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COURT DECISIONS
Concerning
The NYS Workers Compensation Board
May 23, 2013: A 15-decision winning streak continues for the Board with three more affirmances from the Third Department this week, with claimants, this week, winning on causal relationship and dependency benefits under the VFBL while a carrier wins one over the Special Fund on §15(8).
For those who wonder why it is that it takes so long for the Board to issue decisions on appeals and medical variances and why, after delays stretching out more than a year, the Board still gets these wrong, my book, Behind The Closed Doors, gives the answers to those questions. This inside look, based on my 12 years as a commissioner, also offers simple solutions to solve so many of the Board’s problems.
Ever wonder why Appeals take so long? Read the answers here.
Understanding Section 32 settlements: A detailed guide
The following free weekly postings cover all Workers Compensation Board and workers compensation related cases issued since 2008, not only by the Third Department but also the New York State Appellate Division’s First, Second, and Fourth Departments, the New York State Court of Appeals, various Supreme Courts throughout the State, and relevant out-of-state cases. To receive our weekly e-mail alerts or post a comment, contact TheInsider@InsideWorkersCompNY.com.
Dickinson v Cape Vincent VFD May 23, 2013 NYS Appellate Division, Third Department VFBL «»3200…VFBL
AFFIRMED the Board’s ruing that claimant, decedent’s mother, was entitled to dependency benefits pursuant to Volunteer Firefighters’ Benefit Law §7(46). Claimant applied for death benefits/support payments for herself and decedent’s younger brother after decedent was shot and killed by a patient in the course of his work as a volunteer firefighter/emergency medical technician. A Law Judge agreed with her position that they were “dependent upon the deceased at the time of” his death per VFBL §7. “The issue of dependency is a factual one for the Board to resolve and, if supported by substantial evidence, its decision will not be disturbed.” The Court wrote that the record was clear that, for various reasons, claimant and decedent’s stepfather provided no income and his younger brother provided very little, decedent worked two jobs and was the primary breadwinner for the family, devoting a substantial portion of his income to paying family expenses. The Board found that, due to his death, the family “was significantly affected when such contributions ceased”, properly finding “that the loss of . . . decedent’s financial contribution had an adverse or detrimental effect on the claimant and decedent’s brother.” Prevailing party represented by: Daniel S. Dickinson III (Watertown) for Marsha Dickinson, respondent and Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent. [35231-7838]
McCluskey v Certified Moving May 21, 2013 NYS Appellate Division, Third Department 1030…Causal Relationship: PFME, et al «»1030…Causal Relationship: PFME, et al
AFFIRMED the Board’s ruling that claimant sustained a work-related back injury. Claimant, who was employed by a moving and storage company, contended that he had injured himself while moving a heavy credenza. Ultimately, a Law Judge found that claimant had sustained a work-related back injury as the result of an accident that occurred on February 15, 2010, although a Board panel, in its affirmance, changed the date to February 13, 2010. Although the employer attempted to call into question the recollection of claimant and his coworkers as to the date upon which the accident occurred, the Board panel agreed that “the precise date of claimant’s injury is not dispositive of any of the issues in the case,” medical records and coworkers testimony supported claimant’s contention that his back injury was causally connected to that incident. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. [35231-7837]
Pawlitz-Delgaizo v Comm Gen Hosp May 21, 2013 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund «»3110…§15(8) Reimbursement Special Fund
AFFIRMED the Board’s decision that the carrier is not entitled to §15(8)(d) reimbursement from the Special Disability Fund (Fund). Subsequent to the claimant being awarded comp for work-related injuries to her head, back and pelvis sustained in October 1998, the carrier sought §15(8)(d) reimbursement from the Fund. Although a Law Judge found §15(8)(d) applied the Board reversed, later amending the decision, reaching the same conclusion, but adding certain facts and analysis. As noted in the Court’s ruling, the basis for this decision was that, “While the carrier’s expert did offer an opinion that claimant’s low back spondylolisthesis and migraine conditions could pose a hinderance to employability, this opinion was based upon generalities and speculation. Notably, the expert did not examine claimant and the available medical records did not reflect that claimant was subject to any restrictions or that these conditions presented any hinderance to her ability to work. Claimant testified that she was not under any restrictions, she was treated with medication for these conditions on an as-needed basis and the medications were effective.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds [35231-7836]
PENDING CASES
APPELLATE COURT, THIRD DEPARTMENT
May 23, 2013: With no more hearing dates set for the Third Department’s 2012-2013 court calendar, there are now 14 cases awaiting a decision.
05-28-2013 Aska v United Jewish Appeal
04-16-2013 Ballou v Southworth-Milton
05-21-2013 Borgal v RGRTA
04-15-2013 Brittain v NYS Insurance Dept
04-22-2013 Cameron v Crooked Lake House
04-23-2013 Cartuccio v NYS Dept Of Corr
05-28-2013 Casale v City Of Rye
04-26-2013 Jaindl v Robert Green Chev-Olds
04-16-2013 Kigin v NYS WCB
04-26-2013 Morelli v Tops Market
05-30-2013 Rodriguez v C&S Wholesale Grocers
04-25-2013 Schroeder v US Foodservice
05-23-2013 Surianello v Con Edison
04-15-2013 Willard v Oatka Milk Products
COURT OF APPEALS
May 16, 2013: Nothing relevant has been added by the Court of Appeals to last week’s listings:
Beth V., Matter of V New York State Office of Children and Family Services et al..:3RD Dept. App. Div. order of 9/27/12; affirmance; leave to appeal granted by Court of Appeals, 1/15/13; Workers’ compensation - carrier’s lien - proceeds of settlement of federal civil rights action - whether the workers’ compensation carrier is entitled to a credit pursuant to WCL §29 from the claimant’s recovery against her employer in a federal civil action; App. Div. affirmed a decision of the WCB determining that the workers’ compensation carrier can take a full credit pursuant to WCL §29 from claimant’s recovery against her employer in a federal civil action.
Hroncich, Matter of v. Con Edison, et al.: 3RD Dept. App. Div. order of 1/19/12; affirmance; leave to appeal granted by Court of Appeals, 9/6/12; Workers’ compensation - death benefits - whether the Appellate Division properly affirmed the Workers’ Compensation Board Decision granting claimant death benefits without apportionment for the percentage of non-work related causes(s) of death - WCL §15(7); App. Div. affirmed the 12/18/09 decision of the WCB which ruled that decedent’s death was causally related to his occupational illness.
MOTION DECISIONS recently issued by the Court of Appeals, with issue date.
Donna Veeder v NYS Police Dept : May 2, 2013 - Motion for leave to appeal denied for the January 1, 2013 decisions from the 3rd Dept’s affirmation of the Board’s decision.
Sharon Bland v Gellman Brydges & Schroff: May 2, 2013 - Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. This dismisses an appeal of the 3rd Department’s Feb 14, 2013 decision. The February 19, 2013 dismissal by the Court of Appeals referenced the 3rd’s November 29, 2012 decision.
Jungels v SUNY Buffalo: March 28, 2013 - Motion for leave to appeal denied. (March 28, 2013)
▼ Prior Week’s Posting ▼
Denman v Cobblers Rest May 16, 2013 NYS Appellate Division, Third Department §114-a: Fraud «»5130…§114-a: Fraud
AFFIRMED the Board’s ruling that claimant had violated WCL §114-a. As the result of a 2003 injury, claimant was awarded benefits at a total disability rate. A law Judge, after hearing testimony and seeing videotapes, concluded that “although claimant was totally disabled, she nevertheless had misrepresented her disabilities in an effort to influence determinations made in connection with her claim”, thus violating §114-a. The record revealed that claimant had purposefully testified, and exhibited such when visiting the Board: a substantial degree of immobility as contrasted with her videotaped behavior when shopping and driving. Although the IME suggested he would change his opinion from total disability to a moderate, partial disability, neither the Law Judge nor the Board did so, but did decide a discretionary penalty was warranted as the record established “that claimant had attempted to misrepresent her condition to influence the determination regarding benefits.” Prevailing party represented by: Mark A. Kenyon of counsel to State Insurance Fund for Cobbler’s Restaurant and another, respondents and Jill B. Singer of counsel to the Special Funds Conservation Committee . [35230-7835]
Fatima v MTA Bridges & Tunnels May 16, 2013 NYS Appellate Division, Third Department Causal Relationship: Death «»1020…Causal Relationship: Death
AFFIRMED the Board’s ruling that the death of claimant’s husband was not causally related to his employment. After a maintenance crew, of which the claimant’s husband (hereinafter decedent) was a member, was called in to work overtime on a weekend, the crew assessed the situation and returned to the maintenance facility to gather their tools and wait for the rest of the crew to arrive. While waiting there, decedent went alone to the locker room where, approximately 20 minutes later, he was found unconscious. He later died. A Law Judge denied death benefits on the ground that decedent’s death was not causally related to his employment. The death certificate determined the cause of death to be arteriosclerotic cardiovascular disease, a condition according to the employer’s medical which is typically caused by factors such as hypertension, elevated cholesterol levels, and tobacco use, and not related to decedent’s work activity. “The expert further testified that he had personally examined decedent in connection with an earlier workers’ compensation claim and found him to be hypertensive, and the record reflects that decedent failed to obtain treatment for that condition. While there was testimony that strenuous activity could increase the risk that a person with preexisting arteriosclerotic heart disease might suffer a cardiovascular incident, there is no evidence that decedent was engaged in any physical activity at the time of his demise. Inasmuch as there is substantial evidence in the record to support the Board’s decision that decedent’s death was not causally linked to his employment, we [the Third Dept] decline to disturb it.” Prevailing party represented by: Sarah Thomas of counsel to Jones Jones (New York City) for MTA Bridges and Tunnels and another, respondents.[35230-7834]
Mazzaferro v Fast Track Structures May 16, 2013 NYS Appellate Division, Third Department Procedure: Denial FBR «»7050…Procedure: Denial FBR
AFFIRMED Board’s denial of pro-se claimant’s request for reconsideration and/or full Board review. Years after claimant’s case for a work-related hernia was established and benefits awarded, claimant sought to amend his claim to include a testicular infarction as a consequential injury, which was denied by a Law Judge. Claimant’s subsequent application for reconsideration and/or full Board review was denied. The Court wrote that, “Inasmuch as claimant has appealed only from the Board’s denial of his request for reconsideration and/or full Board review, the merits of the underlying decision are not properly before us.”The Court agreed with the Board that the claimant did not demonstrate a material change in his condition or present evidence that was previously unavailable. Prevailing party represented by: Jacklyn M. Penna of counsel to Buckner & Kourofsky (Rochester) for Fast Track Structures and another, respondents [35230-7833]
Rolleri v Mastic Beach Ambulance May 16, 2013 NYS Appellate Division, Third Department Causal Relationship: Was there? «»1045…Causal Relationship: Was there?
AFFIRMED the Board’s ruling that the pro-se claimant did not sustain a compensable accident allegedly caused by a slip and fall on black ice in his driveway while responding, as a volunteer emergency medical technician, to an emergency call, causing injuries to his neck and left leg. A Law Judge disallowed the claim, finding that claimant lacked credibility and had failed to establish a compensable accident. Not only did the claimant not file for his January 2010 accident until May 2010, claiming that is when he found out it was compensable, the Court noted that “there was a sharp contrast in the medical records as to the source of claimant’s injuries before and after the submission of his claim. The initial records, made contemporaneous with claimant’s emergency room visit and treatment by his primary care physician and an orthopedist, list various causes for his injuries but, significantly, make no mention of a slip and fall accident” until after the submission of his claim. In addition, claimant reported, prior to the January 2010 incident, that he had a history of neck pain from an earlier automobile accident, something he denied after placing his claim. The Court determined that the totality of the evidence supported the Board’s decision. Prevailing party represented by: Alisa A. Ammerman of counsel to State Insurance Fund for Mastic Beach Ambulance Company,and another, respondents. [35230-7833]
Tawil v Fallsburg CSD May 16, 2013 NYS Appellate Division, Third Department Disability: Further Causally Related/Comp «»5030…Disability: Further Causally Related/Comp
AFFIRMED the Board’s decision that claimant was not entitled to further workers’ comp benefits. Although the claimant, a school principal, had suffered work-related injuries in November 2008 that rendered him temporarily totally disabled and did file an undisputed claim, he did not receive benefits as he continued to be paid his salary by the employer. In February 2009, shortly after receiving a letter notifying him that he had been denied tenure, he submitted a letter of resignation, effective June 30, 2009, the last day of the school year. Claimant never returned to work for the employer, but thereafter secured a teaching position in Florida at a substantially reduced salary, beginning in October 2009. When in July 2009, claimant sought to begin receiving workers’ comp benefits, a Law Judge awarded continuing benefits as of June 30, 2009, a decision reversed by a Board panel which concluded that “claimant ceased working for reasons unrelated to his disability and failed to demonstrate that his reduction in earnings was causally related to his compensable injuries. . .”
“Claimant testified that, during his job search subsequent to resignation, he applied and interviewed for a school principal position that was no different than the job he performed for the employer. Claimant further testified that he had not informed that prospective employer ‒ or any other during the course of his search ‒ about restrictions due to his disability. Further, claimant opined that it was rather difficult to secure a position in education in New York, which ultimately led him to accept a teaching position in Florida, where it was easier to obtain employment. Thus, claimant’s own testimony established that his reduction in earnings was not caused, even in part, by his disability, but rather by other economic factors; thus, we [The Third Dept] decline to disturb the Board’s decision .”. Prevailing party represented by: Christine Morehouse of counsel to Davis & Venturini (Hicksville) for Fallsburg Central School District, respondent[35230-7831]
Comments Off
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Bleakley v Verizon March 28, 2013 NYS Appellate Division, Third Department Legal Fees «»7100…Legal Fees
Appeal rendered moot on issue of awarding legal fees with no money moving. The Board had originally ruled “since there is no money currently moving to the claimant and no employer reimbursement, there is no source of funds to which an attorney’s lien can presently attach.” However the Board (through a Full Board review?) later reversed itself and awarded the fee. [33223-7817]
[ED. NOTE:] A COMMENTARY on this last minute change of heart/mind by the Board details the possible implications regarding the Board’s process of decision making and appeal review.
Howard v Stature Elec March 28, 2013, 2013 Court of Appeals §114-a: Fraud & Alford Plea «»5130…§114-a: Fraud
AFFIRMED the Board’s ruling1 and the Appellate Court’s 2010 decision that a claimant’s Alford plea is not automatically given preclusive effect in a subsequent workers’ compensation proceeding. The Court noted that an Alford plea may generally be used for the same purposes as any other conviction and that, like any other guilty plea, it may be used as a predicate for civil and criminal penalties. But, two factors determine whether preclusive effect should be given: First, whether the identical issue was necessarily decided in the prior action or proceeding and is decisive of the present action, and second, whether the party who is attempting to relitigate the issue had a full and fair opportunity to contest it in the prior action or proceeding. The facts showed that the claimant made his plea without any allocution as to the facts underlying it. “Here, the plea colloquy preceding claimant’s insurance fraud conviction included no reference to the facts underlying the conviction, so it is impossible to conclude that the conviction was based upon the same circumstances alleged to be fraudulent in the workers’ compensation proceeding. SIF therefore failed to meet its burden of proving identity of issue. As a result, the plea did not prohibit claimant from challenging the workers’ compensation violation alleged.”Prevailing party represented by: Christine A. Scofield (Syracuse) for appellant. [33223-7816]
¹Although it is not noted in the Court of Appeals decision, the Board had originally found the Alford plea to be sufficient for a finding of §114-a but the Third Department reversed the Board in 2010 and returned it for reconsideration. After Third Department 2010 remand, the Board had a hearing on the issue of §114-a and found that claimant was not guilty of misrepresentation.
Town of Amherst v Hilger March 22, 2013, 2013 NYS Appellate Division, Fourth Department «»9999__Misc
[ED. NOTE:]This case is posted only as it show the length some people will go to ‘get even’.
The main issue under appeals arose when the former owners (Arthur Hilger and Sally Bisher) of the employer (McGonigle and Hill Roofing, Inc. - M & H) , after M&H filed for bankruptcy, refused to assign to seek insurance coverage from nonparty New York State Insurance Fund (SIF), M & H’s insurer, with respect to a judgment plaintiff Town of Amherst (Town) has against M & H. There was also no dispute that SIF has not paid the Town judgment on behalf of M & H only because of defendants’ intractable refusal to request that SIF satisfy that judgment. For the reasons set forth below, plaintiffs commenced this action against defendants and defendant. While discovery did not establish a motive for the Hilgers’ refusal to seek coverage from SIF, at the oral argument of this appeal, defendants’ attorney indicated that their recalcitrance was borne of “animosity” toward the Town. [33223-7815]
Boaro v Kings Park Psychiatric March 21, 2013 NYS Appellate Division, Third Department Causal Relationship: Deaths «»1020…Causal Relationship: Death
AFFIRMED the Board’s ruling that decedent’s death was not causally related. Claimant’s husband (hereinafter decedent), who sustained two work-related heart attacks in 1982 and 1986 that rendered him permanently totally disabled, died in October 2010, at the age of 77, 24 years after he suffered the second work-related heart attack. After claimant filed for WC death benefits, the Board disallowed the claim. The Curt cited its oft stated ruling that “[t]he resolution of conflicting medical opinions, particularly as they relate to causation, is within the exclusive province of the Board, and its decision will not be disturbed when supported by substantial evidence, ..even while there was some medical evidence in the record that may support a contrary conclusion.” In this case, the Board accepted the opinion of carrier’s cardiologist who reported that the decedent’s death was caused by atherosclerosis, a slowly progressing disease based on underlying genetic factors, that was exacerbated by decedent’s smoking and hypertension. Also following his heart attacks, decedent had a normally functioning heart, and there is no medical research to suggest that heart attacks hasten the progression of heart disease.Prevailing party represented by: Alisa A. Ammerman of counsel to the NY State Insurance Fund for Kings Park Psychiatric Center and another, respondents. [33222-7814]
Riley v P&V Sadowski Constr March 21, 2013 NYS Appellate Division, Third Department §123 Stale Claims «»3178…§123 Stale Claims
REVERSED the Board by finding that the reopening of the case was not barred by WCL §123, based on evidence in the file contradicting the Board’s fact finding. After receiving an SLU for a 1990 right knee injury and following a 2003 injury, claimant’s condition worsened such that, in September 2008, a Law Judge found that the claim was reopened, effective August 2006, shifting liability to the Special Fund for Reopened Cases (Fund). In 2009 right knee replacement surgery was authorized. When claimant sought further benefits after undergoing the January 2011 surgery, the Fund argued that the claim had been truly closed in April 2009 following authorization for the surgery and that any additional awards would be untimely pursuant to WCL §123. Although a Law Judge found otherwise, a Board panel reversed the Law Judge and barred the claim.
The §123 statutory bar only applies if the claimant’s case was truly closed, a factual issue for the Board that depends upon whether “further proceedings, such as the submission of additional medical evidence, were contemplated” at the time of the purported closing, i.e. “contemplated, not whether they were actually planned.” Not only was the Board’s “bare summary conclusion” that the closing was April 6, 2009 and that no further action was contemplated lacking any factual support, the Board’s decision “is arguably contradicted by the record.” The decision in April stated that the matter was “[p]ending outcome of surgery on right knee. No further action is planned by the Board at this time,”, the Court noted that, two months prior, the Law Judge, in authorizing surgery, continued the cases “to make awards in accordance with this decision, subject to any credits.” In explaining its reversal of the Board (and support for the original Law Judge decision), the Court opined that “ the Board’s conclusion that no further proceedings were contemplated in April 2009 when surgery was authorized is dubious and, more importantly, is completely lacking in any record support,” and accordingly must be reversed. Prevailing party represented by: Laurence Naviasky¹ of counsel to Hoffman & Naviasky (Schenectady) for appellant. [33222-7813]
¹This summary had incorrectly listed the Special Funds as the prevailing party.
Hartman v Tops Mkt February 21, 2013 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund «»3110…§15(8) Reimbursement Special Fund
AFFIRMED the Board’s ruling that the carrier is not entitled to §15(8) reimbursement from the Special Fund (Fund) . As the result work-related back injuries in 2007, claimant was awarded comp benefits. After learning that claimant suffered from preexisting hypertension and bilateral degenerative joint disease of the knees, the carrier applied for reimbursement from the Fund per §15(8)(d). After a Law Judge found entitlement to reimbursement based on the preexisting knee condition, a Board panel reversed and found no applicability. Claimant testified her knee condition caused her only intermittent pain, was treated with over-the-counter or prescription pain medicine, she continued to work without any restrictions or accommodations, and her knee condition did not cause any lost time from work. As the carrier’s expert could not “state that the preexisting condition hindered claimant’s employment,” the Court found that substantial evidence supported the Board’s decision. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee. [33222-7812]
Rodriguez v Metal Cladding March 21, 2013 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund «»3110…§15(8) Reimbursement Special Fund
AFFIRMED the Board’s ruling that the carrier’s filing for WCL §15(8) was timely– the sole issue in this appeal. After the claimant’s case was established and he was awarded workers’ comp benefits, the carrier successfully sought §15(8) reimbursement from the Special Disability Fund (Fund) after a Law Judge found that the carrier’s application was timely. §15(8)(f) provides that, “in the event of the reopening of a case theretofore closed, [a claim for reimbursement must be filed] no later than the determination of permanency“. The Fund argued that this clause is inapplicable because the case was never truly closed. Substantial evidence supported the Board’s factual determination that the case was closed in August 2005 when the Law Judge found that there was no prima facie medical evidence and marked the case “no further action”. The Court affirmed the Board agreeing that the carrier first filed a C-250 form seeking reimbursement from the Fund in January 2010, which was after the reopening of the case and prior to the finding of permanency. Prevailing party represented by: John A. Terzulli of counsel to Hamberger & Weiss (Buffalo) for Metal Cladding, Inc. and another, respondents. [33222-7811]
Schworm v Frito Lay March 21, 2013 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund «»3110…§15(8) Reimbursement Special Fund
AFFIRMED the Board’s ruling that the carrier is entitled to §15(8) reimbursement from the Special Disability Fund (Fund). Claimant sustained a fractured vertebrae in March 2003, receiving workers’ comp for six months, after which he returned to work. Subsequently, the carrier filed a claim for reimbursement from the Fund for, as relevant here, a right knee injury that claimant had sustained approximately 20 years earlier in a non work-related motorcycle accident. In March 2007, claimant suffered another back injury while working for a different employer resulting in his ongoing disability being apportioned 32.5% to his 2003 claim and 67.5% to his 2007 claim. Following proceedings relative to the carrier’s claim for reimbursement from the Fund, a Law Judge held that claimant’s right knee injury constituted a permanent physical impairment that entitled the carrier to reimbursement.
Here, the carrier submitted evidence that claimant’s right knee had limited range of motion as compared with his left knee and, had it been subject to a workers comp claim, claimant would have had permanent impairment equal to a 35% schedule loss of use which “represented a hindrance to his employment as it would limit certain activities, such as repetitive squatting, kneeling and climbing.” The carrier’s physician added that claimant’s permanent disability due to all conditions is materially and substantially greater than would have resulted from the 2003 back injury alone. “Thus, despite contrary evidence in the record ‒ including claimant’s testimony that, upon returning to work after his knee injury, he never again lost time or required medication as a result of that injury ‒ [the Court found] that the Board’s decision is supported by substantial evidence.” Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Troy) for Frito Lay, Inc. and another, respondents. [33222-7810]
Swanko v Darlind Constr March 21, 2013 NYS Appellate Division, Third Department §44 App’t Dust Diseases «»3182…§44 App’t Dust Diseases
AFFIRMED the Board’s ruling that WCL §44 apportionment did not apply as injury was caused by an accident, not an occupational disease. In 2005, after working many years, injuries to claimant’s hips, knees, shoulders and wrists caused him to stop working and to file a claim for workers’ comp, asserting that repetitive trauma sustained in connection with his employment caused the disabling injuries. After the carrier controverted the claim, a Law Judge established the claim as an accidental injury due to repetitive trauma. The Judge also determined that, as this was an accident and not an occupational disease claim, WCL §44 apportionment did not apply, a decision now being appealed by the carrier who argued that the claim should have been classified as an occupational disease, not an accident. Although the Court found this argument was not properly before the Court inasmuch as no appeal from the Law Judge’s determination of this issue was taken, the Court found that the record contained substantial evidence supporting the determination classifying the claim as an accident. Prevailing parties represented by: Theresa E. Wolinski of counsel to Foley, Smith, O’Boyle & Weisman (Hauppauge) for Yonkers Contracting Company, William T. Burke of counsel to Cherry, Edson & Kelly (Tarrytown) for American Zurich Insurance Company, Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for Sciullo Construction, and Jeremy Buchalski of counsel to Vecchione, Vecchione & Connors (Garden City Park) for St. Paul Travelers,[33222-7809]
Bailey v Ben Ciccone March 14, 2013 NYS Appellate Division, Third Department Consequential «»5032…Consequential
AFFIRMED the Board’s ruling that claimant’s motor neuron disease was consequential to his established claim for Lyme disease. After Claimant was bitten by a tick while working, he was subsequently diagnosed with Lyme disease in July 2008. When claimant began to experience upper body muscle weakness and forced to cease working, the carrier accepted a workers comp claim, paying the claimant benefits. After the claimant’s progressive muscle weakness worsened despite several courses of antibiotics, ultimately rendering him permanently totally disabled, the carrier asserted insufficient medical evidence that claimant’s disability continued to be related to his Lyme disease. After several hearings and medical testimony, a Law Judge, amended the claim to include consequential motor neuron disease, as well as consequential anxiety and stress disorder. Claimant presented the testimony of his treating doctor, neurologist, and psychiatrist all of whom stated that his disabilities were the consequence of his Lyme Disease whereas the carrier presented the opinions of several neurologists who could not state with certainty that claimant’s Lyme disease was the cause of his motor neuron disease. Citing the legal theory that the resolution of conflicting medical opinions, particularly with regard to the issue of causation, is within the exclusive province of the Board, the Court agreed that the Board’s determination to be supported by substantial evidence.Prevailing party represented by: March 14, 2013 of counsel to the NYS Attorney General, for WCB, respondent. [33221-7808]
Mason v Glens Falls Ready Mix March 14, 2013 NYS Appellate Division, Third Department Failure to follow legal procedure «»Failure to follow legal procedure
REVERSED the Board’s ruling, finding that the Board committed several procedural errors. Although the claimant sustained an injury in 2009 that he immediately reported to the employer, he had no lost time and sought no immediate medical treatment. He first sought treatment in November 2010, ceased work on December 15, 2010 due to disability, undergoing surgery January 5, 2011. The following day, claimant submitted a claim for disability benefits that indicated that the disability was not the result of an injury arising out of and in the course of his employment. On January 28, 2011, he filed his workers comp claim. The carrier filed form C-669 in April 2011, indicating that the claim was not being disputed, but also raised the issues of whether (1) the disability was causally related, (2) he was currently out of work due to unrelated reasons, and (3) he had sustained a new injury.
