she had pneumoconiosis. As the Board was free to credit that opinion over the equivocal diagnosis of pneumoconiosis rendered by another physician, we are satisfied that substantial evidence supports its decision.”
In a footnote the Court ruled, “Inasmuch as the employer fails to raise any issue with respect to its separate appeal from the Board’s denial of its application for full Board review, we deem that appeal to have been abandoned.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division…
Stojanov v Eastman Kodak
June 17, 2010 NYS Appellate Division, 3rd Department, Motion Decision
§ 23: Late or Interlocutory Appeal
ORDERED that the motion for reargument or, in the alternative, for permission to appeal to the Court of Appeals is granted. In the original decision issued April 1, 2010, the Court rescinded and sent back for reconsideration the Board’s ruling that claimant’s applications for review were untimely per WCL because the applications were not received by the Board within 30 days. However, in explaining its rescission in April 2010, the Court noted that, “In Matter of McLaughlin v Saga Corp. (242 AD2d 393, 394 [1997]), this Court concluded that the mailing of an application for Board review within the 30-day limitation period “was sufficient to satisfy the time limitation of Workers’ Compensation Law § 23. Subsequently, the Board promulgated the current version of 12 NYCRR 300.13 (a), which provides that an ‘application is deemed filed with the [B]oard on the date of actual receipt of such application by the [B]oard’ (emphasis added). This amendment is obviously at odds with this Court’s holding in McLaughlin and, as such, violates the rule that ‘[a] court’s affirmance or reversal of an administrative body’s interpretation of its governing statute becomes binding on the agency.’ Therefore, the Court reversed the Board stating that the Board could not promulgate administrative regulation that was inconsistent with this Court’s interpretation of WCL §23, remaining the case back to the Board for further proceedings on the original issue raised by the claimant.” Click here to read the full court decision of the NYS Appellate Division…
▼ Posted Monday June 21, 2010 ▼
Len v NYS
June 17, 2010 NYS Appellate Division, Third Department
§11: Jurisdiction
AFFIRMED an order of the Court of Claims which, among other things, granted defendants’ motion to dismiss the claim and/or for summary judgment dismissing the claim.
On December 7, 2006, decedent tragically fell to his death from one of the movable dams used by his employer New York State Canal Corporation, the chief lock operator for the Green Island Bridge in the City of Troy, Rensselaer County. The decedent’s estate commenced this action against the Corporation, defendant State of New York and defendant New York State Thruway Authority alleging both wrongful death and conscious pain and suffering.
Asserting, among other things, that these claims are barred by the exclusivity provision of WCL §11, defendants moved to dismiss the action and/or for summary judgment. Conceding only that his claims against the Corporation are barred, claimant otherwise opposed the motion and cross-moved to amend his claim as against the State and the Authority to allege Labor Law violations. The Court of Claims granted defendants’ motion, holding that the claims against the Authority, by virtue of its parent-subsidiary relationship with the Corporation, were barred by the exclusivity provision of WCL §11. Key to this decision was the Court’s determination as to whether the Authority should be deemed decedent’s employer for workers’ compensation purposes. Although the standard for finding an alter ego relationship is high, requiring “direct intervention by the parent in the management of the subsidiary to such an extent that ‘the subsidiary’s paraphernalia of incorporation, directors and officers’ are completely ignored”, here the Court found that the Corporation is but an arm of the Authority, justifying a finding that the Corporation is the Authority’s alter ego.The Court concluded that “this evidence of shared purpose, intermingling of finances and unity of management is sufficient, on this record, to uphold the Court of Claims’ finding that, for the purposes of canal operations, the Authority is indistinguishable from the Corporation and, as a result, is entitled to assert the exclusivity provisions of the WCL.”
With respect to his claims against the State and the claimant assertion that he should have been permitted to amend the complaint to include claims under Labor Law § 240 (1) and § 241 (6), the Court reviewed the specifics of the appeal and agreed that the Court of Claims properly found that claimant’s proposed claims under Labor Law § 240 (1) and § 241 (6) lack merit. The Appellate Court then added, “In light of this conclusion, we need not address the State’s proposed alternative ground of affirmance, namely that it is also entitled to assert the defense of workers’ compensation. Finally, we reject claimant’s alternative argument that the granting of the State’s summary judgment motion was premature (see CPLR 3212 [f]). Claimant ‘has failed to identify any evidence that might . . . [be] developed if additional discovery [is conducted] that would . . . serve[] to bar [the Court of Claims] order granting the State’s motion’.” Prevailing party represented by: Kathleen M. Treasure of counsel toAndrew M. Cuomo, Attorney General for respondents. Click here to read the full court decision of the NYS Appellate Division…
▼ Posted Friday June 17, 2010 ▼
Brown v NYC Dept Corrections
June 17, 2010 NYS Appellate Division, Third Department
Causal Relationship:Heart Condition
AFFIRMED the Board’s ruling that claimant did not sustain a causally related injury and denied his claim for workers’ compensation benefits. Claimant’s lightheadedness at work in 1999 was determined to be due to cardiomyopathy. Absent from work for several months, he applied a claim for workers’ comp, arguing that work-related stress led to hypertension which, in turn, triggered the cardiomyopathy, a claim the Board denied, finding that he had not established a causal link between job stress and his cardiac condition.
Claimant suggests that the manifestation of his condition at work gave rise to a presumption that it arose out of and in the course of his employment. But as he failed to raise this issue before the Board, the Court ruled that “it is accordingly unpreserved for our review.” Nonetheless the Court reviewed the medical evidence submitted by the claimant and the carrier noting that an impartial cardiologist who examined the claimant at the Board’s request found no causal link between claimant’s work and his cardiac distress. The Court, in referencing several medical reports supporting the Board’s decision, did note that the “medical proof provides substantial evidence to support the Board’s decision, notwithstanding the fact that other evidence in the record could support a contrary result.” Prevailing party represented by: John Sweeney of counsel to Michael A. Cardozo, Corporation Counsel, NYC for NYC Department of Correction, respondent. Click here to read the full court decision of the NYS Appellate Division…
Dupuis & Frito Lay v SFCC
June 17, 2010 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund
AFFIRMED the Board’s ruling that the employer’s workers’ compensation carrier is entitled to reimbursement from the Special Disability Fund per WCL §15(8)(d). After the claimant’s claim for a work-related knee injury was established and he received workers comp benefits, the employer’s carrier sought reimbursement from the Fund asserting the claimant’s diabetes, among other pre-existing conditions, had contributed to his disability, an argument with which the Board agreed. In order to obtain reimbursement under WCL§15(8)(d), the carrier was obliged to show that claimant had (1) a preexisting permanent impairment that hindered his job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than what would have arisen from the work-related injury by itself. The Court, in referencing several medical reports supporting the board’s decision, did note that the “medical proof provides substantial evidence to support the Board’s decision, notwithstanding the fact that other evidence in the record could support a contrary result.” Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for Frito Lay and another, respondents. Click here to read the full court decision of the NYS Appellate Division…
▼ Posted Friday June 10, 2010 ▼
Kaja v Siller Bros
June 10, 2010, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review
ISSUED A SPLIT DECISION on the Board’s ruling which denied pro-se claimant’s application for reconsideration and/or full Board review. Claimant, whose left thumb was severed in May 2003 and later reattached, had his case closed in August 2004 with an award for 75% schedule loss of use of his left thumb. In August 2004, the WCLJ, based upon a report from claimant’s orthopedist, found prima facie medical evidence of a consequential neck injury related to the 2003 incident and continued the case. However, following the submission of medical reports and a hearing in 2008, the Law Judge determined that claimant failed to establish a consequential neck injury. As to the additional claim for further causally related disability to claimant’s thumb, the Law Judge also denied relief, noting that an October 2004 independent medical report from the workers’ compensation carrier’s consultant, Joseph Fulco, had only found, at that time, left thumb disability “of a moderate partial rate.” After all the decisions were affirmed by a Board panel, claimant applied for reconsideration and/or full Board review which was denied.
As the claimant’s appeal dealt with the denial for reconsideration and/or full Board review and not the underlying decision, the Court limited its review to the denial, resulting in a “split” decision. The Court agreed with the Board regarding the neck, ruling no new evidence was presented justifying a modification of prior decision.
However, regarding the thumb, the Court found that a new independent medical report of January 2009 from the carrier’s consultant opined that claimant has “a 100% schedule loss of use of the left thumb.” The Curt then wrote, “Here, given the circumstance that, among other things, the report by the impartial specialist describing a change in condition was generated at the request of the carrier and expeditiously presented to the Board, we cannot agree with the Board’s ruling that claimant’s application should be denied on the basis that ‘[n]o new evidence has been offered which could not have been produced earlier.’ Accordingly, we deem it appropriate to remit the matter to the Board for further proceedings related to that issue.” Prevailing party represented by: Since this was a split decision, no one had the prevailing argument but kudos to EDIP KAJA, the pro se appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Sulecki v City of New York
June 3, 2010 NYS Appellate Division, First Department
Course of Employment: Egress/Ingress
REVERSED the Order, Supreme Court, New York County (Karen S. Smith, J.), entered February 2, 2009, which denied the municipal defendants’ motion to amend their answer to assert the defenses of workers’ compensation and collateral estoppel. In its decision the Court wrote, “Plaintiff, an engineer employed by the New York City Department of Design and Construction, was injured after tripping on a sidewalk adjoining a City-owned building while on his way to a work-related meeting. The Workers’ Compensation Law provides the exclusive remedy where, as here, the employer and the landowner are essentially the same party and the plaintiff is injured while performing his job No exception should be made simply because plaintiff’s injury did not occur at the location of the work-related meeting. Accordingly, the motion for leave to amend the answer should have been granted and the complaint dismissed as against the municipal defendants.” Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼There were no decisions issued June 3, 2010▼
▼ Posted Friday May 28, 2010 ▼
Keles v Santos [Cleaning]
May 27, 2010 NYS Appellate Division, Third Department
Employment: Who is
AFFIRMED the Board’s ruling that claimant was not an employee of Augusto B. Santos and denied his claim for workers’ compensation benefits. Claimant, employed by Plymouth Beef Company, was allegedly injured at the facility prior to the start of his scheduled shift with Plymouth, thus seeking workers’ comp benefits. He claimed that his early presence at the facility was due to inspection work he performed for Santos, the proprietor of the business that cleaned the facility. A Law Judge, later affirmed by a Board Panel, disallowed the claim, finding that no employer-employee relationship existed between claimant and Santos. Although the claimant at one time worked for Santos, the relationship ended months before the injury. Nonetheless as part of his job at Plymouth, he was required to interact with employees of Santos. The Court wrote, “While claimant testified that he felt morally obliged to continue performing the safety inspections which he had done for Santos even though Santos no longer needed his services, that gratuitous work, absent other indicia suggesting an employer-employee relationship, and the fact that substantial evidence supports the Board’s determination we affirm the decision not to award workers’ compensation benefits.” Prevailing party represented by: Daniel Becker of counsel to Gregory J. Allen, State Insurance Fund for Augusto B. Santos and another, respondents and Patrick M. Conroy of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Plymouth Beef Company and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Turner v Jaquith Indus
May 27, 2010 NYS Appellate Division, Third Department
Disability: Further Causally Related
AFFIRMED the Board’s ruling that claimant had no further causally related disability. Claimant, a machine operator, began experiencing respiratory problems after being exposed to toxic fumes in the course of his employment in July 1997 resulting in losing three weeks of work and an established comp claim involving his lungs and airways. He returned to work in August 1997 but in the summer of 2006, he was again exposed to fumes causing breathing difficulty. Subsequent to a diagnosed of asthma and chronic obstructive pulmonary disease, he submitted a second claim for benefits. A Law Judge, later affrimed by a Board Panel, authorized awards for February 16, 2007 to June 8, 2007, but found no futher causally related disability beyond June 2007. While the claimant’s and carrier’s medical providers submitted opposong opinions, the Court, as its norml position on such controversies, wrote, “[I]t is within the Board’s discretion to determine witness credibility and resolve conflicting medical opinions. . . . inasmuch as the resolution of conflicting medical opinions is within the Board’s province and both of the latter opinions constitute substantial evidence supporting the Board’s determination, we decline to disturb it.”Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent and Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for PMA Insurance Group, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Clark v Suny Upstate Med. [SFCC]
May 27, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing
AFFIRMED the Board’s ruling that the award of workers’ compensation benefits be paid by the Special Fund for Reopened Cases. Claimant injured her back while working for the employer in 1994, initially paid for compensable lost time which came to an end in March 1977 when a Law Judge authorized treatment and closed the case. Further work-related injuries in 2001 and 2003 also resulted in the payment of workers’ comp benefits, beginning in 2003. The 1994 claim was reopened in 2004, when a hearing was held to determine, among other things, whether apportionment between the various claims was appropriate at which time the. The Special Fund for Reopened Cases (Fund) was then placed on notice that it may be required to assume liability for the 1994 claim per WCL §25-a.
Although on the face of the record, both of the times limits under §25-a (three years and seven years) were satisfied in this case, the Fund argued that the employer’s workers’ compensation carrier voluntarily paid benefits it knew were attributable to the 1994 claim in the three years prior to reopening. The carrier received the November 2003 report of an orthopedic surgeon who examined claimant and opined that the 1994 accident was partially responsible for her ongoing disability. Although the carrier did subsequently pay benefits under both the 2001 and 2003 claims, it also raised the issue that the Fund may be liable for any portion attributable to the 1994 claim, and the Fund was notified of its potential liability (see WCL §25[1][f]). The Court then wrote, “As substantial evidence in the record thus supports a finding that the carrier did not voluntarily assume liability for payments attributable to the 1994 claim, the Board appropriately followed the spirit and purpose of WCL §25-a to shift liability of that stale claim to the Fund.” Prevailing party represented by: Susan B. Marris of counsel to Gregory J. Allen, State Insurance for SUNY Upstate Medical Center and another, respondents Click here to read the full court decision of the NYS Appellate Division, Third Department….
Monteleone v Town of N. Castle
May 27, 2010 NYS Appellate Division, Third Department
§ 25(4)[a] Reimbursement
AFFIRMED the Board’s ruling that the employer was entitled to reimbursement for wages paid to claimant during the period of disability. After suffering a 2005 inury, claimant ultimately negotiated a 25% schedule loss of use encompassing 78 weeks of compensation. As claimant had been paid full wages for 46 days due ot his injury, the agreement also called for the employer to be reimbursed $11,380 of the total $31,200 award per §25(4)[a]. After a Law Judge approved the stipulation, the claimant requested that the amount of the employer’s reimbursement be modified because approximately eight days of claimant’s vacation and sick leave accruals had allegedly been deducted during those 46 days. Although the Law Judge agreed with the claimant and reduced the amount of the employer’s reimbursement, a Board panel reversed and affirmed the original reimbursement of $11,380. Here the Court noted that “pursuant to a collective bargaining agreement governing claimant’s employment, the employer was required to pay claimant’s full wages, without deducting any of claimant’s leave accruals, for the initial six months of any lost time arising from a compensable injury. Inasmuch as the instant record does not support claimant’s assertion that the employer did otherwise, the Board properly concluded that reimbursement of $11,380 to the employer would not create a disproportionate result in its favor.”Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for Town of North Castle and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday May 21, 2010 ▼
Bran v Wimpish
May 20, 2010 NYS Appellate Division, Third Department
Employment: Who is
§14: Average Weekly Wage
AFFIRMED the Board’s ruling that claimant was an employee of Ralph Wimpish but REVERSED the Board’s ruling on the average weekly wage.
After sustaining injuries on February 12, 2008 when he fell from a ladder while working in the apartment owned by Ralph Wimpish, the injured workers claim was established after a Law Judge found an employer-employee relationship and set the claimant’s average weekly wage at $620, decisions affirmed by a Board Panel. The Appellate Court noted that, “Wimbish hired the claimant in the parking lot of a home improvement store, provided daily transportation between the store and the worksite and instructed the claimant on what work needed to be done. . . . Wimbish paid claimant in cash at the end of each workday and supplied him with equipment, including spackle, spackling tools and a ladder.” Citing prior case law, the Court added, “The existence of an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its finding must be upheld if supported by substantial evidence. . . . In our view, the record contains substantial evidence supporting the Board’s determination that an employer-employee relationship existed between claimant and Wimbish, notwithstanding evidence in the record that could support a contrary result.“
However, the Court did find merit in Wimbish’s contention that the Board’s calculation of claimant’s average weekly wage at $620 was improper and return this particular matter to the Board for further proceedings. Prevailing party represented by: John F. Clennan, Ronkonkoma, for appellant, on the issue of average weekly wage and Iris A Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent on the issue of employee/employer relationship. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Catapano v Jaw
May 20, 2010 NYS Appellate Division, Third Department
§ 29: MVA liens
RESCINDED and sent back for reconsideration the Board’s ruling that the Special Disability Fund’s consent to a third-party settlement was not required. Claimant suffered injuries in an accident at work, and this workers’ compensation claim was established in 1996. The employer’s workers’ compensation carrier then filed a notice of claim for reimbursement out of the Special Disability Fund and, in 2000, the Fund was found liable for reimbursement pursuant to Workers’ Compensation Law §15(8)(d). Shortly thereafter, claimant settled a personal injury action arising out of the accident, and the carrier (State Insurance Fund) gave its consent to the settlement, waived its lien on the proceeds, and took a credit against claimant’s net recovery (WCL §29[4],[5). The Fund’s consent to the settlement was not sought and, as a result, it refused to reimburse payments of deficiency compensation made by the carrier. The Board ultimately held that the Fund’s consent was not required, and the Fund appealed.
“While the Board is free to alter a course previously set out in its decisions, it must set forth its reasons for doing so, and the Board’s failure to do so renders its decision arbitrary and capricious. The Board had previously held that where the Fund has been found liable for reimbursement to the carrier under WCL §15 (8)(d), the carrier waives its right to that reimbursement if it does not obtain the Fund’s consent to a settlement (see Matter of Care Diagnostic Laboratory, 2006 WL 832793, *2, 2006 NY Wrk Comp LEXIS 2612, *4 [WCB No. 29317021, March 28, 2006]; see e.g. Matter of Brigotta Farmland, 2006 WL 1064007, *2-4, 2006 NY Wrk Comp LEXIS 3343, *5-10 [WCB No. 80213739, April 18, 2006]). Indeed, the carrier here readily admits that the cited precedent does not support the Board’s present holding, but nonetheless argues that the prior cases were wrongly decided. However, as that prior precedent was not addressed in any way in the Board’s decision, the Court remitted this matter back to the Board for further proceedings.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday May 14, 2010 ▼
Bush v Montgomery Ward
May 13, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing
AFFIRMED the Board’s ruling that WCL § 25-a is inapplicable to claimant’s award of workers’ compensation benefits. Although claimant was injured at work in June 1978 and awarded compensation benefits, it appears that claimant did not receive awards for her injury after 1981; however, most of the records associated with her original claim were destroyed that year in a fire at the Binghamton office of the Board and the record contains no evidence indicating that the issue of permanency was resolved.
Accordingly, when claimant sought to reopen her claim in 2006, hearings held to determine the applicability of WCL §25-a lacked the benefit of documentation regarding the manner in which earlier proceedings were resolved. Claimant stated that her claim had never been closed and that she had worked in a light duty capacity since her injury. Medical reports submitted in April 1979 and April 2006 indicate that she was capable of performing only light duty work. Additionally, in 2008, her treating physician opined that claimant had suffered a 15% to 20% schedule loss of use of her right knee. Following the hearings, a Law Judge, affirmed by a Board panel, ruled that the claim was never truly closed and discharged the Special Fund for Reopened Cases from liability. The Court then ruled that “substantial evidence support[ed] the Board’s determination that, because further proceedings were contemplated to establish the extent of her disability, claimant’s case was not truly closed”. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Thomas v Crucible Materials
May 13, 2010 NYS Appellate Division, Third Department
§ 15(6) Reopening by claimant
AFFIRMED the Board’s ruling which denied claimant’s application to reopen his workers’ compensation claim. In 2002 claimant suffered injuries to his right shoulder, underwent surgery to repair a massive tear in his right rotator cuff, which was not successful. At a November 25, 2003 hearing, claimant agreed to accept his doctor’s opinion regarding schedule loss of use (SLU), was classified with a 70% schedule loss of use of his right arm, awarded benefits, and the case was closed.
In 2007, claimant resumed treatment for his injury, then successfully applied to reopen his claim based on recent medical reports indicating that his medical condition had worsened since the 2003 classification. The Law Judge found sufficient medical evidence of a change of condition, rescinded the 2003 SLU determination, reclassified claimant with a permanent total disability from 2003 onward, and modified claimant’s award accordingly. Upon appeal, a Board panel reversed, concluding that claimant failed to show that his condition changed to such an extent that a reopening of his prior classification was justified.
The Board’s decision as to whether to reopen a case per WCL §15(6) is a matter committed to the Board’s discretion and will not be disturbed on appeal absent an abuse of discretion. Furthermore, it is for the Board to resolve conflicting medical evidence and, in so doing, it “may selectively adopt or reject portions of a medical expert’s testimony“. The Court agreed with the Board that there was no “meaningful distinction between Smallman’s preclassification and postclassification medical narratives. . . . Despite the existence of other medical evidence in the record to support a contrary result, we find that the foregoing constitutes substantial evidence in support of the Board’s conclusion that claimant did not establish a sufficient change in his medical condition warranting a reopening of his 2003.” Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Crucible Materials Corporation and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Yarleque v Sally Lou
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review
AFFIRMED the Board’s denial of claimant’s two requests for reconsideration or full Board review. Having worked for the employer for less than four months in 1996, claimant submitted in June 2000 two applications for benefits allegedly arising out of that employment — one for carpal tunnel syndrome and the second for back, neck and shoulder injuries. Although the carrier argued that both were time-barred pursuant to WCL §28, the Law Judge found the claims timely and established both. A Board panel reversed the Law Judge per §28. The claimant then requested and was denied full Board review on both cases, hence the appeal to the Appellate Court. The Court wrote,“In that regard, the grounds for seeking review or reconsideration are narrow; the movant must generally show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination”.
In this case, the Board in its underlying decision concluded that claimant’s CTS was an occupational disease for which the latest possible date of disablement was November 1, 1996, when claimant stopped working, thus making her claim untimely. As for the second claim,the Board found that her admission in the footnote of her brief confirms that she knew that those injuries were work-related no later than December 21, 1996 together with the evidence that claimant stopped working on November 1, 1996 because of her injuries, amply support the Board’s decision that both claims involved occupational diseases and were filed beyond the two-year period. Prevailing party represented by: Jeremy B. Davis of counsel to Gregory J. Allen, State Insurance Fund for Sally Lou, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Barone v Interstate Maintenance
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review
AFFIRMED the Board’s ruling which denied the employer’s request for reconsideration and/or full Board review. Although the main issue in this case was jurisdiction as the claimant, an employee of a New York firm, was injured in 1993 while making deliveries in New Jersey, the appeal is based on the Board’s denial of a review on the basis that the case was dormant for 10 years, until the employer and its president applied for reconsideration and/or full Board review of the Board’s 1996 decision finding subject matter jurisdiction. The Court wrote, “the employer failed to demonstrate the existence of any newly discovered evidence, a material change in condition or that the Board improperly failed to consider the issues raised before it. Furthermore, the employer failed to make its application ‘within a reasonable time after [it] . . . had knowledge of the facts constituting the grounds upon which such application [was] made’ (12 NYCRR 300.14 [b]). Accordingly, we cannot say that the Board abused its discretion in denying the employer’s request for reconsideration and/or full Board. . . .Finally, we note that the employer’s arguments regarding personal jurisdiction and allegedly improper conduct of Travelers were not raised before the Board in the application for reconsideration and/or full Board review and, thus, are unpreserved for our review.. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday May 7, 2010 ▼
Carlineo v Snelling & Snelling
May 6, 2010 NYS Appellate Division, Third Department
Procedure: Due Process
AFFIRMED the Board’s ruling which returned a case for development of the record on the issue of general/special employment. Claimant was employed by Snelling, a temporary employment agency, and was injured in a car accident for the owner of the car (Michael Comstock) to whom he been assigned as a laborer, providing services to Fortuna Energy.
Hearings were conducted on the claim, but before Snelling completed its examination of Comstock, a Law Judge rendered a decision finding, among other things, that, at the time of the accident, claimant did not have a general/special employment relationship with Comstock or Fortuna and that Snelling’s carrier was responsible for the payment of this claim. Snelling appealed, requesting that the hearing be reopened so that additional evidence could be submitted as to claimant’s employment status at the time of the accident. Although a Board Panel affirmed the Law Judge, a Full Board Review resulted in the case being returned to the Panel which determined that Snelling’s counsel should have been permitted to complete his examination of Comstock, and the case was sent back to a law judge for this further examination.