Notwithstanding the carrier’s objections, it paid several medical bills associated with claimant’s treatment, including the bill for his surgery. After a June 2011 hearing, when the carrier questioned the causal relationship between the 2009 injury and claimant’s current disability and requested further development of the record, a Law Judge denied that request, awarding benefits for the period subsequent to his surgery 2011 surgery and continuing. Carrier’s appeal was denied for several reason including that the carrier’s request to further develop the record was untimely.
Inasmuch as the carrier had raised several issues that were unresolved, it was clear upon the carrier’s initial request to the WCLJ that the testimonies of both claimant and his medical provider were essential to the development of the case. The Court stated “it was an abuse of discretion for the WCLJ to deny the carrier’s timely request to further develop the record.”
Although the Board held that the carrier is estopped from contesting liability because it erroneously paid for certain medical bills, the Board cited no authority for its holding. The Court added, “Indeed, we have unequivocally held that, while an advance payment of compensation in the form of covered medical bills precludes a defense based upon the statute of limitations, it does not foreclose a carrier from asserting other defenses and, thus, will not give rise to estoppel where the elements have not been otherwise established.”
The Board’s finding that the carrier failed to timely deny claimant’s request for authorization of surgery in violation of WCL §13-a(5) and NYCRR 325-1.4(a)(6), the Board’s determination is inapposite. The record showed the claimant had surgery nearly three weeks before he submitted his claim and, therefore, an authorization for surgery was never requested of the carrier. Prevailing party represented by: Edward Obertubbesing of counsel to the NY State Insurance Fund for for appellants. [33221-7807]
Minichelli v Maine-Endwell CSD March 14, 2013 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund «»3110…§15(8) Reimbursement Special Fund
AFFIRMED the Board’s ruling that employer is not entitled to §15(8) reimbursement from the Special Disability Fund (Fund). Claimant was awarded workers’ compensation benefits for an injury and resulting permanent disability to due to a 2000 accident. After the carrier sought reimbursement from the Fund per WCL §15(8), a Law Judge determined that the carrier was not entitled to reimbursement, noting the determination was made without prejudice. In affirming the Law Judge on appeal, a Board panel modified the determination to reflect that it was made with prejudice. Although the claimant did have a number of pre-existing medical conditions, there was no evidence that these conditions hindered or were likely to hinder claimant’s job potential. The medical records and claimant testimony showed her preexisting conditions were adequately controlled by medication, she was working full time with no restrictions and she had not missed time from work due to the preexisting conditions. Since the failed to show that her preexisting permanent condition hindered her job potential, the Court found the Board’s decision denying reimbursement was supported by substantial evidence. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund.[33221-7806]
Perez v Mondial Tiles March 14, 2013 NYS Appellate Division, Third Department Causal Relationship: PFME, et al «»1030…Causal Relationship: PFME, et al
AFFIRMED Board’s ruling that claimant suffered a work-related injury, reversing the Law Judge’s decision.
On March 5, 2007, claimant, working for the employer as a laborer, experienced dizziness and saw lights while straining to carry heavy marble up a flight of stairs. He went to the hospital later that day complaining of headaches and blurry vision. In July 2007, he underwent a craniotomy to relieve pressure from a blood clot and had a shunt placed in his head. Returning to work on light duty, claimant ceased working in November 2007, filing a workers’ comp claim. Although a Law Judge found that a work-related accident had occurred of which the employer had notice but that claimant failed to establish a causal relationship, a Board panel reversed, finding that a causal relationship had been established. The Court found that the record demonstrates that claimant experienced dizziness on March 5, 2007 while lifting a heavy object at work which caused him to visit the hospital later that day and be absent from work thereafter. While all the claimant’s medical providers stated that claimant’s injuries were causally related to his work accident, the carrier failed to produce any conflicting medical evidence. Thus, the Court found “that the Board’s decision is supported by substantial evidence.” Prevailing party represented by: Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent. [33221-7805]
Williams v Lloyd Gunther El Serv March 14, 2013 NYS Appellate Division, Third Department §29: 3rd Party/MVA liens
Capricious & Arbitrary «»3160…§29: 3rd Party/MVA liens 7150…Capricious & Arbitrary
REVERSED Board’s ruling on when a carrier can start to take credit for a 3rd party settlement, writing that the Board has not provided a rational explanation for departing from its prior precedent. The Board ruled that the carrier may not begin taking a credit from a successful third-party action until the date on which claimant received the recovery. After claim for 2003 accident was established, claimant successfully filed a personal injury claim and the comp carrier consented to the settlement. Then the carrier notified the WCB that it had suspended payments to claimant on October 1, 2010 pursuant to the settlement. A Law Judge found that the carrier’s credit against claimant’s third-party recovery commenced on October 5, 2010, the date claimant actually received the settlement.
In situations such as this, where a workers’ comp carrier consents to a recovery in a third-party negligence action, the carrier may be granted a lien on the proceeds of the recovery equal to the amount of benefits already paid, as well as a credit for any future benefits owed the claimant until the proceeds of the recovery are exhausted. Although there is no reference in the statute as to when the credit shall commence , the Board generally considers the day that a claimant actually collects the recovery as the date upon which a carrier’s credit commences.
The Board has, however, allowed a carrier to begin taking the credit on the date that it consented to the settlement, provided that its consent letter reflected a clear understanding by both parties that no further payments would be made by the carrier unless or until the credit was exhausted. Here, the Board did not base its determination upon an assessment of the terms expressed in the carrier’s consent letter. Rather, the Board found that, since the carrier was not also the carrier that was liable in claimant’s third-party action, the carrier could not begin taking its credit until the date that claimant received his settlement.
Although the Board cited precedent in its decision, the Court explained why the cited precedents did not support the Board’s holding and wrote “Inasmuch as the Board has not provided a rational explanation for departing from its prior precedent in determining when a carrier’s credit pursuant to WCL §29(4) commences, the decision must be reversed.” Prevailing party represented by: Daniel S. Becker of counsel to the NY State Insurance Fund for appellants. [33221-7804]
| — — FEBRUARY 2013 — — |
Coleman v Compass GroupChartwellsA February 28, 2013 NYS Appellate Division, Third Department §32 «»7045…§32
AFFIRMED the Board’s decision which, after determining that §32 covered §120 ‘compensation’, declined to approve a §32 settlement agreement between the parties. Claimant had filed a discrimination claim after she (successfully) filed a workers comp claim for work-related injury. She and the employer decided to settle this discrimination issue and submitted the §32 agreement to a Law Judge along with a form entitled “Satisfaction of Decision and Discontinuance with Prejudice.” After the Judge refused to approve the agreement because it did not comport with the procedural requirements of WCL §32, the parties then submitted a redrafted agreement. However, when the parties appeared before the Judge and the claimant stated that she no longer consented to the terms of the agreement, the Judge refused to approve the agreement.
The employer’s principal claim is that the requirements of §32 for Board approval of settlements do not apply to agreements involving discrimination complaints under §120 because such discrimination complaints are not claims for compensation. The Court wrote, “While we agree that claims under §120 do not seek compensation as that term is used throughout the WCL ‒including §32 ‒we are not persuaded that, as a result, §32 is inapplicable to the settlement of such claims.” Therefore, per §32, a party may withdraw approval of an agreement “within [10] days of submitting” it to the Board which occurs when the parties appear before the Board. Here, inasmuch as claimant indicated that she no longer consented to the agreement at the time it was submitted to the Board, the Law Judge properly disapproved the agreement.Prevailing party represented by: Kristina S. Heuser (Locust Valley) for Carolyn Anne Coleman, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.[32219-7803]
Held v NYS WCB February 28, 2013 NYS Appellate Division, Third Department §50(5): Assessments & GSITs «»3185…§50(5): Assessments & GSITs
AFFIRMED the Board in this fourth and fifth appeal on the issue of various procedures used by the NYS Workers Compensation Board to calculate assessments levied upon members of Group Self-Insured Trusts (GSITs pursuant to WCL §50(5). Among the claims that were denied in the two separate opinions issued today were (1) the GSIT’s request for discovery pursuant to CPLR 408, (2) the GSIT’s contention that the assessments were time-barred, (3) their claim that the 2008 assessments were affected by an error of law, and (4) the claim that Board failed to exhaust the Uninsured Employers’ Fund (see Workers’ Compensation Law § 50-a [2]). Several other arguments by the GSITs were also denied in the two detailed opinions with references to the 2011, 2010, and 2009 Appellate Court decisions. Prevailing party represented by: Paul Groenwegen of counsel to the NYS Attorney General, for WCB, respondent. [32219-7802]
State Ins Fund v Private One of NY February 26, 2013 NYS Appellate Division, First Department Employment: Who is «»3030…Employment: Who is or dual
AFFIRMED the Supreme Court’s ruling that because Private One neither had its own workers comp coverage for its leased employees now had the employee leasing company obtain a separate policy naming defendant as an additional insured, SIF properly concluded that defendant was providing the workers’ compensation coverage itself and was responsible for paying the premiums. [32219-7801]
Bailey v Binghamton Precast February 21, 2013 NYS Appellate Division, Third Department Causal Relationship: Death «»1020…Causal Relationship: Death
AFFIRMED the Board’s ruling that decedent’s death was not causally related to his employment of 20 plus years as a truck driver and heavy equipment mechanic for the employer. Decedent, who had a preexisting heart condition, was admitted to a local hospital in September 2007, at which time he was found to be suffering from atrial fibrillation, exacerbation of congestive heart failure, morbid obesity, hypertension and hyperlipidemia, and a heart catheterization performed on November 15, 2007. Various medications were prescribed, and decedent returned to work without restrictions on November 21, 2007. On November 30, after he finished his regular shift at 3:30pm, he remained on premises to work on his personal vehicle. Although he was seen between 7:30pm and 8:00pm by the plant manager, shortly thereafter, the manager found decedent unresponsive on the garage floor and called 911. Decedent was pronounced dead later that evening. Following a claim for death benefits, the Law disallowed the claim finding that claimant (1) was not entitled to the presumption set forth in WCL §21(1) and (2) failed to demonstrate a causal relationship between decedent’s death and his employment.
First, although the decedent had told his wife he was staying late “to clean the pit”, there was nothing in any record to show he was performing work for the employer at the time of his death supporting the Board’s finding that decedent “cannot be considered to have been in the course of his employment at [the] time of his demise.” Second, this is a case where the medical proof adduced by claimant was insufficient to establish the required causal connection between decedent’s death and his employment. Medical experts from both sides determined that the ‘heavy work’ that the claimant did the day of his death most likely contributed to his death but “the physician who conducted the independent medical review issued an addendum to his report, wherein he indicated ‘a change of . . . opinion on the [issue of] causal relationship’ and stated that he no longer could ‘definitely conclude’ that a causal relationship existed between decedent’s employment and his death.” And the employer testified that heaving lifting was not a normal part of the job and that due to claimant’s recent operation, “[n]obody was pushing [decedent] too hard.” The Court determined that there was substantial evidence to support the Board’s finding that claimant failed to establish a causal connection between decedent’s employment and his death..Prevailing party represented by: Mark A. Kenyon of counsel to State Insurance Fund for Binghamton Precast & Supply Corporation and another, respondents. [32218-7800]
Runge v National Baseball February 21, 2013 NYS Appellate Division, Third Department
§123 Stale Claims «»3178…§123 Stale Claims
REVERSED the Board’s decision which dismissed claimant’s 1997 workers’ compensation claim as time-barred by WCL §123. After claimant was injured during an annual physical in March 1997, the carrier did not controvert the claim, but in February 1998 submitted a form C-669 indicating that payment had not begun because there was no lost time beyond seven days. Although claimant failed to appear at an April 1998 hearing and the case was closed, the carrier continued paying medical expenses into 2002. When in April 2004, claimant sought to reopen the claim by seeking authorization for a total left knee arthroplasty, the carrier put the Special Fund for Reopened Cases on notice, raising WCL §123. A Law Judge found that the case had been truly closed in April 1998, thus §123 served to bar further proceedings. Although the case had been closed in April1 998, the carrier continued to reimburse related medical expenses between December 1997 and February 2002. The Court wrote, “We have previously indicated that where a carrier voluntarily pays for causally related medical treatments during the relevant time period, it should not be permitted to then use Workers’ Compensation Law § 123 with regard to such time. Accordingly, the determination must be modified by reversing so much as found that claimant’s 1997 claim was barred by the application of §123.” Prevailing party represented by: Brent M. Whiting of counsel to Hinman, Howard & Kattell (Binghamton) for appellant [32218-7799]
[ED. NOTE:] The Court added a footnote: “In its decision, the Board determined two separate claims of claimant, one of which this Court addressed March 15, 2012 in a companion claim (Matter of Runge v National Baseball League, 93 AD3d 1015 [2012]).” What is puzzling is that in the other claim, based on almost identical facts, the Board decided that §123 did not apply. Then again, knowing the Board, is that really so puzzling?
Bland v Gellman Brydges & Schroff February 14, 2013 NYS Appellate Division, Third Department Medical Variances «»3172…Medical Variances
REVERSED the Board’s ruling by finding that it improperly denied the pro-se claimant’srequest for a medical variance. A 1993 claim was transferred to the Special Fund for Reopened Cases (Fund) while a 2008 claim belonged to Travelers, with 50-50 apportionment. When both denied an October 2011 variance request by the claimant’s treating physician, a Law Judge approved the request. But the Board panel reversed, finding (1) that the record does not establish that claimant’s treating physician served upon the Board the MG-2 form requesting the variance in the same manner and on the same date that it was transmitted to the Special Fund and (2) that there was no evidence that claimant properly filed a request for review of the variance denials.
However, while both carriers concede that the MG-2 form was filed with the Board on October 14, 2011, they argued that the MG-2 form only identifies Travelers as the carrier and only references the second claim number. To the contrary, the record contains a copy of claimant’s MG-2 form, which refers to both claim numbers and had a stamp recorded at the top of the page indicating that is was received by the Board via fax on October 14, 2011, the same day it was faxed to both the Special Fund and Travelers. “Further, the fact that both carriers received the variance request is made evident by their denials of that request.” Also, the Board’s own files show that the request to review a denial of the variance was filed timely, despite the Board’s position it was not. The Court thus determined that, “As a result, the Board’s determination that there was “no evidence” that the variance request was served upon the Board or that claimant timely requested review of the denial is not supported by substantial evidence. … and the variance request should not have been denied on those grounds.” Prevailing party represented by: Sharon K. Bland, appellant pro se. [32217-7798]
ED. NOTE: In November 2012, this same claimant did lose her appeal on two other issues relating to her case, against these same carriers and attorneys. 2B206-7779
ED. NOTE: It is interesting to note that the most recent reforms to expedite medical treatment have resulted in an 8-month delay between the date claimant asked for a variance and the date the Board make its decision, based not on the potentially complex issue of medical need but the rather simple (to most of us) whether or not the date on the appeal was within a certain time period.
February 18, 2013: Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution
Wieneck v Bakery February 14, 2013 NYS Appellate Division, Third Department Latches «»7030…Latches
REVERSED the Board’s erroneous ruling that the carrier’s claim for reimbursement was not barred by the doctrine of laches. Claimant’s 1941 case was transferred to the Special Fund for Reopened Cases in 1959 while his 1952 and 1957 cases remained with Liberty Mutual Insurance Company; liability was apportioned equally among the three claims. Following his 2008 death, Liberty sought a reimbursement from the Fund for $194,876.83, representing one third of the cost of medical expenses incurred between May 1986 and August 2008. A law judge agreed with the Fund that laches applied to bar reimbursement as Liberty’s delay in seeking reimbursement prejudiced the Fund. Rejecting the laches defense altogether, the Board directed the Fund to audit expenses for which Liberty sought reimbursement, pay those expenses to which there was no objection and separately address each expense to which it objected, prompting this appeal.
The Court pointed out that “Board has applied the doctrine of laches to bar a claim for reimbursement under substantially similar circumstances (WCB No. 2882 6728, May 28, 2010). Absent an explanation for the Board’s apparent departure from its precedent on this point, the Board’s decision must be modified to permit the assertion of the laches defense here.”
As to the balance of the Fund’s argument, the Court stated that the Fund’s blanket objection of every bill is not proper. The bills should be audited and then, where appropriate, the Fund can object. “[W]hile laches ultimately may bar some or all of Liberty Mutual’s claim for reimbursement, such a determination cannot be made until the subject audit is complete and the Special Fund has articulated specific objections (such as lost or otherwise unavailable evidence) to the bills at issue. The parties’ remaining contentions, including Liberty Mutual’s assertion that the instant appeal is premature, have been examined and found to be lacking in merit.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent [32217-7797]
ED. NOTE: The Board’s failure to look at its own prior decision, like it failure to look at the Court’s decisions, creates unnecessary pain, delay and expenses for all parties (except those at the Board responsible) as noted in this week’s COMMENTARY.
Jarovic v Icon Restoration February 14, 2013 NYS Appellate Division, Third Department §29: 3rd Party/MVA liens «»3160…§ 29: 3rd Party/MVA liens
REVERSED the Board by finding that the Board improperly ruled that the carrier was entitled to a full credit against claimant’s third-party settlement recovery. The Court noted that (1) this Board panel decision in February 2011 was rendered before this same Court’s decision March 31, 2011 in the Matter of Stenson v New York State Dept. of Transp and (2) the Board has since changed its position to adhere to Stenson. Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for Icon Restoration & Contracting and another, respondents.[32217-7796]
ED. NOTE: This case exemplifies certain administrative ‘inadequacies’ at the Board. See this week’s COMMENTARY on this issue.
| — — JANUARY 2013 — — |
Cucinella v NYC Transit Auth January 31, 2013 NYS Appellate Division, Third Department §114-a: Fraud «»5130…§114-a: Fraud
AFFIRMED the Board’s ruling that pro-se claimant violated WCL §114-a, permanently disqualifying him from
receiving future wage replacement benefits. After receiving injuries in March 2000 as a bus driver, he was awarded benefits and, in July 2002, was found to be permanently partially disabled. In March 2006, the employer raised the issue of whether claimant had violated §114-a based upon its suspicions concerning possible underreported income by claimant and other questions regarding the ownership of a cleaning business allegedly operated by claimant’s wife. Following the submission of relevant tax returns and some of the requested records from the wife’s cleaning business, claimant ultimately admitted, among other things, that during the relevant time periods, he had been paid $200 per week by the business and was working 15 to 20 hours per week. Based on this and other facts, the Board found that the claimant “knowingly [made] a false statement or representation as to a material fact for the purpose of obtaining such benefits” and found that §114-a applied. Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman (Happauge) for New York City Transit Authority, respondent. [31215-7795]
►On March 24, 2011 this same Court dismissed claimant’s appeal from the October 2008 decision as moot (82 AD3d 1453 [2011])
Poulton v Griffin Mfg January 31, 2013 NYS Appellate Division, Third Department §114-a: Fraud «»5130…§114-a: Fraud
AFFIRMED the Board’s ruling that claimant did not violate WCL § 114-a. Claimant, working for the self-insured employer (SIE), reported that he sustained injuries to his back in July 1998 and March 2000. Although he did not pursue workers’ comp benefits for the 1998 incident, the 2000 incident resulted in a workers’ comp claim established in a September 2002 decision, a decision not appealed. In 2010, the SIE filed an application seeking a reopening and rehearing of the 2000 claim contending claimant allegedly violated WCL §114-a by concealing a prior 1979 motor vehicle accident, impermissibly “linked a time barred accident” allegedly occurring in July 1999 to the 2000 incident, and gave inconsistent accounts regarding the 2000 claim. A Law Judge found no credible evidence of fraud, affirmed by the Board which then denied the application to reopen.