In its appeal to the Appellate Division, Snellng argued that the Board panel erred by restricting the hearing on remand to Comstock’s testimony and contends that it should be provided with an opportunity to present additional evidence on the employment issue from other witnesses. The Court ruled that “As the decision being appealed rescinds the original decision and remands the matter to the Law Judge for a new ruling on all issues, it is interlocutory in nature and does not dispose of all substantive issues nor reach legal threshold issues that may be determinative of the claim. As such, this decision may not be the proper subject of an appeal and this appeal must be dismissed.” Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Renz v Home Depot
May 6, 2010 NYS Appellate Division, Third Department
Causal Relationship: Aggravation or New
AFFIRMED the Board’s ruling that claimant was precluded from pursuing her neck injury claim by stipulating to a schedule loss of use award to her arms. The Board found that the claimant injured her left shoulder and authorized surgery and benefits. Following a hearing at which claimant asserted consequential injuries to her right shoulder and neck, a Law Judge amended the case to include a right shoulder injury, authorized medical tests of claimant’s neck and upper extremities for diagnostic purposes, and directed the parties to submit deposition transcripts regarding the issue of whether claimant suffered a neck injury. at a March 2007 hearing before a different LJ and without the submission of depositions related to the neck injury, the parties stipulated that claimant suffered a 25% schedule loss of use of her left arm and a 20% schedule loss of use of her right arm. When the WCLJ asked if there were “[a]ny other body parts,” claimant’s counsel replied, “[n]o.” The parties’ agreement which awarded the claimant approximately $55,000 in total benefits and indicated that “[n]o further action [was] planned” in the case.
Then one month later, claimant moved to reopen the claim, seeking benefits related to her neck injury, right thumb and right ring finger. The case was referred back to the original WCLJ, before whom claimant conceded that she had agreed to forego her neck claim when she entered into the stipulation. Claimant asserted, however, that her neck condition had since deteriorated. The WCLJ noted that claimant’s neck had been symptomatic since the date of the accident and concluded, as relevant here, that the claim for the neck injury and any claims flowing from that injury were barred by the parties’ stipulation. Finding that claimant’s bilateral carpal tunnel syndrome was linked solely to her neck injury, the WCLJ determined that there was no prima facie medical evidence of carpal tunnel syndrome. The Board affirmed, concluding that claimant had not been “forthright” about her intention to pursue the neck claim at the time she entered into the stipulation, and stating that “no further claim regarding the neck may be made at this time.” The Court in its affirmance wrote, “In light of the medical guidelines, the procedural history of this case, evidence that claimant’s neck was symptomatic at the time of the stipulation and the negative response of claimant’s attorney when asked by the WCLJ whether there were ‘[a]ny other body parts,’ the Board did not act irrationally in concluding that the stipulation barred pursuit of the neck claim and denying claimant’s application to reopen the case.” Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman(Hauppauge) for Home Depot USA, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Wilson v General Mills
May 6, 2010 NYS Appellate Division, Third Department
Course of Employment: Assault
AFFIRMED the Board’s ruling that claimant’s injury arose out of and in the course of her employment due to an assault and awarded workers’ compensation benefits. Claimant filed for benefits after a coworker struck her in the face with a work tool. The Law Judge ruled. and the Board affirmed that the assault upon claimant stemmed from work-related differences finding a sufficient nexus between the assault and the employment. The Court agreed that the claimant’s testimony was supported by an affidavit that claimant filed with the Equal Employment Opportunity Commission in support of her discrimination complaint, upon which the employer and its carrier heavily rely, which could be read as suggesting that at least some of the assailant’s offensive comments and conduct stemmed from a promotion and pay raise that claimant received in 2005. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday April 30, 2010 ▼
Hiser v Richmor Aviation
April 29, 2010 NYS Appellate Division, Third Department
§29(4) 3rd Party Liens
REVERSED the Board’s identical that the employer’s workers’ compensation carrier was entitled to offset its future compensation to claimant pursuant to WCL§ 29(4), to wit, one half of a $500,000 voluntary settlement paid pursuant to a policy of insurance is subject to the workers’ compensation carrier’s lien and offset rights under WCL§ 29. [In 2008, the Court reversed the Board’s determination that rejected claimant’s application for review of a Law Judge decision as untimely (2008 NY Slip Op 04981 [52 AD3d 915]).
The undisputed facts are that the claimant’s spouse died in a crash while in the employ of Richmor Aviation even though the plane was owned by Abrams Aviation. Case is established without controversy and paid benefits to claimant and surviving children. In addition to WC benefits, Richmor offered claimant a voluntary $500,000 settlement pursuant to the terms of an insurance policy purchased by and issued to Richmor. The policy required Richmor, as the first named insured, to request payment from the insurance company. Payment was to be made irrespective of legal liability and the claimant, individually and as executor of decedent’s estate, was to execute a release of all claims against Richmor and Abram’s. The Board found that the portion of the proposed voluntary settlement payable under the policy and attributable to Abram’s”constitutes a substitute for the usual third party recovery” and is subject to the lien and offset rights of the compensation carrier provided for in Workers’ Compensation Law § 29. [The Board found that $250,000 of the $500,000 was attributable to Abram’s.] The Court, in reversing, concluded such finding is not supported by substantial evidence.
In summary the Court agreed that WCL §29 does provide for reimbursement for “whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits.” The Court noted that the Board relied on Matter of Ryan v General Elec. Co. (26 NY2d 6 [1970]) which was misplaced because the accident in Ryan was attributable to a US Navy jet whereas the parties in this case agreed that the crash was caused by “an act of mother nature.” The decision continued, “. . . there is no evidence that Abram’s caused decedent’s death or committed any wrong that contributed to his death and the Board’s decision to find Workers’ Compensation Law § 29 applicable to that portion of claimant’s voluntary settlement attributable to Abram’s, under these facts, was not supported by substantial evidence.” Prevailing party represented by: James E. Buckley of counsel to Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Whiteman v Richmor Aviation
April 29, 2010 NYS Appellate Division, Third Department
§29(4) 3rd Party Liens
The current case arises from the same aircraft accident as in Matter of Hiser v Richmor Aviation, Inc. (___ AD3d ___ [decided herewith]) and involves the identical issue. For the reasons set forth in Hiser, we reverse and remit to the Workers’ Compensation Board for further proceedings. Prevailing party represented by: James E. Buckley of counsel to Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday April 23, 2010 ▼
Thompson v Wiltsie Constr
April 22, 2010 NYS Appellate Division, Third Department
§ 21(4): Intoxication
AFFIRMED the Board’s ruling that claimant sustained a compensable injury and awarded workers’ compensation benefits. After the claimant filed for benefits after an injury sustained at work, the employer controverted the claim because a urine sample taken from the claimant approximately 18 hours after the incident revealed the presence of an abnormally high level of marijuana metabolites. The Court agreed with the Law Judge and Board that “the statutory presumption that the claimant’s injury was not solely caused by his intoxication” per WCL §21 (4) precludes disallowing a claim unless “all the evidence and reasonable inferences therefrom allow no other reasonable conclusion than that the intoxication intoxication is the sole cause of the claimant’s injury.” In addition, the claimant testified that while working on a lift, he removed his safety harness, climbed out of the lift, lost his balance, and fell. The Court then added “while claimant’s removal of his safety harness may have been in violation of the employer’s safety regulations, it is not a bar to his recovery of workers compensation benefits under the circumstances presented here.” Prevailing party represented by: Christopher Richmond, Oswego, for William Thompson, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Maher v NYS Div. of Budget
April 22, 2010 NYS Appellate Division, Third Department
Course of Employment: in and out of
AFFIRMED the Board’s ruling that claimant’s injury did not arise out of and in the course of her employment and denied her claim for workers’ compensation benefits, after she fell from a second story roof at a hotel while attending a training conference. After an evening of consuming several beers, claimant and two coworkers returned to the hotel where they had overnight accommodations and shortly after arriving at the suite of one of her coworkers, the claimant and two coworkers stepped onto the roof of the hotel which was accessible only via the bathroom window. Shortly thereafter, claimant placed her hands on the railings surrounding the roof, heard a loud crack, and fell to the ground below. Although the Law Judge allowed the claim, the Board reversed by concluding that “claimant deviated from her employment by climbing out onto the roof, that such action was not reasonable and, hence, claimants injury did not arise out of and in the course of her employment”. The Court summarized its decision by writing, “Based upon our review of the record as a whole, we cannot say that the Board erred in concluding that claimant’s conduct – accessing the hotel roof via the bathroom window – was unreasonable under the circumstances.” Prevailing party represented by: Thomas A. Phillips of counsel to Gregory J. Allen, New York State Insurance Fund, for NYS Division of the Budget and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Lopez v 395 Brook Realty Corp.
April 22, 2010 NYS Appellate Division, Third Department
§ 23: Late or Interlocutory Appeal
AFFIRMED the Board’s ruling that the application by the employer for a review of the Law Judge decision was untimely. Two months after the Law Judge found an employer-employee relationship between the claimant and the employer and awarded benefits to the claimant, the employer filed an application review which was denied by the Board per WCL §23. The Court referenced the Board’s decision which, in turn, “noted that [the employer] failed to acknowledge at the time of the filing that the application was untimely or offer any explanation as to why the application could not have been timely filed.Under these circumstances, the Board’s denial of the application for review as untimely was not an abuse of its discretion.” Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent.Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday April 16, 2010 ▼
McLean v Amsterdam Nursing Home
April 15, 2010 NYS Appellate Division, Third Department
§ 25-a: Advance Compensation
REVERSED the Board’s ruling that liability shifted to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a. The claimant, who sustained a work-related injury in 1996 and whose case was closed in 1997 when she returned to work, applied to reopen the case in 2006. Evidence was submitted showing that the claimant was absent from work, due to her 1996 work-related injury, for numerous days from 2002 to 2005 for which she was paid. After several hearings, the Board ultimately decided liability for the claim had shifted to the Fund. The real issue was whether the payments were “[a]dvance payments that are made voluntarily, in recognition of an employer’s liability, [and] are payments of compensation” or “[w]ages paid and credited to accumulated sick leave are not payments of compensation“. In reversing the Board and affirming the Fund, the Court determined that “[i]n the absence of proof regarding the manner in which claimant was compensated for the time absent from work, the Board could not properly assess whether the employer made an advanced payment of compensation precluding a transfer of liability to the Special Fund.” Prevailing party represented by: Jennie J. Choy of counsel to Steven M. Licht, Special Funds Conservation Committee for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Zahm v National Fuel
April 15, 2010 NYS Appellate Division, Third Department
§123: Late Appeal (7 years)
REVERSED the Board’s ruling that claimant had a 20.4% schedule loss of use for binaural loss of hearing. Claimant worked for the employer in numerous capacities - first as a data entry clerk and then in various customer-related positions - for 31 years until she retired in July 2005. A preemployment hearing examination conducted in 1974 revealed that claimant had a measurable loss of hearing at that time. In August 2007, claimant filed this claim contending that she had sustained an occupational hearing loss due to long-term noise exposure “from being on the telephone for years.” The Board affirmed the Law Judge’s finding of a 20.4% schedule loss of use for binaural loss of hearing. While there was no dispute that the claimant suffered a hearing loss, the Court agreed with the employer the record as a whole fails to establish “both that claimant was exposed to injurious noise during the course of her employment and that [the medical testimoney did not support her contention that] her documented hearing loss was causally related to her employment.” The Court ended its opinion by writing “[b]ased upon our review of the record as a whole, we cannot say that her doctor’s testimony was sufficient to establish the requisite causal connection between claimant’s loss of hearing and her employment.” Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday April 9, 2010 ▼
Rebeor v Moose Lodge #1280
April 8, 2010 NYS Appellate Division, Third Department
§ 25-a: no current liability
AFFIRMED the Board’s ruling that liability shifted to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law §25-a. Originally injured in 1988 and awarded a 10% schedule loss of use with less payment made in 1990, the claimant in August 2007 was denied his request for payment for additional medical treatment. The carrier sought relief under WCL §25-a debt which time a law judge authorized medical treatment and found that liability had shifted to the Special Fund.
The Court wrote “The Special Fund argues that there has been no evidence of medical treatment since 1990 and, thus, no actual liability to shift. However, liability for compensation shifts to the Special Fund when an application to reopen a case is made after a lapse of seven years from the date of the injury and a lapse of three years from the date of the last payment of compensation (see Workers’ Compensation Law § 25-a. While it may be true that there was no current liability to be shifted to the Special Fund, we find no abuse of the Board’s discretion in reopening claimant’s case and determining that he has a potential claim for further medical treatment that would be the responsibility of the Special Fund. Nor are we persuaded that the Board improperly departed from its own precedent. Contrary to the Special Fund’s contention, the Board has sufficiently explained its reasons for shifting liability despite the absence of payable medical benefits in Matter of Del Labs (2009 WL 193434, *4-6 [WCB No. 2940 8739, January 14, 2009]). Although that decision postdated the Board’s decision here, it would provide the necessary explanation if we were to remit the matter as we did in Matter of Rogers v Del Labs (52 AD3d 1129 , 1130 [2008]).” Prevailing party represented by: [ED.NOTE: corrected 04/10/10] Gary G. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Moose Lodge #1280 and another, respondents Click here to read the full court decision of the NYS Appellate Division, Third Department….
Wadsworth v K-Mart Corp.
April 8, 2010 NYS Appellate Division, Third Department
Course of Employment: Assault
REVERSED the Board, who in turn reversed the Law Judge, when the Board ruled that the claimant sustained an injury arising out of and in the course of her employment. Claimant’s personal vehicle was stolen while she worked as an assistant store manager. A week later, on seeing the car idling in the store’s parking lot, she approached the vehicle getting into an altercation with the driver. During the scuffle, a store employee who was acquainted with claimant’s assailant exited the store, jumped into the vehicle and began driving away. Claimant’s assailant then ran off, eventually got into the vehicle with the employee, and the two fled. Her claim for benefits based on psychological damages were disallowed by a Law Judge found that her injuries did not arise out of employment. The Board reversed finding the injuries were sufficiently related to her employment to be compensable. While the employer/carrier conceded the assault occurred course of employment, they rebutted the contention that the injuries arose out of her employment by submitting evidence that the assault was motivated by curly personal animosity. While noting that the Board can award benefits if “There is a nexus, however slender, between the motivation for the assault in the employment . . ., the decision must be based on such relevant evidence has a reasonable mind might accept as adequate to support a conclusion.” It seemed that although the Board used the involvement of a coworker to prove the nexus, the Court found the involvement to be peripheral and not providing a nexus. After further explanations, the Court concluded that the Board’s determination was arbitrary and should be reversed, thus supporting the Law Judge’s original determination. Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for appellants. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Kitkas v Windsor Place Corp.
April 6, 2010 NYS Appellate Division, 2nd Department
§ 11: Grave Injury
REVERSED order of the Supreme Court, Queens County which denied the second third-party defendant/third third-party defendant, Boca Electric Corp. motion for summary judgment dismissing all causes of action for contribution and common-law indemnification asserted against it, on any matter relating to WCL §11. On January 22, 2003, the plaintiff was performing electrical work on a construction project in Long Island City and allegedly was injured when an electrical panel exploded. At the time of the accident, the plaintiff was employed by the second third-party defendant/third third-party defendant, Boca Electric Corp. In support of its motion for summary judgment dismissing all causes of action for contribution and common-law indemnification asserted against it, Boca met its burden of demonstrating that the plaintiff’s injuries to his right hand did not constitute a “grave injury” within the meaning of WCL §11. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday April 2, 2010 ▼
Howard v Stature Electric
April 1, 2010 NYS Appellate Division, Third Department
§114-a Fraud & Alford Plea
RESCINDED and sent back for reconsideration the Board’s ruling that claimant violated Workers’ Compensation Law § 114-a.. Although the claimant’s original claim of a work-related injury was properly established, the claimant was subsequently indicted on various charges of fraud and a violating Worker’s Compensation Law §114. In June 2007 after entering an Alford plea to insurance fraud of the fourth degree and he was convicted and sentenced accordingly.
At a subsequent hearing, SIF asked the WCLJ to find that claimant’s plea and conviction disqualified him from receiving benefits pursuant to WCL §114-a. Although the claimant requested a hearing, the Law Judge determined that the criminal proceedings did not involve a full hearing on the merits and, thus, claimant was entitled to a hearing. SIF sought review. The Board found that,based upon claimant’s criminal conviction, a violation of WCL §114-a§, modified the WCLJ’s decision, and returned the case for the determination of appropriate penalties.
In recognizing the Boards reliance upon the equitable doctrine of a collateral estoppel in rendering its decision, the Court ruled that “the determinative issue was not whether claimant had been convicted of a crime, but whether he ‘knowingly ma[de] a false statement or representation as to a material fact’ for the purpose of obtaining workers’ compensation benefits or influencing a payment determination. An Alford plea, by its very nature, is accepted on the explicit basis that the person making the plea does not admit having committed the charged acts . On the contrary, he made no factual admissions, his counsel specified that he was pleading guilty ‘without an admission of wrongdoing’. Thus the question of whether claimant committed the charged conduct, though decisive in determining whether he violated Workers’ Compensation Law § 114-a, was not determined in the criminal action. Thus, the requirement of identicality was not met, and collateral estoppel does not apply. Claimant must be provided ‘an ample opportunity to address the issue of whether he knowingly misrepresented material facts’ sufficient to establish the charged violation.” Prevailing party represented by: Christine A. Scofield, Syracuse, for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Stojanov v Eastman Kodak Company
April 1, 2010 NYS Appellate Division, Third Department
§ 23: What does “late” mean?)
RESCINDED and sent back for reconsideration the Board’s ruling that claimants applications to review were untimely. After a Law Judge decision dated May 7, 2008 the claimant’s council on June 6, 2008 mailed application seeking Board review per WCL §23. Because the applications were not received by the Board within 30 days, the Board found that they were untimely (see 12 NYCRR 300.13 [a], [e]) and denied claimant’s requests for Board review. In Matter of McLaughlin v Saga Corp. (242 AD2d 393, 394 [1997]), this Court concluded that the mailing of an application for Board review within the 30-day limitation period “was sufficient to satisfy the time limitation of Workers’ Compensation Law § 23.” Subsequently, the Board promulgated the current version of 12 NYCRR 300.13 (a), which provides that an “application is deemed filed with the [B]oard on the date of actual receipt of such application by the [B]oard“. This amendment is obviously at odds with this Court’s holding in McLaughlin and, as such, violates the rule that “[a] court’s affirmance or reversal of an administrative body’s interpretation of its governing statute becomes binding on the agency.” Therefore, the Court reversed the Board stating that the Board could not promulgate administrative regulation that was inconsistent with this Court’s interpretation of WCL §23, remaining the case back to the Board for further proceedings on the original issue raised by the claimant. Prevailing party represented by: James G. Brooker, Rochester, for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Turdo v Dellicato Vineyards
April 1, 2010 NYS Appellate Division, Third Department
ATF Compensation: Mandatory vs Discretionary
RESCINDED and sent back for reconsideration the Board’s ruling that the New York State Insurance Department Liquidation Bureau was required to make a deposit into the Aggregate Trust Fund pursuant to WCL §27 (2). After awarding claimant widow death benefits, the Law Judge directed that the Liquidation Bureau, which had assumed liability for the claim following the liquidation of the original carrier, deposit the present value of any unpaid death benefits into the ATF. The substantive but very narrow issue in this case was whether or not the Liquidation Bureau was “an insurance carrier which is a stock corporation or mutual association” in which case “the Board shall immediately compete the present value thereof require payment of such amount into the ATF” (WCL §27 (2)). The Court agreed that, although the Board set forth a rational argument for considering the Liquidation Bureau as standing in the shoes of the insolvent insurer, the Court determined that the Legislature left no room to find that the Liquidation Bureau is subject to the mandatory deposit requirements of WCL §27. Essentially the ruling by the Board requiring payment to the ATF should have been based on the Board’s discretionary authority rather than a mandatory direction for which reason the Court, in its five page decision, returned the matter to the Board for consideration of the discretionary issue. Prevailing party represented by: Daniel A. Tufo of counsel to Rothstein & Tufo (Commack) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday March 26, 2010 ▼
Cassata v General Motors Powertrain
March 25, 2010 NYS Appellate Division, Third Department
§25a: What is proper filing of the C-250
AFFIRMED the Board’s ruling that the self-insured employer was not entitled to reimbursement by the Special Funds Conservation Committee due to the late filing of the C-250 seeking reimbursement per WCL §15(8).
Although the injury occurred on September 14, 1998 the case was neither indexed or filed until November 22, 2000. At a May 2005 hearing, a dispute arose as to whether or not self-insured employer had filed with the Workers’ Compensation Board a claim for reimbursement from the Special Funds (form C-250) as required by WCL §15(8)(f). As neither the Board nor the Special Funds Conservation Committee had a copy of the form, the Law Judge directed the employer to provide evidence that it was timely filed. In, 2007, the employer filed with the Board a form C-250 bearing the date “November 30, 2000,” which it argued had been timely filed, but must have been misplaced by the Board. While the record showed that the Special Funds had hand written notes referencing the C-250 and “WCL §15.8″ dating back to “11/30/00″, the Special Funds argued that this document did not establish the employer’s timely filing of a form C-250 with the Board and that it had not waived the timely filing requirement. The Board affirmed the Law Judge finding that the form C-250, filed in 2007, was untimely and, thus, the employer was not entitled to reimbursement from the Special Funds, which it discharged. After reiterating long-standing case law to the effect that “A prerequisite to reimbursement, however, is the filing of a timely claim with the Board”[emphasis added by the Appellate Court]) on a form prescribed by the Board’s chair, here, form C-250…” , the Court agreed with the Board that it was undisputed that the Board’s file did not contain a form C-250 in 2005, when a finding of permanency was made. No documentation existed in the record to establish that the form C-250 bearing a 2000 date was sent to the Board until 2007. Court agreed that the Board’s decision was based on substantial evidence, notwithstanding that the evidence would also have supported the contrary conclusion of timely filing. Prevailing party represented by: Jennie Choy of counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
D’Avilar v New York Univ. School of Medicine
March 25, 2010 NYS Appellate Division, Third Department
Causal Relationship: Consequential while at treatment
AFFIRMED the Board’s ruling that claimant did not sustain causally related consequential injuries incurred after a session of therapy.
In August 2005, claimant sustained a work-related injury to her right knee, requiring reconstructive surgery and physical therapy and her claim was established. In 2006, right after undergoing physical therapy, she slipped and fell at that facility incurring additional injuries which the Law Judge determined were consequential to her initial compensable injury and amended claim. The Board reversed, concluding that the later injuries were not compensable because they occurred while she was engaged in personal errand. While agreeing with the claimant that injuries sustained in the course of traveling to and from treatment for a cause elite related injury may warrant a workers’ compensation claim, the Court agreed with Board that the claimant’s decision to get coffee after treatment “add[ed an additional] factor which weakens the connection between the initial consequential injuries” sufficient that “the Board could rationally conclude that the work-related aspects of claimant’s trip had ended and that the causal connection between claimant’s employment and her off-duty injuries was severed by her pursuit of a personal errand.” Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman (Hauppauge)for NYU School of Medicine and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday March 19, 2010 ▼
Sacco v Mast Advertising/Publishing
March 18, 2010 NYS Appellate Division, Third Department
Disability: Total Industrial
§ 14: Average Weekly Wage - Commission Salesman
ISSUED A MIXED DECISION AFFIRMING the Board’s ruling that claimant was totally industrially disabled but AMENDING his average weekly wage.
Claimant, working as a salesman, injured his back in the course of employment after which his claim was established and based on a C-240 form, his average weekly wage was set for $447.36. Originally classified with a permanent partial disability he was reclassified in 2003 with a marked permanent partial disability.
In 2007, he sought a finding of total industrial disability and requested that his average weekly wage be recalculated pursuant to WCL §14, arguing that it should have been based on the wages of a similar worker at the time of his injury, rather than his actual wages. Although the employer indicated that, since it maintained payroll records only seven years, no such records were available for an employee at the time of claimant’s injury, the Law Judge found that the C-240 filed in 1992 was “improper on its face” and modified claimant’s average weekly wage to $624 per WCL §14 (3). The Board affirmed.
Substantial evidence supported the Board’s determination that claimant suffers a total industrial disability, a determination that would not be disturbed if supported by substantial evidence. The Court agreed with the Board that the combination of testimony from the claimant and a rehabilitation counselor substantially offset the testimony of the employer’s vocational counselor, thus affirming the finding of total industrial disability.
As to the Board’s action of modifying the claimants average weekly wage, the Court made three determinations. First, the court dismissed the employer’s claim regarding the C-240, basing it on the employer’s original failure 1992 to submit information regarding wages of a similar worker. Second, the Court rejected the carrier’s contention that the Board could not modify the 1993 decision, writing that the Board is empowered to “make such modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just.” Third, the Court supported the Board’s refusal to invoke the doctrine of laches to bar claimant from seeking modification of his average weekly wage. The Court cited WCL §14(3) which directs that a claimant’s average annual wage be computed based on “such sum as . . . shall reasonably represent the annual earning capacity of the injured employee” in agreeing with the claimant’s contention that his earnings in the last 10 weeks of employment would most accurately reflect his earning capacity at the time of the accident, since he was a new employee and did not receive commissions in his first several weeks of employment. However, the Court did not affirm that amount because of an arithmetical error in the original decision, an error overlooked in the Board’s affirmance of the Law Judge decision. Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Grant v New York City Transit Authority
March 18, 2010 NYS Appellate Division, Third Department
Course of Employment: Lunch Break
AFFIRMED the Board’s ruling that claimant did not sustain an accidental injury on her lunch break as it was not in the course of her employment. Claimant had walked to a deli across the street from her place of employment when she and the deli clerk were both robbed at gunpoint. Her application for workers compensation benefits claiming she suffered from psychiatric disabilities resulting from the traumatic experience was approved by the Law Judge, finding the injuries arose out of and in the course of employment. In supporting the Board’s reversal and disallowance of the claim, the Court wrote, “Significantly, ‘lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employees during the lunch break’. The record here shows that claimant had discretion over where she spent her lunch break, the incident occurred away from her place of employment and no evidence was produced that the employer retained authority or control over her during that time or benefitted from her going to the deli.” Prevailing party represented by: Andrea Rocchio of counsel to Weiss, Wexler & Wornow (NYC) for New York City Transit Authority, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday March 12, 2010 ▼
Laezzo v New York State Thruway Auth
March 11, 2010 NYS Appellate Division, Third Department
§13-b Medical Bills: Who Pays for Gastric Bypass Surgery
AFFIRMED the Board’s ruling that as a result of consequential injuries from a work-related accident the injured worker qualified for gastric bypass surgery. The original 2002 accident resulted in a successful claim for injuries to his head, neck, back, and knees. He alleged that his morbid obesity contributed to his knee and back problems seeking authorization for gastric bypass surgery. Both the Law Judge and Board approved, holding that the surgery was causally related to the compensable injuries. The Appellate Court wrote in its decision that “The employer is obliged to pay for claimant’s medical care ‘for such as the nature of the injury or the process of recovery may require.‘” because the claimants treating orthopedic surgeon opined that the injuries imposed a sedentary lifestyle thus increasing his weight thus exacerbating his injuries, the surgery would be appropriate, a position supported by an independent medical examiner. In support of its decision the Appellate Court cited The Matter of Bolds v Precision Health, Inc., 16 AD3d 1007, 1009 [2005] in which a request for causally related breast reduction. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Cicinnati v Clare Rose, Inc.
March 11, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal after termination for cause
AFFIRMED the Board’s ruling that the injured worker voluntarily withdrew from the labor market. On March 30, 2007, four days after returning to work after having been out for more than two years due to a compensable back injury, claimant was terminated for insubordination arising out of an altercation that he had with a customer. He then sought benefits asserting his subsequent reduced earnings were due to his work-related injury. Despite concluding that claimant had been terminated for good cause, a Law Judge determined that claimant was permanently partially disabled, that he had not voluntarily withdrawn from the labor market, and that he was therefore entitled to awards beyond the date of his termination. The Board rescinded those awards, finding that claimant’s employment ended as a result of misconduct — not due to his compensable injury — and that he had failed to demonstrate an attachment to the labor market.
After finding that there was substantial evidence supporting the Board’s termination claimant was terminated for misconduct, the Court found that the claimant was not entitled to the inference that his loss of wages was attributable to his compensable injury but that he bore “‘the burden of establishing by substantial evidence that the limitations on his employment due to his disability were a cause of his subsequent inability to obtain employment.‘” Additionally, although the medical evidence indicated that claimant could perform full-time sedentary work, claimant admitted that he had made no effort to find employment of any kind since his termination. Since “the Board’s determination is supported by substantial evidence, the Court perceived no basis upon which to modify the Board’s decision.” Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Clare Rose, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Guz v Jewelers Machinist
March 11, 2010 NYS Appellate Division, Third Department
1130__Causal Relationship: Was there?
AFFIRMED the Board’s ruling that claimant did not have a causally related psychiatric disability. Five years after her injury during which time her case was established for bilateral carpal tunnel syndrome and amended to include a neck injury and an aggravation of a preexisting back condition, the claim was amended in 2007 to include major depressive disorder after which a Law Judge included this condition and continued the case to determine the extent of her disability. Upon review, the Board reversed the inclusion of the depressive disorder.
The carrier’s IME found some symptoms of depression, but opined that there were no psychiatric restrictions on her ability to perform her job and that her depression did not result in a disability. After a subsequent exam, he “concluded that claimant did not suffer a causally related psychiatric disability or even objectively suffer from a depressive disorder.” The Appellate Court agreed with the Board’s determination that the claimant’s treating psychiatrist’s position on causally related psychiatric disability was “entirely lacking in credibility.” The Court wrote “It is well settled that a claimant bears the burden of establishing, by competent medical evidence, a causal relationship between his or her employment and a disability. Further, the Board is the sole and final judge of witness credibility, and it alone can evaluate the factors relevant to determining whether the testimony of a party or witness is worthy of belief.” Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Jewelers Machinist, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Lupo v Cass
March 4, 2010 Appellate Term of the Supreme Court, First Department
Legal Malpractice
AGREED to grant defendants’ motion for summary judgment dismissing the complaint by Elaine Lupo, a workers compensation claimant, who sued her workers compensation attorney, Alan M. Cass, the defendant, for mishandling her case.
Although the Civil Court refused to dismiss the motion, the Appellate Court disagreed. They reviewed the complaints and the plaintiff’s “purported expert’s assertion” and summarized their rejection of the plaintiff’s positions as “nothing more than criticism of defendants’ considered, tactical strategy of how best to pursue plaintiff’s claim”, “insufficient to raise a triable issue”, and “rank speculation.” Click here to read the full court decision of the NYS Appellate Division, Third Department….
Dunn v American Tr. Ins. Co.
March 2, 2010 Appellate Term of the Supreme Court, Second Department
Which Court decides Jurisdiction
AFFIRMED The Appellate Court ruled that “[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board.” In this case, the defendant’s motion presented factual questions as to the plaintiff’s “status as either an independent contractor, as he claims he is, or as an employee of” a car service dispatch base, as the defendant claims. Accordingly, prior to rendering a determination on the motion, the Supreme Court should have referred the matter to the Workers’ Compensation Board for a hearing and determination as to whether the plaintiff is relegated to benefits under the Workers’ Compensation Law. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday March 5, 2010 ▼
Garifo v Pathmark Stores
March 4, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED the Board which ruled that claimant voluntarily withdrew from the labor market. After incurring injury in November 2001, claimant was awarded compensation until his return to work March 2002. He sought to reopen his case in January 2006, alleging that the worsening of his condition prevented him from working. In January 2007 a Law Judge affirmed causally related disability as of January 2006, continuing the case for further development of lost time. At a subsequent hearing, claimant testified he ceased employment in February 2006 when his employer closed the store where he worked, made no effort to seek employment or retraining, and was subsequently approved for Social Security disability benefits . The employer then raised the issue of voluntary withdrawal to which the claimant alleged total industrial disability. In November 2007 the Law Judge awarded additional benefits ruling that the claimant was relieved of his obligation to seek work given his receipt of Social Security disability benefits.
The Board reversed the Law Judge, finding that claimant’s loss of earnings and cessation of employment were unrelated to his compensable partial disability and, therefore, he was not entitled to an award of benefits for the period in question. Where, as here, claimant’s loss of employment was due to circumstances unrelated to his partial disability and no finding of involuntary retirement was made by the Board, “the burden rests on claimant to demonstrate ‘by substantial evidence that his disability contributed to his continued unemployment’”. Claimant testified that he probably would have continued to work had the employer not closed the store. Additionally, the weight of medical testimony established that claimant was capable of resuming employment despite any disability. This evidence, together with claimant’s admission that he made no effort to find employment or seek retraining, provides substantial support for the Board’s decision that claimant voluntarily withdrew from the labor market), notwithstanding evidence in the record that could support a contrary conclusion. Prevailing party represented by: Lauren Camo of counsel to Jones, Jones & O’Connell (NYC) for Pathmark Stores, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday February 26, 2010 ▼
Jamal v Gohel [& SIF]
February 16, 2010 NYS Appellate Division, Second Department
§ 29: lien against the recovery
Who decides the lien: Civil Court or WCB
REVERSED the Supreme Court’s order granting plaintiff’s motion to dismiss the NY State Insurance Fund’s (SIF) assertion that it had a claim for a credit or offset against death benefits. The plaintiff, widow of the decedent and on behalf of her four children, was awarded death benefits by the Worker’s Compensation Board against the decedent’s employer’s carrier SIF. She then commenced action against the driver ultimately winning a judgment in the Supreme Court, obtaining a decree from the Surrogate’s Court, inter alia, approving both the allocation of the entire amount of the proceeds of the jury award to the wrongful death cause of action and the discontinuance of the cause of action alleging conscious pain and suffering. Thereafter, SIF retroactively consented to the Surrogate’s decree, and waived its statutory right pursuant to Workers’ Compensation Law § 29(1) to a lien against the recovery. Subsequently, however, SIF asserted its right pursuant to Workers’ Compensation Law § 29(4) to claim a credit or offset against the death benefits that it was otherwise obligated to pay to the plaintiff and her children in an amount equal to the proceeds of the jury award. The Appellate Court ruled that the Supreme Court erred in entertaining the plaintiff’s motion as “Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board. . . . The issue of whether an employer or insurer has adequately reserved its right to claim a credit or an offset is a matter of fact for the Board. Accordingly, the instant issue is properly one for the Board’s determination.” Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday February 19, 2010 ▼
Magidson v Strategic Telemarketing
February 18, 2010 NYS Appellate Division, Third Department
§123: Late Appeal (7 years)
AFFIRMED the Board which ruled that the injured worker’s claim could not be reopened pursuant to Workers’ Compensation Law §123 or §25-a. In October 1993, claimant filed a claim for workers’ compensation benefits alleging that she was totally disabled as a result of her exposure to toxic chemicals at work.
Her disputed claim was first heard in May 1994 when neither claimant nor her attorney appeared nor submitted medical evidence such that the Law Judge closed the case for failure to prosecute. After the case was reopened, the claimant failed to appear at three more hearings (December 1995, March 1998, June 1998) although she was represented at one by an attorney. At that time the Law Judge ruled that “[f]ailure to prosecute 4th non appearance. All present issues are resolved. No further action is planned by the Board at this time.” The matter remained closed until January 2006, when the claimant filed an application to reopen the claim. At a hearing, attended this time by claimant and her attorney, the Law Judge disallowed the claim, finding that it could not be reopened because 14 years had passed since the date of the accident and no determination on the merits of the claim had been made.
The Appellate Court noted that while Workers Compensation Law §123 gives the Board discretion to open cases, “no claim for compensation . . . that has been otherwise disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits, shall be reopened after a lapse of seven years from the date of the accident or death.” And, contrary to the claimant’s assertion she had never been given proper notice, the Board’s determination that she had been given such notice was supported by substantial evidence. As to the claimant’s assertion that her claim should be reopened against the Special Fund for Reopened Cases per §25-a, the Court agreed with the Board that §25-a could not “reassert [stale claims] after seven years by claimants who had failed to make out a case in contested hearings or had failed even to attempt to assert their claims after due notice and an opportunity to be heard.” Prevailing party represented by: Edward Obertubbesing of counsel to Gregory J. Allen, State Insurance Fund, for State Insurance Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Barbaro v Eastman Kodak
January 28, 2010 NYS Supreme Court - Nassau County
Causal Relationship: Was there toxicity?
The Supreme Court Nassau County granted Kodak’s motion for summary judgment dismissing the complaint or recovery of damages as a result of exposure to chemicals at work. The plaintiff advanced claims sounding in negligence, breach of warranty, failure to warn and strict products liability. Kodak sought summary judgment dismissing the complaint on the grounds that the Developer Systems Cleaner did not cause the plaintiffs injuries and/or was time-bared, or in the alternative, a partial summary judgment dismissing the plaintiffs ‘ claims for dermal injuries, breach of warranty and failure to warn.
The plaintiff testified that he started experiencing breathing difficulties in the beginning of 2005. He saw a pulmonologist in November, 2005 and on his health questionnaire, he represented that he had smoked a pack of cigarettes a day for 25 years but stopped in 1987. When his symptoms worsened, a lung biopsy was performed on September 26, 2006 and he was diagnosed with a malignant carcinoma. Surgery in October 2006 revealed invasive moderately differentiated squamous cell carcinoma. The injured worker went out on disability that month and filed for workers compensation alleging that his medical condition was caused by exposure to sodium dichromate in the Developer Systems Cleaner. His claim was denied and he appealed to the Department of Labor. [It appears that this Supreme Court action was commenced after claimant’s workers compensation appeal was unsuccessful.]
In ruling against the plaintiff the Supreme Court ruled that, while via his affidavit, the injured worker raised issues of fact regarding agitation and spilling of the Developer Systems Cleaner, he gave is no reliable scientific evidence that that caused it to become airborne subjecting him to the risk of inhaling it. The plaintiff has not met his burden of establishing the existence of a material issue of fact. The plaintiff’s claim that he was not warned that he was being exposed to mists via his regular use of the product and had he been warned, he would have worn a respirator fails because, again, there is simply no admissible evidence that he was exposed to mist. In addition, as per the plaintiffs testimony at his examination-before-trial, he was well aware of the cancer causing risks posed by the chemicals and further warnings would have been cumulative. Click here to read the full court decision of the NYS Supreme Court - Nassau County….
▼ Posted Friday February 11, 2010 ▼
American Home Assur v NY Ctrl Mut
February 3, 2010 Supreme Court, New York County
Jurisdiction: Who decides which carrier pays bills
AFFIRMED In support of this proceeding to stay arbitration, American Home Assurance contends that the Workers’ Compensation Board is the proper forum to determine whether American Home, as the no-fault carrier, owes any money to New York Central Mutual Fire Insurance Company, the employer’s workers compensation carrier.
The claimant, injured in a motor vehicle accident, filed a successful claims for both no-fault benefits and workers compensation, for which the Workers Compensation Board ordered payments made to or on behalf of the claimant, totaling $24,684.55. Among other things, New York Central asserts that there were some duplicative payments made on claims, and that it paid approximately $45,000 to Cochran and/or to others on his behalf, which should have been paid by American Home, as the workers’ compensation carrier.
The primary issue presented here is whether the Workers’ Compensation Board or Arbitration Forums, Inc. is the proper forum to determine whether American Home owes any money to New York Central. American Home contends that, pursuant to the applicable rules and laws, including the WCL (§§11, 124, and 142) and the rules issued by the Workers’ Compensation Board, the proper and sole method for a party to request resolution of an issue involving a workers’ compensation claim is for the party to request a hearing before the Workers’ Compensation Board. In opposition, New York Central asserts that §5105 (b) is applicable to this controversy, and, pursuant to its terms: “[tlhe sole remedy of any insurer or compensation provider to recover” on a loss transfer claim “shall be the submission of the controversy to mandatory arbitration pursuant to the procedures promulgated or approved by [the Superintendent of Insurance].” New York Central further references 11 NYCRR § 65-3.12 (b), 11 NYCRR §65-4 et seq, and 11 NYCRR § 65- 4.11, citing several cases in support of its position.
The court in rejecting American homes arguments determined that Insurance Law §5105 is not analogous to those issues presented and concludes that the application for a permanent stay of arbitration is warranted and that the issues raised by New York Central in the Arbitration Application must be submitted to, and determined by, the Workers’ Compensation Board. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday February 5, 2010 ▼
Altobelli v Allinger Temporary Servs
February 4, 2010 NYS Appellate Division, Third Department
Apportionment: Awards
AFFIRMED the Board’s ruling that claimant’s workers’ compensation award be apportioned equally to two work-related incidents.
Despite a non-work-related back injury requiring surgery in 1989, claimant worked without disability or restrictions until October 2001 when he reinjured his back while working for Allinger Temporary Services, leading to a second surgery and an established workers’ compensation claim. Although he returned to work after that surgery, claimant sustained another back injury in May 2004 while employed by Calvary Design Team and had a second claim established. In July 2005, claimant underwent a third back surgery after experiencing pain at home in March of that year. After hearings were held regarding apportionment, a Law Judge concluded that awards should be apportioned 80% to the 2001 injury and 20% to the 2004 injury. Allinger appealed and a Board Panel apportioned an equal one-third basis to the 1989, 2001 and 2004 injuries. After a full Board review at claimant’s request, the Board rescinded its prior decision and apportioned the claims equally between the 2001 and 2004 work-related incidents. Allinger again appealed.
In its affirmance of the Board, the Court ruled that the decision on apportionment is a factual issue to be resolved by the Board which would be sustained as long as the Board’s decision detailed its reasoning, notwithstanding contrasting medical evidence. Also, the fact that the medical doctor found that apportionment in the “medical sense” was evenly split between the three injuries, the Board was correct in determining that apportionment in the “legal sense” was limited to the 2001 and 2004 work-related incidents, precluding the non-work-related 1989 injury as a matter of law because that injury did not render claimant disabled in the “compensation sense”. Prevailing party represented by: Jason D. Poselovich of counsel to Segar & Sciortino (Rochester) for Rob Altobelli, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Kot v Beth Ameth Home
February 4, 2010 NYS Appellate Division, Third Department
Causal Relationship: related or consequential
AFFIRMED the Board which ruled that claimant, in denying her claim for workers’ compensation benefits, did not sustain a causally related injury to her left hip.
Claimant, after sustaining injuries while attempting to lift a patient in April 2004, had her claim initially established for a lower back injury and subsequently amended to include awards for a ventral hernia and a consequential psychiatric condition. After undergoing left hip replacement surgery in 2006, a Law Judge concluded that this hip injury was also causally-related to the 2004 claim.
After the employer appealed that decision, and Board Panel determined that further development of record was necessary. Based partly on the opinion of the impartial specialist who examined the claimant, the Board Panel reversed the decision of the Law Judge. In its affirmance of the Board, the Court ruled that the decision on causality, related or consequential, is a factual issue to be resolved by the Board which would be sustained as long as the Board’ s decision detailed its reasoning, notwithstanding contrasting medical evidence. [In a footnote, the Court referenced a procedural error: “Although claimant’s assertions herein include challenges to certain conclusions of the impartial specialist, we note only that claimant waived her opportunity to cross-examine him.”] Prevailing party represented by: Irosha Ratnasekera of counsel to Charles J. Siegel (New York City) for Beth Ameth Home Attendant Service and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday January 29, 2010 ▼
Wilcox v Niagara Mohawk
January 28, 2010 NYS Appellate Division, Third Department
SLU Apportionment
AFFIRMED the Board’s ruling that apportionment did not apply to claimant’s workers’ compensation award. Claimant sustained a work-related injury to his right ankle in December 2004, 12 years after undergoing surgery on the same ankle for a condition that was wholly unrelated to his employment. Claimant’s treating physician opined that claimant suffered a 45% schedule loss of use (SLU) of his right foot and did not attribute any portion of the loss to the noncompensable 1992 injury. The employer’s medical examiner agreed that claimant had a 45% SLU but attributed 50% to claimant’s earlier injury. The Law Judge, affirmed by the Board, granted claimant a 45% SLU, rejecting the employer’s claim of apportionment. The Court noted that, although apportionment May be applicable in a schedule loss of use case if the medical evidence establishes that the claimant’s prior injury — had it been compensable — would have resulted in a schedule loss of use finding, the Board determined that medical records and reports relevant to claimant’s 1992 surgery were unavailable, and neither expert was provided with any objective documentation indicating to what extent, if any, claimant’s use of his right foot or range of motion had been impaired as a result of the prior injury. Consequently, although the medical examiner who evaluated claimant for the employer opined that claimant had a preexisting 22.5% loss of use, claimant’s treating physician testified that any opinion regarding a preexisting loss of use would be entirely speculative. Thus confronted with conflicting medical evidence, the Board was authorized to credit the opinion of one expert over that of another. Prevailing party represented by: Peter W. Hill (Oneonta) for Clyde F. Wilcox, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Shelley v Shelley Septic
January 28, 2010 NYS Appellate Division, Third Department
Coverage: Sole Executive Exclusion
AFFIRMED the Board which ruled that, per WCL §14(6), claimant was not concurrently employed by Thompson Sanitation Corporation when he was injured working at Sheeley Septic Service. A review of the controverted Board decision shows that the issue was not concurrent employment but executive exclusion under a corporation’ s workers compensation insurance policy, per WCL §54[6][d]. At the time of claimant’s injury, he and another individual, Paul Walsh, were Thompson’s sole owners and officers. Walsh testified that he elected to be excluded from Thompson’s workers’ compensation coverage in 1994 and, while he did not remember if claimant did so that year, claimant had done so when Thompson was initially formed. According to documentation submitted by the workers’ compensation carrier, and admitted upon claimant’s stipulation, the policy in effect when claimant was injured contained an exclusion election for him. The Court found that the Board could properly find from the evidence presented that he did make such an election, thus removing himself from the definition of an “employee” and placing his work for Thompson outside of the ambit of Workers’ Compensation Law §14(6). Prevailing party represented by: Patrick B. Guy of counsel to Gitto & Niefer (Binghamton) for Sheeley Septic Service and another, respondents. And Jill Singer of Counsel to Steven Licht, Special Funds Conservation Committee for State Insurance Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Moysello v David
January 21, 2010 NYS Appellate Division, Third Department
Employment: Taxi driver
AFFIRMED the Board which ruled that claimant was an employee of Charles David and David Enterprises, Inc. In January 2007, claimant was injured in a motor vehicle accident during the course of his employment as a taxicab driver for David’s Taxi. An investigation determined that the vehicle was registered to David Enterprises, Inc. and the was “true owner” of David Enterprises was Charles David. At the conclusion of the hearing, at which claimant was the only party to appear, a Law Judge concluded that claimant was employed by David and David Enterprises (D/DE) on the date of his accident– both of which were uninsured in violation of Workers’ Compensation Law § 50. D/DE filed an application for Board review, contending that claimant’s actual employer was a related entity, David Brothers, Inc., which purportedly had workers’ compensation coverage on the day in question, and that D/DE did not receive proper notice of the hearing. The Board affirmed, finding that D/DE met the presumptive definition of employer contained in WCL §2 (former [3]) and that jurisdiction had been properly obtained. The Court agreed pointing out that D/DE conceded David Enterprises was the registered owner of the vehicle and that there was sufficient indicia of control To support the Board’s finding that D/DE and that proper notice was served. Prevailing argument presented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Lew v Younger
January 21, 2010 NYS Appellate Division, Third Department
Employment: Who is
AFFIRMED the Board which ruled that an employer-employee relationship existed between claimant and Richard Younger. Claimant, a cleaner, in 2006 had his claim for workers’ compensation benefits after he was allegedly injured in the course of his employment for Richard Younger, a site manager who arranged for the upkeep of a number of buildings. In 2007, the Board reversed the Law Judge, determined that claimant was employed by Younger, established the claim and restored the case to the calendar. Younger and others sought and was denied review of the argument that claimant was either an independent contractor or in the employ of the owner of the building where he was injured. The Appellate Court listed in its decision some of the evidence with which it supported the Board’s determination that an employer employee relationship existed, notwithstanding evidence that could permit a different result. Prevailing argument presented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
DiLascio v Tilden Glen Head
January 21, 2010 NYS Appellate Division, Third Department
Coverage: sole executive exclusion
AFFIRMED the Board which ruled that the State Insurance Fund is not liable for the payment of workers’ compensation benefits to claimant. Claimant was the sole executive officer of an automobile repair business that maintained workers’ compensation insurance through the State Insurance Fund (hereinafter SIF). But in 1994 to 2001 elected to exclude himself from such coverage at which time without expressly notifying SIF that he intended to now be covered by the insurance policy, began including his salary in the chargeable payroll statements he submitted to SIF used to calculate premiums. A renewal policy covering the period from October 2005 to October 2006, however, was provided to the employer, which explicitly stated that claimant was not covered by the policy due to the election to have him excluded. In May 2006, during the time that this policy was active, claimant was injured while at work and he applied for workers’ compensation benefits. [SIF thereafter credited the employer’s account for the portion of the premiums applicable to the inclusion of claimant’s salary in the chargeable payroll paid from 2004 to 2006.] A Law Judge ruled that claimant, by paying the higher premiums based upon the inclusion of his salary in the chargeable payroll, believed that he was covered and SIF was estopped from denying coverage.The Court agreed with the Board’s decision to reverse agreeing that there was sufficient evidence that estoppel did not apply. Most importantly, the record reveals that the policy, in the year, expressly excluded the claimant from coverage, that he had actual knowledge that he was not covered by the policy and, therefore, could not have reasonably relied on SIF’s acceptance of higher premiums in believing that he was covered. Prevailing party represented by: Janis M. Riekstins of counsel to Gregory J. Allen, State Insurance for Tilden Glen Head, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Li v Southern Garden
January 21, 2010 NYS Appellate Division, Third Department
§ 15(8)Reimbursement Special Fund
AFFIRMED the Board which discharged the Special Disability Fund from liability under WCL §15(8) (d). After the injured worker claim was established for injuries sustained in a January 2000 accidents, the carrier filed a notice for reimbursement from the Fund based on a previous injury sustained by claimant.