The Court found that “the record evinces that claimant’s medical file included information pertaining to his 1979 motor vehicle accident, and Griffin acknowledged that the July 1999 accident date appearing on a few medical reports ‘was probably a typo’ meant to refer to the already-disclosed July 1998 incident.” Alleged inconsistent testimony “did no more than create ‘a credibility issue for the Board, the sole arbiter of witness credibility.’ Inasmuch as there is substantial evidence supporting the Board’s decision,” the Court affirmed the Board. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. [31215-7794]
Veeder v NYS Police Dept January 31, 2013 NYS Appellate Division, Third Department Causal Relationship: Death «»☻1020…Causal Relationship: Death
AFFIRMED the Board’s ruling that decedent’s death did not arise out of and in the course of his employment. After rejecting the Board’s first denial of the claim in 2011 (86 AD3d 762 [2011]) as it was unsupported by substantial evidence in the record and remitted it for further review, the Court has now determined the Board’s new decision to be affirmable. Decedent became depressed and committed suicide shortly after the employer began investigating inconsistencies in fiber proficiency tests performed by him. His wife, the claimant, had her application for death benefits initially denied upon the ground that the employer’s actions were taken in good faith and stemmed from “a lawful personnel decision involving a disciplinary action” (WCL §2(7). On review the Board found that the stress created by the investigation was not “greater than that which other similarly situated workers experienced in the normal work environment” as required by §2(7), a determination the Court now supported.Prevailing party represented by: Matthew R. Mead of Stockton, Barker & Mead of counsel to State Insurance Fund for NYS Police Department and another, respondents. [31215-7793]
LaDuke v Schenectady ComActProg January 31, 2013 NYS Appellate Division, Third Department §15(8)(e) 2nd Injury Fund «»3100…§15(8)(e) 2nd Injury Fund
REVERSED the Board by finding that the employer was not entitled to reimbursement from the Special Disability Fund per §15(8)(d). Claimant sustained back and shoulder injuries in May 2002 while assisting students exiting her employer’s bus. When the employer sought reimbursement from the Fund based on claimant’s preexisting diabetes and obesity, the Board agreed, finding the Fund liable. The Court reversed, finding “merit in the Fund’s contention that the employer failed to demonstrate that claimant’s preexisting conditions hindered her job potential. … Examining first the issue of claimant’s diabetes, the existence of that disease alone has not been held sufficient to establish a preexisting permanent condition that hinders employment for the purposes of WCL §15(8)(d). To the contrary, preexisting conditions that are controlled by medication have been found, without more, not to constitute a hindrance to employability.” Claimant stated unequivocally that she did not experience problems with her vision and that her peripheral neuropathy was not detected until June 2004. With regard to her obesity, claimant testified that she had always been heavy and it had never affected her ability to perform her job duties. In any event, claimant testified that she had never been diagnosed with a medical condition that caused her obesity, and there is no instance in which obesity, lacking a medical basis that would ensure permanency, has been found to be a preexisting condition. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. [31215-7792]
Messina v Hudson News January 31, 2013 NYS Appellate Division, Third Department 5Aggregate Trust Fund «»5250…Aggregate Trust Fund
AFFIRMED the Board’s decision which directed the carrier to make a deposit into the aggregate trust fund pursuant to WCL §27(2). The carrier appealed that decision to the Third Department with the result that the carrier was not required to make the deposit “during the pendency of an appeal to this Court from a Board decision directing such a lump-sum payment“. On February 10, 2011, the Court affirmed the Board (81 AD3d 1068 [2011]. When the carrier refused to make the payment affirmed by the Third Department because it, the carrier, was appealing to the Court of Appeals, the Board again ruled the carrier had to make the deposit, prompting this appeal to the Third. But as the Court of Appeals dismissed that appeal (17 NY3d 922 [2011]), the carrier has exhausted all appeals. Thus the Third Department “concluded] that the Board properly required the employer to make a deposit into the ATF based upon this Court’s prior decision, and its November 2011 decision requiring the employer to do so must be affirmed.”Prevailing party represented by: Justin S. Teff of counsel to the Law Offices of Ralph M. Kirk (Kingston ) for Anthony P. Messina, respondent. [31215-7791]
Fowler v Crouse Community Ctr December 27, 2012 NYS Appellate Division, Third Department § 23:Interlocutory Appeal «»7010…§ 23: Late/Interlocutory/Frivolous Appeal
DISMISSED an appeal of the Board’s decision as the Board’s ruling was unresolved pending a determination on permanency. Although the claimant had suffered work-related injuries with two different employers it was not yet determined by the Board if only one or both with some degree of apportionment were responsible. The Board then placed liability with Crouse’s carrier, pending a determination on the issue of apportionment. The carrier appealed and the Court dismissed the appeal on the grounds that “Board decisions which neither decide all substantive issues nor involve a threshold legal issue are not appealable. . . . Notably, our dismissal of this interlocutory appeal ‘will further the policy goal of avoiding piecemeal review of issues in workers’ compensation cases, without depriving the parties of the ability to appeal the apportionment percentages once they are finally determined.’” Prevailing party represented by: Charles L. Browning of counsel to State Insurance Fund, respondent. [2C210-7790]
Liebman v NYC Dept of Envtl Prot December 27, 2012 NYS Appellate Division, Third Department §13-b Medical Bills: Who Pays «»3170…§13-b Medical Bills: Who Pays
AFFIRMED AFFIRMED the Board’s ruling that the carrier must reimburse an out-of-network provider at the NYS rate, despite having given claimant ample notice to use its network provider. The Court noted that it had issued a similar decision in Rivera v North Central Bronx Hospital on December 13, 2012. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. [2C210-7789]
Silverman v NYS WCB December 20, 2012, 2012 NYS Appellate Division, Third Department §24-a Licensed Rep «»7115…§24-a
AFFIRMED, in a split decision, the Board’s declining to renew petitioner’s §24-a license to represent workers’ compensation claimants. Although Donna Silverman (hereinafter petitioner) had a license to practice before the Workers Comp Board as a nonattorney representative per WCL §24-a since 1983, at a 2011 oral interview for her renewal, the Board felt that the petitioner (1) lacked competent knowledge of the WCL and related regulations as well as (2) for her failure to properly disclose her partnership with her husband, petitioner Irwin Silverman. The majority of the Court agreed with the Board panel that conducted the interview that petitioner’s response to questions about a major case (American Axle) indicted a lack of understanding of the basic issues resolved by that case, cited in at least three adverse determinations issued to petitioner’s clients prior to her oral review. As a result the Court could not say, “given the potential impact to petitioner’s clients of the American Axle case, that her lack of familiarity therewith is inconsequential.” As to the second issue, the Court gave ”deference” to the Board’s determination that “petitioner failed to disclose a partnership relationship with Silverman as required by 12 NYCRR 302-2.3. . . . [C]ontrary to petitioner’s contention, the Board is not limited to the definition of partnership contained in the Partnership Law. In determining whether a partnership exists, no one factor is controlling, and the Board could properly consider the overall relationship between petitioner and Silverman.” “[W]e are therefore satisfied that the Board’s decision to deny renewal of petitioner’s license had a rational basis and was not arbitrary and capricious.” Justice Malone dissented, writing that “the questions were, without exception, poorly-worded and nonspecific, to the point of vagueness. Nevertheless, petitioner did accurately describe the measures that a claimant must take … Although her responses were not what the Board apparently sought, the unartfully-phrased, ambiguous questions posed to her did not elicit more detailed responses, and clearly did not establish that she lacked knowledge of either the WCL generally, or American Axle specifically. In fact, the questioning Commissioner’s response to petitioner’s correct answer was itself incorrect.” Next Malone explained in further detail why he thought the Board’s position on the ‘undisclosed’ partnership was both arbitrary and capricious. Prevailing party represented by: Paul Groenwegen of counsel to the NYS Attorney General, for WCB, respondent. [2C209-77885]
►ED.NOTE: The old adage “It is better to remain silent and appear stupid than the speak up and prove it” should be a prime directive for a number of current commissioners while at interviews or hearings, as it was for some of my colleagues in the past. And while it is nice to know that the Board has actually availed itself of its right, and responsibility, to not renew a §24-a license, something it almost always refused to do when I was at the Board, one can only hope this decision was done with the claimants in mind and not some personal invective of a Board member, possibly one who did not even sit on the panel. Unfortunately for every unqualified holder of a §24-a license there are probably an equal number of attorneys who appear regularly before the Board whose right to practice WCL should be revoked. Unqualified licensed reps and attorneys cast a shadow on the hundreds of practitioners who do an excellent job.
Sciame v Airborne Express December 20, 2012 NYS Appellate Division, Third Department Schedule Loss of Use issues «»5050…Schedule Loss of Use issues
AFFIRMED the Board’s decision that claimant was not entitled to a schedule loss of use award as he had previously been classified as with a permanent partial disability and award the maximum payment of $400 a week. Although all parties agreed that claimant had suffered an SLU of his left arm, the carrier argued that “concurrent payments for schedule and nonschedule awards may not exceed that maximum rate where the nonschedule award arises from a permanent disability.” The Court then wrote, “Contrary to claimant’s argument, there is nothing in the 2009 amendments to WCL §§ 15 and 25 that evinces an intent on the Legislature’s part to overturn our longstanding precedent capping the maximum amount of awards paid concurrently.” Prevailing party represented by: Michael J. Reynoldsof counsel to Weiss, Wexler & Wornow (NYC) for Airborne Express, Inc. and another, respondents. [2CB209-7787]
►UPDATE February 14, 2013: Sciame v Airborne Express (12/20/2012, App Div, 3d Dept, 101 AD3d 1419): Motion for leave to appeal denied by the Court of Appeals on February 14, 2013.
Giudi v New Paltz Fire Dept 3rd December 13, 2012 NYS Appellate Division, Third Department VFBL «»3200…VFBL
AFFIRMED the Board’s decision that the claimant’s condition had not improved since his classification. After the claimant, a chef and military police officer, suffered a head injury in the course of his duties as a volunteer firefighter, the Board established a permanent partial disability and that he had been deprived of more than 75% of his earning capacity, awarding benefits pursuant to VFBL §10(1). Several years later the employer unsuccessfully contented that claimant’s condition had changed (see VFBL §13). The Court agreed with the Board’s finding that claimant remains unable “to continue performing either the employment duties usually and ordinarily performed at the time of injury or those required by a reasonable substitute.” The Court also agreed that the Board’s reliance on medical evidence that claimant’s cognitive impairments continued to prevent him from working as a chef or military police officer provided ample justification for its finding that claimant continues to suffer from a disability that deprived him of more than 75% of his earning capacity. Prevailing party represented by: Marjorie S. Leff of counsel to Attorney General for Workers’ Compensation Board, respondent. [2C208-7786]
Laib v State Ins Fund December 13, 2012 NYS Appellate Division, Third Department Course of Employment: in and out of «»1100…Course of Employment: in and out of
AFFIRMED the Board’s decision that claimant sustained a compensable injury. Claimant alleged that she injured her right shoulder and elbow after repeatedly closing and pulling open the heavy front door of a building in which she worked during her five years of employment. After she began having problems with her right shoulder and elbow, she repeatedly complained to the security guards in the lobby about the heavy door. Claimant requested permission from her supervisor to use the handicapped-accessible door and gave him a note from her doctor supporting that request. In 2009 claimants sought surgery and a subsequent C-4 indicated the alleged causal relationship. A Law Judge then determined that claimant sustained an accidental injury from her employment as a result of repetitive trauma and awarded benefits. The Court “reject[ed] the employer’s contention that the record lacks proof of an unusual or extraordinary condition or event that could cause claimant’s accidental injury. In our view, being forced to negotiate heavy metal and glass doors connected to a tight spring in order to gain access to or leave your office building is ‘not the “’natural[ ] and unavoidabl[e]” result of employment’ as an office worker. Contrary to the employer’s argument, we do not agree that the testimony of claimant regarding her struggles with the door was contradicted, as a matter of law, by the testimony of claimant’s supervisor and the employer’s investigator.” Prevailing party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent. [2C208-7785]
Mangroo v Paramount Brands December 13, 2012 NYS Appellate Division, Third Department Untimely Submissions/Defenses «»7025…Untimely Submissions/Defenses
AFFIRMED the Board’s ruling that (1) State Insurance Fund (SIF) must reimburse One Beacon Insurance Company certain amounts, and (2) SIF’s request for reconsideration and/or full Board review (FBR) was denied. Two of the three of claimant’s injures (all for same employer) were covered by SIF, the third covered by Beacon. After finding a permanent partial disability, a Law Judge apportioned liability equally as to each of the three claims ($16,910) and directed that the respective carriers reimburse each other according to their proportionate shares of the award. SIF and One Beacon subsequently claimed that they each paid the entire sum due to claimant and, as a result, sought reimbursement from one another as to the asserted overpayment. After several hearing in which both carriers were given the opportunity to establish the amount claimed to be due and owing, a Law Judge directed SIF to reimburse Beacon $33,820 ($16,910 x 2). for its proportionate share of the prior award. SIF’s appeal, with additional documentation relative to the claimed overpayment, was rejected by the Board as untimely and it FBR request subsequently denied. The Court wrote that “Initially, inasmuch as SIF did not brief the denial of its application for reconsideration and/or full Board review, we deem its appeal in this regard to be abandoned.” As to the issue of overpayment, the Court agreed that the Board had offered SIF several opportunities to submit is documentation, ultimately making it decision on the documents timely submitted by Beacon. Prevailing party represented by: Michael H. Ruina of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Eber Brothers Wine & Liquor Corporation and another, respondents. [2C208-7784]
Rivera v North Cent Bronx Hosp December 13, 2012 NYS Appellate Division, Third Department 3170…§13-b Medical Bills: Who Pays «»3170…§13-b Medical Bills: Who Pays
AFFIRMED the Board’s ruling that the carrier had to pay claimant’s medical provider even if it was not the one chose by the carrier. The self-insured requested that, per WCL §13-a(7), the claimant go to its preselected medical provider for EMG tests. Instead, claimant went to her own doctor and carrier refused to pay. The carrier argued that the law “(a) permits self-insured employers, among others, to contract with a provider ‘to perform diagnostic tests, x-ray examinations, magnetic resonance imaging, or other radiological examinations or tests of claimants.’ If the requisite notice is given to a claimant (see Workers’ Compensation Law §§ 13-a [7] [b]; 110 [2]), the employer is further entitled to “require claimant to obtain or undergo such . . . tests with” the specified provider (Workers’ Compensation Law § 13-a [7] [a] [emphasis added]). There is no dispute that an EMG test is encompassed by the terms of Workers’ Compensation Law § 13-a (7). Also, none of the statutory exceptions applies, and claimant does not deny that she was given the proper notice requiring her to use the specific provider.” Nonethleless, the Board found that “The statute itself is silent on the question of the appropriate response where a claimant fails to use an employer’s specified provider, and nothing in the legislative history suggests that nonpayment is the appropriate remedy.” the Court “also note[d] that the employer did not argue before the Board that there would be any broader or indirect financial impact resulting from its paying the rate set with its specified provider to others, and no proof in the record before us supports that claim.” Hence the Board’s decision is affirmed. Prevailing party represented by: Terri E. Gerstein of counsel to the NYS Attorney General, for WCB, respondent. <[2C208-7783]
Alcott-Avery v Finger Lakes Reg December 6, 2012 NYS Appellate Division, Third Department C-250 Timely Filing «»3110…§15(8) Reimbursement Special Fund
AFFIRMED the Board’s ruing that the C-250 was timely filed. The carrier and claimant agreed to a stipulated settlement which included the fact that claimant suffered from a moderate to marked permanent partial disability. The stipulation was signed September 29, 2009 and the Law Judge approved it, incorporating it into a written decision filed on October 5, 2009. On October 2, 2009, four days after signing the stipulation but three days prior to the filing of the agreement by the Board, the carrier filed its C-250 seeking reimbursement from the Special Disability Fund per §15(8)(f). The Board ruled, and the Court affirmed, that “the determination of permanency” did not occur until the agreement was filed by the Board, not when it was signed, thus making the filing of the C-250 timely. Prevailing party represented by: Joseph P. DeCoursey Hamberger & Weiss (Rochester) for Finger Lakes Regional Health and another, respondents. [2C207-7782]
Miller v Joyful Farms December 6, 2012, 2012 NYS Appellate Division, Third Department §13-b Medical Bills: Who Gets Paid «»3170…§13-b Medical Bills: Who Pays
AFFIRMED the Board’s ruling that claimant’s wife should be paid for her services as a health care provider for her husband. His wife has provided needed care for him since his return home and, as such, claimant argued that she should be compensated pursuant to WCL §13(a). The Court determined that “The employer is responsible for claimant’s medical care and treatment, including nursing and home care services ‘performed by claimant’s spouse’. Substantial evidence in the record supports the Board’s finding that claimant’s wife in fact provides such services in addition to tasks she previously performed around their home. Indeed, she now devotes significant portions of her time to caring for claimant including, among other things, maneuvering him in and out of bed, assisting him with his personal hygiene, obtaining and administering his medication, and exercising his legs and feet. The Board properly determined that she should be compensated for those services and was free to value them by relying upon the prevailing health cost data provided by claimant, particularly in view of the employer’s failure to submit any evidence to call that data into question.” Prevailing party represented by: Genelle J. Bayer of counsel to Lekki, Hill, Duprey & Bhatt (Canton) for John D. Miller, respondent and Christopher Ronk of counsel of counsel to the NYS Attorney General, for WCB, respondent. [2C207-7781]
Anderson v Town of Oyster Bay December 5, 2012, 2012 NYS Appellate Division, Second Department Notice to employer «»1200…§18 notice to employer
AFFIRMED the lower court’s ruling that the injured worker (appellant) failed to timely file notice of this injury to the Town of Oyster Bay. Injured while working for a contractor hired by the Town, claimant did timely and successfully file his workers’ compensation claim. The Court determined that “the petitioner failed to establish that the Town of Oyster Bay acquired actual knowledge of the essential facts constituting the claim within 90 days after the subject accident or a reasonable time thereafter.” It then listed a number of conditions that had to be met for there to have been timely notice to the Town and ended its decision noting that the delay of more than eight months in making his claim “prejudiced its ability to investigate the alleged dangerous condition and to interview potential witnesses while their recollections were fresh.” [2C207-7780]
►Although this is not a WCL §18 notice case, it illustrates the need to timely file a claim and helps distinguish what is/are defined as proper ‘notice’.
| — —NOVEMBER 2012 — — |
Bland v Gelman, et al November 29, 2012 NYS Appellate Division, Third Department Causal Relationship: Aggravation or New Medical Billing «»1135…Causal Relationship: Aggravation or New;5205…Medical Billing
AFFIRMED the Board’s decisions that (1) denied the pro-se claimant’s request to amend claim to include additional causally-related injuries, (2) the Law Judge erred by not allowing the carrier to question claimant about her attachment to the labor market, and (3) the carrier was not responsible for claimant’s out-of-state travel expenses. As to the medical issues, the Court, as is its practice, gave “deference to the Board’s assessment of a witness’s credibility, especially when presented with conflicting medical opinions, we find that substantial evidence exists to support that decision, even though there is record medical evidence that would support a contrary result.” While the carrier did have an obligation to pay for out-of-state treatment in Colorado (at WCB rates), it did not have to provide for travel expenses to Colorado as there were several doctors in Western NY (where claimant lived) who could provide the same diagnostic testing and surgical treatment. As to the issue of the carrier’s opportunity to cross-examine her regarding her attachment to the labor market, the Court determined that the issue was not properly before the Court. Prevailing party represented by: Renee E. Heitger of counsel to Hamberger & Weiss (Buffalo) for Gellman, Brydges & Schroff and others, respondents, and represented by: Jill B. Singer of counsel to Special Fund for Reopened Cases, respondent. [2B206-7779]
Brzezinski v Gambino November 21, 2012 NYS Appellate Division, Third Department Employment: Who is «»3030…Employment: Who is or dual
AFFIRMED the Board’s ruling which (1) ruled that claimant was not an employee and (2) denied her request for a Full Board Review (FBR). After being interviewed for the position of live-in housekeeper, claimant left the alleged employers’ home and fell in their yard, receiving several injuries. She claimed that she was an employee at the time of the accident but the alleged employers reported that she was still in the interview process for the position. Specifically, claimant did not yet show proof of a driver’s license, a job requirement, and there was no discussion of a specific salary or the duration of the job. While Gambino gave claimant money from her wallet after driving her home from the hospital, Gambino stated that she did so because she felt badly about claimant’s injury. The Court wrote in its decisions that, “Gambino’s testimony, which was credited by the Board, provides substantial evidence to support the determination that no employer-employee relationship existed, even though claimant’s testimony, if credited, could constitute substantial evidence in support of a compensable injury.” Claimant then sought FBR, contending that her injury was compensable based upon her performing hazardous work during a tryout period but, as this was not raised before the WC Law Judge, the Board was not required to consider it, a decision that was “neither arbitrary or capricious.” Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weissman (Hauppauge) for Greenhouse Agency Ltd. and another, respondents and Prevailing party represented by: Amy Levitt of counsel to Fischer Brothers (NYC) for Chubb Group of Insurance Companies, respondent.[2B205-7778]
Morin v Town of Lake Luzerne November 21, 2012 NYS Appellate Division, Third Department Apportionment: Awards, SLU«»3075…Apportionment: Awards, SLU
REVERSED the Board’s ruling by ruling that apportionment did not apply to an earlier non-WC injury. Following a 2009 back injury, claimant was awarded compensation. A Law Judge then determined that the award should be apportioned 50% to the 2009 work-related injury and 50% to a 2004 non-work-related back injury. The Court noted that, “apportionment is inapplicable as a matter of law when the preexisting condition was not due to a compensable injury and the claimant was fully employed and capable of effectively performing his or her job duties notwithstanding the preexisting condition; apportionment applies ‘only in cases where the prior condition constitutes a disability in a compensation sense.’ ” The claimant was out of work for several months after his 2004 injury but underwent a comprehensive preemployment physical examination prior to commencing his employment as a mechanic with the Town of Lake Luzerne in 2005. Claimant was thereafter employed full time and was able to fully perform his job for more than four years before the September 2009 work-related injury. The Town’s medical expert opined, and the Board incorrectly agreed, that apportionment was appropriate due to the similarity of the symptoms and pathology of the 2004 and 2009 injuries, but the Court noted that “the dispositive issue is not whether a claimant’s preexisting condition was symptomatic but, rather, whether such condition was disabling.” As it was not, the Board’s decision to apportion claimant’s workers’ comp award was unsupported and was thus reversed. Prevailing party represented by: Alex C. Dell of counsel to Law Firm of Alex C. Dell (Albany) for appellant. [2B205-7777]
Anton v West Manor Constr November 20, 2012 NYS Appellate Division, First Department §11: Grave Injury «»3010…§11: Grave Injury
Among the many issued decided by the Supreme Court in the underlying appealed-from decision, that Appellate Court denied West Manor and Bradhurst’s claims for common-law indemnification and contribution as against Tiegre, the injured plaintiff’s employer, finding that plaintiff did not sustain a grave injury within the meaning of WCL §11. Plaintiff’s bill of particulars, deposition testimony, and medical records, and the independent medical examination reports indicate that, while plaintiff may have been unable for a time to work in his chosen profession, his disability was caused by his neck and shoulder injuries, not by “an acquired injury to the brain” the only potentially applicable category of grave injury under WCL §11. The daily headaches and frustrating loss of focus from which plaintiff testified he suffered do not satisfy the acquired brain injury standard. [2B205-7776]
Cambridge Integrated Servs v Faber November 20, 2012 NYS Appellate Division, Third Department §29: 3rd Party/MVA liens «»3160…§29: 3rd Party/MVA liens
AFFIRMED the NY County Supreme Court order which denied the motion of defendants Faber and his law office Law for summary judgment, dismissing the complaint. In 2000, defendant Pressley, a New York City resident, was injured in a truck accident in Connecticut during the course of his employment with nonparty Cobra Express, which is located in New Jersey. Fremont, the workers comp carrier for Cobra Express, paid Pressley New Jersey workers’ comp, making the last payment to Pressley in 2002. A few days after the accident, Pressley retained nonparty Paul A. Shneyer, Esq., to bring a personal injury lawsuit for injuries he sustained in the accident. When Shneyer failed to timely commence an action, Pressley, represented by Faber, successfully brought a malpractice action against Shneyer, settling the case against Shneyer in December 2008. In March 2009, plaintiff, the administrator for Fremont, commenced the instant action to enforce a lien against the settlement proceeds. The Faber defendants maintain that under Matter of Shutter v Phillips Display, New Jersey cases holding that workers’ comp liens attach to legal malpractice recoveries do not apply in this case because the malpractice recovery did not duplicate the medical payments and lost wages Pressley received under workers’ comp. The Appellate Court found this argument unavailing. Pursuant to a June 2010 order from which the Faber defendants did not appeal, New Jersey law applies to the merits of plaintiff’s claims and thus New York law regarding double recoveries is inapplicable. Under New Jersey law, a double recovery “occurs when the employee keeps any workers’ compensation benefits that have been matched by recovery against the liable third person“, rendering irrelevant whether the settlement of the legal malpractice action included medical expenses and lost wages. The Court noted that, even if New York law applied, the settlement did not specify what it was for and therefore, the Court could not conclude that no part of it was for medical expenses and lost wages. Also, defendants’ argument that the application of New Jersey law in this case violates New York public policy because Pressley is a New York resident fails because although defendants have shown that New York and New Jersey law differ on this issue, they have not satisfied the stringent test for rejecting New Jersey law as against New York public policy. [2B205-7775]
Flynn v Managed Care November 8, 2012 NYS Appellate Division, Third Department Aggregate Trust Fund «»5250…Aggregate Trust Fund
AFFIRMED the Board’s decision that carrier’s refund from the Aggregate Trust Fund (ATF) should not include a credit for interest charged. Rather than making the directed deposit in 2001 for $225,231 into the ATF, the carrier paid the claimant directly while appealing the deposit to the Board and the Court. After losing that appeal in 2010, the Law Judge ordered the carrier to make the $225K payment less a deduction of $182,000 for direct payment to the claimant, plus interest that would have accrued on the deposit. The net refund was $64,540. The carrier appealed seeking an adjustment for the interest but the Board and Court ruled against the carrier. “The original deposit reflected an actuarially-discounted sum that assumed that the ATF would earn interest on the $225,231.58 deposit from the commutation date forward. Instead, the carrier retained use of those funds for more than eight years . . . To now relieve the carrier of paying interest from the commutation date forward would result in a windfall to the carrier, and would also result in the ATF having insufficient funds available to cover the projected life expectancy of the remaining beneficiary.” Prevailing party represented by: Nancy Wood of counsel to NYSIF for for Aggregate Trust Fund, respondent.[2B203-7774]
Griffin v Town of Dewitt November 8, 2012 NYS Appellate Division, Third Department Voluntary Withdrawal «»5110…Voluntary Withdrawal
AFFIRMED the Board’s decision that claimant had involuntarily retired. After claimant received workers comp for a back injury, he required back surgery for his condition in 2009 and missed several months of work, but returned to work without restrictions. Nevertheless feeling that he could no longer perform his duties, claimant retired when he became eligible for Social Security retirement benefits in 2010 and sought a continuing award of lost time benefits. After the carrier contended his withdrawal was voluntary, the Law Judge agreed despite finding that claimant’s injuries constituted a permanent partial disability. A Board panel reversed, finding that claimant had involuntarily retired, awarding continuing benefits. The Court agreed finding, “Claimant testified that he had no intention of retiring for several more years, but found himself physically unable to perform the work demanded of him despite informal accommodations made by his supervisor and coworkers. While his doctors did not specifically advise him to retire, they were unenthusiastic about his returning to work after surgery and supported his eventual decision to retire. Indeed, his chiropractor ordered him to stop working before his actual retirement date, and his orthopedic surgeon stated in no uncertain terms that he would not ‘return to work activity’ due to his disability.” Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.of counsel to the NYS Attorney General, for WCB, respondent[2B203-7773]
Martinez v Lefrak City November 8, 2012 NYS Appellate Division, Third Department §114-a: Fraud «»5130…§114-a: Fraud
AFFIRMED the Board’s decision that claimant committed fraud per §114-a, stopping further benefits. Claimant, working as a porter as well as pursuing a career as a professional boxer, took part in a July 30, 2004 featherweight boxing match at the Mohegan Sun Casino. Casino records and hospital reports show that, during the match, claimant sustained an injury to his left bicep, diagnosed on August 4, 2004 as a complete tear of the left bicep after which he as told that surgery would be necessary to repair it. Nonetheless, claimant returned to his duties as a porter and, on August 18, 2004, reported that he injured his left arm while moving garbage bags, was taken to the hospital and, on August 20, 2004, underwent left bicep surgery. Citing the August 18 injury, claimant filed for workers’ comp, getting a 30% SLU. The carrier raised the issue of whether claimant filed a false claim for benefits and/or misrepresented the extent of his injury by failing to disclose the prior July 30 injury to any of the medical providers who examined him following the claimed August 18 injury. The Board concluded that, while the record sufficiently showed that he sustained a work-related accident on August 18, the proof also supported a finding of a §114a violation “based on the claimant’s denial of a prior left arm injury to the multiple medical providers and consultants.”, thus disqualifying him from comp awards but still granted medical benefits. Consequently, it was determined that, while claimant would still be entitled to medical benefits, he was disqualified from receiving a schedule loss of use award. Prevailing party represented by: Alison Kent-Friedman of counsel to the NY State Insurance Fund for LeFrak City Management and another, respondents. [2B203-7772]
Torres v Kaufmans Bakery November 8, 2012 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund «»3110…§15(8) Reimbursement Special Fund
AFFIRMED the Board’s ruling that the carrier is entitled to reimbursement from the Special Disability Fund (Fund). After claimant developed bilateral carpal tunnel syndrome and flexor tenosynovitis that became disabling in 2005, his claim for work comp benefits was established and eventually classified with a permanent partial disability. He subsequently obtained WC benefits for a 2004 back injury that was determined to be permanent. The carrier’s application for reimbursement from the Fund per WCL §15[8][d] was approved. The Fund’s sole argument upon appeal is that claimant’s back injury did not constitute a prior permanent impairment that hindered his ability to work. While claimant did not limit his work duties with the employer as a result of the back injury, the record reveals that his employer’s business closed and claimant was laid off a few days after it occurred. Claimant testified that the condition played a role in his subsequent job search, and the medical evidence in the record reflects that the injury was disabling and significantly restricted the type of work he could perform. Several doctors opined that the disability stemming from the back injury was permanent, and one stressed that the back injury enhanced claimant’s overall disability. Substantial evidence thus supports the Board’s determination that claimant had sustained “a preexisting permanent physical impairment which was or was likely to be a hindrance or obstacle to employment within the scope of the statutory provision.”. Prevailing party represented by: Karen M. Darling of counsel to Hamberger & Weiss (Buffalo) for Kaufman’s Bakery and another, respondents. [2B203-7771]
Ward v General Utils November 8, 2012 NYS Appellate Division, Third Department §44 App’t Dust Diseases «»3182…§44 App’t Dust Diseases
AFFIRMED the Board’s decision that claimant sustained a work-related occupational disease (WROD) and awarded benefits. Claimant, employed as an oil burner mechanic for over 40 years, when, in March 2007, he claim for a WROD. Ultimately, a Law Judge determined that, based upon an IME, claimant suffered from asbestosis with a date of disablement of May 17, 2006 and determined that, per WCL §44-a, claimant experienced the last injurious exposure to asbestos during his employment with Astro Fuel Service Company, generating this appeal. Here, claimant testified that Astro was the last employer for which he worked prior to his date of disablement, that he had been exposed to asbestos while so employed and that, despite performing some work on his own after leaving Astro, he had not been exposed to asbestos. While a representative of Astro testified that claimant was not exposed to asbestos during his employment there, credibility determinations and the resolution of conflicting evidence are within the exclusive province of the Board Thus, despite the existence of evidence that would have supported a contrary conclusion, the Board’s decision is supported by substantial evidence.”. Prevailing party represented by: Peter M. DeCurtis of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for General Utilities and another, respondents and Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for Bright Burner Service and another, respondents. [2B203-7770]
| — — OCTOBER 2012 — — |
Lama v SPK Rest October 25, 2012 NYS Appellate Division, Third Department
Employment: Who is «»3030__Employment: Who is or dual
REVERSED the Board and Law Judge both of whom ruled claimant worked for SPK d/b/a Wall Street Grille. The claimant stated he had worked for Mr. Gelestathis and, in the wake of the September 11, 2001 terrorist attacks, had cleaned up debris outside restaurant in a building located at 325 Broadway, allegedly a single story building in which was located Empire Restaurant. But the record showed that(1!) 325 was a multi-story building, (2) 325 never had a restaurant named Empire located there, (3) Empire was located on a one story building at another location, (4) Gelestathis had sold his restaurant at 325 Broadway to SPK in 2000, and (5) claimant did not identify either the 5 Star Deli & Restaurant or the Wall Street Grille as the restaurant located at 325 Broadway. The Court found that ,contrary to the Board’s determination that claimant’s statement of his employment at SPK was insufficient to find employment, the fact remains that there was nothing in the record to support a finding that claimant was employed by SPK. Prevailing party represented by: Charles L. Browning of counsel to the NY State Insurance Fund, appellants. Commissioners of Record: Lower, Finnegan, Foster WCB #0064 6247[2A201-7765]
Suburban Restoration v NYS Comptroller October 18, 2012 NYS Appellate Division, Third Department Is NYSIF Private or Public?9998…Other
The Appellate Court affirmed the right of the New York State Insurance Fund (NYSIF) to ask another state agency to withhold payment to that other agency’s contractor on the grounds that NYSIF had a valid default judgment against that contractor. Essentially, the respondent, the Controller’s Office argued that, if a claimant is owed money by a state agency but also owes money to the same or another state agency, respondent may subtract and withhold the money owed to the state from the money owed by the state, thereby facilitating the collection by the state of money it is due. Petitioner argues that SIF is more akin to a private insurance company than a state agency, rendering it improper for respondent to exercise such authority.The Court opined that although SIF is treated like a private company for some limited purposes and has some measure of separate identity from the state, the Court of Appeals has held that “SIF was created and exists as a [s]tate agency”and is “a [s]tate agency for all of whose liabilities the [s]tate is responsible” (id. at 374). As SIF is a state agency, respondent had the authority to exercise its right to offset money owed by petitioner to SIF against money owed to petitioner by other agencies. Hence, respondent did not abuse its discretion, and the determination was not arbitrary, capricious or affected by an error of law. [2A200-7764]
| — — SEPTEMBER 2012 — — |
NY Hosp Med of Queens v Microtech
September 26, 2012 NYS Appellate Division, Second Department §11: Jurisdiction «»3005…§11: Jurisdiction
AFFIRMED a motion to dismiss a an action for contribution and indemnification because the injured workers were allegedly undocumented aliens. When the allegedly undocumented aliens, employees of a subcontractor, the defendant, were injured, they sued the owners of the property, the plaintiffs, for damages relating to their injuries predicated upon violations of the Labor Law. After the plaintiff commenced this separate action seeking contribution and indemnification from defendant, the Supreme Court approved defendant’s motion to dismiss the complaint on the ground that the plaintiffs claims for contribution and indemnification were barred by WCL §11. The plaintiff did not allege that it was entitled to contribution or indemnification pursuant to a written contract, or that the subject employees suffered a grave injury. Rather, they asserted that the defendant failed to verify the immigration status of the subject employees and that this failure constituted a violation of the Immigration Reform and Control Act of 1986 (8 USC § 1324a; hereinafter the IRCA). The plaintiff contended that this violation should result in the loss of protections provided to employers under the WCL and that the subject motion should therefore have been denied.After a detailed analysis of the legislative, and humanitarian, aspects of the IRCA and the NYS WCL, the Court wrote that “The IRCA does not contain an explicit statement that Congress intended to preempt state laws such as New York’s WCL. To the contrary, the legislative history of IRCA shows that the Act was not intended to undermine or diminish in any way labor protections in existing law. Moreover, nothing in the relevant provisions of the WCL seeks to impose ‘civil or criminal sanctions . . . upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens’. To accept the defendant’s contention would not only effectively deny defendant the economic protections it acquired under WCL §11 in return for providing the subject employees with compensation for their injuries, but it would relieve the defendant of its responsibility to ensure a safe construction site for workers under the Labor Law. Such results would not be consistent with the legislative intent behind these statutes, which are designed to strike a balance between the needs of business and the importance of the welfare of workers. We conclude that the IRCA does not preempt the applicable provisions of the WCL and that the violations of the IRCA alleged here do not abrogate the protections provided to Defendant by WCL § 11 from third-party claims for contribution and indemnification. [2A198-7763]
Johnson v Del Valle September 28, 2012 NYS Appellate Division, Fourth Department Course of Employment: in and out of «»1100…Course of Employment: in and out of
REVERSED the Supreme Court order that granted the motion of defendant for summary judgment and dismissed the complaint on the grounds that the plaintiff raised a triable issue of fact “whether the actions of defendant were within the scope of his employment by submitting evidence that defendant’s conduct was neither common nor condoned” in their workplace. Plaintiff commenced this action seeking damages for injuries he sustained at work when defendant, plaintiff’s coemployee, allegedly threw a baseball that struck plaintiff’s face. Defendant moved for summary judgment dismissing the complaint on the ground that workers’ compensation is plaintiff’s exclusive remedy. The Appellate Court ruled that Workers’ compensation is the exclusive remedy of an employee injured “by the negligence or wrong of another in the same employ” WCL §29[6]). “[T]he words in the same employ’ as used in the Workers’ Compensation Law are not satisfied simply because both plaintiff and defendant have the same employer; a defendant, to have the protection of the exclusivity provision, must . . . have been acting within the scope of his [or her] employment and not have been engaged in a willful or intentional tort,” a fact yet to be proven. [2A198-7762]
Braasch Constr v NYSIF
September 28, 2012 NYS Appellate Division, Fourth Department Late Notice to Carrier «»9998…Other
The issue on this appeal is whether the plaintiff Donald Braasch Construction (DBC) had a good-faith and reasonable belief that its Workers’ Compensation and Employers’ Liability Policy with defendant did not cover the accident and resultant litigation. Although the accident in question occurred in 1994 and, in April 1995, the personal injury plaintiffs commenced that lawsuit DBC. It is undisputed that DBC did not notify defendant of the accident or the personal injury lawsuit until May 1997, at which time defendant disclaimed coverage on the ground that the notice was untimely. Plaintiffs moved for summary judgment seeking a declaration that defendant must reimburse plaintiffs for part of the settlement. Counterclaims were made to the effect that while formal notice had not been given, informal notice had been. As such the Court determined that there are triable issues of fact whether DBC’s belief in noncoverage was reasonable. [2A198-7761]
Drummond v NYC Employees’ Retirement Sys September 26, 2012 NYS Appellate Division, Second Department Disability: Degree of or R/E «»5020…Disability: Degree of or R/E
AFFIRMED the Supreme Court, Kings County, decision that the decision by the Medical Board of the New York City Employees’ Retirement System (hereinafter the Medical Board) to deny the petitioner’s application for disability retirement. The Medical Board) determines whether a member applying for disability retirement is disabled. The Board of Trustees of the New York City Employees’ Retirement System (hereinafter the Board of Trustees) is bound by a Medical Board finding that an applicant is not disabled for duty. Both Courts agreed that “The Medical Board’s determination is conclusive if it is supported by ‘some credible evidence’ and is not ‘arbitrary or capricious.’” In addition the Appellate Court added that “Contrary to the petitioner’s contention, the finding by the Workers’ Compensation Board and the Social Security Administration that he is disabled was not binding on the Medical Board.” [2A198-7760]
[ED. NOTE:]There are also a number of cases in which the Courts have affirmed that the reverse is also true: The finding of the Medical Board and the Social Security Administration regarding the status of an injured worker is not binding on the Workers’ Compensation Board
Brennan v Village of Johnson City September 27, 2012 NYS Appellate Division, Third Department §114-a: Fraud «»5130…§114-a: Fraud
AFFIRMED the Board’s decision that, due to a 2002 finding of §114-a fraud, the pro-se claimant was permanently disqualified from receiving wage replacement benefits. Claimant had his 1995 claim established for injury to his back. In 2002, the Board found that claimant violated WCL §114-a, assessing a penalty of permanent disqualification from wage replacement benefits. Although in 2010 the claim was expanded to include both hips, the claimant’s attempt to have the previously imposed penalty lifted on this basis was denied. The Court agreed with the Board that, “. . . inasmuch as claimant did not appeal from the Board’s 2002 decision regarding his violation of §114-a, . . . the time to do so has long since passed, any arguments raised with regard to that decision and the penalty imposed are not properly before us.” The Court also noted that the law does not require the penalty be reviewed and, although the Board has the discretion to do so, the Court will not question that decision absent the showing of abuse of that discretion. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee . of counsel to the Special Funds Conservation Committee WCB 9960-0052 [29197-7759]
Siddon v Advance Energy Tech September 27, 2012 NYS Appellate Division, Third Department
§114-a: Fraud «»5130…§114-a: Fr
AFFIRMED the Board’s decision that, the pro-se claimant was permanently disqualified per §114-a from receiving wage replacement benefits. Claimant in 2006 filed her claim for back injuries, testifying that she had never been treated by a physician for any back pain or injuries and had never missed any work due to back pain prior to her 2006 injury. Although her medical records reflect several complaints of back pain and treatment for back injuries between 1993 and 2006, resulting in numerous missed days from work, her later testimony that she did not recall the injuries or the missed time from work when she initially testified rebutting in an award of compensation by a Law Judge. The Board, on appeal, found that the claimant had violated Workers’ Compensation Law § 114-a by failing to reveal her prior back injuries. The Court ruled that “The Board’s determination as to whether a claimant has made a material misrepresentation in violation of Workers’ Compensation Law § 114-a will not be disturbed if supported by substantial evidence.” Prevailing party represented by: John B. Paniccia of counsel to Stockton, Barker & Mead (Albany) for Advance Energy and another, respondents Commissioners of Record: Bargnesi, Libous, Finnegan WCB #5070 4239 [29197-7758]
Roberts v Waldbaums
September 27, 2012 NYS Appellate Division, Third Department Causal Relationship: Death «»1020…Causal Relationship: Death
AFFIRMED the Board’s ruling that the death of claimant’s husband was causally related to his employment. Decedent, a receiver at a grocery store, was reassigned on Super Bowl Day to be the acting store manager. At approximately 7:00 P.M., decedent collapsed to the floor of the store and soon after died. Although the Law Judge found no causally relationship, the Board reversed and established the claim. The Court noted that the Board not only relied on the presumption under §21 but also determined that despite the amount of evidence supported by the claimant’s and carrier’s expert, but it also determined that the preponderance of evidence supported the causal relationship.. Prevailing party represented by: Patrick M. Conroy of counsel to Polsky, Shouldice & Rosen (Rockville Centre) for Colleen Roberts and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #023 2436[29197-7757]
Mucci v NYS Dept of Corr
September 27, 2012 NYS Appellate Division, Third Departmen §25-a: True Closing «»3140…§25-a: True Closing
AFFIRMED he Board’s ruling that liability shifted per WCL §25-a to the Special Fund for Reopened Cases. Claimant, who had a 11996 injury to his left knee requiring surgery, returned to work in May 1997. IN February 1998, a Law Judge found no evidence of permanency and closed the case. In July 2009, claimant re-injured his left knee in a non work-related incident that required further surgery. Claimant raised issues of scheduled loss of use and permanency in September 2010 and the carrier thereafter successfully requested that liability for claimant’s 1996 case shift to the Fund. Here, the Board’s determination that the case was truly closed in 1998 is supported by evidence in the record. At that time, claimant had returned to work, had no further compensable lost time, no further payments of compensation were made and no further proceedings were contemplated. While the Fund contends that a medical report from June 1997 — which indicates that at some point it is to be expected that claimant will have arthritic changes to his knee — is proof that the case was not closed, the Court noted that “[t]he existence of the employer’s potential liability for future treatment, or the possibility that the claimant’s condition could deteriorate resulting in the case reopening, does not mean that the matter was not fully closed.” Prevailing party represented by: Charles L. Browning of counsel to NYSIF for New York State Department of Corrections and another, respondents Commissioners of Record: Ferrara, Libous, Williams WCB #5970 1529 [29197-7756]
Nanni v Source Corp September 27, 2012 NYS Appellate Division, Third Department §25-a: True Closing «»3140…§25-a: True Closing
AFFIRMED The Board’s ruling that liability shifted per WCL §25-a to the Special Fund for Reopened Cases. After suffering in January 2003 from work-related right carpel tunnel syndrome and right thumb injury and being awarded benefits, claimant underwent surgery on her right hand and, shortly thereafter, returned to her regular employment duties. In 2004, claimant was awarded a 7.5% schedule loss of use (SLU) of her right hand, and medical treatment and care was authorized, as needed, with no further action to be taken by the Board. Final payment for that SLU award was made in August 2004. In 2006, claimant was approved for additional surgery on the right hand and again resumed employment without restrictions and was referred to physical therapy. In March 2008, the case was reopened and directed to travel with an associated and controverted claim for a 2006 work-related right elbow injury. On August 4, 2008, the Board, although noting that there is a possibility of permanency based upon the nature of the injury, found insufficient evidence of any such disability and closed the case based upon prior findings with no further action planned. In July 2010, when the case was reopened to consider an increased schedule loss of use or permanency to claimant’s right hand, the carrier requested liability be shifted to the Fund per §25-a. A Law Judge found a 25.2% SLU, awarded benefits and discharged the Fund. On appeal, a Board panel, finding that the case was truly closed by decision on August 4, 2008, shifted liability to the Fund. Here, although the Board acknowledged the possibility of permanency in the August 4, 2008 decision, “[t]he fact that a ‘claimant’s condition may change or worsen in the future’ does not preclude a finding that the claim is truly closed.” The only potential issue following the August 4, 2008 decision was whether an SLU increase would arise in the event that claimant’s condition worsened. The record established that no issue of increased SLU or permanency was raised after her 2006 surgery until the Board received the medical opinion of claimant’s physician on May 14, 2010. the Curt determined that the Board’s decision that the case was truly closed by the August 4, 2008 decision was supported by substantial evidence. Prevailing party represented by: Jason M. Carlton of counsel to Gitto & Niefer (Binghamton) for Source Corporation and another, respondents Commissioners of Record: Lower, Libous, Foster WCB #9030 4128[29197-7755]
Hollis v Morelli Masons
September 27, 2012 NYS Appellate Division, Third Department §23: Late/Interlocutory/Frivolous Appeal «»7010…§23: Late/Interlocutory/Frivolous Appeal
DISMISSED a claim because the Board’s decision is interlocutory in nature and does not dispose of all substantive issues or reach threshold legal issues that may be determinative of the claim and, therefore, is not properly the subject of an appeal. WCB #0001 0425[29197-7754]
Sola v Corwin September 27, 2012 NYS Appellate Division, Third Department
Schedule Loss of Use issues «»5050…Schedule Loss of Use issues
AFFIRMED the Board’s ruling finding a schedule loss of use (SLU).and awarded workers’ compensation benefits. Although the carrier’s IME did an exam as directed, the late filing of the report resulted it its preclusion per WCL §137. The Court determined that the preclusion was correct and that the Board’s determination on the SLU issue was supported by substantial evidence even if the only medical evidence before it was that of claimant’s treating physician. Prevailing party represented by: Davin Goldman of counsel to Klee & Woolf (Mineola) for Miguel Sola and Iris A. Steel of counsel to the NYS Attorney General, for WCB. Commissioners of Record: Lower, Finnegan, Foster WCB #2070 3406[29197-7753]
Beth V v NYS Off of ChildrenFam Svcs Septmber27, 2012 NYS Appellate Division, Third Department §29: 3rd Party/MVA liens «»3160…§29: 3rd Party/MVA liens
AFFIRMED the Board’s ruling that the workers’ comp carrier can take credit against claimant’s third-party settlement recovery. As the result of a physical assault while working at a juvenile detention center, her case was established for physical injury, posttraumatic stress disorder and rape; she was classified with a permanent partial disability; and she was awarded workers’ compensation benefits. A subsequent suit in federal Court was ultimately settled for $650,000. After the comp carrier waived any lien for benefits already paid but reserved its right under WCL §29 to take a credit for future benefit payments against claimant’s net recovery, claimant challenged the carrier’s right to take such a credit, arguing that the offset provisions of §29 do not apply to her settlement proceeds. Although a Law Judge agreed, a Board panel reversed. The Court noted that, “When a claimant obtains recovery in a civil action for the same injuries that were the predicate for workers’ compensation benefits, the carrier has a lien against any recovery . . . even where the action is brought against an employer or a co-employee.” Since the claim and settlement supported the Board’s conclusion that the injuries for which claimant recovered in the settlement were the same injuries for which workers’ compensation benefits were awarded, the carrier is entitled to a credit against the settlement recovery.. Prevailing party represented by: Thomas A. Phillips of counsel to NYSIF for New York State Office of Children & Family Services and Jill B. Singer of counsel for Special Funds Conservation Committee. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5050 1070[29197-7752]
Rodriguez v New Sans Souci September 27, 2012 NYS Appellate Division, Third Department §29: 3rd Party/MVA liens «»3160…§29: 3rd Party/MVA liens
AFFIRMED the Board’s ruling that suspended claimant’s workers’ comp benefits pending proof that the employer’s workers’ comp carrier consented to the settlement of claimant’s third-party action. Based on a May 9, 1999 accident, claimant was awarded benefits and two surgeries resulting in his 2005 classification with a partial disability and continuing payments. Thereafter, the carrier requested further action to determine if claimant settled an action against a third party in 2001, without consent, that involved an alleged May 6, 1999 work-related injury to his back, which, according to the carrier, included compensation for surgery and medical treatment that he received in connection with his May 9, 1999 workers’ comp claim. A Law Judge suspended any further comp payments, directing claimant to produce proof of consent to settle the third-party action. Here, the record establishes that claimant utilized medical bills and treatment pertaining to the May 9, 1999 injury claim in connection with the settlement of his claim regarding the alleged May 6, 1999 incident. Under these circumstances, and given that “[a] substantial part of the legislative purpose and intent of Workers’ Compensation Law § 29 . . . is to prevent double recovery”, the Court wrote that it would not disturb the Board’s finding that claimant must produce evidence of a nunc pro tunc order or of the carrier’s consent to the settlement of the third-party action. Prevailing party represented by: Sarah A. Thomas of counsel to Jones Jones (New York City) for New Sans Souci, N.H. and another, respondents Commissioners of Record: Lower, Finnegan, Foster WCB #0993 0278 [29197-7751]
Murphy v Riverside Gas & Oil September 27, 2012 NYS Appellate Division, Third Department 3100…§15(8) «»3100…§15(8)
REVERSED the Board’s ruling that the comp carrier is entitled to reimbursement from the Special Disability Fund (Fund). In 2004, after 20 years as a truck driver, claimant applied for benefits based upon pain in his right shoulder and rotator cuff that was the result of traveling “over many miles for years of work.” His claim was established with a date of injury of October 7, 1998 and a date of disability of August 4, 2004 and he had surgery on his rotator cuff in 2007. The carrier sought reimbursement from the Fund under WCL §15(8) due to, among other things, preexisting right shoulder problems Although conflicting information was given by both the claimant’s and carrier’s medical experts, the Board granted the application. In reversing the Board, the Court wrote, “Based upon our review of the record, there is not sufficient evidence to determine whether claimant’s subsequent condition was “separable from the prior pre-existing permanent condition and not merely . . . the culmination or the progressive process of the same disease or condition of which the pre-existing condition was a symptom or part.” Accordingly, the decision must be reversed and the matter remitted for further development of the record.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee Commissioners of Record: Ferrara, Libous, Williams WCB #5040 6162[29197-7750]
Weiner v City of New York
May 31, 2012 NYS Court of Appeals §11: Election of Remedies 3001…§11: Election of Remedies
AFFIRMED the order of the Appellate Division Second Department, which reversed the Supreme Court, by finding that Weiner’s action against the City of New York, his employer, was barred by his receipt of workers’ compensation benefits, and that he could not sue the City in its landlord role. An emergency medical technician for the NYC Fire Department, he was hurt while aiding an injured person on a boardwalk, after which he applied for and received workers’ comp. He then sued the City and its Parks and Recreation Department, alleging both common law negligence and a cause of action under General Municipal Law § 205-a.In addition to having his suit denied on the grounds that workers comp benefits are “[t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment”, the Court denied Weiner’s contention that he may bring this action against the City pursuant to § 205-a, because that statute gives a right of action to “any officer, member, agent or employee of any fire department” who is injured on duty, “[i]n addition to any other right of action or recovery under any other provision of law” (General Municipal Law § 205-a [1]).. acknowledging that there is a difference in wording between General Municipal Law § 205-a (pertaining to firefighters) and General Municipal Law § 205-e (pertaining to police officers),” the Court found that “in his Memorandum approving the last major amendment of General Municipal Law § 205-a, in 1996, Governor Pataki expressly stated that municipalities (outside New York City) ’that provide workers’ compensation for their firefighters and police officers . . . will not incur any additional liability, for nothing in the bill affects the provisions of existing law stipulating that the right to compensation or benefits under the workers’ compensation law is an exclusive remedy an employee has against an employer or co-employee for injuries incurred in the course of his or her employment.’” The Court concluded that ” We conclude that it was not the intent of the Legislature to allow recipients of workers’ compensation benefits to sue their employers in tort under § 205-a.” [27185-7749]
Gabriel v Johnston’s LP Gas June 15, 2012 NYS Appellate Division, Fourth Department Undocumented worker 5045…Undocumented worker
In a case that may have ramifications in workers comp litigation, the Appellate Division, Fourth Department, found that undocumented workers who are bringing a claim in civil court as a result of injuries sustained at their place of employment who have left the United States and then, for very specific reasons, cannot return to the United States, can have their depositions and trial testimony done by via video. In a detailed 9-page decision, the Appellate Court reversed a lower Court ruling, concluding that the lower court abused its discretion in denying those parts of plaintiffs’ motion with respect to both the depositions and the trial testimony. Essentially, one undocumented farm worker was killed and nine others suffered severe injuries in the explosion of gas in the building in which they lived while doing farm work. Although their reasons for leaving the United States range from the desire to call home for medical treatment to some being forcibly deported, none were able to return to the United States, the attempt to return blocked by various legal and visa restrictions. Contrary to the contention of the defendant companies, The Court wrote that “our determination is consistent with sound public policy. ‘An alien unauthorized for employment in the United States is not barred from seeking to recover . . . in a personal injury action’ is instructive on this point” as were their references to various section of the CPLR. [27185-7748]
Commissioners of NYSIF v Ramos June 6, 2012 NYS Supreme Court -NY County Interesting Court Opinion 9998…Other
In 1996, after their firm has been substantially in debt to the New York State Insurance Fund, defendants, changed the name of their company from J.M.R. Concrete Corp. To J.M.R. Concrete Corp of Long Island, keeping their offices at the same location, with the same employees in the same positions at the same salary, with the same office furniture, same phone number, and doing exactly the same type of business as they did with their predecessor company. Seeking to have dismissed various claims against their new firm and each of the owners individually, the company owners presented a list of twenty-three (23) affirmative defenses and two (2) cross claims. In a excellence example of economic use of concise legal language the Judge, addressing these defenses, wrote, “To paraphrase famous legal dicta, this Court cannot define b.s. but it knows it when it smells it.”[27185-7747]
►I think that many feel this quote also applies to some of the decisions issued by the Board.