In April 2005, the Board approved a settlement agreement between claimant and the carrier pursuant to WCL §32. In light of the carrier’s reimbursement claim, the Fund was also a party to the agreement. The agreement noted that the issue of permanency was outstanding and that the parties had decided to settle the claim rather than litigate the issue. The Committee gave provisional consent to the settlement, “subject to the carrier’s successful claim under [Workers’ Compensation Law § ] 15 (8) (d), less any statutory retention period remaining at the time of the approval of this agreement.” The agreement expressly provided that the Committee’s consent “is not to be construed as a concession of liability under . . . [s]ection 15 (8) (d).” Thereafter, the Law Judge granted the carrier’s reimbursement claim but was then reversed after a Board’s review. First the court accepted the board’s discretion to accept the Funds appeal which is one day late but not the carriers which was two months late. Court agreed Board’s reasoning denying reimbursement because the work-related injury did not result in a permanent disability, even though evidence in the record might support a contrary result. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Davis v Ready Labor
January 21, 2010 NYS Appellate Division, Third Department
Course of Employment: driving to work
AFFIRMED the Board which ruled that the death of claimant’s decedent did not arise out of and in the course of her employment. Decedent was employed by Labor Ready, an employment agency that provides temporary employees to its clients. On March 16, 2004, decedent was driven, along with two other employees, to a work assignment at Dunkirk Ice Cream by McKinley Barnes, a Labor Ready employee who was not working that day but had agreed to drive decedent and the two other employees to the work site. Barnes returned to Dunkirk when decedent and the other Labor Ready employees had finished their eight-hour shifts and, during the 26-mile return trip, an automobile accident occurred that resulted in decedent’s death. Claimant’s application for his comp death benefits was granted by a law judge but the Board reversed and disallowed the claim.
Claimant argued that because Labor Ready assumed the responsibility for transporting its employees to and from their temporary job assignments, this accident should have been deemed to have occurred within the scope of decedent’s employment per WCL §10 [1]). Although there are exceptions to the general rule that travel to and from a work site is not considered to be within the scope of employment and injuries occurring during that period, the Court agreed with the Board that this case was not such an exception. It was noted that the employer did encourage car pooling with employees were assigned to the same job location but the vehicles used for transport were not owned by Labor Ready and it had no contract nor did it pay any driver to transport its employees to the work site. In addition the driver of the car was not working for the employer that day was not pay for the service by the employer but by the individual employees who did not get paid for travel time. The Court agreed with the Board that Labor Ready did not have exclusive control of the conveyance, which combined with the Board’s review of other evidence, supported its decision to disallow the claim. Finally the court stated that the Board did not abuse its discretion by refusing to consider her rebuttal because she failed to include the required cover sheet and affidavit of interested parties. Prevailing party represented by: Karen Darling of counsel to Hamberger & Weiss (Buffalo) for Labor Ready and another, respondents. Click here to read the full court.decision of the NYS Appellate Division, Third Department….
Cassata v General Motors Powertrain
March 25, 2010 NYS Appellate Division, Third Department
§25a: What is proper filing of the C-250
AFFIRMED the Board’s ruling that the self-insured employer was not entitled to reimbursement by the Special Funds Conservation Committee due to the late filing of the C-250 seeking reimbursement per WCL §15(8).
Although the injury occurred on September 14, 1998 the case was neither indexed or filed until November 22, 2000. At a May 2005 hearing, a dispute arose as to whether or not self-insured employer had filed with the Workers’ Compensation Board a claim for reimbursement from the Special Funds (form C-250) as required by WCL §15(8)(f). As neither the Board nor the Special Funds Conservation Committee had a copy of the form, the Law Judge directed the employer to provide evidence that it was timely filed. In, 2007, the employer filed with the Board a form C-250 bearing the date “November 30, 2000,” which it argued had been timely filed, but must have been misplaced by the Board. While the record showed that the Special Funds had hand written notes referencing the C-250 and “WCL §15.8″ dating back to “11/30/00″, the Special Funds argued that this document did not establish the employer’s timely filing of a form C-250 with the Board and that it had not waived the timely filing requirement. The Board affirmed the Law Judge finding that the form C-250, filed in 2007, was untimely and, thus, the employer was not entitled to reimbursement from the Special Funds, which it discharged. After reiterating long-standing case law to the effect that “A prerequisite to reimbursement, however, is the filing of a timely claim with the Board”[emphasis added by the Appellate Court]) on a form prescribed by the Board’s chair, here, form C-250…” , the Court agreed with the Board that it was undisputed that the Board’s file did not contain a form C-250 in 2005, when a finding of permanency was made. No documentation existed in the record to establish that the form C-250 bearing a 2000 date was sent to the Board until 2007. Court agreed that the Board’s decision was based on substantial evidence, notwithstanding that the evidence would also have supported the contrary conclusion of timely filing. Prevailing party represented by: Jennie Choy of counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
D’Avilar v New York Univ. School of Medicine
March 25, 2010 NYS Appellate Division, Third Department
Causal Relationship: Consequential while at treatment
AFFIRMED the Board’s ruling that claimant did not sustain causally related consequential injuries incurred after a session of therapy.
In August 2005, claimant sustained a work-related injury to her right knee, requiring reconstructive surgery and physical therapy and her claim was established. In 2006, right after undergoing physical therapy, she slipped and fell at that facility incurring additional injuries which the Law Judge determined were consequential to her initial compensable injury and amended claim. The Board reversed, concluding that the later injuries were not compensable because they occurred while she was engaged in personal errand. While agreeing with the claimant that injuries sustained in the course of traveling to and from treatment for a cause elite related injury may warrant a workers’ compensation claim, the Court agreed with Board that the claimant’s decision to get coffee after treatment “add[ed an additional] factor which weakens the connection between the initial consequential injuries” sufficient that “the Board could rationally conclude that the work-related aspects of claimant’s trip had ended and that the causal connection between claimant’s employment and her off-duty injuries was severed by her pursuit of a personal errand.” Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman (Hauppauge)for NYU School of Medicine and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday March 19, 2010 ▼
Sacco v Mast Advertising/Publishing
March 18, 2010 NYS Appellate Division, Third Department
Disability: Total Industrial
§ 14: Average Weekly Wage - Commission Salesman
ISSUED A MIXED DECISION AFFIRMING the Board’s ruling that claimant was totally industrially disabled but AMENDING his average weekly wage.
Claimant, working as a salesman, injured his back in the course of employment after which his claim was established and based on a C-240 form, his average weekly wage was set for $447.36. Originally classified with a permanent partial disability he was reclassified in 2003 with a marked permanent partial disability.
In 2007, he sought a finding of total industrial disability and requested that his average weekly wage be recalculated pursuant to WCL §14, arguing that it should have been based on the wages of a similar worker at the time of his injury, rather than his actual wages. Although the employer indicated that, since it maintained payroll records only seven years, no such records were available for an employee at the time of claimant’s injury, the Law Judge found that the C-240 filed in 1992 was “improper on its face” and modified claimant’s average weekly wage to $624 per WCL §14 (3). The Board affirmed.
Substantial evidence supported the Board’s determination that claimant suffers a total industrial disability, a determination that would not be disturbed if supported by substantial evidence. The Court agreed with the Board that the combination of testimony from the claimant and a rehabilitation counselor substantially offset the testimony of the employer’s vocational counselor, thus affirming the finding of total industrial disability.
As to the Board’s action of modifying the claimants average weekly wage, the Court made three determinations. First, the court dismissed the employer’s claim regarding the C-240, basing it on the employer’s original failure 1992 to submit information regarding wages of a similar worker. Second, the Court rejected the carrier’s contention that the Board could not modify the 1993 decision, writing that the Board is empowered to “make such modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just.” Third, the Court supported the Board’s refusal to invoke the doctrine of laches to bar claimant from seeking modification of his average weekly wage. The Court cited WCL §14(3) which directs that a claimant’s average annual wage be computed based on “such sum as . . . shall reasonably represent the annual earning capacity of the injured employee” in agreeing with the claimant’s contention that his earnings in the last 10 weeks of employment would most accurately reflect his earning capacity at the time of the accident, since he was a new employee and did not receive commissions in his first several weeks of employment. However, the Court did not affirm that amount because of an arithmetical error in the original decision, an error overlooked in the Board’s affirmance of the Law Judge decision. Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Grant v New York City Transit Authority
March 18, 2010 NYS Appellate Division, Third Department
Course of Employment: Lunch Break
AFFIRMED the Board’s ruling that claimant did not sustain an accidental injury on her lunch break as it was not in the course of her employment. Claimant had walked to a deli across the street from her place of employment when she and the deli clerk were both robbed at gunpoint. Her application for workers compensation benefits claiming she suffered from psychiatric disabilities resulting from the traumatic experience was approved by the Law Judge, finding the injuries arose out of and in the course of employment. In supporting the Board’s reversal and disallowance of the claim, the Court wrote, “Significantly, ‘lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employees during the lunch break’. The record here shows that claimant had discretion over where she spent her lunch break, the incident occurred away from her place of employment and no evidence was produced that the employer retained authority or control over her during that time or benefitted from her going to the deli.” Prevailing party represented by: Andrea Rocchio of counsel to Weiss, Wexler & Wornow (NYC) for New York City Transit Authority, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday March 12, 2010 ▼
Laezzo v New York State Thruway Auth
March 11, 2010 NYS Appellate Division, Third Department
§13-b Medical Bills: Who Pays for Gastric Bypass Surgery
AFFIRMED the Board’s ruling that as a result of consequential injuries from a work-related accident the injured worker qualified for gastric bypass surgery. The original 2002 accident resulted in a successful claim for injuries to his head, neck, back, and knees. He alleged that his morbid obesity contributed to his knee and back problems seeking authorization for gastric bypass surgery. Both the Law Judge and Board approved, holding that the surgery was causally related to the compensable injuries. The Appellate Court wrote in its decision that “The employer is obliged to pay for claimant’s medical care ‘for such as the nature of the injury or the process of recovery may require.‘” because the claimants treating orthopedic surgeon opined that the injuries imposed a sedentary lifestyle thus increasing his weight thus exacerbating his injuries, the surgery would be appropriate, a position supported by an independent medical examiner. In support of its decision the Appellate Court cited The Matter of Bolds v Precision Health, Inc., 16 AD3d 1007, 1009 [2005] in which a request for causally related breast reduction. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Cicinnati v Clare Rose, Inc.
March 11, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal after termination for cause
AFFIRMED the Board’s ruling that the injured worker voluntarily withdrew from the labor market. On March 30, 2007, four days after returning to work after having been out for more than two years due to a compensable back injury, claimant was terminated for insubordination arising out of an altercation that he had with a customer. He then sought benefits asserting his subsequent reduced earnings were due to his work-related injury. Despite concluding that claimant had been terminated for good cause, a Law Judge determined that claimant was permanently partially disabled, that he had not voluntarily withdrawn from the labor market, and that he was therefore entitled to awards beyond the date of his termination. The Board rescinded those awards, finding that claimant’s employment ended as a result of misconduct — not due to his compensable injury — and that he had failed to demonstrate an attachment to the labor market.
After finding that there was substantial evidence supporting the Board’s termination claimant was terminated for misconduct, the Court found that the claimant was not entitled to the inference that his loss of wages was attributable to his compensable injury but that he bore “‘the burden of establishing by substantial evidence that the limitations on his employment due to his disability were a cause of his subsequent inability to obtain employment.‘” Additionally, although the medical evidence indicated that claimant could perform full-time sedentary work, claimant admitted that he had made no effort to find employment of any kind since his termination. Since “the Board’s determination is supported by substantial evidence, the Court perceived no basis upon which to modify the Board’s decision.” Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Clare Rose, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Guz v Jewelers Machinist
March 11, 2010 NYS Appellate Division, Third Department
1130__Causal Relationship: Was there?
AFFIRMED the Board’s ruling that claimant did not have a causally related psychiatric disability. Five years after her injury during which time her case was established for bilateral carpal tunnel syndrome and amended to include a neck injury and an aggravation of a preexisting back condition, the claim was amended in 2007 to include major depressive disorder after which a Law Judge included this condition and continued the case to determine the extent of her disability. Upon review, the Board reversed the inclusion of the depressive disorder.
The carrier’s IME found some symptoms of depression, but opined that there were no psychiatric restrictions on her ability to perform her job and that her depression did not result in a disability. After a subsequent exam, he “concluded that claimant did not suffer a causally related psychiatric disability or even objectively suffer from a depressive disorder.” The Appellate Court agreed with the Board’s determination that the claimant’s treating psychiatrist’s position on causally related psychiatric disability was “entirely lacking in credibility.” The Court wrote “It is well settled that a claimant bears the burden of establishing, by competent medical evidence, a causal relationship between his or her employment and a disability. Further, the Board is the sole and final judge of witness credibility, and it alone can evaluate the factors relevant to determining whether the testimony of a party or witness is worthy of belief.” Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Jewelers Machinist, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Lupo v Cass
March 4, 2010 Appellate Term of the Supreme Court, First Department
Legal Malpractice
AGREED to grant defendants’ motion for summary judgment dismissing the complaint by Elaine Lupo, a workers compensation claimant, who sued her workers compensation attorney, Alan M. Cass, the defendant, for mishandling her case.
Although the Civil Court refused to dismiss the motion, the Appellate Court disagreed. They reviewed the complaints and the plaintiff’s “purported expert’s assertion” and summarized their rejection of the plaintiff’s positions as “nothing more than criticism of defendants’ considered, tactical strategy of how best to pursue plaintiff’s claim”, “insufficient to raise a triable issue”, and “rank speculation.” Click here to read the full court decision of the NYS Appellate Division, Third Department….
Dunn v American Tr. Ins. Co.
March 2, 2010 Appellate Term of the Supreme Court, Second Department
Which Court decides Jurisdiction
AFFIRMED The Appellate Court ruled that “[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board.” In this case, the defendant’s motion presented factual questions as to the plaintiff’s “status as either an independent contractor, as he claims he is, or as an employee of” a car service dispatch base, as the defendant claims. Accordingly, prior to rendering a determination on the motion, the Supreme Court should have referred the matter to the Workers’ Compensation Board for a hearing and determination as to whether the plaintiff is relegated to benefits under the Workers’ Compensation Law. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday March 5, 2010 ▼
Garifo v Pathmark Stores
March 4, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED the Board which ruled that claimant voluntarily withdrew from the labor market. After incurring injury in November 2001, claimant was awarded compensation until his return to work March 2002. He sought to reopen his case in January 2006, alleging that the worsening of his condition prevented him from working. In January 2007 a Law Judge affirmed causally related disability as of January 2006, continuing the case for further development of lost time. At a subsequent hearing, claimant testified he ceased employment in February 2006 when his employer closed the store where he worked, made no effort to seek employment or retraining, and was subsequently approved for Social Security disability benefits . The employer then raised the issue of voluntary withdrawal to which the claimant alleged total industrial disability. In November 2007 the Law Judge awarded additional benefits ruling that the claimant was relieved of his obligation to seek work given his receipt of Social Security disability benefits.
The Board reversed the Law Judge, finding that claimant’s loss of earnings and cessation of employment were unrelated to his compensable partial disability and, therefore, he was not entitled to an award of benefits for the period in question. Where, as here, claimant’s loss of employment was due to circumstances unrelated to his partial disability and no finding of involuntary retirement was made by the Board, “the burden rests on claimant to demonstrate ‘by substantial evidence that his disability contributed to his continued unemployment’”. Claimant testified that he probably would have continued to work had the employer not closed the store. Additionally, the weight of medical testimony established that claimant was capable of resuming employment despite any disability. This evidence, together with claimant’s admission that he made no effort to find employment or seek retraining, provides substantial support for the Board’s decision that claimant voluntarily withdrew from the labor market), notwithstanding evidence in the record that could support a contrary conclusion. Prevailing party represented by: Lauren Camo of counsel to Jones, Jones & O’Connell (NYC) for Pathmark Stores, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday February 26, 2010 ▼
Jamal v Gohel [& SIF]
February 16, 2010 NYS Appellate Division, Second Department
§ 29: lien against the recovery
Who decides the lien: Civil Court or WCB
REVERSED the Supreme Court’s order granting plaintiff’s motion to dismiss the NY State Insurance Fund’s (SIF) assertion that it had a claim for a credit or offset against death benefits. The plaintiff, widow of the decedent and on behalf of her four children, was awarded death benefits by the Worker’s Compensation Board against the decedent’s employer’s carrier SIF. She then commenced action against the driver ultimately winning a judgment in the Supreme Court, obtaining a decree from the Surrogate’s Court, inter alia, approving both the allocation of the entire amount of the proceeds of the jury award to the wrongful death cause of action and the discontinuance of the cause of action alleging conscious pain and suffering. Thereafter, SIF retroactively consented to the Surrogate’s decree, and waived its statutory right pursuant to Workers’ Compensation Law § 29(1) to a lien against the recovery. Subsequently, however, SIF asserted its right pursuant to Workers’ Compensation Law § 29(4) to claim a credit or offset against the death benefits that it was otherwise obligated to pay to the plaintiff and her children in an amount equal to the proceeds of the jury award. The Appellate Court ruled that the Supreme Court erred in entertaining the plaintiff’s motion as “Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board. . . . The issue of whether an employer or insurer has adequately reserved its right to claim a credit or an offset is a matter of fact for the Board. Accordingly, the instant issue is properly one for the Board’s determination.” Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday February 19, 2010 ▼
Magidson v Strategic Telemarketing
February 18, 2010 NYS Appellate Division, Third Department
§123: Late Appeal (7 years)
AFFIRMED the Board which ruled that the injured worker’s claim could not be reopened pursuant to Workers’ Compensation Law §123 or §25-a. In October 1993, claimant filed a claim for workers’ compensation benefits alleging that she was totally disabled as a result of her exposure to toxic chemicals at work.
Her disputed claim was first heard in May 1994 when neither claimant nor her attorney appeared nor submitted medical evidence such that the Law Judge closed the case for failure to prosecute. After the case was reopened, the claimant failed to appear at three more hearings (December 1995, March 1998, June 1998) although she was represented at one by an attorney. At that time the Law Judge ruled that “[f]ailure to prosecute 4th non appearance. All present issues are resolved. No further action is planned by the Board at this time.” The matter remained closed until January 2006, when the claimant filed an application to reopen the claim. At a hearing, attended this time by claimant and her attorney, the Law Judge disallowed the claim, finding that it could not be reopened because 14 years had passed since the date of the accident and no determination on the merits of the claim had been made.
The Appellate Court noted that while Workers Compensation Law §123 gives the Board discretion to open cases, “no claim for compensation . . . that has been otherwise disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits, shall be reopened after a lapse of seven years from the date of the accident or death.” And, contrary to the claimant’s assertion she had never been given proper notice, the Board’s determination that she had been given such notice was supported by substantial evidence. As to the claimant’s assertion that her claim should be reopened against the Special Fund for Reopened Cases per §25-a, the Court agreed with the Board that §25-a could not “reassert [stale claims] after seven years by claimants who had failed to make out a case in contested hearings or had failed even to attempt to assert their claims after due notice and an opportunity to be heard.” Prevailing party represented by: Edward Obertubbesing of counsel to Gregory J. Allen, State Insurance Fund, for State Insurance Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Barbaro v Eastman Kodak
January 28, 2010 NYS Supreme Court - Nassau County
Causal Relationship: Was there toxicity?
The Supreme Court Nassau County granted Kodak’s motion for summary judgment dismissing the complaint or recovery of damages as a result of exposure to chemicals at work. The plaintiff advanced claims sounding in negligence, breach of warranty, failure to warn and strict products liability. Kodak sought summary judgment dismissing the complaint on the grounds that the Developer Systems Cleaner did not cause the plaintiffs injuries and/or was time-bared, or in the alternative, a partial summary judgment dismissing the plaintiffs ‘ claims for dermal injuries, breach of warranty and failure to warn.
The plaintiff testified that he started experiencing breathing difficulties in the beginning of 2005. He saw a pulmonologist in November, 2005 and on his health questionnaire, he represented that he had smoked a pack of cigarettes a day for 25 years but stopped in 1987. When his symptoms worsened, a lung biopsy was performed on September 26, 2006 and he was diagnosed with a malignant carcinoma. Surgery in October 2006 revealed invasive moderately differentiated squamous cell carcinoma. The injured worker went out on disability that month and filed for workers compensation alleging that his medical condition was caused by exposure to sodium dichromate in the Developer Systems Cleaner. His claim was denied and he appealed to the Department of Labor. [It appears that this Supreme Court action was commenced after claimant’s workers compensation appeal was unsuccessful.]
In ruling against the plaintiff the Supreme Court ruled that, while via his affidavit, the injured worker raised issues of fact regarding agitation and spilling of the Developer Systems Cleaner, he gave is no reliable scientific evidence that that caused it to become airborne subjecting him to the risk of inhaling it. The plaintiff has not met his burden of establishing the existence of a material issue of fact. The plaintiff’s claim that he was not warned that he was being exposed to mists via his regular use of the product and had he been warned, he would have worn a respirator fails because, again, there is simply no admissible evidence that he was exposed to mist. In addition, as per the plaintiffs testimony at his examination-before-trial, he was well aware of the cancer causing risks posed by the chemicals and further warnings would have been cumulative. Click here to read the full court decision of the NYS Supreme Court - Nassau County….
▼ Posted Friday February 11, 2010 ▼
American Home Assur v NY Ctrl Mut
February 3, 2010 Supreme Court, New York County
Jurisdiction: Who decides which carrier pays bills
AFFIRMED In support of this proceeding to stay arbitration, American Home Assurance contends that the Workers’ Compensation Board is the proper forum to determine whether American Home, as the no-fault carrier, owes any money to New York Central Mutual Fire Insurance Company, the employer’s workers compensation carrier.
The claimant, injured in a motor vehicle accident, filed a successful claims for both no-fault benefits and workers compensation, for which the Workers Compensation Board ordered payments made to or on behalf of the claimant, totaling $24,684.55. Among other things, New York Central asserts that there were some duplicative payments made on claims, and that it paid approximately $45,000 to Cochran and/or to others on his behalf, which should have been paid by American Home, as the workers’ compensation carrier.
The primary issue presented here is whether the Workers’ Compensation Board or Arbitration Forums, Inc. is the proper forum to determine whether American Home owes any money to New York Central. American Home contends that, pursuant to the applicable rules and laws, including the WCL (§§11, 124, and 142) and the rules issued by the Workers’ Compensation Board, the proper and sole method for a party to request resolution of an issue involving a workers’ compensation claim is for the party to request a hearing before the Workers’ Compensation Board. In opposition, New York Central asserts that §5105 (b) is applicable to this controversy, and, pursuant to its terms: “[tlhe sole remedy of any insurer or compensation provider to recover” on a loss transfer claim “shall be the submission of the controversy to mandatory arbitration pursuant to the procedures promulgated or approved by [the Superintendent of Insurance].” New York Central further references 11 NYCRR § 65-3.12 (b), 11 NYCRR §65-4 et seq, and 11 NYCRR § 65- 4.11, citing several cases in support of its position.
The court in rejecting American homes arguments determined that Insurance Law §5105 is not analogous to those issues presented and concludes that the application for a permanent stay of arbitration is warranted and that the issues raised by New York Central in the Arbitration Application must be submitted to, and determined by, the Workers’ Compensation Board. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday February 5, 2010 ▼
Altobelli v Allinger Temporary Servs
February 4, 2010 NYS Appellate Division, Third Department
Apportionment: Awards
AFFIRMED the Board’s ruling that claimant’s workers’ compensation award be apportioned equally to two work-related incidents.
Despite a non-work-related back injury requiring surgery in 1989, claimant worked without disability or restrictions until October 2001 when he reinjured his back while working for Allinger Temporary Services, leading to a second surgery and an established workers’ compensation claim. Although he returned to work after that surgery, claimant sustained another back injury in May 2004 while employed by Calvary Design Team and had a second claim established. In July 2005, claimant underwent a third back surgery after experiencing pain at home in March of that year. After hearings were held regarding apportionment, a Law Judge concluded that awards should be apportioned 80% to the 2001 injury and 20% to the 2004 injury. Allinger appealed and a Board Panel apportioned an equal one-third basis to the 1989, 2001 and 2004 injuries. After a full Board review at claimant’s request, the Board rescinded its prior decision and apportioned the claims equally between the 2001 and 2004 work-related incidents. Allinger again appealed.
In its affirmance of the Board, the Court ruled that the decision on apportionment is a factual issue to be resolved by the Board which would be sustained as long as the Board’s decision detailed its reasoning, notwithstanding contrasting medical evidence. Also, the fact that the medical doctor found that apportionment in the “medical sense” was evenly split between the three injuries, the Board was correct in determining that apportionment in the “legal sense” was limited to the 2001 and 2004 work-related incidents, precluding the non-work-related 1989 injury as a matter of law because that injury did not render claimant disabled in the “compensation sense”. Prevailing party represented by: Jason D. Poselovich of counsel to Segar & Sciortino (Rochester) for Rob Altobelli, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Kot v Beth Ameth Home
February 4, 2010 NYS Appellate Division, Third Department
Causal Relationship: related or consequential
AFFIRMED the Board which ruled that claimant, in denying her claim for workers’ compensation benefits, did not sustain a causally related injury to her left hip.
Claimant, after sustaining injuries while attempting to lift a patient in April 2004, had her claim initially established for a lower back injury and subsequently amended to include awards for a ventral hernia and a consequential psychiatric condition. After undergoing left hip replacement surgery in 2006, a Law Judge concluded that this hip injury was also causally-related to the 2004 claim.
After the employer appealed that decision, and Board Panel determined that further development of record was necessary. Based partly on the opinion of the impartial specialist who examined the claimant, the Board Panel reversed the decision of the Law Judge. In its affirmance of the Board, the Court ruled that the decision on causality, related or consequential, is a factual issue to be resolved by the Board which would be sustained as long as the Board’ s decision detailed its reasoning, notwithstanding contrasting medical evidence. [In a footnote, the Court referenced a procedural error: “Although claimant’s assertions herein include challenges to certain conclusions of the impartial specialist, we note only that claimant waived her opportunity to cross-examine him.”] Prevailing party represented by: Irosha Ratnasekera of counsel to Charles J. Siegel (New York City) for Beth Ameth Home Attendant Service and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
▼ Posted Friday January 29, 2010 ▼
Wilcox v Niagara Mohawk
January 28, 2010 NYS Appellate Division, Third Department
SLU Apportionment
AFFIRMED the Board’s ruling that apportionment did not apply to claimant’s workers’ compensation award. Claimant sustained a work-related injury to his right ankle in December 2004, 12 years after undergoing surgery on the same ankle for a condition that was wholly unrelated to his employment. Claimant’s treating physician opined that claimant suffered a 45% schedule loss of use (SLU) of his right foot and did not attribute any portion of the loss to the noncompensable 1992 injury. The employer’s medical examiner agreed that claimant had a 45% SLU but attributed 50% to claimant’s earlier injury. The Law Judge, affirmed by the Board, granted claimant a 45% SLU, rejecting the employer’s claim of apportionment. The Court noted that, although apportionment May be applicable in a schedule loss of use case if the medical evidence establishes that the claimant’s prior injury — had it been compensable — would have resulted in a schedule loss of use finding, the Board determined that medical records and reports relevant to claimant’s 1992 surgery were unavailable, and neither expert was provided with any objective documentation indicating to what extent, if any, claimant’s use of his right foot or range of motion had been impaired as a result of the prior injury. Consequently, although the medical examiner who evaluated claimant for the employer opined that claimant had a preexisting 22.5% loss of use, claimant’s treating physician testified that any opinion regarding a preexisting loss of use would be entirely speculative. Thus confronted with conflicting medical evidence, the Board was authorized to credit the opinion of one expert over that of another. Prevailing party represented by: Peter W. Hill (Oneonta) for Clyde F. Wilcox, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Shelley v Shelley Septic
January 28, 2010 NYS Appellate Division, Third Department
Coverage: Sole Executive Exclusion
AFFIRMED the Board which ruled that, per WCL §14(6), claimant was not concurrently employed by Thompson Sanitation Corporation when he was injured working at Sheeley Septic Service. A review of the controverted Board decision shows that the issue was not concurrent employment but executive exclusion under a corporation’ s workers compensation insurance policy, per WCL §54[6][d]. At the time of claimant’s injury, he and another individual, Paul Walsh, were Thompson’s sole owners and officers. Walsh testified that he elected to be excluded from Thompson’s workers’ compensation coverage in 1994 and, while he did not remember if claimant did so that year, claimant had done so when Thompson was initially formed. According to documentation submitted by the workers’ compensation carrier, and admitted upon claimant’s stipulation, the policy in effect when claimant was injured contained an exclusion election for him. The Court found that the Board could properly find from the evidence presented that he did make such an election, thus removing himself from the definition of an “employee” and placing his work for Thompson outside of the ambit of Workers’ Compensation Law §14(6). Prevailing party represented by: Patrick B. Guy of counsel to Gitto & Niefer (Binghamton) for Sheeley Septic Service and another, respondents. And Jill Singer of Counsel to Steven Licht, Special Funds Conservation Committee for State Insurance Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Moysello v David
January 21, 2010 NYS Appellate Division, Third Department
Employment: Taxi driver
AFFIRMED the Board which ruled that claimant was an employee of Charles David and David Enterprises, Inc. In January 2007, claimant was injured in a motor vehicle accident during the course of his employment as a taxicab driver for David’s Taxi. An investigation determined that the vehicle was registered to David Enterprises, Inc. and the was “true owner” of David Enterprises was Charles David. At the conclusion of the hearing, at which claimant was the only party to appear, a Law Judge concluded that claimant was employed by David and David Enterprises (D/DE) on the date of his accident– both of which were uninsured in violation of Workers’ Compensation Law § 50. D/DE filed an application for Board review, contending that claimant’s actual employer was a related entity, David Brothers, Inc., which purportedly had workers’ compensation coverage on the day in question, and that D/DE did not receive proper notice of the hearing. The Board affirmed, finding that D/DE met the presumptive definition of employer contained in WCL §2 (former [3]) and that jurisdiction had been properly obtained. The Court agreed pointing out that D/DE conceded David Enterprises was the registered owner of the vehicle and that there was sufficient indicia of control To support the Board’s finding that D/DE and that proper notice was served. Prevailing argument presented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Lew v Younger
January 21, 2010 NYS Appellate Division, Third Department
Employment: Who is
AFFIRMED the Board which ruled that an employer-employee relationship existed between claimant and Richard Younger. Claimant, a cleaner, in 2006 had his claim for workers’ compensation benefits after he was allegedly injured in the course of his employment for Richard Younger, a site manager who arranged for the upkeep of a number of buildings. In 2007, the Board reversed the Law Judge, determined that claimant was employed by Younger, established the claim and restored the case to the calendar. Younger and others sought and was denied review of the argument that claimant was either an independent contractor or in the employ of the owner of the building where he was injured. The Appellate Court listed in its decision some of the evidence with which it supported the Board’s determination that an employer employee relationship existed, notwithstanding evidence that could permit a different result. Prevailing argument presented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
DiLascio v Tilden Glen Head
January 21, 2010 NYS Appellate Division, Third Department
Coverage: sole executive exclusion
AFFIRMED the Board which ruled that the State Insurance Fund is not liable for the payment of workers’ compensation benefits to claimant. Claimant was the sole executive officer of an automobile repair business that maintained workers’ compensation insurance through the State Insurance Fund (hereinafter SIF). But in 1994 to 2001 elected to exclude himself from such coverage at which time without expressly notifying SIF that he intended to now be covered by the insurance policy, began including his salary in the chargeable payroll statements he submitted to SIF used to calculate premiums. A renewal policy covering the period from October 2005 to October 2006, however, was provided to the employer, which explicitly stated that claimant was not covered by the policy due to the election to have him excluded. In May 2006, during the time that this policy was active, claimant was injured while at work and he applied for workers’ compensation benefits. [SIF thereafter credited the employer’s account for the portion of the premiums applicable to the inclusion of claimant’s salary in the chargeable payroll paid from 2004 to 2006.] A Law Judge ruled that claimant, by paying the higher premiums based upon the inclusion of his salary in the chargeable payroll, believed that he was covered and SIF was estopped from denying coverage.The Court agreed with the Board’s decision to reverse agreeing that there was sufficient evidence that estoppel did not apply. Most importantly, the record reveals that the policy, in the year, expressly excluded the claimant from coverage, that he had actual knowledge that he was not covered by the policy and, therefore, could not have reasonably relied on SIF’s acceptance of higher premiums in believing that he was covered. Prevailing party represented by: Janis M. Riekstins of counsel to Gregory J. Allen, State Insurance for Tilden Glen Head, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Li v Southern Garden
January 21, 2010 NYS Appellate Division, Third Department
§ 15(8)Reimbursement Special Fund
AFFIRMED the Board which discharged the Special Disability Fund from liability under WCL §15(8) (d). After the injured worker claim was established for injuries sustained in a January 2000 accidents, the carrier filed a notice for reimbursement from the Fund based on a previous injury sustained by claimant.
In April 2005, the Board approved a settlement agreement between claimant and the carrier pursuant to WCL §32. In light of the carrier’s reimbursement claim, the Fund was also a party to the agreement. The agreement noted that the issue of permanency was outstanding and that the parties had decided to settle the claim rather than litigate the issue. The Committee gave provisional consent to the settlement, “subject to the carrier’s successful claim under [Workers’ Compensation Law § ] 15 (8) (d), less any statutory retention period remaining at the time of the approval of this agreement.” The agreement expressly provided that the Committee’s consent “is not to be construed as a concession of liability under . . . [s]ection 15 (8) (d).” Thereafter, the Law Judge granted the carrier’s reimbursement claim but was then reversed after a Board’s review. First the court accepted the board’s discretion to accept the Funds appeal which is one day late but not the carriers which was two months late. Court agreed Board’s reasoning denying reimbursement because the work-related injury did not result in a permanent disability, even though evidence in the record might support a contrary result. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….
Davis v Ready Labor
January 21, 2010 NYS Appellate Division, Third Department
Course of Employment: driving to work
AFFIRMED the Board which ruled that the death of claimant’s decedent did not arise out of and in the course of her employment. Decedent was employed by Labor Ready, an employment agency that provides temporary employees to its clients. On March 16, 2004, decedent was driven, along with two other employees, to a work assignment at Dunkirk Ice Cream by McKinley Barnes, a Labor Ready employee who was not working that day but had agreed to drive decedent and the two other employees to the work site. Barnes returned to Dunkirk when decedent and the other Labor Ready employees had finished their eight-hour shifts and, during the 26-mile return trip, an automobile accident occurred that resulted in decedent’s death. Claimant’s application for his comp death benefits was granted by a law judge but the Board reversed and disallowed the claim.
Claimant argued that because Labor Ready assumed the responsibility for transporting its employees to and from their temporary job assignments, this accident should have been deemed to have occurred within the scope of decedent’s employment per WCL §10 [1]). Although there are exceptions to the general rule that travel to and from a work site is not considered to be within the scope of employment and injuries occurring during that period, the Court agreed with the Board that this case was not such an exception. It was noted that the employer did encourage car pooling with employees were assigned to the same job location but the vehicles used for transport were not owned by Labor Ready and it had no contract nor did it pay any driver to transport its employees to the work site. In addition the driver of the car was not working for the employer that day was not pay for the service by the employer but by the individual employees who did not get paid for travel time. The Court agreed with the Board that Labor Ready did not have exclusive control of the conveyance, which combined with the Board’s review of other evidence, supported its decision to disallow the claim. Finally the court stated that the Board did not abuse its discretion by refusing to consider her rebuttal because she failed to include the required cover sheet and affidavit of interested parties. Prevailing party represented by: Karen Darling of counsel to Hamberger & Weiss (Buffalo) for Labor Ready and another, respondents. Click here to read the full court.decision of the NYS Appellate Division, Third Department….
▼ Posted Thursday January 14, 2010 ▼
Domenico v United Way
January 14, 2010 NYS Appellate Division, Third Department
Venue issues: Switch Law Judges
AFFIRMED the Board’s ruling which denied the pro se claimant’s request to move the case to a different venue. Claimant, after injuring her hand and wrist, was found to have a compensable partial disability but, when issues subsequently arose regarding permanency and the degree of her disability, the employer and claimant were directed to produce medical evidence relating to permanency and loss of use. The employer thereafter submitted an independent medical examination, but claimant did not. At a July 2008 hearing, a Law Judge again directed claimant to provide medical evidence, on or before October 14, 2008, if she wished to controvert that provided by the employer. The Law Judge noted as much in the resulting decision and continued the case. Claimant appealed that continuance to the Workers’ Compensation Board, requesting that her case be assigned to a different Law Judge and/or transferred to a different district, and arguing that the Law Judge improperly continued her case. The Board rejected claimant’s arguments and affirmed the Law Judge’s decision. Prevailing party represented by: David A D’Agostino of counsel to Smith, Sovik, Kendrick & Sugnet (Syracuse) for United Way and another, respondents. Click here to read the full decision of the Court….
Begor v Holmes
January 14, 2010 NYS Appellate Division, Third Department
Coverage: Which carrier
AFFIRMED the Board’s decision which ruled that American Zurich Insurance Company is the liable workers’ compensation carrier. In this case, the injured worker was employed by Four Seasons who had no workers comp insurance. Four Seasons was hired by Mid Hudson who used a professional employer organization (PEO) to handle all its human resources functions, including payroll, employee benefits, and workers’ compensation benefits. Mid Hudson’s leased employees were covered by a workers’ compensation and employers’ liability insurance policy obtained by the PEO and issued by American Zurich Insurance Company (hereinafter Zurich), on which the named insured was the PEO as labor contractor for Mid Hudson. Mid Hudson in turn was hired by Brenner & McHugh, Inc., the general contractor on the projectwho was insured by NYSIF.
The Zurich policy provided, in pertinent part: “This policy provides coverage for the workers leased to the client [Mid Hudson] . . . This policy does not satisfy the client’s duty for the complete payment of any obligations it may have under the Workers’ Compensation Law for non-leased employees . . .” The certificate of liability insurance for the policy similarly provided that “[c]overage is provided for only those employees leased to but not subcontractors of Mid Hudson.“
After an initial hearing on claimant’s application for workers’ compensation benefits, a Law Judge issued a decision that found that Mid Hudson did not have coverage on the date of the accident extending to its subcontractor and that, since they both had failed to provide coverage for claimant, SIF was obligated under WCL §56, as Brenner’s carrier, to pay any outstanding awards and causally related medical bills. The Board in reviewing SIF’s appeal, concurred with the Law Judge’s determination that the claim was SIF’s liability, finding that Mid Hudson was an uninsured subcontractor because, although it had coverage for its leased employees, it had exposed itself to workers’ compensation liability for which it had no coverage by subcontracting work to Four Seasons. The full Board accepted review, rescinded the Board panel’s decision, and returned the matter for further consideration. The Board panel then issued a decision finding that the limitation of coverage in the Zurich policy to leased workers was ineffective to exempt claimant from coverage because, under WCL §54(4), the policy was deemed to include the statutory coverage provided under WCL §56 to employees of uninsured subcontractors such as claimant. The Board panel therefore found that Zurich, as Mid Hudson’s carrier, was liable for the claim.
Because the resolution of this matter depends on pure statutory construction, the Appellate Court recorded no deference to the Board’s determination but agreed with the Board’s statutory analysis, the specifics of which can be found in the Court’s decision. Prevailing party represented by:Kelly A. O’Neill of counsel to Gregory J. Allen, State Insurance Fund (White Plains) for Brenner & McHugh, Inc., and another, respondents. Click here to read the full decision of the Court….
Brook v Overseas Media
January 12, 2010 NYS Appellate Division, First Department
§120: Discrimination: a workers’ comp issue, not Civil Court
DISMISSED a Supreme Court motion to proceed under which the plaintiff sought a finding of retaliatory discharge under the New York City Human Rights Law. The Appellate Court found that the allegation does not state a cause of action for retaliatory discharge under the NYC Human Rights Law. The Court explained that “[t]he mere filing of a claim for workers’ compensation is not a ‘protected activity’ within the meaning of that provision, because it does not constitute ‘opposing or complaining about unlawful discrimination’ [filing of a workers’ compensation claim not a protected activity under Title VII, 42 USC § 2000e-3(a)]). Plaintiff’s sole remedy for retaliatory discharge in violation of WCL §120 is to file a complaint with the Workers’ Compensation Board. Even when the complaint is liberally construed to allege that plaintiff’s employment was terminated in retaliation for requesting an accommodation for her disability, it does not state a cause of action because it fails to allege that she opposed her employer’s discriminatory failure to make reasonable accommodation.” Prevailing party represented by: Jason M. Zoladz of counsel for appellant. Covington & Burling (New York) for appellant. Click here to read the full decision of the Court….
▼ Posted Thursday January 7, 2010 ▼
Church v Arrow Elec
January 7, 2010 NYS Appellate Division, Third Department
§114-a: Fraud
7050 Procedure: Denial Full Board Review
AFFIRMED the Board’s rulings (1) that the claimant violated Workers’ Compensation Law § 114-a and disqualified him from receiving future wage replacement benefits and (2) which denied claimant’s request for full Board review but RESCINDED part of the mandatory penalty due to the Boards “undescernable” logic.
Claimant, injured in April 2003, was awarded benefits in December 2003. The carrier applied for review by a Board Panel which determined that claimant “knowingly made false statements and representations as to a material fact for the purpose of influencing the determination of workers’ compensation benefits in violation of [Workers’ Compensation Law] § 114-a,” as a result the Board rescinded prior benefits and disqualified him from future receipt of wage replacement. Claimant’s subsequent application for review by the full Board was denied. Claimant now appeals both from the Board’s decision reversing the WCLJ and from the denial of his application for full Board review.
The Court found find that the Board’s finding of §114-a fraud was supported by substantial evidence, i.e. “Claimant’s attempts to explain the discrepancies between his representations and the observations of the physician conducting the independent medical examination and the surveillance video presented issues of credibility that the Board was entitled to resolve.” But the Court then wrote, “turning to the propriety of the sanctions imposed, while it is clear that the Board assessed a mandatory penalty, we are unable to discern from the Board’s decision ‘a link between the false statement or representation and the forfeited compensation to show that the compensation was directly attributable to the false statement or representation’. Thus, we must remit to the Board to further develop the underlying decision in this regard. However, we are unpersuaded by claimant’s contention that the disqualification from receiving future benefits was disproportionate to his conduct, given the thorough explanation set forth by the Board in its assessment of this discretionary penalty.”
They added, “Claimant’s appeal from the denial of his application for full Board review is deemed abandoned due to his failure to raise any issues with respect thereto in his brief on appeal.” Prevailing party represented by: Matt Worth of counsel to Weiss, Wexler & Wornow (NYC) for Arrow Electronic, Inc. and another, respondents. Click here to read the full decision of the Court….
Epp v Cortland City DPW
January 7, 2010 NYS Appellate Division, Third Department
Causal Relationship: PFME, et al
Procedure: Denial Full Board Review
AFFIRMED the Board’s rulings (1) that claimant sustained a causally related injury to his right knee, and (2) which denied the self-insured employer’s request for reconsideration or full Board review. Claimant, after allegedly ensuring his right knee on July 31, 2006, filed a claim for workers’ compensation. A Law Judge continued the case pending the deposition of claimant’s treating physician which the parties were directed to complete and submit by May 18, 2007. The employer encountered difficulties in procuring claimant’s physician’s testimony, prompting it to request an extension of time. The WCLJ indicated that the request would be held in abeyance pending receipt of an affirmation detailing, among other things, the employer’s efforts to schedule the deposition. When no responding affirmation was tendered, the Law Judge issued a reserved decision establishing the claim, which was affirmed by the Board which subsequently denied the employer’s request for full Board review.
It is well settled that the assessment of witness credibility and the resolution of conflicting testimony lie within the exclusive province of the Board, with the Board in this case siding with the claimant and his witnesses rather than those of the employer’s witnesses. As to deposing the physician or striking her reports from the record, the Court agreed with the Board that the employer failed to comply with the procedures outlined by the Law Judge. “Finally, inasmuch as the employer failed to brief the denial of its application for reconsideration or full Board review, we deem that portion of the employer’s appeal to be abandoned.” Prevailing party represented by: Estelle Kraushar of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court….
Flores v Newstar Apparel
January 7, 2010NYS Appellate Division , Third Department
Causal Relationship: PFME, et al
Procedure: Denial Full Board Review
AFFIRMED the Board’s that (1) claimant sustained a compensable injury, and (2) denied the carrier’s request for full Board review. Claimant, injured in a fall that occurred at the start of her workday when she slipped on ice in the entryway of the building where her employer was a tenant, had her application for benefits denied by a Law Judge who determined that the accident did not occur within the precincts of her employment. The Board reversed and subsequently denied the carrier application for full Board.
“Although injuries that occur while an employee is traveling to and from work are not generally compensable, an exception may lie in the ‘gray area’ . . . courts must additionally consider whether (1) there was a special hazard present, and (2) if the route taken by claimant had a close association with the premises of [the] employer.” In this case the claimant’s testimony, including very specific facts regarding the location of injury, was substantially uncontroverted. “Finally, inasmuch as the employer failed to brief the denial of its application for reconsideration or full Board review, we deem that portion of the employer’s appeal to be abandoned.” Prevailing party represented by: Steven Segall of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court….
Friedman v NYC DOT
January 7, 2010 NYS Appellate Division, Third Department
Income from self-employment
AFFIRMED the Board’s ruling that claimant was not entitled to an award of reduced earnings subsequent to November 22, 1987 as his business income was salary and not profits.
Claimant, having sustained work-related back injuries in 1979 and 1983, was classified as permanently partially disabled and was awarded reduced earning benefits beginning in 1985, when he stopped working for the employer. The benefits were suspended in November 1987, when the employer’s investigation revealed that claimant owned his own business and was also serving as a corporate officer for at least one other business. The case was closed in 1989 after he failed to comply with the Board’s direction to produce personal and corporate tax returns. In 2003 after 14 years of his failing to follow Board directions and subpoenas, the Board ultimately found that claimant had failed to provide sufficient evidence entitling him to reduced earnings, and closed the case pending his production of such evidence. In 2007 after testimony from the original employer’s accountant indicating the returns that were available were incomplete as well as testimony from the claimant, the Law Judge determined that claimant was actively engaged in gainful activity and had not demonstrated a diminution of earning capacity.
The claimant argue his income constituted profits rather than earnings and that “a self-employed claimant’s work primarily in a supervisory capacity has been found to be profits from an investment”. Unlike a business owner who passively supervises employees who carry out the actual work of the business, claimant’s testimony reveals that the inspection and review services that he performed constituted is company’s actual work.”[W]hether an individual’s income is based on profits or a salary for services performed is a factual determination for the Board” and, in this case, the Court agreed with the Board’s determination that “claimant’s income from LAF was actively earned from his labor and constituted actual earnings rather than a passive return on investment.” Prevailing party represented by: Ronald E. Sternberg of the Office of Corporation Counsel for the New York City Department of Transportation and another, respondents. Click here to read the full decision of the Court…
Hassan V Ford Motor
January 7, 2010 NYS Appellate Division, Third Department
Hearing Loss
AFFIRMED the Board’s ruling that claimant had a 0.625% schedule loss of use for binaural loss of hearing despite claimant’s contention that the carrier’s medical witness was not qualified. In his appeal, the claimant contends that because the employer’s registered nurses who performed audiometric examinations on him are not “qualified professionals” pursuant to 12 NYCRR 351.7, the examination results should not have been admitted into evidence, for which reason, the opinion of the otolaryngologist who served as the employer’s independent medical examiner, lacks credibility and should have been rejected due to his partial reliance on those examination results.
The Court agreed with the Board’s findings that “the special certification and training received by the employer’s nurses in performing audiograms” as evidenced by the nurses’ uncontradicted testimony is sufficient to render them “qualified professionals” under 12 NYCRR 351.7. Also it was noted that the otolaryngologist’s conclusion was also based on tests he himself performed. The court noted that when there was conflicting but were relatively equal medical evidence, the “Board is vested with broad authority to evaluate the credibility of witnesses, weigh conflicting evidence and draw any reasonable inference from the proof .” Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for Ford Motor Company, respondent. Click here to read the full decision of the Court….
Herlburt v Cortland County
January 7, 2010 NYS Appellate Division, Third Department
§ 29: MVA liens, malpractice
Procedure: Denial Full Board Review
AFFIRMED the Board’s ruling that (1) the employer was responsible for the payment of certain of claimant’s medical bills, and (2) denied the employer’s request for full Board review. Claimant, a former Cortland County Sheriff’s Deputy, sustained serious injuries at the Cortland County Jail in September 1981. Following a surgery to repair damage to his elbow, claimant developed a bacterial infection in his heart, causing him to suffer a heart attack and stroke, which eventually led to paralysis and aphasia. A Law Judge found claimant to be permanently physically disabled as a result of injuries sustained at work and awarded him benefits.
Between August 2005 and January 2006, claimant underwent emergency care for an infection of the area where a pacemaker had been installed at the time of his heart attack, resulting in substantial medical bills that the self-insured employer disputed. In a March 2006 hearing, the employer conceded that the disputed bills were causally related to a compensable injury, but indicated that it was investigating whether claimant had settled a third-party malpractice action related to his compensable injuries without the employer’s consent. After the employer stated that it had discovered no information other than that a lawsuit had been commenced, a Law Judge found for the medical providers with regard to the disputed bills.
The employer then applied for review by the Board, contending that it had evidence that claimant had settled or discontinued a third-party lawsuit without its consent, supplementing its application with a copy of a stipulation of discontinuance in a malpractice action. Nevertheless, the Board found that the WCLJ had “acted appropriately and within his discretion in denying the self-insured employer further opportunity to defend the claim” and commented that the employer did not file a copy of the stipulation of discontinuance with the Board in a timely manner and failed to explain why it could not have been produced at an earlier date. The employer now appeals from the Board’s decision and from the denial of its application for full Board review.
While the Court cited case law to the fact that “if a third-party action relating to an injury also subject to a workers’ compensation claim is settled without the consent of the employer/carrier or a compromise order, the claimant forfeits any further benefits for which a recovery might have been had in the third-party action (see WCL §29 [5] and the claimant bears the burden of establishing that the employer’s consent was obtained.” But in this case, among other reasons, the employer failed to present any evidence to the WCLJ that claimant had commenced a malpractice action, let alone settled or discontinued such action. Therefore, claimant’s duty “to demonstrate the employer’s consent never arose”. As to the denial of full Board review, the employer proffered no new evidence in support of its application. Prevailing party represented by: Phyllis I. Hulbert, Rotanda, Florida, as power of attorney for Mark Hulbert, respondent and Iris Steel of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court….
Jaquin v Community Covenant
January 7, 2010 NYS Appellate Division , Third Department
Causal Relationship: Was there?
AFFIRMED the Board’s ruling that the pro se claimant did not sustain a causally related injury, denying her claim for benefits.