Vargas v NYC Employees Retirement Sys
May 30, 2012 NYS Appellate Division, Second Department Disability: Degree of or R/E 5020…Disability: Degree of or R/E
Once again, The Appellate Court, this time the Second Department, again stated that “a disability determination by the Worker’s Compensation Board does not control the [New York City Employees Retirement System’s] Medical Board’s disability determination. In this case, the plaintiff was denied his application for accidental disability retirement benefits pursuant to Retirement and Social Security Law 605-b.[27185-7746]
Rice v West 37th Group June 12, 2012 NYS Appellate Division, First Department Causal Relationship: Death 1020…Causal Relationship: Death
AFFIRMED The Court confirmed the long-standing position of the Worker’s Compensation Board that accidental overdose of prescribed pain medication was a foreseeable consequence of the serious injuries suffered by plaintiff’s decedent and therefore was a “grave injury” within the meaning of workers compensation law §11. As a result of the injuries he sustained from the worksite accident, the decedent began seeing a pain management physician, second third-party defendant, Joseph Carfi, M.D., and a psychologist, second third-party defendant, Bruce Herman PhD. Two years after the accident, the decedent died, and the autopsy ruled the cause of death to be accidental due to an “acute intoxication due to combined effects of Fentanyl, Diazepam [Valium] and Alprazolam [Xanax],” with a contributing cause of “atherosclerotic cardiovascular disease.” [27185-7745]
Digirolomo v Goldstein
June 27, 2012 NYS Appellate Division, Second Department Employment: Who is3030__Employment: Who is or dual
AFFIRMED a lower Court ruling in a home health aide, assigned by her employer to assist Brown, was not a special employee of Brown and therefore Brown’s estate was denied a motion for summary judgment dismissing the complaint is hard by the exclusivity provisions of the workers compensation law. Although Brown’s estate argued that Digirolomo attended to Brown’s needs at Brown’s direction, “being told what job to do does not suffice to demonstrate the existence of a special employment relation”, particularly when Digirolomo was determined to be an employee of Better Home Health Care, Inc., and assigned as their employee, trained and given direction by and in daily contact with Better Home Healthcare.[27185-7744]
| — — JUNE 2012 — — |
Donato v Aquarian Designs June 28, 2012 NYS Appellate Division, Third Department §114-a: Fraud5130…§114-a: Fraud
REVERSED the Board by finding ,claimant did not commit fraud per §114-a due to number of factual inaccuracies and mischaracterizations by the Board of claimant’s testimony. Claimant was self-employed in May 2005 when he suffered established injuries to his ribs, head, neck, back, left shoulder and left clavicle, including a right orbital fracture, pulmonary contusions, collapsed lungs and a traumatic brain injury, and also was diagnosed with adjustment disorder with depressed mood and anxiety condition and post-concussive syndrome. After receiving benefits at a partial disability rate, the carrier raised the issue of whether claimant fraudulently misrepresented the extent of his incapacity, per §114-a, a claim ultimate agreed to by a Board panel. The claimant, whose medical records, apparently not used by the panel in making its determination, reported that claimant’s thoughts are “disordered, disorganized and tangential” and that he has a “poor memory.” Claimant did testify that he did various amount of work but was limited in how long he could do it and noted some limits on the level of work he could accomplish. While videotapes did show the claimant indulging in heavy work, “his efforts were punctuated by long periods of inactivity. Claimant also is observed frequently leaning against or grabbing stationary objects to gain stability. And, to the extent that the Board cited the work performed by claimant on a piece of rental property that he owns, the record clearly demonstrates that the property was purchased and the restoration completed prior to claimant’s accident,” contrary to statement by the carrier’s investigator. The Board also determined that the claimant’s statement that he did not remember some things evidenced by video tape, the Court determined that although the Board found this equivocal “denial” amounted to a knowingly false statement, the Court cannot conclude, as the Board did, that such statement was made for the purpose of obtaining benefits – particularly when claimant readily admitted to engaging in activity that was far more physically taxing. Under these circumstances, the Court stated that the Board’s decision was not supported by substantial evidence in the record as a whole. Prevailing party represented by: Brendan G. Quinn of counsel to Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Commissioners of Record: Higgins, Libous, Bell WCB #5050 9600 [26184-7743]
Richardson v Schenectady CSD June 28, 2012 NYS Appellate Division, Third Department Voluntary Withdrawals 5110…Voluntary Withdrawal
AFFIRMED the Board’s ruling that claimant voluntarily removed himself from the labor market. Claimant, a health teacher, sustained a variety of compensable injuries, including to his head and back, while breaking up a fight between students in February 2006. In December 2008, claimant submitted a letter to the employer, informing it that he would be retiring effective June 2009. Subsequent to claimant’s retirement, the carrier sought to suspend benefits based upon claimant’s voluntary withdrawal from the labor market, a position with which the Board panel agreed. The Board’s decision was based on several facts. (1) An IME opined that, while claimant suffered from a moderate to marked disability, he was capable of working in a modified duty capacity.(2) claimant’s letter informing the employer that he was taking advantage of a very favorable retirement incentive made no mention of the fact that his physical disabilities played a role in his decision to retire. (3) Claimant testified that he never discussed retirement with his doctors, did not advise the employer that he was retiring due to his disabilities and never asked for an accommodation to return to work within his restrictions. Prevailing party represented by: Jeffrey M. Fox of counsel to Walsh & Hacker (Albany)for Schenectady City School District and another, respondents. 26184-7742]
Visic v O’Nero & Sons Constr June 21, 2012 NYS Appellate Division, Third Department Procedure: Denial FBR 7050…Procedure: Denial FBR
REVERSED the Board’s denial of a Full Board Review (FBR) on the grounds that the denial of pro-se claimant’s request for reconsideration was arbitrary and capricious. The claimant’s 2000 injuries to his neck and back resulted in a 2008 finding of a marked permanent partial disability, affirmed by the Court (74 AD3d 1646 [June 24, 2010]). After the claimant sought to reopen his case in July 2010 to change his disability to totally disabled based upon medical reports from January 2009, February 2009, and April 2009, the Board in January 2011 refused to reopen the claim, finding that claimant had not submitted new evidence to support his application or evidence of a change in medical condition at a March 25. 2009 hearing, and that there was no basis for reopening the claim in the interest of justice. This reasoning was reiterated when his request for FBR was denied. However, the Court noted that the March 29, 2009 hearing was convened solely for the purpose of addressing claimant’s average weekly wage and, in fact, when claimant sought to offer medical evidence as to a change in his condition, the Law Judge declined to receive it, stating that the hearing was not for the purpose of revisiting claimant’s degree of disability. Accordingly, the Court wrote that Board’s denial of claimant’s request for reconsideration was arbitrary and capricious and must be reversed. Prevailing party represented by: himself, pro-se Commissioners of Record: Donna Ferrara, Ellen O. Paprocki, Mark D. Higgins WCB #8001 4737[26184-7741]
Belaska v NYS Dept of Law June 21, 2012 NYS Appellate Division, Third Department Course of Employment: in and out of1100…Course of Employment: in and out of
AFFIRMED the Board’s ruling that claimant’s injury did not arise out of her employment. There was no question that claimant was injured in an altercation with a passenger she did not know, while exiting a city bus, taking her to a nearby parking lot after work. The only question being was the injury in and out of the course of employment. The Board ruled that the “assault on claimant arose from personal hostilities unrelated to her employment” but with how fast she was exiting the bus. AS such, the issue of whether her ride on the bus was in the course of employment was moot. Prevailing party represented by: Nancy E. Wood of counsel to the State Insurance Fund for New York State Department of Law and another, respondents. Commissioners of Record: Ferrara, Libous, Williams WCB #011 7410 [26184-7740]
►Motion for leave to appeal denied by Court of Appeals on October 25, 2012
Soluri v Superformula June 21, 2012 NYS Appellate Division, Third Department Disability: Degree of or R/E 5020…Disability: Degree of or R/E
AFFIRMED the Board’s ruling on degree of disability: mild partial rather than a total permanent disability. Claimant’s 2001 injury resulted in an established claim for injuries to his low back and left hip. After a finding TPD, the carrier sought a review which, due to significant differences in the medical opinions provided, resulted in a referral to an impartial specialist. Thereafter, the Board determined that claimant had a mild permanent partial disability. The Court disagreed with claimant’s argument that the Board improperly relied upon the opinion of the impartial specialist because he did not refer to the Board’s medical guidelines. The Court determined that, “While the guidelines provide useful criteria to be used in assessing a claimant’s degree of disability, the ultimate determination rests with the Board and must be upheld if it is supported by substantial evidence.” After the impartial specialist indicated that there were no objective or physiological findings in the prior medical exams to explain claimant’s complaints of pain, he concluded that claimant had a mild partial disability. The impartial specialist’s reflected that claimant did not meet the criteria set forth in the guidelines regarding total permanent disability. Prevailing party represented by: Robert E. Geyer Jr. of counsel to Wolff, Goodrich & Goldman (Syracuse) for Superformula Products and another, respondents.Commissioners of Record: Bargnesi, Higgins, Bell WCB #6020 4229[26184-7739]
Kirisits v Durez Plastics June 14, 2012 NYS Appellate Division, Third Department §25-a: Reimbursement Period3130…§25-a: Reimbursement Period
AFFIRMED the Board’s ruling that WCL §25-a is inapplicable to claimant’s award of workers’ compensation death benefits. Following his retirement Kirisits (hereinafter the decedent) in 1994 successfully filed for a claim for occupational disease (pleural asbestosis) with a disability date of 1993. No compensable lost time was found and reimbursement relief was set WCL §15(8)(ee). After his death in 2008, when claimant, decedent’s widow, filed for death benefits alleging that decedent died of mesothelioma due to long-term occupational exposure to asbestos, the carrier sought to shift liability for that claim to the Special Fund for Reopened Cases per §25-a claiming that more than seven years had elapsed since the establishment of the underlying disability claim. A Board panel, reversing the Law Judge, fund §25-a inapplicable because the death benefit claim is based on a new occupational disease that is separate and distinct from the workers’ compensation disability claim. First, the death benefit claim is premised on a new occupational disease (mesothelioma), separate and distinct from the pleural asbestosis disease established in the underlying disability claim. Second, “[I]t is generally accepted that a claim for death benefits . . . is a separate and distinct legal proceeding brought by the beneficiary’s dependents and is not equated with the beneficiary’s original disability claim.” Therefore, there is no seven-year period to ‘trigger’ the application of §25-a.Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #024 0914[26184-7738]
Wiess v Mittal June 14, 2012 NYS Appellate Division, Third Department Apportionment: Awards, SLU 3075…Apportionment: Awards, SLU
AFFIRMED the Board’s decision on two appeals, one requiring Bethlehem Steel to produce evidence and the second finding apportionment between Arcelor Mittal and Bethlehem Steel. Employed as a steel worker from 1956 to 2008, always in the same facility, his first employer Bethlehem went bankrupt in 2003, its assets then acquired by Arcelor. In 2008 claimant filed for hearing loss against Mittal which sought apportionment with Bethlehem. Although Bethlehem controverted the claim on the ground that Arcelor had not satisfied the notice requirements of WCL §49-ee(2), a Law Judge apportioned the award based on claimant’s length of service with both firms. A Board panel agreed but wanted development of the record on the issue of Bethlehem’s actual knowledge of the injury, requesting Bethlehem produce records of hearing tests conducted during claimant’s employment for this purpose. When Bethlehem’s attorney admitted the existence of such records but their inability to find them, the Board panel declined to reconsider the method of apportionment. Although Bethlehem was correct stating that Arcelor concededly failed to comply with the statutory notice requirements for such a claim unless the prior employer had advance knowledge of the injury, Bethlehem was liable on the ground that it did have such knowledge based on the 2009 report of an examining physician who determined that claimant had a binaural hearing loss caused by work-related noise exposure during 44 years of employment. Also claimant testified that he first noticed his hearing loss during his employment with Bethlehem, that he was exposed to loud noise throughout his career, but received the most exposure while working for Bethlehem, which did not supply hearing protection to employees until the 1980s when Bethlehem also began conducting annual hearing examinations. Thus there was sufficiently credible evidence that the hearing loss began at Bethlehem and Bethlehem had actual knowledge of the loss. As to the issue of evidence, the Court determined that, where there is evidence, such records necessarily constitute the best evidence – and are often the only evidence – of the employer’s awareness of the injury. As the records were in Bethlehem’s exclusive control, the Board did not err in directing their production, and properly drew a negative inference upon Bethlehem’s failure to produce them and Arcelor’s failure to comply with the statutory notice requirements did not preclude apportionment. Prevailing party represented by: Jared L. Garlipp of counsel to Williams & Williams (Buffalo) for Arcelor Mittal and others, respondents. Commissioners of Record on both cases under appeal: Lower, Bell, Finnegan WCB #003 7535 [26184-7737]
Connolly v Huberts June 7, 2012 NYS Appellate Division, Third Department Causal Relationship: Death 1020…Causal Relationship: Death
AFFIRMED the Board’s ruling that the death of claimant’s husband was not causally related to his employment. Claimant argued that her husband’s work as an automobile mechanic from 1976 to resulted in decedent’s exposure to an undetermined amount of asbestos dust. Decedent was diagnosed with lung cancer in 2000 and, following his death in 2004, claimant filed a claim for workers’ comp death benefits, citing occupational exposure to asbestos as a causative factor. The physician testifying on behalf of the employer and its workers’ compensation carriers opined that, based upon his review of decedent’s medical records, there was no objective medical evidence that decedent was “occupationally exposed to significant inhalation of asbestos fibers.” ,… “no evidence of any asbestos exposure on [decedent’s X rays],”, i.e., no “pleural plaques, pleural thickening or diffuse interstitial fibrosis throughout [decedent’s] lungs, . . .” As to the issue of causation, the carrier’s expert was of the view that decedent’s longstanding history of smoking (two packs per day for 25 years), as well as the fact that decedent’s father died from lung cancer, were “adequate to fully account for the development of [decedent’s] lung cancer.” Although the pulmonary pathologist who testified on behalf of claimant reached a contrary conclusion, the resolution of conflicting medical opinions, as well as the weight to be accorded thereto, lie within the exclusive province of the Board. Prevailing party represented by: Renee E. Heitger of counsel to Hamberger & Weiss, Buffalo for Interguard Insurance Group, respondent and Christina M. Hassler of counsel to Law Office of Laurie G. Ogden (Buffalo) for Travelers Indemnity, respondent. Commissioners of Record: Bargnesi, Higgins, Bell WCB #8060 3455 [26184-7736]
Rosario v AIG June 7, 2012 NYS Appellate Division, Third Department Voluntary Withdrawal 5110…Voluntary Withdrawal
AFFIRMED the Board’s ruling that the claimant voluntarily removed herself from the labor market. After the claimant successfully filed a claim for bilateral carpal tunnel syndrome, with a date of disablement of November 3, 1998 and had surgery in 2004, in 2006, the parties stipulated that claimant was permanently partially disabled, although the stipulation did not specify the basis of claimant’s disability. IN 2009 the carrier submitted a request to determine if the claimant was seeking employment within her medical restrictions as “a WA-1 was not filled out by the claimant referable to whether she was retired or whether she was looking for work.” A Board panel reversed the law, finding that claimant had failed to search for work within her medical restrictions. Under the particular facts and circumstances of this case, claimant was required to demonstrate her attachment to the labor market with evidence of a search for employment within her medical restrictions. The record here contains medical evidence indicating that claimant was capable of performing sedentary work. However, claimant admitted at the hearing that she did not search for any work from 1998 until June 2009 and had only recently applied for two sedentary jobs. Although there was evidence that could support a contrary result, inasmuch as substantial evidence exists to support the Board’s determination that claimant voluntarily removed herself from the labor market, the Court declined to disturb it. Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for AIG and another, respondents. Commissioners of Record: Ferrara, Foster, Libous WCB #0992 0055 26184-7735]
Stenson v NYS Dept of Transp June 7, 2012 NYS Appellate Division, Third Department §29: 3rd Party/MVA liens 3160…§29: 3rd Party/MVA liens
AFFIRMED the Board’s ruling that claimant was entitled to reimbursement for certain legal expenses after the carrier consented to a third-party settlement. The Court noted that “The underlying facts are more fully set forth in our prior decision in this matter (84 AD3d 22 [2011]). After making all the appropriate calculations the carrier, holding a lien for $20,455.39, accepted $13,501 in satisfaction of that lien, reflecting a 34% reduction for the carrier’s equitable contribution toward litigation costs. The carrier then ceased paying benefits for 13 months to offset the full amount of the net recovery; thereafter payments resumed at the rate of $350 per week. After the claimants sought to have the carrier pay for its share of litigation costs, a Board panel denied resulting in the Court returning it to the Board for a factual determination of the credit to which the carrier was entitled (84 AD3d at 27). The Board then recalculated, directing the carrier to reimburse the claimant $6,611.11 and to pay an additional $2,800 in deficiency compensation, prompting this appeal by the carrier. Essentially, the Court agreed that the current appeal is primarily an effort by the carrier to relitigate issues that were resolved against them on the prior appeal. The Board’s determination that the carrier failed to plainly and [*3]unambiguously express its intent to be relieved from payment of its equitable share of litigation expenses relative to its offset right is supported by substantial evidence. Specifically, the carrier’s letter and form consenting to the settlement make no reference to that subject. In affirming the Board, the Court added “it is well settled that a carrier’s equitable share of litigation costs must be apportioned not only upon the benefit received ‘by the recovery of its lien but also [on] the value of . . . future compensation payments that, but for the employee’s efforts, the carrier would have been obligated to make’ during the holiday period.” Prevailing party represented by: Michael P. Daly (Manlius) for Kai Stenson, respondent and Christopher Ronk of counsel to NYS Attorney General for the WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #6050 5286[26184-7734]
►Motion for leave to appeal denied by Court of Appeals on October 25, 2012
Prather v Amerada Hess May 31, 2012 NYS Appellate Division, Third Department Other 9998…Other
REVERSED the Board’s ruling on the grounds that the Board did not follow its own rules. In the absence of any explanation as to why the underlying hearing was held before one law judge and the decision was rendered by another, the Board’s decision cannot stand, as stated in WCL §20(1). Several hearings were held on the issue of attachment to the labor market, all by the same law judge, but the decision on the reattachment hearing was issued without explanation and four months later by another law judge, who concluded that claimant had reattached to the labor market and awarded additional benefits. The Court noted that the Board panel’s affirmance of the procedure referenced §20(1) but then affirmed the law judge decision anyway and without any explanation. Prevailing party represented by: Danielle E. Holley of counsel to Walsh & Hacker (Albany) for appellants. Commissioners of Record: Lower, Finnegan, Foster WCB #50510153 [26184-7733]
| — — MAY 2012 — — |
Bruyne v NYS Comm of Labor May 24, 2012 NYS Appellate Division, Third Department Voluntary Withdrawal 5110…Voluntary Withdrawal
AFFIRMED the decision of the NYS Unemployment Insurance Appeal Board which ruled, among other things, that claimant, a foreign national, was ineligible to receive unemployment insurance benefits because she was not available for employment, because she did not have a proper visa. Claimant, a Surinam national, originally possessed a valid United States employment card; however, when it expired in November 1999, she did not seek a renewal. In 2005, claimant married a United States citizen. Claimant began working for a fast food restaurant in 2007 and, in 2008, she applied to have her status changed with the United States Citizenship and Immigration Services (hereinafter USCIS) based on her marriage. Claimant’s employment ended in May 2010, after which she filed an original claim for unemployment insurance benefits. Thereafter, claimant testified before an Administrative Law Judge (hereinafter ALJ) that her USCIS application to change her status remained pending. The ALJ ultimately found that claimant was ineligible to receive benefits because she was not authorized to work in the United States during the relevant time period and was thus unavailable for work. The ALJ also found that she was unable to file a valid original claim because her base period employment as an alien was not covered employment under Labor Law § 590. The Unemployment Insurance Appeal Board affirmed the ALJ’s decision and this appeal ensued. We affirm. “In order to be considered available for work and, therefore, eligible to receive unemployment insurance benefits, a non-United States citizen must have valid authorization from the [USCIS] to work in the United States” (Matter of Cale [Commissioner of Labor], 46 AD3d 1065 , 1066 [2007]. [25179-7732]
►In a similar case at the WCB, there was the June 6, 2008 decision from the Court of Appeals in the Matter of Ramroop v Flexo-Craft Print of which I was a panel member, a case in which the Court of Appeals affirmed the Appellate Court which held that “the Board quite properly found that because claimant was an undocumented alien, he was ineligible{**11 NY3d at 166} for employment in the United States and, thus, his loss of earning capacity was not solely attributable to his compensable injury” and that “Workers’ Compensation Law § 17 [did] not compel a contrary result.”
Kerker v Maple View Dairy May 15, 2012 NYS Supreme Court §11: Jurisdiction 3005…§11: Jurisdiction
DENIED request to dismiss death claim as the exclusive remedy under Workers’ Compensation Law §11 does not apply here. Decedent died in a fire while sleeping in a trailer on employer’s farm. Contrary to employer’s contention that decedent was required to sleep on the premises as a condition of employment, all facts shored the contrary. The employment contract [1] executed in Spanish did not match the uncertified English translation supplied to the Court, [2] the contract noted it do not provide that decedent was required to live on the premises, but, instead, merely indicate that housing arrangements are contemplated, and [3] the name on the contract was not that of the decedent, any claims of false identity not withstanding. [25179-7731]
►Without access to the Board’s files, it is not possible to ascertain if this case ever came to the Board. There is no Memorandum of Decision on Lexis under the name of this employer.
Goonewardena v WCB May 17, 2012 NYS Appellate Division, First Department Employment: Terminating a WCB employee «»9998: Terminating a WCB employee
AFFIRMED, in an CPLR Article 78 case, the Board’s right to terminate a provisional employee without a hearing and without a statement of reasons, in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation of law. Evidence in the record regarding petitioner’s unsatisfactory completion of his duties provide a rational basis for respondent’s determination, particularly since petitioner received ample opportunity to improve. No substantial issue was raised by petitioner’s allegations purporting to show bad faith such that no hearing was required and the petition was properly denied.[25179-7730]
►This case is posted only because it involves a personnel/administrative decision by the Workers Compensation Board.