Claimant alleges that she suffered a work-related injury when she lifted a heavy child out of a carriage during the course of her employment at a day-care center in February 2004 and filed the claim in March 2004. The Board affirmed the June 2004 closing of her claim for lack of prima facie medical evidence but reopened the case for submission of additional medical evidence. In January 2005, claimant submitted a second C-3 form that provided somewhat different statements of the date, nature, and circumstances of the injury and of the timing and nature of the notice allegedly given to the employer but she did not supply prima facie evidence until May 2007 at which time she and an employer witness testified. The Law Judge then disallowed the claim determining that claimant had failed to show a causal relationship between the injury and her employment by competent medical evidence, and that the opinion of claimant’s doctor as to a causal relationship, given two years after the accident, lacked foundation in the record.
The burden is upon claimant to produce competent medical evidence establishing that her injuries or limitations were causally related to her employment but her records show she had a prior history of chronic problems with the site’s allegedly injured at work, her medical reports did not substantiate her claims, and there were discrepancies in claimant’s own accounts of the event and its consequences. In supporting the Board’s decision, the Court stated, “Though the Board may not fashion its own expert medical opinions, it may reject medical evidence as incredible or insufficient even where, as here, no opposing medical proof is presented . . . Claimant’s proof failed to definitively link her injuries to the February 2004 event rather than to the 2003 accident or to her preexisting conditions.” Prevailing party represented by: Robert E. Geyer Jr. of counsel to Wolff, Goodrich & Goldman (Syracuse) for Community Covenant Church and another, respondents.Click here to read the full decision of the Court….
Kane v Unger/Compton
January 7, 2010 NYS Appellate Division, Third Department
Coverage (including Death Claims)
AFFIRMED the Board’s decision which determined, among other things, that PMA Insurance Group was the liable workers’ compensation carrier as their policy was in effect at the time of the alleged accident of June 9, 2006. Although Unger began transferring ownership of his business in March 2006 to C/C, who took over day-to-day operations on March 31, 2006, transfer of ownership was not completed until August 2006. Unger canceled his workers comp insurance effective June 19, 2006 (six weeks before a final transfer of ownership and less than two weeks after the alleged accident) and C/C obtained their insurance on July 15, 2006 (one month after Ungar canceled his and six weeks after the alleged accident). The Law Judge ruled that, since formal control of the business did not take place until August 2006, the claimant was effectively an employee of Ungar. The Board did affirm the Law Judge as to the proper employer but noted that the Law Judge had misidentified Ungar’s workers’ compensation carrier, determining it should have been PMA Insurance Group. The Court added, “While there is evidence in the record that C/C had taken over the day-to-day operation of the business as of June 2006, which evidence could support a different conclusion, we nevertheless find that the Board’s determination was supported by substantial evidence.” Prevailing party represented by: Jason M. Carlton of counsel to Gitto & Heifer (Binghamton) for Andrea Compton and another, respondents Click here to read the full decision of the Court….
Nothaft v Hawkeye Construction
January 7, 2010 NYS Appellate Division , Third Department
Causal Relationship: Death
AFFIRMED the Board’s ruling that the unwitnessed death of claimant’s decedent was not causally related to his employment. [I was on this panel.]
In March 2005, claimant’s husband (hereinafter decedent) was employed as a truck driver at a construction site. Approximately two hours after the start of his shift, decedent was found unconscious in the cab of his truck and later died. An autopsy determined that the causes of death were hypertensive and arteriosclerotic heart disease. Claimant sought workers’ compensation death benefits, but a Law Judge determined that decedent’s death was not causally related to employment. The Board determined that, “As decedent suffered an unexplained or unwitnessed accident during the course of his employment, a presumption of compensability arises (see Workers’ Compensation Law § 21 [1]) but that presumption may be rebutted by substantial evidence to the contrary, however, and ‘irrefutable proof excluding every conclusion other than that offered by the employer’ is not required.” Both the Court and the Board agreed that the autopsy report and death certificate indicated, and a medical expert who reviewed decedent’s medical records opined, that decedent’s death was unrelated to his work. “As substantial evidence supports the Board’s determination that decedent’s work had no connection to his death, we decline to disturb it.” Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Hawkeye Construction, Inc. and nother, respondents. Click here to read the full decision of the Court….
▼ Posted Monday January 4, 2010 ▼
Figueroa v Perfect Shoulder Co
December 31, 2009 Appellate Division, Third Department
Course of Employment: in and out of
AFFIRMED the Workers Compensation Board’s ruling that claimant sustained a compensable injury. Claimant, a supervisor for the employer, was required to open the factory each day by 7:00 A.M., but was prohibited from doing so earlier than 6:45 A.M. Having arrived early on October 9, 2006, claimant was sitting in his parked car on a public street in front of the workplace and was rendered a quadriplegic when his automobile was struck from behind by another vehicle. Both the Law Judge and the Board determined that claimant’s injuries arose out of and in the course of his employment. While accidents that occur in public places and outside of work hours are not compensable those that occurred near the workplace are a gray area where “the risks of travel merge with those of employment.” In this case, the Board concluded that there was a nexus between the employment in the risk which led to the accident based on the fact that the employee could not open the factory later than 7 AM nor earlier than 6:45 AM. The Court stated “Given that the employer’s directions compelled claimant to arrive at work early and wait -and the accident occurred during that wait - we are satisfied that substantial evidence supports the Board’s determination that a causal nexus existed between the employment and the injury.” Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, New York City, for Workers’ Compensation Board, respondent.. Click here to read the full decision of the Court….
[ED. NOTE: As a member of the Panel that heard this case, we carefully drafted the language to indicate that it was the 15 minute window (6:45 AM to 7:00 AM) which created the nexus and not the fact that he was waiting outside the place of employment just prior to the accident.]
Malone v VRD Decorating
December 31, 2009 Appellate Division, Third Department
Procedure: Denial Full Board Review
AFFIRMED the Workers’ Compensation Board which denied the pro-se claimant’s request for reconsideration or full Board review. After establishing a claim with various sites of injuries from a March 2003 work accident, the Board determined that (1) the claimant’s neck injury was not work-related and (2) the claimant had withdrawn from the labor market in October 2003. Appealing from the Board’s 2008 denial of his application for reconsideration or full Board review, claimant argues that the Board failed to consider evidence supporting his contention that he injured his neck in the incident. Quoting earlier cases, the Court wrote, “Inasmuch as claimant has appealed from only the decision denying [his] application for reconsideration and/or full Board review, the merits of the underlying decision are not properly before us. . . . Our review is therefore limited to whether . . . the Board abused its discretion or acted in an arbitrary and capricious manner.” The claimant argued that emergency room records were not properly considered but those records were available and were not newly discovered evidence. Also conflicting medical opinion was provided as to whether or not the neck injury was causally related. The Court was unpersuaded that the Board abused its discretion or acted arbitrarily in denying claimant’s application for reconsideration or full Board review. Prevailing party represented by: David L. Snyder of counsel to Hamberger & Weiss (Rochester) for VRD Decorating and another, respondents. Click here to read the full decision of the Court….
Silvers v State of New York
December 29, 2009 Appellate Division, First Department
Broker Fraud
Granted defendants’ motion for summary judgment dismissing the complaint, after the Court of Claims of the State of New York denied the parties respective motions for summary judgment. Claimant insurance broker seeks recoupment of money from defendant State Insurance Fund (SIF) that he was compelled to pay one of his clients after it was determined that he had negligently failed to obtain workers’ compensation insurance for that entity’s out-of-state employees.
Although SIF has never sold out-of-state coverage, claimant maintains that one of SIF’s field representatives advised him that the policy that he had acquired on behalf of his client would cover its out-of-state employees, and the Court of Claims found the existence of triable issues of fact precluding summary judgment to either side. In granting the motion for summary judgment, the Appellate Court found there was no evidence SIF’s field representative was authorized to speak for SIF with respect to coverage for out-of-state employees nor any reason that reliance by claimant upon the representative’s purported misrepresentations was unreasonable as a matter of law. The Court then summarize its position by writing that the “claimant, as a sophisticated insurance broker, is unable to show any reasonable reliance upon the representative’s alleged misrepresentations inasmuch as a broker is presumed to have read, and have knowledge of, the insurance policy that is being procured on behalf of the insured.” Prevailing party represented by: Michael S. Buskus of counsel to Andrew M. Cuomo, Attorney General for respondents-appellants. Click here to read the full decision of the Court….
[ED. NOTE: Although the NYS WCB is not a party of interest, this case is listed because it gives relief to victims of broker fraud, be they the employer or the Uninsured Employers Fund, on those occasions when the Board justifiably finds the employer to be uninsured. As a Commissioner, I always added to the decisions in these cases the statement “the question of broker fraud and the civil and criminal penalties arising therefrom are beyond the scope of the instant workers compensation claim.” It is important to note that another jurisdiction has stepped in to protect the victims of broker fraud.]
Omnipop v NYS Comm of Labor
December 31, 2009 Appellate Division, Third Department
Employment: Control
REVERSED the Unemployment Insurance Appeal Board’s decision which assessed the employer for additional unemployment insurance contributions after finding that a particular class of workers were employees. Omnipop books entertainers for single-performance events for clients such as clubs and schools. The Unemployment Insurance Appeal Board found that the entertainers, booked for single-performance events for clients such as clubs and schools, were Omnipop’s employees. Just as with decisions from the Workers Compensation Board, the existence of an employer-employee relationship is a factual determination for the Unemployment Insurance Appeal Board that will not be disturbed if supported by substantial evidence: an assessment of the extent to which the alleged employer exercises control over the results and, more importantly, the means by which those results are produced.
The Court did not find sufficient indicia of control by Omnipop to support the finding of employer-employee relationship. Among these indicia were: (1) Performer are free to reject a booking opportunities. (2) Omnipop plays no role in organizing performances. (3) the client and performer negotiate directly with regard to the fee to be paid, with any written contract being solely between them. (4) The contract prepared by Omnipop states that the performer has total control over their performance and that Omnipop disavows any liability for a breach by either the client or the artist. The Court then wrote, “Omnipop, in short, exercises virtually no control over either the results of the performances or the means used to achieve those results. . . . Accordingly, substantial evidence does not support the Board’s finding that the performers were employees of Omnipop.” Prevailing party represented by: George Merritts, Garden City, for appellant. Click here to read the full decision of the Court….
[ED. NOTE: Although the NYS WCB is not a party of interest, this case is listed because the Appellate Court clearly delineated nearly a dozen indicia which clearly support the conclusion that these performers are not employees and therefore the employer could not be assessed unemployment insurance on their remuneration.]
▼ Posted December 24, 2009 ▼
Daquino v East Meadow Union Free School Dist.
December 24, 2009 Appellate Division, Third Department
§ 25-a: True Closing
RESCINDED and sent back for reconsideration the Workers Compensation Board’s ruling that liability shifted to the Special Fund for Reopened Cases pursuant to WCL §25-a. The issue in this case revolved around the Board’s incorrect definition of `closed‘. Injured in 1999, this claimant underwent two surgeries missing eight months of work during which time wages were paid pursuant to a collective bargaining agreement. He retained an attorney in 2000, filing forms seeking further workers’ compensation benefits and further submissions, including a report indicating a 25% SLU. The Board finally indexed his case in January 2007. After a Law Judge concluded that liability for the claim had shifted to the Fund, the Fund appealed, contending that the claimant’s case had been informally opened and closed as a result of the employer’s payment of wages to him during the time he missed work, and that claimant’s numerous subsequent submissions to the Board constituted requests to reopen his case that precluded the applicability of WCL § 25-a. The Board affirmed the Law Judge.
In sending back the case for further review with respect to whether any of the claimant’s submissions should be deemed an application to reopen by the Board, the Court determined that “Claimant’s receipt of wages during his absence from work was an `informal’ workers’ compensation award and his case was `closed’ when such payments ceased. Although liability for a claim for workers’ compensation benefits generally shifts to the Fund when a case is closed and subsequently reopened more than seven years from the date of the injury and three years after the date of the last payment of compensation, `[T]he provisions of section 25-a . . . shifting liability to the Fund are inapplicable where a claimant applies to reopen his [or her]case within seven years of an accident.’ Here, therefore, the Board was required to consider whether claimant’s submissions were applications to reopen his case” rather than relying exclusively on the date the claim was indexed in concluding that Workers’ Compensation Law § 25-a was applicable. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds Conservation Committee for appellant. Click here to read the full decision of the Court….
▼ Posted December 17, 2009 ▼
Hutchinson v Lansing Conduit
December 17, 2009 Appellate Division, Third Department
Hearing Loss
AFFIRMED the Board which ruled that Reliance National Insurance Company was responsible for coverage on the date of claimant’s disablement. Claimant asserted that he had sustained work-related hearing loss in both ears and filed the present workers’ compensation claim. An investigation revealed that Reliance had provided workers’ compensation insurance coverage to the employer from January to July 1996. The Board ultimately determined that the date of claimant’s disablement was March 13, 1996 and held that, if the claim is established, Reliance would be the responsible carrier. The Court ruled that “Under WCL §49-bb, which addresses work-related hearing problems, ‘the general rule is that the carrier on the risk on the date of disablement is responsible for the award’. There is no question that Reliance issued a workers’ compensation insurance policy to the employer for a period that included the date of disablement. It is claimed that this policy contained an exclusion limiting its applicability to claims arising out of contract work performed for a specific entity, which the claim here did not. Reliance did not produce a copy of the policy, however, even though it had been twice directed and once penalized for failing to do so by a Law Judge. Indeed, nothing in the record beyond the bare assertions of Reliance’s counsel supports the claim that the policy contains an applicable exclusion. As such, we perceive nothing irrational in the Board’s finding that the Reliance policy is applicable to this claim.” Prevailing party represented by: David W. Faber of counsel to Cherry Edson & Kelly (Carle Place) for Travelers Indemnity Company of America, respondent and Marc A. Grodsky of counsel to Jones, Jones & O’Connell ()New York City) for Utica Insurance Company and another, respondents.Click here to read the full decision of the Court….
Sattanino v Sanitary Dist
December 17, 2009 Appellate Division, Third Department
Apportionment: Awards
AFFIRMED the Board which, in reversing the Law Judge, ruled that apportionment did not apply to claimant’s workers’ compensation award.
In 2003, claimant injured both knees while performing his duties. The self-insured employer’s third-party administrator did not dispute the ensuing claim for benefits, but did raise issues regarding schedule loss of use (SLU) and apportionment. A Law Judge apportioned the bulk of claimant’s SLU in both knees to his preexisting arthritis. Upon review, the Board held that apportionment was unavailable under the circumstances of this case and set claimant’s schedule loss of use at 50% for his right leg and 32.5% for his left leg. The Court then wrote “In general, ‘apportionment is not appropriate where the claimant’s prior condition was not the result of a compensable injury and such claimant was fully employed and able to effectively perform his or her duties despite the noncompensable preexisting condition.’ Here, there is no indication that claimant’s preexisting arthritis constituted a compensable injury and the employer does not contend that claimant was unable to work full time prior to the 2003 injury. Furthermore, the employer’s contention that this case should fall within the narrow exception to the general rule, applicable where a prior nonwork-related injury would have resulted in a schedule loss of use award if that injury had occurred at work is unsupported by the record. Accordingly, the Board properly determined that apportionment is not applicable here and claimant’s schedule loss of use is supported by the testimony and medical report submitted by his physician.” Prevailing party represented by: Robert E. Grey of counsel to Grey & Grey (Farmingdale) for David Sattanino, respondent and Iris Steel of counsel to Andrew M. Cuomo, Attorney General for the Workers’ Compensation Board, respondent. Click here to read the full decision of the Court….
Dusharm v Green Is Contr.
December 17, 2009 Appellate Division, Third Department
§ 18 notice to employer
AFFIRMED the Board’s ruling, in reversing the Law Judge, that the claimant failed to give timely §18 notice of his injury to his employer. Claimant allegedly sustained a work-related back injury in April 2006, but did not seek medical treatment until May 2007 and did not apply for workers’ compensation benefits until August 2007. Following a hearing in which a Law Judge awarded claimant benefits, the Board reversed, concluding that claimant failed to provide his employer with timely notice pursuant to WCL §18.
Claimant admittedly did not file timely written notice. The Board has the discretion to excuse a claimant’s failure to give timely written notice even if one of three grounds is proven: notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced Here, the Board refused to excuse claimant’s lack of written notice. Claimant’s testimony indicated that his supervisor, whom he testified he notified within minutes after his accident, did not take him seriously and never filed an accident report. The Board considered the claim suspect based upon claimant’s delay in seeking medical treatment and filing his claim, his failure to initially mention the work injury to his medical providers, his previous 20-year history of back pain, his inconsistent statement to an independent medical examiner that he had never experienced difficulties with his back prior to the accident, and his failure to miss any time from work due to this accident for more than a year thereafter. These circumstances prejudiced the employer’s ability to investigate the claim. Prevailing party represented by: Susan B. Marris of counsel to Gregory J. Allen, State Insurance Fund for Green Island and another, respondents. Click here to read the full decision of the Court….
Renzi v Case Mgt. Concepts
December 17, 2009 Appellate Division, Third Department
§ 13-b Medical Bills: Who Pays
§ 23: Late or Interlocutory Appeal
Decision Inadequately/Poorly Written
REVERSED the Board’s ruling that medical treatment of claimant by a licensed massage therapist was compensable provided it was performed under the active and personal supervision of an authorized physician. In 2008, a licensed massage therapist began submitting requests for payment for massage therapy that had allegedly been prescribed by claimant’s treating physician. After the Fund objected contending that licensed massage therapists are not authorized providers under the WCL, the Law Judge held the claims for payment in abeyance, the claimant instructed to provide the Fund with copies of her treating physician’s prescriptions for this therapy, and the Fund instructed to then pay any disputed bills covered by the prescriptions, a decision affirmed by the Board.
Initially, we reject the Board’s contention that their decision here was interlocutory and, therefore, not appealable, as the decision directing that the Fund pay any disputed bill for this therapy rendered pursuant to a prescription “’reache[d] a potentially dispositive threshold legal issue’. Moreover, although the Board found in favor of the Fund in holding the payments in abeyance, as the Fund was directed to pay for the treatment upon the submission to it of a physician prescription, it may appeal as an aggrieved party as it was not granted the relief sought.”
The Court, turning to the merits of the case, i.e. authorized medical treatment under WCL §13-b, determined that it is undisputed that (1) the massage therapist was not authorized by the Board to render medical care to claimant, nor was there evidence supporting a finding that one of the statutory exceptions was applicable or that this therapist was either a duly trained physical therapist rendering physical therapy or a duly authorized occupational therapist rendering occupational therapy, regardless of whether the massage therapy was prescribed by an authorized physician, thus concluding that there was insufficient evidence to support the Board’s determination.
And, as is far too often the case with the many poor Board decisions that had been ruled upon this Fall, the Court wrote, “Parenthetically, we note that the Board has subsequently rendered a decision under similar facts that found that a carrier is not liable for payment for massage therapy provided by a duly licensed massage therapist where, as here, there was no evidence in the record that the therapy was rendered by a registered nurse or persons trained in laboratory or diagnostic techniques or that the care provider was a duly licensed physical therapist, notwithstanding supervision of the treatment by a physician (see Matter of Nassau BOCES,[WCB 2070 2864, August 12, 2009].” Prevailing party represented by: Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation Committee for appellant. Click here to read the full decision of the Court….
Mamaroneck Village Tile v WCB
December 17, 2009 Appellate Division, Third Department
§141-a Stop Work Orders
AFFIRMED the Board’s decisionwhich denied the application of Mamaroneck Village Tile Distributors, Inc. (MVTD) for redetermination review of a stop-work order issued pursuant to WCL §141-a.
In 2008 based on the filing of a C-3 form from a person claiming to have been injured while working for MVTD, Glenn Muller, a Board investigator, spoke to MVTD’s president, Jonathan Mammana, who stated that the company had no employees and therefore did not have workers’ comp insurance. Muller entered a rear work area, ultimately speaking to one man who reportedly indicated that he had worked for MVTD for two years. Based upon this information and other evidence seen that day, a stop-work order was issued that day against Mamaroneck.
Supported by an affidavit of Mammana, sworn to September 19, 2008 asserting that MVTD had no employees, MVTD made an application seeking review of that order. In an October 2008 hearing at which both Muller and Mammana testified, the Law Judge upheld the stop work order issued per WVL §141-a [4] . While the precise procedures for review of a stop-work order are not spelled out in detail in the statute, the Court wrote that “The procedures in this case after receiving the timely affidavit on behalf of MVTD included conducting a prompt hearing before a WCLJ at which both sides that the opportunity to produce evidence in support of their contentions procedures, . . . such that these procedures accorded ample due process protection to MVTD.” MVTD argued that the decision upholding the stop-work order and denying its application for redetermination was not supported by substantial evidence. Since there was no dispute that MVTD did not have workers’ compensation insurance, the dispositive issue narrowed to whether substantial evidence supported the determination that the company had employees. The court determined that the totality of the evidence, fully detailed in the Court’s decision, was sufficient to uphold the stop work order. Prevailing party represented by: Paul Groenwegen of counsel to Andrew M. Cuomo, Attorney General, for respondent. Click here to read the full decision of the Court….
O’Sullivan v DiNapoli
December 17, 2009 Appellate Division, Third Department
Causal Relationship: Was there?
AFFIRMED the denial of petitioner’s applications for accidental and performance of duty disability retirement benefits.
In October 1999, petitioner, a firefighter, suffered hearing damage and tinnitus after the air horn of a fire engine was inadvertently discharged close to his right ear. He returned to full duty within a month of the incident, continuing to work in that capacity. In May 2004, he experienced severe chest pains while driving a fire truck in response to an emergency. Diagnosed with atherosclerotic heart disease, he thereafter underwent quadruple bypass surgery.
In 2004, petitioner applied for accidental and performance of duty disability retirement benefits based on both incidents. The New York State and Local Police and Fire Retirement System denied the applications, finding that, while petitioner was permanently incapacitated from the performance of his duties, his disability was not a natural and proximate result of his duties as a firefighter. Petitioner sought a hearing and redetermination, at the conclusion of which the Hearing Officer upheld the denial of both applications .
First addressing petitioner’s heart condition, there was no dispute that petitioner successfully passed his preemployment physical and that he wa now permanently disabled from performing his duties as a firefighter due to his heart disease. Inasmuch as petitioner relied exclusively on the statutory heart presumption contained in Retirement and Social Security Law § 363-a (1), the only issue for the Court’s review was whether the Retirement System rebutted this presumption by competent medical evidence. The Court did not agree with the Petitioner, who presented no expert testimony of his own, but argued that the expert testimony of a board-certified cardiovascular disease specialist who examined petitioner on behalf of the Retirement System, was insufficient to overcome the statutory heart presumption. Brown’s testimony, coupled with petitioner’s medical records and the identified risk factors, was sufficient to rebut the statutory presumption.
Next addressing petitioner’s ear injury, Petitioner also challenged the denial of this application for retirement disability benefits. Since respondent conceded that such injury was the result of an accident within the meaning of Retirement and Social Security Law §363, the issue thus distills to whether substantial evidence supports the determination that petitioner’s hearing impairment does not render him permanently incapacitated from performing his duties as a firefighter. Although petitioner testified that his ear injury rendered him unable to discern certain tones, especially in noisy situations, and affected his ability to drive a fire engine, hear the fire radio and perform at the scene of a fire, he failed to provide any additional evidence supporting these assertions, and it is undisputed that he returned to work within a month following the October 1999 incident and thereafter continued to work on full duty as a firefighter until the May 2004 incident. Moreover, the Retirement System proffered the report of an otolaryngologist who concluded that petitioner is “able to communicate adequately to perform the duties of a [f]irefighter.” As the otolaryngologist’s report was “rational, articulate and founded upon a physical examination and review of prior medical [records],” it provided the requisite substantial evidence to support respondent’s determination. Prevailing party represented by: Zainab A. Chaudhry of counsel to Andrew M. Cuomo, Attorney General for respondent. Click here to read the full decision of the Court….
Feeney v DiNapoli
December 17, 2009 Appellate Division, Third Department
Causal Relationship: Was there?
AFFIRMED the denial of petitioner’s applications for accidental and performance of duty disability retirement benefits. Petitioner began working as a police officer in 1979, continuing with the same employer in different positions until 2005, when he filed for accidental and performance of duty disability retirement benefits. Both applications were denied. Substantial evidence supported the Comptroller’s determination that none of petitioner’s work-related injuries were the direct and proximate cause of his permanent disability. While respondents concede that petitioner was permanently disabled from resuming his duties as a police officer, petitioner bore the burden of demonstrating that he was incapacitated from the performance of duty as the natural and proximate result of an accident or disability sustained in service Petitioner presented his own testimony and medical records, none of which proved a causal link between his work-related injuries and his permanent disability. Respondent provided the testimony and report of a board-certified orthopedist opined that petitioner was permanently disabled due to his back condition, but that his disability was solely attributable to an off-duty injury and that petitioner’s knee injuries did not render him permanently disabled. The Court “will not substitute our judgment for that of the Comptroller, as the orthopedist’s factually-based opinion constitutes substantial evidence supporting the determination to deny petitioner’s applications because his disability was not proximately caused by injuries suffered while on duty.” Prevailing party represented by: Owen Demuth of counsel to Andrew M. Cuomo, Attorney General for respondents. Click here to read the full decision of the Court….