Angelo v Occidental Chem
May 17, 2012 NYS Appellate Division, Third Department §16 Death Benefits 5187…§16 Death Benefits post-2007
AFFIRMED the Board’s ruing that the maximum death benefits payable to the surviving spouse under WCL §16(5)(1) are those in effect at the time of death, not the date of the underlying accident. The previously-established underlying asbestos-related claim of John Angelo (hereinafter decedent)was given a disablement date of May 27, 1994. On October 12, 2007, decedent died due to what was later determined to be asbestos-related pleural disease. After claimant, decedent’s widow, filed this claim for death benefits, a Law Judge established and a Board panel affirmed, an average weekly wage of $838.46 “per payroll in the underlying [occupational disease] case” and awarded benefits at the statutory maximum rate of $500 per week. The Fund posited that claimant was entitled to the maximum benefit rate in effect, not on the date of decedent’s death and, at the lower statutory maximum rate applicable on the date of disablement in the underlying occupational disease claim. The Court stated that the Board correctly found that the unambiguous language of this statutory provision in §16(5)(1), “where the death occurs on or after [July 1, 2007],” encompasses all qualifying deaths occurring in the applicable time frame, regardless of the date of disablement. The decision ended with “Contrary to the Special Fund’s argument, our decision in Matter of House v International Talc Co. (261 AD2d 687, 689 [1999]) does not compel a different result.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Ellen O. Paprocki, Richard A. Bell WCB #003 1691[25178-7729]
Pettit v Scipio VFD May 17, 2012 NYS Appellate Division, Third Department VFBL3200…VFBL
AFFIRMED the Board decision that claimant’s injuries occurred in the course of her duties as a volunteer firefighter and emergency medical technician (EMT) for the Scipio VFD. In October 2009, the District’s EMTs were informed that the swine flu vaccine was going to be provided for them at a clinic the following week. Claimant was refused the vaccine at that clinic, but attended a different clinic in December 2009 to receive her vaccination. On her way home from that clinic, claimant was involved in a one-car accident that resulted in multiple injuries, subsequently filing a successful claim which determined that her claim fell within the provisions of the Volunteer Firefighters’ Benefit Law (FVBL). Citing case law, “‘[W]hether a given activity of a volunteer fire fighter falls within the line of duty is a question of statutory construction particularly within the Board’s expertise’”, the Court agreed with the Board that participation in a “supervised physical fitness class, group session or program for the purpose of promoting or maintaining the performance of their duties as firefighters, as well as necessary travel to and necessary travel from such activity” is an activity covered by VFBL §5(1)(p). Prevailing party represented by: Michael J. Welch of counsel to Nicholas, Perot, Smith, Welch & Smith (Liverpool) for Sharon Pettit and Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent . Commissioners of Record: Lower, Finnegan, Foster WCB #00 0128 [25178-7728]
Burris v Olcott May 17, 2012 NYS Appellate Division, Third Department
Procedure: Denial FBR 7050…Procedure: Denial FBR
AFFIRMED the Board’s ruling that denied claimant’s request to reopen his workers’ compensation claim. Although his claim for a 1996 injury was established in 2003, his request to amend his claim in 2004 was time-barred, denied per WCL §28, a decision he did not appeal. His appeal on this issue was denied in 2006 per §23 and again in 2010. In writing that “[T]he Board’s determination not to reopen claimant’s case is subject to judicial review only for an abuse of discretion,” the Court found that the claimant had a full opportunity to litigate his claim for a causally-related neck injury before a Law Judge in 2004, and he did not seek Board review of the Law Judge’s decision denying his claim. Accordingly, claimant’s challenges to that determination were not properly before the Court. Also, the Court agreed with the Board that claimant’s request for further action did not contain any new material evidence warranting a reconsideration. Prevailing party represented by: Jeffrey M. Fox of counsel to Walsh and Hacker (Albany) for Time Warner Satellite Services and another, respondents. Commissioners of Record: Lobban, Paprocki, Bell WCB #5961 4641 [25178-7727]
Francis v Jewelry Box 3rd May 17, 2012 NYS Appellate Division, Third Department Procedure: Denial FBR 7050…Procedure: Denial FBR
AFFIRMED the Board’s decision to deny pro-se claimant’s application to reopen his claim. After his case was closed in May 1993 when claimant settled his August 1987 injury claim with a lump-sum non-schedule adjustment, claimant made several applications attempting to reopen his claim, all rejected because he did not demonstrate a change in condition that was not contemplated at the time of the original settlement. Contending he now suffered from chronic major depression, posttraumatic stress disorder and chronic pain disorder stemming from the 1987 accident, the Board “noting that claimant previously waived his right to have his case established for psychiatric injury, ruled that the proof submitted was insufficient to support his request to reopen his claim. . . . While claimant is attempting to expand his claim to include a consequential psychiatric the transcript of the May 24, 1993 lump-sum hearing establishes that claimant, whose physician had recommended psychiatric counseling, unequivocally stated that he wished to settle his case at that time and was waiving any right to have his case additionally established for a consequential psychiatric injury. Under the circumstances, there is substantial evidence supporting the Board’s conclusion that claimant did not sufficiently allege an unanticipated change in his medical condition warranting the reopening of his claim.” Prevailing party represented by: Shayne L. Dorr of counsel to Cherry, Edson & Kelly (Carle Place) for Jewelry Box Corporation of America and another, respondents and Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Bargnesi, Higgins, Bell WCB#0877 5710 [25178-7726]
Spaulding v Lowes May 17, 2012 NYS Appellate Division, Third Department Procedure: Denial FBRs 7050…Procedure: Denial FBR
AFFIRMED the Board’s rulings (1) which ruled that pro-se claimant had no further causally related disability, and (2) which denied pro-se claimant’s request for reconsideration or full Board review. Fifteen months after a work related injury to her left foot, claimant filed a C-3 seeking to add her right foot to the established claim, an amendment denied by the Law Judge and Board panel with the Board subsequently denying reconsideration or full Board review (FBR). Although claimant separately appealed from both the Board’s underlying decision and the denial of reconsideration or full Board review, she failed to timely perfect her appeal from the underlying decision. Consequently, the Court did not review that appeal. In supporting the denial of FBR, the Court found that the Board’s denial was neither capricious, arbitrary, nor an abuse of discretion as the claimant did not proffer any new evidence that was unavailable at the time of the hearings.Prevailing party represented by: John B. Paniccia of counsel to Stockton, Barker & Mead (Albany) for Lowe’s and another, respondents. Commissioners of Record: Lower, Bell, Finnegan WCB# 005 9899.[25178-7725]
Southard v Corning Hotel May 17, 2012 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund 3110…§15(8) Reimbursement Special Fund
AFFIRMED the Board’s decision which discharged the Special Disability Fund (Fund) from liability under WCL §15(8)(d). In April 2004, claimant suffered a work-related injury to her back and left hip and was awarded workers’ compensation benefits. The carrier unsuccessfully sought reimbursement from the Fund, asserting that claimant’s preexisting arteriovenous malformation had contributed to her disability. While the carrier’s medical export opined that claimant’s preexisting condition “constituted a permanent disability that was materially and substantially greater than that caused solely by” the work-related injury. BUT “[t]he mere fact that the sum of the disabilities is materially greater than the subsequent disability alone is not sufficient to hold the . . . Fund liable” but, instead, the preexisting impairment “must increase the compensation liability above that which the employer would have incurred as a result of the subsequent injury alone. . . . In fact, the employer’s expert stated that claimant’s headaches, which she has suffered from throughout her life, did not increase her overall disability.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Ferrara, Libous, Williams WCB #7040 6570 [25178-7724]
►The case that follows had almost identical indicia yet that Board panel ruled against the Special Fund and was reversed by the Appellate Court. One can only hope that there were two writers in the Administrative Review Division that drafted these Board panel decisions.
Weiner v Glenman Indus May 17, 2012 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund 3110…§15(8) Reimbursement Special Fund
REVERSED the Board by ruling that the carrier is not entitled to reimbursement from the Special Disability Fund (Fund). On November 15, 2006, claimant sustained work-related injuries and was later classified as having a permanent partial disability. The carrier’s medical expert noted that claimant suffered from various preexisting physical impairments, including asthma, lyme disease, migraines and cervical disc herniation, prompting the carrier to to seek reimbursement from the Fund per WCL §15(8)(d). The Board concluded that “claimant suffered from a prior permanent condition of asthma, and as a result, the claimant’s current disability was materially and substantially greater than that which could be ascribed to the compensable injury alone”, later amending the decision adding certain additional facts and analysis, and denied the Fund’s application for full Board review. Inasmuch as the record lacks proof “that claimant suffered from a preexisting permanent impairment that hindered her job potential, … [or was] was under any restrictions at work because of the asthma or that it had presented any “hindrance to her employment”, The Court found that the Board’s determination was not supported by substantial evidence” and reversed it. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, appellant. Commissioners of Record: Bargnesi, Higgins, Bell WCB#5070 1647[25178-7723]
Zhang v Tonys Marble May 17, 2012 NYS Appellate Division, Third Department §23: Late Appeal 7010…§23: Late/Interlocutory/Frivolous Appeal
AFFIRMEDthe Board’s rulings (1) that the application of the employer for review of a Law Judge’s decision was untimely, and (2) which denied a request for reconsideration and/or full Board review (FBR). Forty six days after a Law Judge determined that claimant sustained a work-related injury and awarded benefits, the employer submitted an appeal from that decision. The Board deemed the appeal as untimely and also denied a subsequent application for FBR. Although the employer notified the Board of its intent to appeal by letter within the 30-day §23 time limit, the employer did not meet the requirements of §23 as the formal application f or review must be in writing, accompanied by a cover sheet form prescribed by the chair, specify the issues and grounds for such review, and include proof of service upon all parties in interest; this was not done until after the deadline. Hence the Board’s denial of review was neither arbitrary and capricious nor an abuse of discretion. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent Commissioners of Record: Lower, Bell, Finnegan WCB#0082 7791[25178-7722]
Spinnato v GE Advanced Materials May 10, 2012 NYS Appellate Division, Third Department
Causal Relationship: Aggravation or New1135…Causal Relationship: Aggravation or New
REVERSED the Board, thus affirming the Law Judge, by finding that the additional injury was not new but consequential, thus passing liability on to the Special Fund for Reopened Cases. Although the claimant had no lost time from an established back injury in August 1995, he subsequently would frequently experience back pain due to sciatica, which would occasionally cause his right knee to give out. After he experienced a sharp pain in his right knee that caused it to buckle, and he caught himself with his left knee in August 2006, claimant filed a new claim. A Law Judge disallowed the new claim and amended claimant’s 1995 claim for consequential injuries to his knees as a result of the 2006 incident, a decision reversed by a Board panel, resulting in this appeal by both the Fund and the claimant, although each for different objectives. The Court wrote that, “Whether or not a claimant’s disability is consequentially related to a previously established injury is a factual question for the Board to resolve, but its determination must not rely on a speculative medical opinion.” They noted that the only medical opinion supporting the ‘new injury’ was by a doctor who was unaware that, since 1995, claimant had experienced frequent episodes where his knee would give out relative to his sciatica, and after being informed that claimant had received no treatment from 1998 forward, stated further that, “without looking at the documentation relative to these episodes, he would be unable to render a medical opinion.” The court summarized its reversal by writing, “. . . given the lack of reliable medical evidence, we cannot say the Board’s decision is supported by substantial evidence.”Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for appellants. Commissioners of Record: Lobban, Paprocki, Higgins WCB#5952 1219[25177-7721]
[ED. NOTE:] It is worth noting how the Board uses cases like these to enhance is alleged efficiency. Both the Fund and Claimant appealed the Law Judge decision on the sole issue that the injuries were consequential and not a new injury. The Board, for statistical purposes, writes that the decision was ‘modified’ yet the decision ‘reverses’ the only issue in the law judge decision on appeal. This use of the word ‘modify’ rather than ‘reverse’ is an example of how the Board ‘cooks the books’ in terms of it own record of Board panel decisions/reviews of Law Judge decisions. The actual number of Board panel decisions reversing Law Judges (whether or not the reversal is ultimately upheld) is probably closer to 15% than the 6% the Board reports.
Zamora v New York Neurologic May 1, 2012 Court of Appeals Voluntary Withdrawal 5110…Voluntary Withdrawal
AFFIRMED the Board’s ruling that claimant voluntarily withdrew from the labor market, by REVERSING the Third Department’s December 3, 2010 decision, which found for the claimant and reversed the Board panel. After her case was established for 2003 work-related injuries, claimant returned to work until 2007 when she became too ill to continue to work; asked what injuries contributed to her disability, she mentioned her neck and shoulder, as well as health issues that she said were unrelated to her workplace accident, namely migraines, hernias, and pinched nerves in her lower back. She then sought other employment. But the Board panel (Ferrara, Henry, Paprocki), in reversing the Law Judge, unanimously found that “Between her work stoppage in December of 2007 and her testimony on August 5, 2008, the claimant only posted her resume on the internet. The jobs under consideration by the claimant were not reasonable given her work restrictions, which primarily involve her unrelated low back condition.”The Appellate Court, in a 3-2 split decision, reversed today, ruled
. . . an inference arises that subsequent loss of wages was attributable to her disability, making it incumbent upon the employer “to rebut the inference of causation or prove that the reduction in employment was solely due to factors unrelated to the disability“. This inference arises regardless of whether the Board’s finding of involuntary withdrawal from the labor market was caused by retirement or, as here, simply a failure to return to work. While a claimant’s failure to look for work may be relevant in challenging a claimant’s continued right to benefits in these situations, such evidence, standing alone, is insufficient to rebut the inference. Indeed, the employer must show “that the failure to seek employment was the sole cause of the subsequent reduction”. Here, claimant not only sought work after leaving employment but found it on two occasions, only to discover that her disability prevented her from performing her new duties. As the employer produced nothing to show that any inadequacies in claimant’s job search were the sole cause of her continued unemployment, substantial evidence does not support the Board’s determination.
The dissent at the Appellate Court opined that the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions. Only after the non-retired claimant has met that burden does the inference arise that the subsequent loss of or reduction in wages, if any, was caused by the permanent partial disability.The Court of Appeals made its decision by determining that
“. . . a claimant’s work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations”. Recently, however, the Third Department has treated the inference as required, or presumed, rather than merely permitted. For example, the court has written that “once claimant’s work-related permanent partial disability has been established, an inference will arise that the subsequent loss of wages was attributable to these physical limitations“. . . .The correct principle [is] that the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability. … There is no precedent in our decisions for this theory, which would illogically constrain the ability of the Board to find facts, and would shift the burden of proof from claimant to employer.”
This then leaves the decision to the Board as the Court wrote, as it does in so many ‘discretionary’ cases, “We may not weigh the evidence or reject the Board’s choice simply because a contrary determination would have been reasonable.” Finding that the Board has reasonable evidence to make it decision, the Court of Appeals affirmed the find that the claimant had voluntarily withdrawn from the labor market. Prevailing party represented by: Michael F. Vecchione PPPPPP of Vecchione, Vecchione & Connors, Garden City Park for New York for Neurologic and Paul Groenwegen 1of counsel to the NYS Attorney General for WCB [25176-7720]►A lengthy COMMENTARY on this decision and its ramifications for the future of injured workers can be found by clicking here.
Schmidt v Falls Dodge May 1, 2012 Court of Appeals §15(6): overlapping SLU & PPD 5185…§ 15(6): overlapping SLU & PPD
REVERSED the ruling of both the Appellate Court - 3rd Department and the Board both of whom required that the carrier pay both the maximum allowed weekly comp rate in addition to an SLU. As the result of three accidents, a Law Judge ordered the carrier to pay claimant a total of $400 per week, the maximum allowed. Subsequently, a Law Judge made an award for a hearing loss claim, permanent partial disability, entitling claimant to a schedule loss of use award per WCL §15(3). The Judge concluded that the schedule award was “currently payable in full,” notwithstanding the fact that claimant had was still receiving $400 per week for his other claims. The Board found the issue to be controlled by Matter of Miller v North Syracuse Cent. School Dist., in which the Appellate Division held that because a schedule award “is not allocable to any particular period,” it “cannot be deemed to overlap with” a temporary total disability award.This Court essentially determined Miller is “incorrect and should not be followed“. The Miller court erred in allowing a claimant to recover both at the same time, with the result that weekly payments, $800, exceeded the statutory cap. The Court of Appeals explained that §15(6) provides a cap for payments of compensation and that the schedule award is not nullified by the other awards, but must be deferred until the time comes when the cap will not be exceeded.“A contrary holding would not only contradict the plain language of section 15 (6), but would produce anomalous results. A worker who was permanently totally disabled in 2005 — a quadriplegic, for example — can receive no more than $400 per week for his or her disability. It makes no sense for a worker who suffered a hip injury, lower back pain and a hearing loss in that year to receive $800 per week. Nor can it be said that time will eliminate the anomaly — i.e., that in the long run no claimant will recover an average of more than $400 per week — because no one can say when, if ever, a ‘temporary’ disability will end“. Justice Cipatrick, in her dissent, posited that
a “schedule loss of use award” for a permanent partial disability is not linked to a particular time period, but rather is compensation for future loss of earnings without regard to present ability to work. She wrote that the 2007 Amendment to WCL took into account the issue of payments. Because the Legislature is presumed to be aware of the decisions in Matter of Miller and Matter of Lansberry, and as it did not comment on or make any change to blunt the effects of these decisions, it must be assumed that it intended to incorporate the holdings — that schedule awards do not overlap with temporary total disability awards — into the existing law. That the Legislature did not intend to overturn the holdings in Matter of Miller and Matter of Lansberry is even more evident when considering the 2009 revision to Workers’ Compensation Law. That revision was made in direct response to our holding in Matter of LaCroix v Syracuse Exec. Air Serv. Accordingly, I would permit the overlap of payments, although currently exceeding the statutory maximum, and affirm the order of the Appellate Division. The question of whether such overlap is permissible allowing for the “anomalous” situation identified by the majority is best left to the Legislature to determine.
The Court of Appeals finished its reversal by writing, “We therefore hold that periodic payments of a schedule loss of use award must be deferred to the extent that those payments, when combined with payments of another disability award, would exceed the cap imposed by §15(6). We hold no more than this, and do not decide what implications, if any, our holding may or may not have for cases governed by the 2009 amendment to §25(b): that section, as amended, now says that schedule loss of use awards ‘shall be payable in one lump sum, without commutation to present value upon the request of the injured employee.’” Prevailing party represented by: John R. Gibbon for appellants. [25176-7719]
►While this case does not have the same impact as Zamora in terms of claimants impacted upon, the 2009 Appellate Court decision was hailed as a major victory for injured workers. Whether or not the legislature will address this issue as specifically as inferred from the arguments by both the majority and the dissent at the Court of Appeals remains to be seen.
Forsyth v Staten Island DDSO May 3, 2012, 2012 NYS Appellate Division, Third Department §14(6): Concurrent Employment 5170…§ 14(6): Concurrent Employment
AFFIRMED the Board’s substantively amended ruling which determined that claimant was concurrently employed and established his average weekly wage (AWW). After claimant’s case was established for an injury occurring, in the Winter - January 20, while a week-end employee of the Staten Island DDSO, his annual AWW was established by a Law Judge using earnings from concurrent seasonal employment as a lifeguard for the City of New York. The record demonstrates that claimant was employed on weekends by the employer year round for 12 years and had been seasonally employed for the City of New York between the months of May and September since 1978. Claimant worked for both employers concurrently during the previous 12 summers, participated in training and received a promotion with respect to his seasonal employment during the off season and returned to his seasonal lifeguard position following the injury. IN effect, although the claimant was not receiving benefits from his concurrent employment at the time of his accident, his income from that employment was properly considered in setting his AWW. Prevailing party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #010 8704 [25176-7718]
►The only Appellate Court cases prior cases on concurrent employment involved the issue of reimbursement from the Special Disability Fund.
Hahn v Brylin Hosp May 3, 2012 NYS Appellate Division, Third Department § 14: Average Weekly Wage 5160…§ 14: Average Weekly Wage
AFFIRMED the Board’s ruling which established claimant’s average weekly wage as a part-time worker. Although the carrier did not controvert the establishment of the claim for the part-time nurse, it objected to the Law Judge’s calculation of her average weekly wage (AWW) by using WCL §14(3), which the Court noted is applicable to part-time employees. This provision does not apply, however, where the claimant voluntarily limits his or her participation in the labor market. The carrier contended that claimant voluntarily limited her hours whereas Claimant explained that she was not seeking to limit her hours. And, her testimony “that she did not want to work full time and felt ‘fortunate’ to have a job that required her to work only three days a week did not disqualify her from the provisions of §14(3).” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent Commissioners of Record: Lower, Finnegan, Foster WCB #013 0308 [25176-7717]
►There have been no prior cases on the issue of AWW.
| — — APRIL 2012 — — |
Kasic v Bethlehem Steel April 25, 2012 NYS Appellate Division, Third Department §28: time bar 1210…§ 28: time bar
REVERSED the Board’s ruling, and affirmed the Law Judge, that claimant’s application for death benefits was time-barred by WCL §28. During his 22 years employment at Bethlehem Steel, decedent was exposed to Benzene and other chemicals. After he was diagnosed with acute myelogenous leukemia, he filed a workers comp claim alleging that his illness was caused by his “exposure to Benzene.” The employer controverted his claim, asserting that decedent had not presented competent medical evidence establishing causal relationship. Three years after decedent’s death in 2006, the claimant’s spouse filed a claim for death benefits. The carrier argued that this second claim was untimely because, per §28, it was filed more than two years after decedent’s death.A Law Judge disagreed and found for claimant, concluding that her claim was timely because it was filed within two years of her receiving a written medical opinion citing causal relationship. A Board panel reversed, disallowing the claim on the ground it was untimely as more than two years had passed after decedent’s death. The carrier argued that, because of the decedent’s own claim contending causal relationship, his wife should have filed within two years of his death, as those contentions put claimant on notice at that time as to what allegedly caused decedent’s death. In disagreeing with the employer and the Board, the Court wrote:
There is no doubt that, prior to and at the time of decedent’s death, decedent and claimant suspected that he contracted leukemia as a result of conditions at his place of employment. However, it does not necessarily follow that simply because claimant harbored such suspicions, she knew or had reason to know what caused decedent to contract leukemia.
The Court noted that the carrier had always contended that there was no causal relationship and none had been presented prior to his death.
In fact, claimant only obtained such evidence when she received a letter dated September 9, 2008 from a physician indicating that the leukemia that caused decedent’s death was a result of him being exposed to chemicals at the work place. Since claimant filed for death benefits within two years of the date of this letter, her claim was timely, and the Board’s decision to the contrary was not supported by substantial evidence.
Prevailing party represented by: John A. Collins of counsel to Lipsitz, Green, Scime & Cambria (Buffalo) for appellant Commissioners of Record: Ferrara, Libous, Paprocki WCB #003 6004 [24175-7716]
►This is the second case out of seven since Fall 2009 that the Board has been reversed on this issue.
Lue v Finkelstein & Partners April 25, 2012 NYS Appellate Division, Third Department Legal Malpractice 7110…Legal Malpractice
The key issue was the claim of legal malpractice brought about when the injured worker’s first attorney failed to preserve injured worker’s Labor Law § 240 claim against K-Mart when, as an employee of O’Connell Electric, he fell from a scissor lift rented by United Rentals at a site owned by K-Mart Corporation. K-Mart was in the midst of chapter 11 bankruptcy, resulting in the claim initially being reduced to zero dollars by the Bankruptcy Court in 2004 and next dismissed by Supreme Court based upon the Bankruptcy Court’s order; h did not pursue an appeal. After hiring new counsel and successfully suing United Rental, he brought this action asserting that he would have had a larger recovery if his §240 strict liability claim against K-Mart had been preserved by his former attorneys.The record did show that there were contractual agreements between K-Mart and O’Connell requiring indemnification insurance which O’Connell never acquired. Since there is no proof of any kind in the record showing the existence of such a policy, the Court ruled “that this record does not support the conclusion that the contractual indemnification claim was established as a matter of law as a way that injured worker could have reached the funds of Interstate Insurance Group.” On the other hand, the Court found “unpersuasive the original attorney’s assertion that injured worker’s strict liability claim under Labor Law § 240 would not have had potential additional value in the underlying litigation. Further, injured worker submitted evidence which, when viewed most favorable to him, indicated that his injuries potentially had value beyond the amount for which he settled.” [24175-7715]
Dingman v Lake Luzerne April 12, 2012 NYS Appellate Division, Third Department Disability: Further Causally Related «»5030…Disability: Further Causally Related/Comp
REVERSED the Board’s ruling that claimant continued to suffer from a mild causally related disability and awarded him workers’ compensation benefits. The employer voluntarily paid workers cop Awarding continuing benefits at a moderate disability rate, the Law Judge, affirmed by a Board panel, denied the employer’s request to suspend payments pending development of the record with regard to claimant’s attachment to the labor market. The Court reversed the Board, writing that the C-4 form and narrative report of claimant’s orthopedic surgeon, the basis for the Board’s decision, contained inherent contradictions, thus these documents could not serve as a proper basis for the Board’s decision. The Court affirmed both the Board panel and the Law Judge in rejecting the carrier’s request to suspend payment pending claimant’s attachment to the labor market as this issue was not raised until the last hearing, thus giving the claimant no notice that he had to prepare a response. Prevailing party represented by: Danielle M. Barone of counsel to Lemire Johnson (Malta) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #021 9208 [24173-7713]
[ED. NOTE:]t was just over one year ago, in the Matter of DeFayette v Verizon, that the decision on the same issue was reversed for the same reason: ‘no reasoning’.
Fetter v Verizon April 12, 2012 NYS Appellate Division, Third Department Interlocutory Appeal «»7010…§ 23: Late/Interlocutory/Frivolous Appeal
DISMISSED employer’s appeal of a Board Panel decision to return the decision for further development of the issue after the Law Judge found no §120 discrimination. The Court stated that since the Board had determined that the Law Judge failed to render “a reasoned oral or written decision upon the contested points” as required by 12 NYCRR 300.5 (a), the cases was returned for further development of the record. The Court reasoned that “Inasmuch as the Board’s decision is interlocutory in nature and neither disposes of all the substantive legal issues nor addresses a threshold legal issue that may be dispositive of the underlying claim, it is not the proper subject of an appeal.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. [24173-7712]
Nepomuceno v NYC April 5, 2012 NYS Appellate Division, First Department §11: Jurisdiction «»3005…§ 11: Jurisdiction
REVERSED the Supreme Court, New York County stating that the Supreme Court was in error denying the defendant hospital’s motion for summary judgment in a case in which the plaintiff, a registered nurse employed by defendant, alleges that she was injured when she slipped on a piece of fruit that had fallen behind a fruit stand on the sidewalk abutting the hospital while on her way to start her morning shift. “[T]he availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law,” such that the matter must, in the first instance, be determined by the Workers’ Compensation Board, thus staying the matter pending resolution by the Workers’ Compensation Board. Prevailing party represented by: John J. Burnett of counsel to Scott Baron & Associates, P.C., Howard Beach for respondent. [24172-7709]
Guideone Specialty Mut v NYSIF April 3, 2012 NYS Appellate Division, Second Department §11: Jurisdiction «»3005…§ 11: Jurisdiction
REVERSED the King County Supreme Court’s denial of a motion to dismiss the Plaintiff’s complaint. The Appellate Court reaffirmed that defendant’s position that “The State Insurance Fund is a state agency, and, consequently, claims against it for money damages must be litigated in the Court of Claims, rather than in the Supreme Court.” As to the timeliness of the defense, the Court added that, “Although the plaintiffs correctly note that the appellant raised this issue for the first time in its reply papers, a court’s lack of subject matter jurisdiction may not be waived and may, in fact, be raised at any time.” Prevailing party represented by: Elizabeth A. Fitzpatrick and Seth M. Weinberg of counsel to Lewis Johs Avallone Aviles (Melville) for appellant. [24172-7708]
Bissell v Town of Amherst March 27, 2012 NYS Court of Appeal 3160…§ 29: 3rd Party future liens «»3160…§ 29: 3rd Party/MVA liens
The Court of Appeals concluded that when, the future medical benefits that a compensation carrier has been relieved of paying due to a claimant’s successful prosecution of a third-party action are “so speculative that it would be improper to estimate and assess litigation costs against [that] benefit to the carrier” the carrier need only pay its equitable share of attorneys’ fees and costs incurred in the future by a claimant once the claimant incurs and pays each medical expense.
In this case, after the Board concluded that Bissell’s injuries resulted in a permanent total disability and awarded him $400 a month for the duration of his life, he commenced a third-party action against the employer per WCL §29(1), ultimately winning $4,259,536 in damages over 32.7 years to cover future medical expenses. The carrier asserted a lien against the judgment for $219,760, representing $154,880 in past workers’ comp benefits and $64,880 for past medical expenses and acknowledged its Kelly obligation to contribute towards attorneys’ fees relative to the present value of the lost wages compensation benefit; however, the carrier refused Bissell’s request that it pay that share of attorneys’ fees relative to the recovery of the future medical expenses awarded him, offering to pay its share of the cost when Bissell actually incurred each medical expense.
In Bissell’s action per §29(1) to extinguish the carrier’s $219,760 lien against the third-party recovery and demand for $1,399,734 in “fresh money” representing the carrier’s c share of the cost of recovery of the future medical expenses, Bissell contended that the amount of future medical expenses cannot be deemed speculative since the benefit to the farrier can be “quantified by actuarial or other reliable means“. Therefore, the present value of the future medical expenses should be included as part of the Kelly calculation, entitling him to an immediate payment of the attorneys’ fees expended in obtaining that portion of the award.
In disagreeing with Bissell’s position, the Court wrote:
We held in Burns that “if a claimant does not receive benefits for death, total disability or schedule loss of use, the carrier’s future benefit cannot be quantified by actuarial or other means“. Similarly, future medical expenses cannot reliably be calculated . . . because it is impossible to reliably predict the future medical care the claimant will need, when the expenses from such care will accrue and how much it will cost when it does. While some of those items may reasonably be ascertained by a jury in a third-party action, there is a distinction between a non-speculative future medical expenses award made by a jury and the benefit that the carrier receives under the WCL as a by-product of that award.
In a third-party action, the injured employee will have only one opportunity to obtain a recovery for future medical expenses, and the jury assessing the medical evidence will have the chance to make but one award for such expenses, if any. By contrast, in the workers’ comp context, it is possible to wait and see what happens, and to require the carrier to pay its share of litigation costs when that share can be accurately calculated - i.e., when the actual medical expenses that the carrier has been relieved from paying are known. Moreover, whether the claimant is entitled to medical treatment pursuant to WCL is a determination that must be made by the Board, and such determination is not dependent upon the jury’s verdict in the third-party action.
The Court then ruled that the lower court has option to design a program, (e.g., by court order or stipulation of the parties, to “fashion a means of apportioning litigation costs as they accrue”. Prevailing party represented by: Hal Friedman [23171-7707]
[ED. NOTE:]Two weeks ago, I published an editorial from the Buffalo News which stated that the Carrier (NYSIF) refused to pay it fair share of the cost for the 3rd party settlement. Now that I have access to the Court’s decision and the underlying issue, it is obvious that the editors of the Buffalo News did not understand the legal issue.
Pelaez v Silverstone March 22, 2012 NYS Appellate Division, Third Department Employment: Who is
Procedure: Denial FBR «»3030…Employment: Who is or dual 7050…Procedure: Denial FBR
AFFIRMED the Board’s ruling that (1) claimant was an employee of Silverbrook Farm and (2) denied Silverbrook’s request for reconsideration and/or full Board review. The issue was whether the claimant was an employee of Silverstone Corporation or Silverbrook Farms, a d/b/a/ for Silverstone and whether or not Silverbrook and Silverstone were sufficiently related to be covered by Silverstone’s WC policy; while Silverstone had WC coverage, Silverbrook Farm did not. Ultimately the Board found that all the pay slips, financial records, and other documents relating to the claimant were all in the name of Silverbrook Farm, determined that (1) for WC purposes Silverstone and Silverbrook were separate entities, (2) Silverbrook Farms was the uninsured employer, and that there was an employee/employer relationship between Silverbrook Farm and the claimant. An interesting fact pointed by the Court is that Silverstone and Silverbrook had separate legal representation. As to the Board denial of Full Board Review, the Court found that Silverbrook had given no indication why the additional evidence submitted in its request for review was not available at the time of the hearing. Prevailing party represented by: Patricia M. Barry of counsel for State Insurance Fund and another respondents. Commissioners of Record: Ferrara, Foster, Libous WCB #5080 1648 [23170-7706]
[ED. NOTE:]It is interesting to note that the Full Board review decision was issued March 19, 2011, just over ONE YEAR after the underlying March 1, 2010 decision, thus taking the Board one year to complete a hearing, the same Board that imposes $1000 fines on carriers and claimant attorneys for taking too long to process their paper work. And perhaps this is the reason that the Board does not publish denials of FBR’s: they would be (not them, but anyone else) embarrassed by such long delays.
Woods v NYS Thruway Auth March 22, 2012 NYS Appellate Division, Third Department Procedure: Denial FBR «»7050…Procedure: Denial FBR
AFFIRMED the Board’s ruling to deny claimant’s application for reconsideration and/or full Board review on the basis that “our review of the record reveals that the Board considered all of the evidence and issues before it and claimant did not seek to present newly discovered evidence or allege a material change in condition in support of his application for reconsideration and/or full Board review.” Prevailing party represented by: Rudolph Rosa DiSant of counsel to State Insurance Fund for New York State Thruway Authority and another, respondents. Commissioners of Record:Denials of request for Full Board Review are signed only by Vice-Chairman Libous - the Commissioners on the original panel are usually not informed of the request nor the denial. [23170-7705]
►Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. on October 25, 2012.
Inter-Community Mem Hosp v Hamilton March 16, 2012 NYS Appellate Division, Fourth Department Self-Insured Trusts «»3195…Self-Insured Trusts
The Court allowed a member of one of the many defunct Group Self-Insured Trusts (GSIT) to bring action against The Hamilton Wharton Group, Inc. (HWG) and Walter B. Taylor, HWG’s sole owner and controlling principal(collectively, HWG and Taylor), as program administrator and managing director of the trust for negligence, gross negligence, breach of contract, and breach of fiduciary duty and against the individual trustees for breach of contract. The defendants defense of a possible ‘time bar’, since the plaintiff dropped out of the pans many years earlier, was dismissed. The Court ruled that “Although plaintiffs withdrew from active participation in the trust in 2001, they continued to have claims with the trust, and they continued to be jointly and severally liable for the deficits of the trust. Thus, the obligations of the parties as set forth in the operative trust documents continued beyond the period of plaintiffs’ active membership. . . . The plaintiff’s causes of action may contemplate as a component of damages the pro rata deficit assessments against plaintiffs. Damages are an essential element of a breach of contract cause of action and, here, plaintiffs could not allege damages for the pro rata deficit assessments until those assessments were levied against them by the Workers’ Compensation Board.” Prevailing party represented by: Joseph E. Zdarsky of Counsel to Zdarsky, Sawicki & Agostinelli (Buffalo) for Inter-Community Mem Hosp., et al [23170-7704]
[ED. NOTE:] The repercussions of the Board’s failure to supervise these trusts continues to reverberate throughout the legal system and its potential impact on every participant in the trust program .. except that is the Board’s employees who were supposed to be in charge of the program.
Runge v National Baseball March 15, 2012 NYS Appellate Division, Third Department §123 Stale Claims «»3178…§123 Stale Claims
AFFIRMED the Board’s ruling that Workers’ Compensation Law §123 does not bar further proceedings regarding the claim, for uncontroverted 1992 and 1997 injuries, which dealt with medical issues and bills, as it appears that no compensation was ever paid. At that time, the Board did not reach the merits of the claim and closed the case “without prejudice until [a] proper medical report is filed.” Having paid medical bills without dispute through 2003, the employer then disputed certain medical bills, seeking reimbursement from the Special Fund for Reopened Cases (Fund) per WCL §25-a, it raised the issue that the claim was barred pursuant to Workers’ Compensation Law § 123. Although a Law Judge withheld decision pending claimant’s submission certain documents, no further action was taken until 2009, when the employer again raised §123 after claimant submitted medical evidence of his injury. The Law Judge found that §123 was inapplicable. The key issue stated by the Court, was “no claim for compensation . . . that has been otherwise disposed of without an award after the parties in interest have been given . . . [an] 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. . . .As a factual determination for the Board to make, whether such cases fall within the ambit of this statute depends on whether they were truly closed, that is, if further proceedings, such as the submission of additional medical evidence, were contemplated by the Board.” Essentially, since the Law Judge, finding insufficient medical evidence in the record to make a determination, concluded that no further action was planned until such evidence was presented. Since the submission of additional medical evidence was contemplated in 1992 and 2005, the Court agreed with the Board that the case was not truly closed. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Paprocki, Bell WCB #0923 3492 [23169-7703]
►This is the first opinion issued by the Appellate Court on this issue in several years.
Rodriguez v City of New York March 2, 2012 NYS Supreme Court, New York County
This following text is included on this page as the legal concept of ‘timeliness’, unlike the current Board’s interpretation, does have a clearly defined meaning. In this case, the delay was occasioned by the plaintiff’s failure to find the name of the employer until after the time limit for filing. The Court, quoting an earlier decision, wrote:
“[Llaw office failure, whether premised on an inadvertent clerical mishap or on an error in ascertaining the correct party to sue,” does not constitute a reasonable excuse for failing to file timely a notice of claim. (Quinn v Manhattan & Bronx Surface Tr. Operating Auth., 273 AD2d 144 [ 1 st Dept 20001).
Canfora v Goldman Sachs March 8, 2012 NYS Appellate Division, Third Department §25-a: Reimbursement Period «»3130…§ 25-a: Reimbursement Period
REVERSED the Workers Compensation Board’s ruling, which in turn reversed the Law Judge, that transferred retroactive liability to the Special Fund for Reopened Cases (Fund) per WCL §25-a. On May 29, 2008, the carrier requested that liability for a 2001 injury be transferred to the Fund per §25-a. Ultimately, the Board transferred liability to the Fund effective retroactive to May 30, 2006, which is two years prior to the date of the carrier’s application, but within seven years of the date of injury. Here, it is uncontested that the carrier’s application was filed more than seven years after the date of injury and three years from the last payment of compensation. The sole issue on appeal is the proper date for liability to be transferred to the Special Fund. The Board transferred liability retroactive to May 30, 2006, which was two years prior to the date the carrier filed its application. The Special Fund had argued that this is precluded by §25-a, inasmuch as May 30, 2006 falls within seven years of the date of the underlying injury. The Board rejected this argument, concluding that once the statutory time limits regarding the date of injury and last payment of compensation have been met, §25-a does not preclude a transfer of liability retroactive to a time period within seven years of the underlying injury.
[ED. NOTE:]The Board panel in its decision wrote:
The Fund argues that it can not be held responsible for awards prior to May 3, 2008 because awards cannot be directed against the Fund within seven years of the date of accident. However, the statute does not indicate this; rather, §26-a only permits the transfer of liability once the timeframe of seven years after the date of accident and three years after the last payment of compensation has been satisfied. As noted above, once liability has been transferred to the Fund per §25-a, awards can be retroactively directed against it beginning two years prior to the date of the carrier’s application. In this matter, the carrier filed its application for §25-a relief on May 30, 2008. Accordingly, the Fund is liable for the claim beginning on May 30, 2006.]
In ruling against the Board, the Court pointed out, “It is well settled that a decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious” The Board has previously determined that, although the effective date of liability may be made retroactive up to two years from the date of the application to reopen, “said look-back period remains limited by the provisions of Workers’ Compensation Law [§ ] 25-a, which requires that both the [seven]-year and [three]-year periods set forth therein have expired before [the] Special Fund[] may properly assume liability on the claim“. Consequently, the Board determined that liability may not be transferred until “the first date, within the look-back period, where both the [seven]-year and [three]-year periods had expired.” Inasmuch as the Board has not, in the instant matter, provided a rational explanation for departing from its own precedent, the decision must be reversed. Apparently the Law Judge who made the underlying decision and was reversed by the Board panel actually either knew the law or knew how to research such a relatively simple issue. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0013 9089 [23168-7702]
Wheeler v Bloomingdales March 1, 2012 NYS Appellate Division, Third Department §15(8) Reimbursement Special Funds «»3110…§ 15(8) Reimbursement Special Fund
AFFIRMED the Workers Compensation Board’s ruling that the workers’ comp carrier was entitled to reimbursement from the Special Disability Fund (Fund) for deficiency compensation payments subject to certain restrictions. After claimant’s 1992 claim was established, the carrier filed a notice of claim for §15(8)(d) reimbursement from the Fund but liability of the Fund was not established at that time. With the consent of the carrier, claimant subsequently settled a personal injury action in which the employer had been impleaded as a third-party defendant. Liability of the Fund pursuant to §15(8)(d) was established approximately one year later. On May 11, 2001 [ten years to the day before the decision being appealed], the Board ruled that, when the carrier consented to the settlement, it had failed to reserve its right to receive credit for deficiency compensation payments against claimant’s net proceeds and, thus, per §29(4) such credit was waived.
In 2009, the carrier alleged that the Fund was refusing to reimburse it despite the prior finding of the Fund’s liability. The Workers Compensation Board found that, because the Fund’s liability had not been determined at the time of the settlement, the carrier was not required to obtain the Fund’s consent to it. As a result, the Board further found that, although the Fund was not liable for reimbursement to the carrier for payments made beyond the statutory retention period, which were encompassed by the carrier’s lien waiver, the carrier was nonetheless entitled to reimbursement per §29(4) by the Fund for deficiency compensation payments.
The Court, in affirming and in rejecting the Funds reliance on the Matter of Bertone v La Cal Causle Corp. (26 NY2d 147, 149 [1970]) , wrote, “Because the issue of the Fund’s liability had not been established at the time the settlement was reached, we find no basis upon which to disturb the Board’s determination that the Fund’s consent to the settlement was not necessary. Finally, when it consented to claimant’s settlement, the carrier neglected to reserve its offset rights under §29(4). Thus, as the Board found, the carrier is not entitled to reimbursement from the Fund for payments that it made beyond the statutory retention period until the time when claimant’s proceeds from the settlement would have been exhausted.“ Prevailing party represented by: Sean J. McKinley of counsel to Vecchione, Vecchione & Connors (Garden City) for Bloomingdales and another, respondents. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0926 9826 [23167-7701]
►This is the first case dealing with two aspects of reimbursement: before §29(4) consent and for periods thereafter. What is of interest is that the claimant’s appeal covered by another Workers Compensation Board panel’s May 11, 2001 decision was filed late but accepted by the Board panel under the often misused “interests of justice” by which it waives legal errors without giving any explanation as to what “interests of justice’ have been served, thereby perpetuating the generally accepted opinion that the Board acts capriciously and arbitrarily.
— — FEBRUARY 2012 — —
Eccles v Truck Lite February 23, 2012 NYS Appellate Division, Third Department Course of Employment: in and out of «»1100…Course of Employment: in and out of
AFFIRMED the Workers Compensation Board’s decision, which reversed the Law Judge, that the claimant’s fall from a chair was in the course of employment and not due to a diabetically-induced hypoglycemic episode precipitating the fall and injury. The Law judge originally disallowed the claim but the Board, editorializing in its reversal, determined that “ the findings of the Law Judge were based in part on mischaracterizations of the medical evidence that were perpetuated by the carrier’s attorney during the deposition testimony of [claimant’s doctor].” it appears that, while the Law Judge based his decision on the results of a report of a blood test, the Board panel not only could not find the source of the crucial report but found that the few medical reports in the file supported a contrary conclusion: no hypoglycemic episode. The Court also denied the carrier’s claim of §114-a. [ED. NOTE:] §114-a was not referenced in the underlying Board panel decision.] Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Ferrara, Libous, Williams WCB #8071 2227 [22166-7700]
Cappellino v Baumann & Sons Bus February 9, 2012 NYS Court of Appeals Untimely Submissions/Defenses 7025…Untimely Submissions/Defenses
REVERSED the Appellate Court, 3rd Department’s affirmance of the Workers Compensation Board’s ruling that death was not casually related. The Court of Appeals determined that the Board improperly relied on medical reports which should have been precluded as evidence. The issue of the acceptability of the carrier’s medical report has been the subject of five Board Memorandum of Decisions in this case (11/06/2002, 12/12/2003, 07/30/2004, 09/12/2005, and 06/15/06), decisions which were based the Board’s interpretation of §137, NYCRR 300.2.3(1), §25(2)(b), and §25-3(c). Ultimately the Court of Appeals determined that the C-7 was filed late: the “Notice of Indexing Case” was mailed on January 11, 2002, and the carrier’s form C-7 “Notice That Right To Compensation Is Controverted” was not filed until February 11, 2002. Essentially, the Court of Appeals determined that, since the C-7 was filed late, the carrier should have been denied the opportunity to present any medical evidence, evidence that was used by the Board in its determination that the death was not causally related. The Court remanded the case back to the Board for it to consider only the medical evidence submitted by the claimant, the decedent’s widow.. Prevailing party represented by: Joel M. Gluck (NYC) for appellant. Commissioners of Record: Bargnesi, Henry, Libous WCB #4020 0210 [22164-7699]
►The decisions from both the Court of Appeals and the Appellate Court are available through the following link. And on February 23, 2012, a COMMENTARY has been posted on this case based on a comments from one of this site’s readers.
McLeod v Ground Handling February 9, 2012 NYS Appellate Division, Third Department Course of Employment: Location of MVA 1120…Course of Employment: Egress/Ingress
AFFIRMED the Workers Compensation Board’s ruling that claimant’s auto accident on the way to work did not arise out of and in the course of employment. Claimant was en route to her job at the Westchester Airport when she was injured in an automobile accident on Airport Access Road, a county road. Thereafter, a Board panel reversed a Law Judge who had ruled that claimant was traveling to work at the time of the accident and, therefore, her injuries arose out of and in the course of her employment. The Board panel determined that in order for a compensable accident and risk of employment to exist, “there must be (1) a special hazard at the particular off-premises point and (2) a close association of the access route with the premises, so far as going and coming are concerned” and that did not occur here. There was no indication that there was a special hazard at the point where the accident occurred. Although claimant used Airport Access Road to reach the employee parking lot, the record establishes that the road is a county road used by the general public to get to and from the airport and is not controlled by the employer. The Court agreed that “substantial evidence supports the Board’s finding that claimant did not sustain an injury arising out of and in the course of her employment.” Prevailing party represented by: Rudolph Rosa Disant of counsel to the NY State Insurance Fund for Ground Handling and another, respondents. Commissioners of Record: Bargnesi, Higgins, Bell WCB #017 5904 [22164-7698]
Searchfield v Lowes Home Ctrs February 9, 2012 NYS Appellate Division, Third Department § 28: time bar
Causal Relationship: PFME, et al 1210…§ 28: time bar; 1030…Causal Relationship: PFME, et al
AFFIRMED the Workers Compensation Board’s decision that (1) claimant’s application for workers’ compensation benefits was not time barred by §28 and (2) the additional site of injury was causally related. In October 2005, after injuring himself lifting a hot water heater, claimant was initially diagnosed with a “myofascial strain of legs [and] hips” and then after a second exam was diagnosed with hip/thigh sprain and sciatica. Later physician reports, however, focused on complaints of groin, lower back and leg pain. In 2006, a Law Judge established a work-related injury to claimant’s lower back and found prima facie medical evidence of groin strain. After claimant reported worsening symptoms, an MRI of claimant’s sacrum revealed signs of, among other things, “a possible paralabral or synovial cyst” and an orthopedic surgeon, in a January 2009 report, opined that claimant had, among other things, a right hip labral tear, also reporting claimant was originally misdiagnosed and had sustained injuries to his right hip. A WCLJ found that the claim was time-barred per §28 and, in any event, the condition was not causally related to the subject accident. Upon review, a Board panel reversed on both issues. The Board, in adding the hip as an original site of injury, determined that the claimant’s ongoing pain was actually the result of a labral tear in the right hip, an injury which is often misdiagnosed as a low back injury. The testimony of the claimant’s doctors confirmed that the claimant’s injury was consistent with the mechanism of the work injury of lifting a water tank.Given that “the resolution of conflicting medical opinions is within the province of the Board, particularly where the conflict concerns the issue of causation” the Court found substantial evidence supporting the Board’s ruling as to causation. Prevailing party represented by: Thomas N. Kaufmann of the Law Office of Thomas N. Kaufmann (Fayetteville) of counsel to Richard Searchfield, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent . Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #6051 0082 [ [22164-7697]
— — JANUARY 2012 — —
Capalbo v Stone & Webster January 26, 2012 NYS Appellate Division, Third Department Procedure: Denial FBR «»7050…Procedure: Denial FBR
AFFIRMED the Workers Compensation Board’s ruling which denied the request of the carrier for reconsideration or full Board review (FBR). In seeking to deny the claim, the carrier requested in a February 10, 2010 hearing that it be allowed to submit its medical report well beyond the initial 45-day time period noted in the Law Judge’s November 2009 decision. After the Law Judge agreed, the claimant appealed and the Board reversed the Law Judge, determining that it was too late to submit the medical report. The carrier unsuccessfully sought FBR. The Court determined that the Board discretion was supported as “the record establishes that [the Board] addressed all relevant issues and the carrier did not present any evidence that was previously unavailable.” Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent and Joseph A. Romano of the Law Office of Joseph A. Romano (NYC) for Joseph Capalbo. Commissioners of Record: Lower, Williams, Finnegan WCB #017 0651 [21162-7696]
►Since October 2009, all 20 prior Appellate Court decisions on this issue have affirmed the Board, 8 favoring claimants, 11 for carriers and the 20th between two carriers.
Hroncich v Con Edison January 19, 2012 NYS Appellate Division, Third Department Apportionment: Death «»3070…Apportionment: Death [ED. NOTE- October 10, 2012: The Court of Appeals has accepted this case for review.
AFFIRMED the Workers Compensation Board’s decision that decedent’s death, causally related to his occupational illness, was not apportionable. In 1993, decedent was diagnosed with asbestosis and asbestos-related pleural disease ultimately found to have a permanent partial disability, and, as a result, developed thyroid cancer, which progressed into his lungs, dying in 2007. At the hearing on the death claim, a physician testified that decedent’s death was attributable 20% to his work-related illness and 80% to thyroid cancer. [ED. NOTE: The physician was not identified in the Board’s decision as being the claimant’s or the carrier’s.] A Law Judge found that decedent’s death was causally related to his work-related illness and that apportionment was not available. The employer argued that death benefits should be apportioned in the same manner as decedent’s lifetime benefits were apportioned.
“However, as the employer correctly notes, this Court rejected the identical argument in Matter of Webb v Cooper Crouse Hinds, explicitly holding that “apportionment is not available between work-related and non-work-related causes of death“. We are not persuaded by the employer’s arguments urging us to re-examine and overrule Webb. . . . Accordingly, inasmuch as the record concededly contains substantial evidence supporting the Workers Compensation Board’s determination that decedent’s occupational illness contributed to his death, claimant is entitled to death benefits without apportionment. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent and Jill B. Singer of counsel to the Special Funds. Commissioners of Record: Foster, Higgins, Bargnesi WCB #2070 8165 [21161-7695]
►The prior case is Webb v Copper Crouse Hinds with the link noted above.
Ramadhan v Morgans Hotel January 19, 2012 NYS Appellate Division, Third Department Schedule Loss of Use v PTD «»5050…Schedule Loss of Use issues
REVERSED the Workers Compensation Board’s ruling that claimant was not entitled to a mandatory finding of permanent total disability (PTD) pursuant to WCL §15(1), based on the Board’s not infrequent failure to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so. After claimant, suffering injury to his eyes, was awarded a 100% schedule loss of use of both eyes, he unsuccessfully argued that he was entitled to a mandatory finding of PTD per §15(1). The Board concluded that claimant did not qualify for PTD because, even though he qualified for a 100% schedule loss of use of both eyes (WCL §15[3][p]), he still had some vision. Claimant, relying on a 1993 Board decision, argued that he sustained the “loss of both eyes” as required for total disability. The Court agreed that the 1993 Board decision found a PTD on facts that appear to be substantially similar to those in this case and concluded that the Board was required to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so. Prevailing party represented by: Michael K. Gruber of counsel to Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano (NYC) for appellant. Commissioners of Record: Ferrara, Libous, Paprocki WCB #0065 1079 [21161-7694]
►There have been no recent Appellate Court decisions on this issue.