Gilpatric v State Commission on Judicial Conduct
December 15, 2009 Court of Appeals
Procedure: Due Process/Mailings
MODIFIED the determination of the State Commission on Judicial Conduct which sustained one charge of misconduct against petitioner, a City Court Judge, for his failure to render timely decisions and concluded that his conduct constituted a pattern of “persistent or deliberate neglect of his judicial duties”, concluding that this matter should be remitted to the Commission for a hearing before a referee.
In August 2008, the Commission filed a formal, written complaint against petitioner, alleging that from July 2004 to February 2008 petitioner delayed in rendering decisions in 43 cases and 4 motions. The allegations are undisputed. In several cases, the litigants or their attorneys wrote to petitioner or petitioner’s administrative judge inquiring about the delayed decisions in their respective cases.
The Court wrote, “A judge has an ethical obligation to ‘dispose of all judicial matters promptly, efficiently and fairly’ (22 NYCRR 100.3[B][7]).“The Court recognized that when a judge “has defied administrative directives or has attempted to subvert the system by, for instance, falsifying, concealing or persistently refusing to file records indicating delays, We now hold that lengthy, inexcusable delays may also be the subject of disciplinary action, particularly when a judge fails to perform judicial duties despite repeated administrative efforts to assist the judge and his or her conduct demonstrates an unwillingness or inability to discharge those duties.” The Court Of Appeals returned this case to that Commission because of certain procedural anomalies in this case but acknowledged the need for such sanctions. Click here to read the full decision of the Court….
▼ Posted December 10, 2009 ▼
Smith v Consolidated Edison
December 10, 2009 Appellate Division, Third Department
Voluntary Withdrawal
REVERSED the Board’s ruling that claimant was entitled to an award of reduced earnings subsequent to September 15, 2007, thus determining that Board’s decision is not supported by substantial evidence. The claimant, exposed to dust following the terrorist attacks of September 11, 2001, was subsequently diagnosed with reactive airway disease and his claim for workers’ compensation benefits was established in 2004. But he sustained no compensable lost time and continued to work until he retired on February 1, 2007. After he was denied compensation by a WCLJ, he reentered the labor market, began working part time and again submitted a request for benefits this time for reduced benefits. The law judge, later confirmed by the Board, awarded benefits. In its reversal, the Court wrote, “Since claimant had voluntarily retired from his position with Consolidated Edison in February 2007, he was obligated, before obtaining a reduced earnings award, to demonstrate that he had attempted to obtain employment that took into account the restrictions caused by his disability. [In this case] claimant has failed to meet his burden of establishing that his reduced earnings are attributable to his disability, as opposed to age, existing economic conditions, or other factors that are not in any way related to his disability.” Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for appellants. Click here to read the full decision of the Court….
Mistofsky v Consolidated Edison
December 10, 2009 Appellate Division, Third Department
Disability: Degree of or R/E
Voluntary Withdrawal
AFFIRMED the Board’s ruling that claimant is entitled to an award of reduced earnings in a decision based in part by the failure of the employer to file an appeal of an earlier decision finding involuntary withdrawal. Claimant was terminated for misconduct in 1994 and then reinstated by an arbitrator. In June 1996 he testified he stopped working due to breathing problems as a result of exposure to asbestos during his 46 years of work with this one employer and began working for a different employer on a part-time basis at a reduced hourly wage. In July, a second arbitrator supported his termination for misconduct. In November 1996, he filed a claim for workers comp asserting that he contracted asbestosis while working for the employer.
In a March 2003 decision, a WCLJ established the claim for the occupational diseases of pulmonary asbestosis and asbestos-related pleural disease, classified claimant with a permanent partial disability, and set December 7, 1998 as the date of disablement. The WCLJ, finding that claimant did not voluntarily withdraw from the labor market, made reduced earnings awards. The Board specifically noted that the employer failed to produce evidence before the WCLJ controverting claimant’s testimony to the effect that the reason he stopped working for the employer in June 1996 was because of breathing difficulties. In August 2006, the WCLJ found that, per the prior March 19, 2003 decision, claimant was entitled to reduced earnings benefits subsequent to December 1998 as a result of his established occupational disease.
Contrary to the employer’s argument, the Court determined that an inquiry as to whether claimant’s withdrawal from the labor market in June 1996 was involuntary was not before them inasmuch as no appeal from the January 2004 decision was taken. Consequently, claimant’s involuntary retirement in June 1996 “gave rise to an inference that the subsequent reduction in earnings [as a messenger] was due to claimant’s permanent partial disability“. In order to defeat that inference, the employer was required to “demonstrate that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement.” The Court agreed with the “Board’s determination that the employer did not defeat the inference and, therefore, that claimant is entitled to reduced earnings is supported by substantial evidence.” Prevailing party represented by: Leonard B. Feld, Jericho, for appellants. Click here to read the full decision of the Court….
Gregorec v Brenners Furniture
December 10, 2009 Appellate Division, Third Department
§ 25-a: True Closing
REVERSED the Board’s decision that WCL § 25-a is inapplicable to claimant’s award of workers’ compensation benefits. Although claimant suffered a work-related back injury in February 2000, no compensation was awarded as claimant did not lose any time from work. Claimant continued to receive symptomatic chiropractic treatment from the date of the injury until November 2000, then had one treatment in 2003 and resumed periodic chiropractic treatments in February 2005. In September 2005, although the claimant’s chiropractor began filing the C-4 reports regarding possible permanent restriction or a total or partial loss of function, he did not offer a specific opinion on the permanency of claimant’s condition. In July 2007, the carrier raised the applicability of WCL §25-a, which prompted the Board to index the case for the first time and later determined WCL § 25-a was inapplicable.
While the Board determined that medical reports, submitted in September 2005 and thereafter, served to reopen claimant’s case prior to a lapse of seven years since the injury, the Court wrote that “The mere mention of permanency in a medical report, absent an opinion regarding the degree of permanency, is insufficient to act as a request to reopen a case ’such that these “medical reports did not display a clear intention by the reporter to reopen the case” Finally, the Court concluded, “Inasmuch as the Board’s determination was not supported by substantial evidence, it must be reversed. We further note that, in reaching its conclusion in this case, the Board failed to explain its departure from its determinations [issued in prior cases].” Prevailing party represented by: Paul L. Isaacson of counsel to Gregory J. Allen, State Insurance Fund (NYC) for appellants. Click here to read the full decision of the Court….
Carlucci v Omnibus Print
December 10, 2009 Appellate Division, Third Department
Disability: Degree of or R/E
RESCINDED the Board’s ruling that claimant had sustained a permanent moderate partial disability. Claimant sustained various respiratory, pulmonary and cardiac disorders in the course of his employment as a pressman. A WCLJ found that he had sustained a permanent partial disability whereupon the Board determined that claimant suffered from a permanent moderate partial disability, reducing his compensation award. Quoting the Court,
While the Board’s resolution of conflicting medical evidence in the record will be upheld if supported by substantial evidence, such a determination cannot be sustained if it relies upon an inaccurate legal standard or is based on incorrect factual assertions or a misreading of the record. In its decision, the Board quoted specific guidelines used to determine whether an individual has sustained a total disability of the low back (see State of New York Workers’ Compensation Board Medical Guidelines, at 27 [June 1996]). The Board then stated that it could ‘not rely upon the opinion of the claimant’s physician or the opinion of the impartial specialist [on the degree of claimant’s disability] . . . as there is no evidence in the record that these opinions conform to the Board’s medical guidelines on this issue.’ Claimant’s disability, however, does not involve his back and the quoted guidelines are accordingly irrelevant. The employer and its workers’ compensation carrier are correct in pointing out that, while the guidelines present useful criteria, the ultimate determination as to the degree of disability rests with the Board (see Matter of VanDermark v Frontier Ins. Co., 60 AD3d 1171, 1172 [2009]). That being said, the Board did not disregard the guidelines, but instead incorrectly relied upon inapplicable ones in reviewing the medical evidence. Under these circumstances, the matter must be remitted to the Board so that a proper assessment of the evidence may occur.
Prevailing party represented by: John F. Clennan (Ronkonkoma) of counsel to Goldsmith & Tortora (Commack) for appellant. Click here to read the full decision of the Court….
Bond v Suffolk Transp.
December 10, 2009 Appellate Division, Third Department
§ 21(1): Presumptions
Course of Employment: in and out of
AFFIRMED the Board’s ruling that claimant did not sustain an accidental injury in the course of her employment and denied her claim. Claimant, a school bus driver, was injured when she slipped and fell exiting a bus outside of her home and sought workers’ compensation benefits. A WCLJ determined that claimant’s injury had not been sustained in the course of her employment. For an accident to be compensable, it must have arisen out of and in the course of employment. The record here shows that claimant had a split work shift consisting of morning and afternoon bus runs, with several hours off duty in between. During what claimant referred to as her “break” period, she was permitted to drive the bus to her home, where her fall occurred. No evidence was produced to show that the employer retained any control or authority over claimant in the period between the bus runs or that her use of the bus had any relationship to her employment or benefit to her employer. Claimant then attempted to rely upon the presumption of compensability contained in WCL § 21(1) to establish such a relationship, but that statute does not wholly relieve her of the burden of demonstrating that the accident occurred in the course of, and arose out of, her employment, such that the Court agreed with the Board’s previously stated position. Prevailing party represented by: Marc A. Grodsky of counsel to Jones, Jones & O’Connor (NYC) for Suffolk Transportation Service and another, respondents. Click here to read the full decision of the Court….
▼ Posted December 3, 2009 ▼
Tipping v Orthopedic Surgeons
December 3, 2009 Appellate Division, Third Department
Causal Relationship: Medical (ANCR/ODNCR)
REVERSED the Board’s ruling that claimant did not sustain an occupational disease and denied her claim for workers’ compensation benefits, thus making “academic” her appeal from the second board decision which denied her request for full Board review. In April 2006, after years of working in a medical office spending almost 5 hours each day cradling the phone with her head while she performed other work-related duties, claimant sought medical attention for pain and spasms in her neck and upper back and began a regimen of physical therapy. In April 2000, a month after she stopped working, she was terminated and thereupon filed a claim for workers’ compensation benefits. A WCLJ granted her application finding that the condition was an occupational disease. The Board reversed and denied both the claim and the subsequent application for full Board review.
The medical experts on both sides stated that (1) claimant, in the period prior to her employment, had been asymptomatic, (2) her condition during that period of time had been dormant and nondisabling, and (3) her preexisting condition had been exacerbated by her employment. The Court wrote, “A preexisting condition, such as claimant’s, can constitute an occupational disease if it is ‘demonstrated that the condition was dormant and nondisabling and that a distinctive feature of the employment caused the disability by activating the condition.’ Given that the medical evidence before the Board established that claimant’s employment activities resulted in an exacerbation of her prior condition, its conclusion to the contrary was not supported by substantial evidence.” Prevailing party represented by: John F. Clennan, Ronkonkoma, for appellant. Click here to read the full decision of the Court….
Ridgeway v RGRTA Regional Tr. Serv
December 3, 2009 Appellate Division, Third Department
§114-a Fraud
AFFIRMED the Board which ruled that claimant did not violate WCL §114-a, thereby reversing the WCLJ’s decision. Claimant had filed a number of workers comp claims including one in October 2005, which was an automobile accident after her work shift ended for which she completed a “Personal Injury Form” for her employer stating that the accident occurred after her work shift began at 5:35 P.M., when in reality her shift had ended at that time. The employer sought to bar claimant from receiving further workers’ comp benefits pursuant to WCL §114-a, asserting that she intentionally misrepresented on the form that the accident was related to her work. A WCLJ agreed disqualifying the claimant from receiving further benefits related to an earlier as well as this current injury. The Board rescinded the findings, holding that the evidence was insufficient to show that claimant knowingly made material misrepresentations on the form, and the employer appealed. The Board’s determination as to whether a claimant ran afoul of WCL §114-a will not be disturbed if substantial evidence supports it. The Board found that the claimant made mistakes filling out the form which she acknowledged after the inaccuracies were brought to her attention. The Court agreed with the Board that the substantial evidence supported that determination the claimant did not knowingly make a false statement. The Court then added, “the Board is not bound by the credibility determinations of a Workers’ Compensation Law Judge, and nothing in the Board decisions pointed to by the employer [in their appeal] indicate that the Board adheres without question to those determinations.” Prevailing party represented by: James D. Hartt, Rochester, for Glenda F. Ridgeway, respondent and Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General (NYC) for the Board, respondent. Click here to read the full decision of the Court….
Jean-Louis v Hilton Hotels Corp
December 1, 2009 Appellate Division, First Department
§ 11 Election of Remedies
DISMISSED by the Supreme Court, New York County, a second cause of action wherein plaintiff alleges that defendants negligently trained, managed and/or supervised employees who confined her to an office for an hour and did not allow a union representative to be present while discussing her complaint that her supervisor inequitably distributed work based on her ethnicity and religious beliefs. This claim is barred by the exclusive remedy provisions of the Workers’ Compensation Law (see WCL § 11; § 29[6]. Even if the alleged conduct could be reasonably construed to be in furtherance of defendants’ interest, “[t]he complaint. . .did not contain requisite allegations that [defendants] had knowledge of, or acquiesced in, the tortious conduct of [their employees].” Prevailing party represented by:Diane Windholz of counsel to Jackson Lewis (New York) for respondents. Click here to read the full decision of the Court….
▼ Posted November 26, 2009 ▼
Shepler v City of Tonawanda
November 25, 2009 Appellate Division, Third Department
§ 15(8)(e) 2nd Injury Fund
AFFIRMED the Board’s decision to discharge the Special Disability Fund from liability under §15(8)(e). The decedent, claimant’s husband, as the result of undiagnosed arteriosclerotic cardiovascular disease, went into cardiac arrest while collecting garbage and died. After the WCB established the claimant’s ensuing workers’ comp claim, the employer and its TPA sought to obtain reimbursement from the Special Disability Fund. The Court agreed with the Board’s rejection in that the employer had not shown that decedent’s prior condition hindered or was likely to hinder his employability, writing the employer failed to show “(1) that the decedent had a preexisting permanent impairment that hindered or was likely to hinder his or her employment potential, (2) a compensable injury and (3) that either the injury or the death would not have occurred but for such preexisting permanent impairment.” Among other points, “the fact that decedent’s preexisting condition contributed to his death, without more, is insufficient to show that his employment potential was hindered by it.” An interesting point made by both the physician and the medical examiner who performed decedent’s autopsy was that at least 85% of individuals who suffer sudden cardiac arrest are at rest or engaged in minimal physical activity at the time. Moreover, there was no evidence that decedent’s undiagnosed condition had previously affected his work or recreational activities in any way. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds (Albany) for the Fund respondent. Click here to read the full decision of the Court….
Schmidt v Falls Dodge
November 25, 2009 Appellate Division, Third Department
Schedule Loss of Use issues
AFFIRMED the Board which ruled that claimant’s schedule loss of use (SLU) award is not subject to claimant’s awards in other workers’ compensation cases. In 2005, claimant filed three separate workers’ comp claims and was awarded benefits in each. After submitting a fourth claim for hearing loss in 2007, the WCLJ established the claim for the occupational disease of binaural hearing loss, awarding a 21.43% SLU, to be paid at $400 per week for 32.145 weeks. Although the WCLJ also established the date of disablement as September 27, 2005, and claimant’s earlier awards encompassed various time frames within the ensuing 32 weeks, the WCLJ determined that claimant’s SLU award was not subject to the temporary disability benefits he was already receiving. The Court wrote that, “Contrary to the assertion of the State Insurance Fund and the employer, the Court of Appeals’ decision in Matter of LaCroix v Syracuse Exec. Air Serv., Inc. (8 NY3d 348 [2007]), which dealt with the proper method of payment of a schedule loss of use award, did not overrule this Court’s holding in Matter of Miller v North Syracuse Cent. School Dist. (1 AD3d 691 [2003]). . . . Accordingly, here, the Board correctly concluded that the SLU award, intended to compensate claimant for his future loss of earnings as a result of his hearing loss, was not subject to his temporary disability awards, which were ‘intended to compensate him for his loss of income during . . . finite periods].’” Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, NYC for the WCB, respondent.Click here to read the full decision of the Court….
Magerko v Edwin B. Stimpson Co
November 25, 2009 Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED the Board’s decision which, among other things, ruled that pro-se claimant voluntarily withdrew from the labor market. Claimant, with an established permanent partial disability due to a variety of ailments related to a 1990 work-related injury, was laid off in 2003 when his employer moved part of its operations out of state. Following hearings, a WCLJ found that claimant had not voluntarily withdrawn from the labor market following his layoff. Upon review, the Board disagreed and rescinded all awards from June 2003 onward. Inasmuch as claimant’s loss of employment was due to a layoff unrelated to his disability and the Board made no finding of involuntary retirement, the burden rests on claimant to demonstrate “by substantial evidence that his disability contributed to his continued unemployment“. The Court noted that testimony revealed the claimant collected unemployment insurance but made minimal efforts at seeking work and, although he stated he had physical constraints, he presented no evidence this information was supplied to potential employers. He began receiving Social Security disability benefits and moved to Florida in 2004, and he had made no subsequent effort to find a job. Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly, (Carle Place) for Edwin B. Stimpson Company, Inc. and another, respondents.Click here to read the full decision of the Court….
Benjamin v Sprint/Nextel
November 25, 2009 Appellate Division, Third Department
Disability: Further Causally Related
AFFIRMED the Board’s ruling that the pro-se claimant did not sustain a further causally related disability. In 2006, after a work accident, a claim for workers’ comp benefits was established for head and neck injuries. After extensive further proceedings, a WCLJ determined that claimant had not suffered a causally related back injury or psychiatric disability. Dealing first with claimant’s alleged back injury, the Court agreed with the Board that her treating physician’s opinion that a variety of back problems “could” have been caused by the accident but failed to specify what conditions actually caused the pain or how the accident gave rise did not support the claim of a back injury. The Court added, “As that opinion amounted to ‘mere surmise, or general expressions of possibility,’ the Board was free to reject it, even in the absence of contrary medical evidence.” With regard to claimant’s alleged psychiatric disability, the Court felt the Boards reasoning to be sufficient: a psychiatrist who conducted an independent medical examination of claimant concluded that she did not suffer from any psychiatric disability. Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly, (Carle Place) for Sprint/Nextel and another, respondents. Click here to read the full decision of the Court….
Maricle v Crouse Hinds
November 25, 2009 Appellate Division, Third Department
Causal Relationship: Exacerbated or New
AFFIRMED the Board which ruled that claimant had exacerbated a prior compensable injury and awarded workers’ compensation benefits. After first sustaining a work-related back injury in 2001, for which he intermittently missed time from work and received workers’ comp benefits, the claimant in 2007 again missed work and required medical treatment due to back pain, at which time the employer alleged that the pain was unrelated to the 2001 injury. Following hearings, a WCLJ determined that claimant had not suffered a new injury and awarded benefits. With back injuries, “there is the ever-present danger of recurrence and the question then arises as to whether the subsequent incident was a new accident, an aggravation or . . . an [incident associated with the primary injury.” The Court wrote, as it has in so many similar cases, that, “We will not interfere with the Board’s resolution of that issue if substantial evidence supports it, even if evidence in the record could justify a different conclusion.” Even though there was extensive and contradictory medical evidence, the Court stated that the Boards decision was sustainable. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, NYC for the Board. Click here to read the full decision of the Court….
Parrelli v Atlantic Constr
November 25, 2009 Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED the Board’s ruling, which reversed the WCLJ, that there was no causal relationship between claimant’s asbestos-related pleural disease and his loss of earnings. Claimant won a workers’ compensation claim for a 1997 injury to his right hand, was ultimately found to have suffered a permanent partial disability, and received a lump-sum settlement. Not returning to workdue in part to his hand injury, he applied for disability retirement in 1998. Claimant filed the present claim in 2000, alleging that he suffered from a lung disease caused by his workplace exposure to asbestos. A WCLJ established the claim and, among other things, awarded claimant lost wages from September 2001 through December 2006. But the Board eliminated that award, determining that claimant retired for reasons unrelated to his lung condition and lost no wages as a result of it. Two key factors in this decision were the claimant’s acknowledgment that his retirement was due to physical elements other than his lung disease, due to which he never lost any time from work, and his admittance that, after retiring, he made no effort to find work within his medical limitations. Prevailing party represented by: David E. Baida of counsel to Gregory J. Allen, State Insurance Fund (NYC) for Atlantic Construction and another, respondents. Click here to read the full decision of the Court….
Bovis v Crab Meadow
November 17, 2009 Appellate Division, 2nd Judicial Department
§ 11 Election of Remedies
DENIED MOTIONS by two third-party defendant-appellants for motions for summary judgment in a suit brought by the employee in an action against, among others, the Crab Meadow defendants (who contracted with Picone, claimant’s actual employer), alleging common-law negligence and violations of La
▼ Posted November 12, 2009 ▼
Porter v Triboro Bridge
November 12, 2009 Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED the Board which ruled that claimant voluntarily withdrew from the labor market. Claimant suffered work-related injuries in December 2005 and received comp benefits from that date until February 2006, when the employer, relying on an IME report, determined that claimant was able to return to work. A hearing was scheduled following claimant’s request for further action. While the hearing was still pending, the employer sent claimant a letter directing him to return to work no later than June 5, 2006 or be considered to have abandoned his position and terminated. In response, claimant tendered his resignation, noting that he was compelled to do so in order to preserve benefits that he had accrued during his employment. He further noted that other physicians who had examined him had advised against his return to work. Although the Board precluded reports of three IME’s due to violations of WCL §137, it affirmed the WCLJ’s determination. The Court ruled that, “The Board’s determination that claimant had voluntarily withdrawn from the labor market was supported by substantial evidence in the record. In addition to the Board’s reasonable conclusion that claimant refused to return to perform light-duty work, there is ample evidence in the record to support the Board’s conclusion that claimant simply chose to retire.” [Once again, the Court has determined,] “Inasmuch as the Board’s decision is supported by substantial evidence, we decline to disturb it.” Prevailing party represented by: Warren J. Fekett of counsel to Foley, Smit, O’Boyle & Weisman (Hempstead) for Triboro Bridge and another, respondents. Click here to read the full decision of the Court..
Jaworek v Sears Roebuck
November 12, 2009 Appellate Division, Third Department
§ 15(8)(f) Reimbursement Special Fund
AFFIRMED that Board the employer was not entitled to reimbursement from the Special Disability Fund. Claimant, who suffered a knee injury on July 28, 2007 in an undisputed claim, also maintained concurrent employment as the result of which the WCLJ determined that a substantial portion of claimant’s average weekly wage was attributable to the concurrent employer. Per WCL §14(6), the WCLJ directed the carrier to pay the full benefits award, $500 per week. The employer then sought reimbursement from the Fund for the portion of the award attributable to claimant’s concurrent employment. However, the WCLJ determined that the 2007 amendments to the WCL prevented such reimbursement. Initially, the Court noted, “[w]e note that because the issue presented here is one of pure statutory interpretation, we need not accord deference to the Board’s decision (see Matter of Belmonte v Snashall, 2 NY3d 560 , 565-566 [2004]; Matter of Belance v Manhattan Beer Distribs., 52 AD3d 1059 , 1061 [2008], lv denied 11 NY3d 715 [2009]). Nevertheless, we agree with the Board’s determination that the employer’s claim for reimbursement from the Special Disability Fund is barred by Workers’ Compensation Law § 15(8)(h)(2)(A), which provides that ‘[n]o carrier or employer . . . may file a claim for reimbursement from the special disability fund, for an injury or illness with a date of accident or date of disablement on or after’ July 1, 2007‘”. It is apparent from the legislative history of the 2007 amendments to the WCL that the Legislature intended to close the Special Disability Fund to new claims as of July 1, 2007. Although the employer contends that WCL §15(8)(l) opens a loophole around the amendments, payments referenced in that section are those made pursuant to WCL §14(6) and, accordingly, are subject to the date restrictions of WCL §15(8)(h)(2)(A). Inasmuch as the statutory interpretation advocated by the employer contravenes not only the unambiguous language of the statute but also the legislative intent, it is rejected and the decision of the Board is affirmed. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds Conservation Committee (Albany) for Special Disability Fund, respondent. Click here to read the full decision of the Court..
Auchampaugh v Syracuse Univ
November 12, 2009 Appellate Division, Third Department
§ 11 Election of Remedies
DISMISSED a motion for summary judgment by the defendant on its contractual indemnification claim against third-party defendant. This case is discussed in far more detail in a prior decision by the Third Department but in this later appeal an additional issue regarding WCL §11 was addressed: “[A]n owner [may] bring a third-party claim against an injured worker’s employer in only two circumstances: where the injured worker has suffered a ‘grave injury’ or the employer has entered into a written contract to indemnify the owner” As there was no claim that plaintiff suffered a grave injury, GE could proceed only if International Chimney entered into a written agreement to indemnify it. The record showed that, although GE had an addendum in this contract referring to additional terms and conditions, the document ultimately submitted by GE was not the one reflected in the agreement nor did GE point to any evidence of the parties past practice that would permit an inference that they agreed to the terms of that document. There were a number of other factors noted by the Court but, in the end, GE lost the case because of an improperly drafted contract. Prevailing party represented by: Maureen G. Fatcheric of counsel to Costello, Cooney & Fear on (Syracuse) for third-party defendant-respondent. Click here to read the full decision of the Court..
NYSIF v. F&V Distrib.
November 4, 2009 Appellate Division, Second Department
Employment: Who is or dual
DISMISSED an action to recover allegedly unpaid premiums for a workers’ compensation insurance policy. Under the terms of the policy, premiums were to be calculated based on payroll and the remuneration earned during the policy period by the employees of the defendant engaged in its business operations, and “all other persons engaged in work that could make [SIF] liable under Part One (Workers’ Compensation Insurance) of this policy.” This case involves certain truck drivers who made deliveries of the defendant’s products and were not on the defendant’s payroll. The deliveries they made were based upon sales made by the defendant’s employees. The issue is whether compensation the defendant paid to the outside drivers should have entered into SIF’s calculation of the relevant premiums. If the outside drivers were the defendant’s employees, then SIF is correct that the defendant was in default of its premiums. However, if the outside drivers were independent contractors, then SIF has no claim. SIF failed to make a prima facie showing that the factors relevant to determining whether there exists an employer-employee relationship were met in this case, under either the “control test,” or the “relative nature of the work test“. Nor did SIF make a prima facie showing that there was a “reasonable risk” that the Workers’ Compensation Board would conclude that the outside drivers were the defendant’s employees, rather than independent contractors. Prevailing party represented by: Christopher P. Keenan of counsel to Westermann, Sheehy, Keenan, Samaan & Aydelott, (White Plains) for respondent. Click here to read the full decision of the Court..
Administrative Assets v Zurich Am. Ins. Co.
October 1, 2009 Civil Court Richmond County
§118 Rules of Evidence
A medical service provider commenced this action, pursuant to the No-Fault Law, to recover payments from Zurich for services plaintiff rendered to its assignor as a result of the injuries that he sustained in an automobile accident. Defendant moves to dismiss the action on the ground that the assignor is entitled to Workers Compensation because the assignor was an employee who was injured on the job while working, thus granting the WCB primary jurisdiction over issues of coverage. The issue related to a document supplied by the defendants claims specialist to prove WCB jurisdiction, a document which was obtained from the WCB: an “Employer’s Report of Work-Related Accident” (”Employer’s Report”) filled out by a third party - the assignor’s employer. The Court agreed with the plaintiff’s assertion that the claims specialist’s affidavit is insufficient to lay a foundation to admit a hearsay document (the Employer’s Report) into evidence. The Court addressed several issues relating to the hearsay exception to business records contained in CPLR 4518(a). With reference to this particular document, the Court ruled that because the document was not written in the regular course of business but was related specifically to this event, this record is inadmissible as evidence. Therefore the Court found that defendant has not submitted sufficient evidence that the assignor was employed at the time of the accident, that workers compensation is primary, and that the issue of coverage must first be presented to the Workers Compensation Board. As defendant’s motion for summary judgment is denied, this case shall proceed to trial. Click here to read the full decision of the Court..
▼ Posted November 5, 2009 ▼
Esparo v Buffalo Bd. of Educ.
November 4, 2009 Appellate Division, Third Department
Aggravation or New Injury
Poorly written decision
RESCINDED and sent back for reconsideration the Board’s decision, reversing the WCLJ, that claimant’s injury was an aggravation of prior compensable injuries. Claimant, sustained work-related injuries March 1999, returned to work eight months later, and remained asymptomatic from October 1999 until September 29, 2006 when she was alleged reinsured after turning her head to address a colleague in the hallway. Claimant’s subsequent application for workers’ comp benefits was denied by a WCLJ who determined that the act of turning one’s head does not constitute an accident within the meaning of the WCL. Upon review, the Board reversed, prompting this appeal by the employer and its claims administrator. Although the claimant’s two doctors testified that claimant’s 2006 injury was unrelated to the injuries she sustained in 1999, the Board determined “that claimant’s 2006 workplace incident constitutes an aggravation of the 1999 neck injuries.” The Court wrote in its decision that because they found that inconsistencies in the Board’s decision, the matter must be remitted to the Board for the purpose of clarifying its finding regarding what occurred and rendering a decision that will permit intelligent judicial review. Prevailing arguments presented by: Karen M. Darling of counsel to Hamberger & Weiss (Buffalo) for appellants. Click here to read the full decision of the Court..
Rodriguez v Port Authority
November 4, 2009 Appellate Division, Third Department
§161 WTC Cases & Notice
AFFIRMED with modification the Board’s decisions that the self-insured employer is entitled to a credit against workers’ comp death benefits paid in New Jersey for the period of September 11, 2001 to June 1, 2007 and denied claimant’s claim for an award for that period. The minor son of claimant and decedent elected to receive workers’ comp death benefits in NJ at the NJ rate, payable to Rodriguez as McNeil’s parent. In 2007, after seeking death benefits in New York on her own behalf and being adjudicated decedent’s domestic, she was awarded workers’ comp death benefits in NY commencing June 1, 2007 – the day that, as found by the WCLJ, McNeil’s NJ death benefit payments ceased. As for the period between September 11, 2001 and June 1, 2007, the WCLJ determined that the employer was due a credit in the amount of the NJ award paid to claimant on McNeil’s behalf and, therefore, she was not entitled to an additional death benefit award for that period. The Court wrote, “Although a domestic partner of an employee who died in the terrorist attacks is deemed a surviving spouse of such employee for the purpose of any death benefits, here, claimant received the NJ award on behalf of her son, who was the only claimed surviving beneficiary. Therefore, allowing claimant to collect death benefits in NY without entitling the employer to a credit against the NJ award payments would amount to an impermissible double recovery by decedent’s surviving beneficiaries.” Turning to the date upon which claimant’s award of death benefits commenced, the record does not support the Board’s finding that the New Jersey award payments ended on June 1, 2007. Rather, the evidence submitted to the Board establishes, and the employer concedes, that those payments ended on February 17, 2007 and, therefore, claimant should be entitled to an award of death benefits commencing on that date. [ED. NOTE: April 1, 2010 - Mo. No. 2010-120: Court of Appeals denied motion for leave to appeal]. Prevailing arguments presented by: David Sanua of counsel to Gorman & Rankin (NYC) for Port Authority of New York and New Jersey Click here to read the full decision of the Court..
Campos v Richmond Home Need
November 4, 2009 Appellate Division, Third Department
§ 23 Late or Interlocutory Appeal
REVERSED the Board’s decision that claimant’s application for review of an administrative decision was untimely. Claimant’s counsel argued that the claimant’s doctor (Persuad) had been improperly precluded from presenting evidence in a decision filed on February 1, 2008. In a decision filed on February 8, 2008, the WCLJ determined that Persuade “remain[ed] precluded” and found that claimant suffered a further psychiatric causally related disability, but made no monetary award. Claimant’s appeal, received March 7, 2008 by the WCB, sought reversal of the WCLJ’s decision to preclude Persuad’s testimony and reports and referenced February 8, 2008 as the filing date of the decision to be reviewed. The Board panel denied review, concluding that claimant’s application was four days late because she should have appealed from the WCLJ’s February 1, 2008 decision as opposed to the February 8, 2008 decision. The Court wrote, “[T]he fact that interlocutory review can be sought of a threshold legal issue does not, as the Board held in this case, mandate a claimant to seek review at such time or risk the issue being foreclosed as untimely“, and send the case back for consideration of whether Persuad’s testimony and reports were properly excluded, ruling that the Feb 8, 2008 was the correct decision as the WCLJ expressly revisited the question of Persuad’s preclusion, thus making the Feb 1, 2008 decision date irrelevant. Prevailing arguments presented by: Brian M. Mittman of counsel to Markhoff & Mittman (White Plains) for appellant. [ED.NOTE: opposing party failed to present an argument.] Click here to read the full decision of the Court..
Liberty Mutual Insurance Company et al v. Hurlbut et al
March 9, 2009 New York Southern District Court
Aggregate Trust Fund
DISMISSED a claim brought by insurers against the NYS WCB challenging the constitutionality of amendments to the WCL which modified insurers= ability to settle claims by empowering an aggregate trust fund (ATF) to settle claims following the required deposit by the insurer of the present value of the claim without the ATF required to obtain an insurer’s approval before entering into a settlement nor to refund to insurers deposit amounts in excess of settlements. The Court ruled that “Federal abstention was proper where the claims implicated important state interests and the insurers were afforded adequate opportunity to raise their federal constitutional claims in state court proceedings.” Prevailing arguments presented by: Barbara K. Hathaway of counsel to Andrew M. Cuomo, Office of the Attorney General
▼ Posted October 29, 2009 ▼
Browne v NYC Tr. Auth
October 29, 2009 Appellate Division, Third Department
§21(1) Presumptions
RESCINDED and sent back for reconsideration the Board decision that there was no prima facie medical evidence of a causally related injury. Claimant, a railroad track employee, was bending down to pick up a rail flag when he began experiencing weakness on the left side of his body, went to the hospital the next day, and was diagnosed with having suffered a stroke. Thereafter, claimant submitted an application for workers’ comp benefits, asserting that his stroke arose out of and in the course of his employment. Following the hearing, at which no testimony was taken, a Law Judge determined that there was no prima facie medical evidence and designated the claim “no further action” pending claimant’s submission of such. The Court ruled that inasmuch as the employer never refuted the allegation that the onset of symptoms occurred while claimant was at work, claimant was entitled to the statutory presumption that his stroke arose out of and in the course of his employment (see WCL §21 [1]) “Here, the record is clear that neither the Law Judge nor the Board gave claimant the benefit of that presumption and it was ‘err[or to] requir[e] claimant to come forward, in the first instance, with prima facie medical evidence of a causal relationship between’ his injury and his employment. Accordingly, this matter must be remitted to the Board to afford the employer an opportunity to rebut the presumption and, if it does so, to then allow claimant to proffer other prima facie evidence of causality.” Prevailing arguments presented by: Robert E. Grey of counsel to Grey & Grey (Farmingdale) for appellant. Click here to read the full decision of the Court..
Hammes v Sunrise Psychiatric
October 29, 2009 Appellate Division, Third Department
§114-a Fraud
AFFIRMED the Board’s decision which ruled that claimant violated WCL §114-a and disqualified her from receiving wage replacement benefits. Claimant had been receiving benefits for a permanent partial disability. Based on the carrier presentation of the testimony of its investigator and video surveillance evidence of claimant’s disability, the Board imposed mandatory and discretionary penalties pursuant to §114-a. Once again the Court has affirmed its position that the Board is the sole arbiter of witness credibility and its determination that claimant violated §114-a will be upheld if supported by substantial evidence. In this case substantial evidence, together with claimant’s eventual admissions, supported the Board’s determination. The Court also agreed that the mandatory and discretionary penalties imposed by the Board were appropriate particularly as the Board set forth a thorough explanation for the discretionary sanction. Prevailing argument presented by: Alison Kent-Friedman of counsel to Gregory J. Allen, State Insurance Fund (Melville) for Sunrise Psychiatric Clinic, Inc. and another, respondents. Click here to read the full decision of the Court…
Koebel v New York State Comptroller
October 29, 2009 Appellate Division, Third Department
WTC Notice
AFFIRMED a Supreme Court decision dismissing petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Comptroller denying petitioner’s application for accidental disability retirement benefits. On November 25, 2002, petitioner applied for accidental disability retirement benefits from her employment with the Port Authority of NY & NJ, describing her disabling condition as posttraumatic stress disorder that resulted from her observation of the terrorist attacks on September 11, 2001 from a location in New Jersey and her subsequent performance of emergency management duties. The Comptroller denied petitioner’s application based upon her failure to give timely written notice to him as required by Retirement and Social Security Law §63(c). Petitioner challenged this determination in a CPLR article 78 proceeding which the Supreme Court dismissed. The Appellate Court disagreed with the Petitioner’s Contention that the widely-known events of September 11, 2001 themselves satisfied the notice requirements of Retirement and Social Security Law § 63 and that her oral notice to her supervisor was sufficient or that her mental state following September 11, 2001 constituted good cause under 2 NYCRR 331.2 (b) for not giving written notice. Finally the Court explained why it did not accept the petitioner’s contention that Executive Order No. 113.7 tolled the 90-day time period. Click here to read the full decision of the Court..
Ashley v Worsell
October 29, 2009 Appellate Division, Third Department
§33 Child Support Lien
AFFIRMED a Family Court order granting the mother’s (the petitioner) application to modify a prior child support order in which the father was ordered to make monthly payments in the amount of $58. But prior to that modification, the father was involved in a workers compensation accident from which he received a $100,000 §32 settlement. In 2006, after becoming aware of this settlement, the mother sought an increase in child support and a second action that the father violated the order by failing to report his §32 settlement. Family Court affirmed the Support Magistrate’s decision that the father had not willfully violated the order, but directed the father to pay the mother 17% of the total amount he received in this settlement, as well to reimburse her for counsel fees.
The father does not dispute the fact (pursuant to Family Ct Act § 413 (1) (b) (5) (iii) (A)) that $30,000 of the award served to compensate him for lost wages but that $70,000 of the settlement was specifically earmarked to pay for future medical and, as such, is not income that should be included in child support calculations. However, as Family Court noted, the father spent the entire amount on expenses that were clearly not medically related. Therefore, he used the entire proceeds of the award to supplement his income and pay for routine expenses, such that for child support purposes, the entire settlement should be counted as income and, in part, be used to support his child. As for the decision that this entire amount be paid by the father in a lump-sum payment rather than in monthly increments, the Appellate Court noted that the father historically paid a bare minimum in child support and did not use any of the funds from this settlement to supplement the child’s ongoing support or care. Given this history, Family Court had ample justification not only to require that the income the father received from the settlement be used to provide for the needs of his child, but also that this payment be made in a lump sum. The Court ruled in the father’s favor on the issue of the legal fee. Click here to read the full decision of the Court..
▼ Posted October 22, 2009 ▼
Mott v ITT Indus
October 22, 2009 Appellate Division, Third Department
§ 28 time bar
RESCINDED and sent back for reconsideration the Board’s decision which ruled that claimant’s application for workers’ comp benefits was time barred. Claimant was diagnosed with bilateral carpal tunnel syndrome in 2006 and applied for benefits. The Law Judge disallowed the claim as time barred pursuant to WCL §28. Here, the Board determined that claimant knew or should have known no later than 2001 that her bilateral carpal tunnel syndrome symptoms were related to her employment. The Court noted, however, that notwithstanding claimant’s prior awareness that her symptoms were work-related, the Board failed to establish the date of claimant’s disablement. Thus, absent “the necessary concomitant finding that claimant’s date of disablement was more than two years prior to the filing of her claim for benefits, … any conclusion on our part concerning whether the Board’s overall determination is supported by substantial evidence would be speculative.” Prevailing argument presented by: Kevin J. McDonald of counsel to Bond, McDonald & Lehman (Geneva) for appellant. Click here to read the full decision of the Court..
Williams v City of New York
October 22, 2009 Appellate Division, Third Department
§161 WTC Cases
RESCINDED and sent back for reconsideration the Board’s decision which ruled that the claimant was not a participant in the World Trade Center (WTC) rescue, recovery or cleanup operations and denied her claim for workers’ comp benefits. Claimant was employed as an auditor working in lower Manhattan and returned to work within a week of the terrorists’ attacks on September 11, 2001. It is undisputed that her employment was within the area defined as the “WTC site” by the WCL §161(2). She had a special assignment until February 2002, returning to her normal duties until September 2002, when she took a regular retirement with over 30 years of credited service. She allegedly began experiencing an exacerbation of her respiratory condition while working on the special assignment. In 2006 and 2007, she submitted forms registering as a participant in the WTC rescue, recovery and cleanup so as to be entitled to the provisions of the recently enacted WCL Article 8-A. The Law Judge found that because the claimant had been involved in rescue, recovery and cleanup, her claim was protected by WCL Article 8-A from dismissal for being untimely (see WCL §28). Upon review, the Board determined that claimant’s activity did not constitute rescue, recovery and cleanup within the meaning of WCL §161(1) and, thus, disallowed her claim as untimely.
To qualify for the coverage afforded by the statute, a claimant must essentially establish three elements, which relate to time, location and activity. The Court wrote, “This language, which is susceptible to varying interpretation and application, is the focus of the current appeal.” and agreed with the claimant’s contention that the Board construed the qualifying activity in the statute too narrowly and focused unduly in her case on the word “rescue” rather than “recovery”. Here, the Board’s original decision and amended decision repeatedly relied upon its conclusion that claimant’s “work was not a rescue-type activity” in finding the statute inapplicable: neither decision discussed “recovery”, despite the fact that this was the relevant activity in this case. The Court said, “This is not to suggest that the Board must always address each activity (rescue, recovery, cleanup) separately or that it cannot group the terms in its decision. However, repeatedly referring to and ostensibly premising a decision on an activity that is not germane, with no analysis of the pertinent activity, does not permit meaningful judicial review.” Prevailing argument presented by: Robert E. Grey of counsel to Grey & Grey ( Farmingdale) for appellant. Click here to read the full decision of the Court..
Iannaci v Independent Cement Corp.
October 22, 2009 Appellate Division, Third Department
§ 25-a: Advance Compensation
RESCINDED and sent back for reconsideration the Board’s decision that ruled that liability shifted to the Special Fund for Reopened Cases (SFCC) pursuant WCL §25-a. Claimant sustained a work-related injury in 1992, receiving benefits until his case was closed in 2001. In 2007, the carrier requested that the claim be reopened to determine whether §25-a was applicable. The SFCC asserted that further development of the record was necessary before such a determination could be made. The Law Judge disagreed and, finding that the relevant time periods had been met under §25-a, shifted liability to the Special Fund. The Court noted that the Board’s determination that §25-a was applicable was based upon an erroneous finding that there was “no evidence” that claimant received an advance payment of compensation within three years of the date of the application to reopen his claim. The Court noted the absence of any proof regarding the nature of claimant’s light duty work meant the Board could not determine if the claimant received an advance payment of compensation, and determined “The Board could not assess whether an advance payment was made for the purposes of determining the applicability of §25-a. Accordingly, the Board’s decision is not supported by substantial evidence and the matter must be remitted for further development of the record on this issue.” Prevailing argument presented by: Jill Waldman of counsel to Steven M. Licht, Special Funds Conservation Committee (Albany), for appellant. Click here to read the full decision of the Court..
Sajeski v Waldbaum’s
October 22, 2009 Appellate Division, Third Department
Apportionment: Awards
RESCINDED and sent back for reconsideration the Board’s decision that claimant sustained a compensable injury and awarded benefits. Claimant, a maintenance worker, began working for the self-insured employer in 2001. At that time, he was receiving chiropractic treatment for a 1999 neck injury he sustained at a previous place of employment. On September 6, 2006, claimant allegedly re-injured his neck while lifting buckets filled with recyclable materials. Five days later, he submitted an application for workers’ compensation benefits. The employer challenged the claim, asserting that injury did not arise out of employment. Claimant’s immediate supervisor, Donald Allen, testified at an ensuing hearing. In light of an opinion from an independent medical examiner that claimant’s condition was 15% attributable to the 1999 incident, the WCLJ so apportioned his award. Upon review, the Board determined that apportionment was inapplicable, but otherwise affirmed the decision of the WCLJ. In doing so, however, the Board observed that claimant’s immediate supervisor “was not produced for testimony.” The Court ruled that, “While it is true that the Board’s factual determination that a claimant suffered a work-related injury will generally be upheld if supported by substantial evidence, when it appears that the Board’s decision may have been based on an inaccurate reading of the record or incomplete facts, it cannot be sustained.” The court added that it appeared from the language in the Board’s decision that Allen’s testimony was not reviewed, such that an analysis of the Board’s apportionment ruling at this juncture was considered to be premature. Prevailing argument presented by: Theresa E. Wolinski of counsel to Foley, Smith, O’Boyle & Weisman (Hauppauge), for appellants. Click here to read the full decision of the Court..
Mlodozeniec v Trio Asbestos Removal
October 22, 2009 Appellate Division, Third Department
Coverage
REVERSED the Boards decision, and thus affirming the Law Judge’s decision, that the State Insurance Fund (SIF) was liable for the payment of compensation benefits. Claimant was employed until September 1995, performing asbestos removal for Trio Asbestos Removal Corporation. During claimant’s employment, SIF provided workers’ compensation insurance to Trio but in 1996, after claimant left Trio’s employ, Trio replaced the SIF policy with one written by Zurich American Insurance Company, a policy remaining in effect until 1999. After claimant’s health subsequently deteriorated and he was diagnosed with an occupational condition August 1999, he filed for workers’ comp benefits and a Law Judge found that (1) claimant’s pleural and hyperactive airway disease was caused by his asbestos related employment, (2) he was disabled as of August 24, 1999, and (3) concluded that Zurich, Trio’s insurer on that date, was responsible for the payment of this claim. The Board reversed this decision, finding that because SIF was the insurer when claimant was employed by Trio when he was last exposed to asbestos, SIF was liable for the claim.
The question to be decided on this appeal is which carrier is liable for the payment of claimant’s workers’ compensation benefits — the carrier who insured Trio on the date claimant became disabled (Zurich) or the carrier that insured Trio when claimant was last exposed to the asbestos (SIF). In reversing the Board, the Court noted there is no question that Trio, as the last entity to employ claimant to perform asbestos removal work, is responsible for the payment of this claim. The Board’s reliance on Cammarata v Caldwell & Cook Inc. to reach a different conclusion is in error as in Cammarata no policy was in place at the time of Cammarata’s death: as a result, the policy that was in effect at the time Cammarata was last employed was found to be responsible for the payment of this. However, where a policy is in place on the date of a claimant’s disablement, that carrier is responsible for the payment of the claimant’s workers’ compensation award even though it was not in place at the time the claimant was last exposed to the condition that brought on his or her disablement. Prevailing argument presented by: Marc H. Silver of counsel to Gregory J. Allen, State Insurance Fund (NYC) for appellants. Click here to read the full decision of the Court…
Virtuoso v Glen Campbell
October 22, 2009 Appellate Division, Third Department
Disability: Further Causally Related
AFFIRMED the Board decision that claimant did not sustain a further causally related injury to his back as the result of a work-related accident in 1991; he did not qualify in 1991 for workers comp benefits due to insufficient lost time. In 2003, he requested further action on his case, alleging a change in the condition of his back that had required surgery in 2002 at which time the SFCC, now on notice questioned whether claimant’s worsened condition at the times of that surgery and a second surgery in 2006 were causally related to his accident. The Board cited several factors in determining that claimant had not established that his condition at the time of the surgeries was causally related to his accident and denied him benefits for certain time periods. It observed that claimant had failed to file medical reports during the time periods for which benefits were denied, reports required because he had not been found to be permanently disabled and the presumption of continuing disability did not arise. The Board also noted that the physician who performed the surgeries declined to say whether a causal relationship existed. Moreover, the Board concluded that proper authorizations for claimant’s surgeries in 2002 and 2006 were not obtained as required by WCL §13-a(5)et al. Nor did claimant’s proof demonstrate that either surgery was necessary as an emergency procedure. Prevailing argument presented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee (Albany) for respondent. Click here to read the full decision of the Court..
October 9, 2009 Appellate Division, Fourth Department
Burnett v Columbus Mckinnon Corp.
Jurisdiction
REVERSED the order of the lower court by finding that the Supreme Court erred in granting plaintiffs’ motion for an order applying the substantive law of New York, rather than Indiana, in this personal injury action. Burnett, the plaintiff, a resident of Ohio, was injured in Indiana, with a piece of equipment manufactured by the defendant, a New York corporation, but owned by his employer. The Appellate Court first addressed the ancillary issues (1) of the site of the tort which should be the place of injury rather than a location where the allegedly defective product was manufactured and (2) whether “New York’s choice-of-law principles govern the outcome of this matter”. Turning to the merits of the case court then addressed two additional issues: New York State’s adoption of a “pure” comparative negligence approach and then New York’s law which posits that comparative fault may not be apportioned against the employer of an injured worker covered by workers’ compensation insurance unless that worker suffered a grave injury within the meaning of WCL §11. After review of these four points plus a number of other issues raised by both parties in the Appellate Court determined that the Supreme Court should have granted defendant’s motion seeking a determination that the substantive law of Indiana applied. Prevailing party represented by: Richard A. Clack of Counsel to Amigone, Sanchez, Mattrey & Marshall, Llp, (Buffalo) for Defendant-appellant. Click here to read the full decision of the Court..
October 8, 2009 Appellate Division, Third Department
Chiesa v Stillwater Cent. School Dist.
Causal Relationship: Medical (ANCR/ODNCR)
AFFIRMED the Board which affirmed the Law Judge’s ruling that the claimant did not sustain a causally related injury. Claimant applied for benefits, claiming that she had been injured due to exposure to particulate matter released into the air as the result of an explosion that occurred due to construction and asbestos abatement work at the school where she worked. The WCLJ, subsequently affirmed by the Board, disallowed the claim, finding, among other things, that claimant lacked credibility and failed to establish causally related injury that stemmed from this accident. The claimant’s contention that she was exposed to a toxic cloud which engulfed the school after an explosion was contradicted by the employer’s witnesses who testified that neither recalled an explosion that caused a dust cloud to engulf the school or any portion of it. Each denied being informed of such an incident nor with claimant’s alleged injury until three years later when claimant filed her application for compensation benefits. And there were no other witnesses or documentation to support her claim of the toxic cloud. Although the claimant testified she resigned from her position the day after the incident in part because of her alleged injuries, her letter of resignation states that she resigned for “personal reasons”, with no mention of the accident or any injuries. The school principal testifi
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