Thomas v Warren County DPW January 19, 2012 NYS Appellate Division, Third Department §14(6): Concurrent Employment «»5170…§ 14(6): Concurrent Employment
AFFIRMED the Workers Compensation Board’s decision that the employer was not entitled to §14(6) reimbursement from the Special Disability Fund (Fund). Claimant who was injured in 2009 concurrently had a second job working for a janitorial service. The employer in whose employment claimant was injured was directed to pay benefits based upon claimant’s average weekly wages from both employments per §14(6). Prior to the §14(6) being amended in 2007, the statute provided that an employer required to pay compensation to a concurrently employed worker based on the average weekly wages of all concurrent employments was eligible for reimbursement from the Fund for any additional benefits paid in excess of the benefits that would have been paid without concurrent employment. The 2007 amendment provided that the Fund would only be available for claims presented in accordance with the newly enacted §15(8)(h)(2)(A) which, as relevant here, bars an employer from filing a claim for reimbursement from the Fund for an injury with a date of accident or disablement on or after July 1, 2007. The employer contends that either (1) without the ability to be reimbursed by the Fund, it is no longer required to pay those additional benefits or (2) the Fund has not been closed to requests for reimbursements in that the amendment only places a time limit on applications for reimbursement. The Court noted that it has already considered and rejected these arguments, most recently in Hope v Warren County Bd Elec Prevailing party represented by: Michael S. Joseph of counsel to James Trauring & Associates (Schenectady) for William A. Thomas, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent Commissioners of Record: Ferrara, Williams, Higgins WCB #011 9384 [21161-7693]
Sangare v Edwards January 19, 2012 NYS Appellate Division, First Department §11: Election of Remedies «»3001…§ 11: Election of Remedies
AFFIRMED the Supreme Court, New York County denial of defendant (Dermer) motion to refer the matter to the New York State Workers Compensation Board to determine whether plaintiff was Dermer’s special employee at the time of his injury. The Court’s denial was based on the late filing of the motion. Other than amending its defense ito include a workers’ comp defense, asserting that as a special employee of Dermer, plaintiff’s sole and exclusive remedy was workers’ compensation, Dermer did not otherwise raise or pursue the workers’ comp issue during the course of the litigation. The Appellate Court explained that “that Dermer was attempting to obtain via this motion relief it could no longer obtain by motion for summary judgment. Dermer may not, at this belated juncture, invoke the primary jurisdiction of the WCB as a means of further delaying the litigation.” [21161-7692]
Engoltz v Stewarts January 12, 2012 NYS Appellate Division, Third Department §114-a: Fraud «»5130…§114-a: Fraud
REVERSED the Workers Compensation Board’s decision that claimant violated WCL § 114-a and was disqualified from receiving additional wage replacement benefits. The Court determined that the Board’s determination that the claimant “knowingly [made] a false statement or representation as to a material fact” for the purpose of receiving benefits” was based on the Board’s misinterpretation of the claimant’s response to the carrier questionnaire. The questionnaire asked if he had been “receiving any earnings”, to which he responded in the negative as he had not, even though the Board, based on the claimant’s own testimony, described his volunteer activities for which he did not get paid as the equivalent of work. The Court added a footnote which is basis for their reversal:
It is notable in this case that, instead of asking whether claimant was or had been employed or had returned to work in any capacity (see e.g. Matter of Bottieri v New York State Dept. of Taxation & Fin., 27 AD3d 1035 [2006]), the questionnaire here asked only whether claimant had been receiving “earnings,” which was specifically defined as “cash, wages, or salary received from self-employment, any employer other than the employer where you were injured, commissions or bonuses, cash value for all payments received in any other method other than cash (such as a building custodian receiving an apartment rent free).”
Prevailing party represented by: Mary J. Mraz of the Law Office of Mary J. Mraz & Associates (Albany) for appellant Commissioners of Record: Ferrara, Libous, Paprocki WCB #5941 2939 [21160-7691]
►The Appellate Court has affirmed the Workers Compensation Board on the three §114-a fraud cases that came before it in 2011: two for the claimant and one for the carrier.
Johnson v Anheuser Busch January 12, 2012 NYS Appellate Division, Third Department Aggregate Trust Fund
Decision Inadequately/Poorly Written «»5250…Aggregate Trust Fund 7200…Decision Inadequately/Poorly Written
REVERSED the Workers Compensation Board’s ruling that directed the carrier to make a deposit into the aggregate trust fund (ATF) pursuant to WCL §27(2). After a Law Judge in 2005 determined that claimant had a PPD and therefore, per §27(2) directed the carrier to make a mandatory deposit of the full present value of claimant’s future benefits into the ATF, the Special Disability Fund (Fund) conceded that it would be liable for reimbursement of 50% of the award per WCL §15[8]. [ED. NOTE: Although the appeal in this decision was on a November 3, 2010 MoD, the carrier and Fund also had appeals on this issue to which the Board responded in MoD’s on August 6, 2008 and February 2, 2010, the latter resulting in the non-FBR review but nonetheless amended decision subject to this appeal.] In light of the concession by the Fund, the Board found that, while a deposit into the ATF by the carrier was no longer mandatory, it was nevertheless within its discretion to order the carrier to deposit the full amount of the benefits into the ATF. However, finding that an order to deposit the full amount would not be “an equitable application of the statute,” the Board directed the carrier to deposit only its 50% share of the award into the ATF. The Court ruled, “While it is within the Board’s discretion to direct the carrier to make a deposit into the ATF in this case, it must iterate the basis for doing so in its decision. Here, as the Board did not provide any rationale for exercising its discretion to order the carrier to make a deposit into the ATF, its decision is insufficient to permit meaningful appellate review” and must be remitted for further findings. Prevailing party represented by: Robert E. Geyer of counsel to Wolff, Goodrich & Goldman (Syracuse) for appellants. Commissioners of Record: Lower, Foster, Bell WCB #6040 3990 [21160-7690]
►This is the first time since this site has been tracking cases that the Workers Compensation Board has been reversed on an ATF issue.
Blotko v Solomon Oliver January 5, 2012 NYS Appellate Division, Third Department Employment: Who is «»3030__Employment: Who is or dual
AFFIRMED the Workers Compensation Board’s ruling that claimant was not an employee of Solomon Oliver Mechanical Contracting (SOMC). Claimant sustained injuries at a building that was being demolished by SOMC who won the contract with a lower bid than the claimant’s own firm. Claimant then spoke with SOMC’s about whether some of the laborers who had worked for his company could work at the demolition site to which SOMC agreed. Although claimant contended that SOMC also hired him, a Law Judge found that an employer-employee relationship did not exist between claimant and SOMC. Despite proof in the record that would support a contrary conclusion, the Court found no basis to disturb the Board’s decision that claimant was not SOMC’s employee. Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for SOMC and another, respondents. Commissioners of Record: Foster, Higgins, Libous WCB #0082 7054 [21158-7689]
►With the exception of Choto v Consolidated Lumber (3/10/2011), The Workers Compensation Board has always been affirmed in its decisions on this issue.
Cary v Salem CSD January 5, 2012 NYS Appellate Division, Third Department Medical Exams: Frequency «»5200…Medical Exams: Appointments
REVERSED the Workers Compensation Board’s decision which incorrectly rescinded awards made by a Law Judge and which denied claimant’s request for a Full Board Review because of gaps in medical reports. After suffering injuries in June 2003 and then returning to work with restrictions in November 2003, a Law Judge in 2009 awarded reduced earnings benefits from January 2004 to July 2009, with the awards to continue forward, a decision reversed by a Board panel who concluded that claimant had not submitted medical evidence in the form of progress reports from her treating physician supporting a finding of a continuing causally related disability every 45 days as required and, rescinded claimant’s R/E awards for various time periods between April 11, 2005 to July 10, 2009 representing gaps between the submission of the progress reports that were greater than 45 days.
The Court recognized that “there is no presumption of continuing disability under the Workers’ Compensation Law” and that a claimant’s treating physician is required to submit progress reports reflecting a continuing disability “at intervals of not less than three weeks apart or at less frequent intervals if requested on forms prescribed by the [C]hair” although “[t]he [B]oard may excuse failure to give such notices within the designated periods when it finds it to be in the interest of justice to do so” (WCL §13-a[4][a]). And while there were gaps between the submissions of the medical reports to the Workers Compensation Board, the unequivocal and unchallenged medical evidence in the record establishes that claimant was disabled during that entire time period such that “The gaps in the reports, standing alone, do not constitute substantial evidence supporting the recision of claimant’s reduced earnings awards under these circumstances.” Prevailing party represented by: Christopher R. Lemire of counsel to Lemire & Johnson (Malta) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5030 9752 [21158-7688]
Catapano v Jaw January 5, 2012 NYS Appellate Division, Third Department § 29: 3rd Party/MVA liens «»3160…§ 29: 3rd Party/MVA liens
AFFIRMED the Workers Compensation Board’s decision which, found that the Special Disability Fund’s (Fund) consent to a third-party settlement was required, a decision issued by the Board after this same Court on May 20, 2010 reversed the Board’s November 24, 2008 ruling against the Fund. After the claimant was injured, the claim established, and §15(8)(d) liability established, claimant settled a 3rd party law suit with the consent of the carrier but not the Fund. After the Board initially held that the Fund’s consent was not required, the Court returned it to the Board determining that its decision was inconsistent with Board precedent and because the Board did not set forth its reasons for deviating from the precedent. Now the Board ruled that the Fund’s consent to the settlement was required and the carrier’s failure to obtain such consent resulted in a forfeiture of further reimbursement from the Fund. The Court added, “Inasmuch as the Board’s decision [ED NOTE: this time] represents a rational, consistent interpretation and application of the relevant statute, we will not disturb it.“ Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee Commissioners of Record: Ferrara, Libous, Higgins WCB #0952 8461 [21158-7687]
►In 2010 and 2011, the Workers Compensation Board has been affirmed only 3 times in its 9 decisions on §29 issues.
Eaton v Dellapenna Assoc January 5, 2012 NYS Appellate Division, Third Department Disability: Degree of «»5020…Disability: Degree of or R/E
AFFIRMED the Workers Compensation Board’s decision that claimant sustained a permanent total disability. After claimant’s 2001 injury prevents him from returning to work, medical treatment authorized and awards were made at a tentative rate. In 2003, he began receiving Social Security disability benefits and underwent surgery, which only relieved his pain temporarily. After claimant was classified in 2009 with a permanent partial disability, the case was continued on the issue raised of claimant’s attachment to the labor market, after which a Law Judge modified claimant’s prior classification and determined that he had a permanent total disability. The claimant’s treating physician testified given, among other things, claimant’s detailed physical restrictions and the fact that his chronic pain is controlled by narcotic medications, it was his opinion that claimant was disabled from even sedentary employment, regardless of the fact that not all of these concerns were addressed by the Board’s medical guidelines. While claimant testified that he had sporadic good days when the pain was not as severe and the record contains medical proof that could support a finding that claimant continued to suffer only a permanent partial disability, the Board specifically found the physician’s testimony regarding claimant’s limitations and unemployability to be credible. Prevailing party represented by: Anna Dmitriev of counsel to Coughlin & Gerhart (Endicott) for Larry Eaton, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #9010 5224 [21158-7686]
►The Workers Compensation Board’s decisions on this issue have always been confirmed (1 in 2011 and 5 in 2010).
Franco v Peckham Ind January 5, 2012 NYS Appellate Division, Third Department Disability: Further Causally Related «»5030…Disability: Further Causally Related/Comp
AFFIRMED the Workers Compensation Board’s decision that claimant’s newly developed medical condition was not consequential and thus he had no further causally related disability. After injuring his back in April 2004, claimant’s case was established, and awards made. In September 2004, he received epidural steroid injections to relieve his back pain. After he was hospitalized and treated for tuberculosis myelitis in October 2004, he sought to amend his claim to include tuberculosis myelitis as a consequential injury. The Board, based on reports from an impartial specialist, concluded that there was insufficient evidence of a causal relationship to include tuberculosis myelitis. Then it determined claimant’s had no further work-related injury subsequent to June 9, 2006. The Court ruled that, “inasmuch as claimant did not appeal from the Board’s determination not to amend the claim to include consequential tuberculosis myeletis and did not re-present the issue in its application for Board review, such claim is unpreserved.” The Board’s final decision was that claimant’s present disability was not related to his workplace injury but was solely due to the subsequent, unrelated tuberculosis myeletis condition. Prevailing party represented by: Sara Thomas of counsel to Jones, Jones (NYC) for Peckham Industries, Inc. and another, respondents. Commissioners of Record: Ferrara, Libous, Paprocki WCB #3040 4511 [21158-7685]
►The Workers Compensation Board’s decisions on this issue have been confirmed in 5 of 6 cases in 2011/2010 with one being rescinded.
Hosey v Central NY DDSO January 5, 2012 NYS Appellate Division, Third Department § 25-a: True Closing «»3140…§ 25-a: True Closing
AFFIRMED the Workers Compensation Board’s decision that WCL §25-a is not applicable. After receiving benefits for a 2000 back injury, in 2009 the carrier sought to have liability shifted to the Special Fund for Reopened Cases (Fund) per WCL §25-a. While a Law Judge agreed, a Board panel found that the case had not truly been closed and, reversed the Law Judge. In this case, even though the claimant had been working continuously with the same restrictions since 2002, had no compensable lost time, and was receiving ongoing payments for medical treatment, and his treating physician in 2002 indicated claimant had a permanent disability, the issue of permanency was not formally addressed and therefore remained unresolved and thus, legally, still open. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee. Commissioners of Record: Lower, Paprocki, Bell WCB #6011 2921 [21158-7684]
Jennings v Avanti Express January 5, 2012 NYS Appellate Division, Third Department Employment: Who is «»3030__Employment: Who is or dual
AFFIRMED the Workers Compensation Board’s ruling that claimant’s decedent husband was an employee. After decedent died in an MVA, the employer contended that the claimant, a courier, was an independent contractor, not an employee. In affirming the Board, the Court noted that a Law Judge, affirmed by a Board panel, found there was an employer-employee relationship based on a record which revealed that the employer determined the decedent’s delivery schedule, provided decedent with a vehicle, an E-Z Pass for the payment of tolls, and GPS device. Further, the employer required decedent to dress in a certain manner and the employer paid decedent through a payroll service on a weekly basis according to a formula devised by the employer. Prevailing party represented by: Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #3080 6361 [21158-7683]
Nassar v Masri Furniture January 5, 2012 NYS Appellate Division, Third Department Causal Relationship: PFME, et al «»1030…Causal Relationship: PFME, et al
AFFIRMED the Workers Compensation Board’s ruling that claimant sustained a causally related injury. Claimant injured his back in April 2005 while working the employer, a furniture company, monitoring warehouse stock and making deliveries while he was lifting furniture. The pain increased such that two weeks later, while claimant was unloading furniture from more containers, the pain was such that he was unable to continue working, after which he did not return to work and filed a workers comp claim. The Board ruled that claimant sustained a causally related injury. Both claimant and a coworker testified that claimant was working for the employer lifting furniture when he hurt his back and neck and both further stated that the pain continued thereafter, requiring claimant to cease working. The Court agreed with the Board that (1) inconsistencies in the testimony or contrary testimony given by the employer presented a credibility issue for the Board to resolve and (2) uncontradicted medical evidence established a causal relationship between claimant’s injury and the disability to his back and neck.. Prevailing party represented by: Mark Du of counsel to Law Office of Joseph A. Romano (NYC) for Sam Nassar, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Paprocki, Higgins WCB #0051 8317 [21158-7682]
►Because the Court gives discretion to the Workers Compensation Board, the Court has affirmed the Board on all cases on this issue in 2010 and 2011, all but three for the claimant.
Nichols v Hale Creek ASACT January 5, 2012 NYS Appellate Division, Third Department Course of Employment: Special Events «»1110…Course of Employment: Special Events
AFFIRMED the Workers Compensation Board’s decision that claimant’s injury, coaching company volleyball team, arose out of and in the course of his employment and awarded workers’ compensation benefits. Claimant, the superintendent of a correctional facility, suffered an injury while coaching an employee volleyball team preparing to compete in the “Department of Correction Olympics“, a claim unsuccessfully controverted by the carrier. Although WCL §10 states that an injury is not compensable when it is sustained during voluntary participation in an off-duty athletic activity that does not constitute part of an employee’s work-related duties, the record in this case supported the Board’s decision that this was not a purely voluntary participation, to wit, claimant was given specific direction to improve staff morale including encouraging employee participation and his coaching the volleyball team. Moreover, claimant’s supervisor testified that she evaluated staff morale as part of her assessment of superintendents’ leadership ability and that there is an expectation that superintendents be involved with as many facility-related events as possible. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #006 9793 [21158-7681]
►There were no Workers Compensation Board cases on this issue in 2009 to 2011.
Potter v VM Paolozzi January 5, 2012 NYS Appellate Division, Third Department Course of Employment: in and out of «»1100…Course of Employment: in and out of
AFFIRMED the Workers Compensation Board’s ruling that claimant’s injury, on a dinner ‘run’ arose out of and in the course of his employment. Claimant, an automobile salesperson, was injured while driving his personal car while on an authorized break for which he had requested and received permission from his supervisor to briefly leave work to go to pick up and bring back two spaghetti dinners for the employer’s finance manager. The finance manager had purchased the dinners as part of a fundraiser sponsored by a football team that claimant helped run on a voluntary basis. The Court wrote “Accidents that occur during an employee’s short breaks, such as coffee breaks, are considered to be so closely related to the performance of the job that they do not constitute an interruption of employment.” Among other indicia, claimant’s supervisor testified that it was customary to allow salespeople to leave the dealership on short paid breaks, thus providing substantial evidence to support the Board’s determination that claimant’s short break did not constitute an interruption of employment. Prevailing party represented by: Timothy J. McMahon of counsel to McMahon, Kublick & Smith (Syracuse) for Richard Potter, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #014 8055 [21158-7680]
►Because the Court gives discretion to the Workers Compensation Board, the Court has affirmed the Board on all cases on this issue in 2009, 2010, and 2011, splits between claimants and carriers.
Richman v NYS Unified Court January 5, 2012 NYS Appellate Division, Third Department § 21: Unwitnessed Death/accident «»1001…§ 21: Unwitnessed Death/accident
AFFIRMED the Workers Compensation Board’s ruling that §21 presumption supported establishing the claim despite the paucity of evidence. [ED. NOTE: As you can read below, this case has a rather interesting history.] Claimant, a court reporter, was found unconscious at her workplace and rushed to a local hospital, where she was diagnosed with a subarachnoid hemorrhage caused by a ruptured basilar artery aneurysm. Although she remains in a comatose state, a claim which was filed was controverted by the carrier, asserting that the ruptured aneurysm was not related to claimant’s employment. A Law Judge and the Board panel found that the employer did not overcome the presumption of compensability set forth in WCL §21(1). While the employer’s expert opined that claimant’s ruptured aneurysm was unrelated to her employment, the Board agreed with the Law Judge that the expert’s report and testimony were not credible – in large measure because he was evasive when questioned as to whether work-induced stress could raise a person’s blood pressure high enough to cause an aneurysm to rupture. Contrary to the employer’s argument, the Board, which “is the sole arbiter of witness credibility” was not required to wholly credit the expert’s opinion on this point simply because it was the only expert proof presented. Prevailing party represented by: Felice Sontupe of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #0074 3840 [21158-7679]
►The only other case on this issue in 2011 was also affirmed but favored the carrier.
[ED. NOTE: On April 23, 2008, a Law Judge denied the claim for lack for prima facie medical evidence (PFME). On November 24, 2008, the Workers Compensation Board denied an appeal as being late: “Further, since the claimant’s attorneys fail to indicate why a timely application could not have been filed in this matter, the Board Panel declines to exercise its discretionary authority under Workers’ Compensation Law 123.” But then, in a Full Board Review, the Board, without giving any reason other than its continuing jurisdiction under §123, reversed itself, accepted the appeal, and returned it to the Law Judge to again reconsider the PFME, at which point the Law Judge did just that, accepting the claim. When I was at the Board, I was one of several commissioners who fought to keep a strict interpretation of 30 days for §23 appeals, unless there was some exceptional reason to excuse a late appeal, the exceptional reason to be clearly noted in the Board panel decision so as not to give the impression of arbitrariness or capriciousness by the Board. In this case, no reason was given for the Board’s total about face on this issue from which one can infer it was not any fact in this case that prompted the reconsideration,
Satalino v Dans Supreme January 5, 2012 NYS Appellate Division, Third Department Causal Relationship: PFME, et al «»1030…Causal Relationship: PFME, et al
AFFIRMED the Workers Compensation Board’s ruling that claimant did not suffer a causally related disability. Working at a grocery store for 35 years, claimant’s duties included unloading delivery trucks, stacking boxes and stocking store shelves. In January 2009, he had the first of two surgeries on his lumbar spine, never returning to work and filing a comp claim in November 2009, alleging that his condition was causally related to his employment. Although a Law Judge determined that he suffered an occupational disease to his lumbar spine, a Board panel reversed. Pursuant to the WCL §2[15], an occupational disease is “a disease resulting from the nature of employment and contracted therein“. Further, to be entitled to benefits based upon an occupational disease, “the claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her employment” Finally, medical opinions regarding a causal relationship “must signify ‘a probability as to the underlying cause’ of the claimant’s injury which is supported by a rational basis”. Although claimant’s physicians found disc herniation, arthritis, spondylolisthesis and stenosis, one testified that he could not find a relationship between claimant’s condition and his employment and he could not opine whether the herniations were related to claimant’s work or chronic disc degeneration, further testifying that claimant’s arthritis, stenosis and spondylolisthesis could be related to claimant’s age and not his job. Although his surgeon suggested possible causal relationship, he had initially indicated in an application for disability benefits that claimant’s condition was unrelated to his employment. Noting that the Board is free to reject medical opinions where an expert does not testify convincingly in support of a causal relationship, The Court “conclude[d] that the Board did not abuse its discretion in determining that claimant failed to establish a recognizable link between his condition and his employment.” Prevailing party represented by: Elissa Landa of counsel to Fisher Brothers (NYC) for Dan’s Supreme Supermarket and another, respondents Commissioners of Record: Bargnesi, Higgins, Bell WCB #019 2244 [21158-7678]
►Because the Court gives discretion to the Workers Compensation Board, the Court has affirmed the Board on all cases on this issue in 2010 and 2011, all but three for the claimant.
Morphew v Aero December 29, 2011 NYS Appellate Division, Third Department §29: Apportionment of legal fees
RESCINDED the Workers Compensation Board’s decision that the claimant was not entitled to reimbursements for certain expenses from his 3rd party law suit. After being awarded comp benefits for a March 2004 work accident, claimant commenced a third-party action, received a settlement offer of $725,000, and then received the carrier’s consent. In its consent, the carrier asserted a lien in the amount of $132,002.63 for compensation payments already made [The total amount of the workers’ compensation payments to claimant prior to settlement was $201,053.98, and the carrier accepted the reduced amount to account for its equitable share of the litigation costs commensurate with that figure.]. Additionally, the carrier “specifically reserve[d] its rights to claim a credit and offset for the net amount of the settlement payable to [claimant] against any prior, subsequent or future claim for [w]orkers’ [c]ompensation indemnity and/or medical benefits arising out of this occurrence.” The carrier then suspended its indemnity payments to claimant based upon its offset against claimant’s proceeds from the settlement. After the Board classified claimant with a moderate to marked permanent partial disability, claimant requested further action and a Law required the carrier to contribute its share of the litigation costs associated with the offset amount by paying claimant a discounted rate of indemnity. On appeal, the Board reversed, finding that an award of such payments to claimant would alter the terms and conditions of the settlement consent agreement, which was beyond its jurisdiction.
Because “carriers are obligated to contribute the costs of litigation in proportion to the total benefit that they receive”, the carrier has a legal obligation to “pay its equitable share of litigation costs as benefits accrue” even in cases in which future benefits are too speculative to apportion the carrier’s litigation costs at the time of settlement. The Court essentially stated that, contrary to the Workers Compensation Board’s position, Burns v Varriale, 9 NY3d 207, 214 [2007]did apply. “Although, in its consent to settlement, a carrier may seek to be released from its affirmative obligation to pay its share of litigation expenses, it is ‘required to express that release plainly and unambiguously in the consent to settlement agreement’. Thus, contrary to the Board’s determination that it lacked jurisdiction, whether the carrier ‘plainly and unambiguously’ absolved itself of its continuing responsibility to contribute to the litigation costs consistent with its offset is a question of fact for the Board to resolve and, accordingly, the matter must be remitted.” Prevailing party represented by: Justin S. Teff of counsel to Law Office of Ralph M. Kirk (Kingston) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #5040 5518 [1D158-7677]
Coyle v Midwest Steel December 22, 2011 NYS Appellate Division, Third Department Voluntary Withdrawal
REVERSED the Workers Compensation Board’s decision that claimant’s lost earnings were not causally related to claimant’s work-related disability while also ruling that the claimant did not voluntarily withdraw from the labor market. As the result of an established claim for an injury to his left knee in 1998, claimant underwent multiple knee and hip replacement surgeries, and consequential compensable injuries to his back and right hip were established. After the light duty position to which he returned in June 2009 was eliminated in August 2009, claimant was offered a full-duty position as an ironworker, but feeling that he could not accept the position due to his medical restrictions, he retired. Payments were made to the claimant until December 2009 when the carrier raised the issue of claimant’s voluntary removal from the labor market. In December 2009, a law judge ruled that the claimant was entitled to continued benefits and, then in February 2010, ruled the claimant had involuntarily retired due to his causally related disability. A Board panel affirmed the December 2009 decision, but reversed the February 2010 decision, denying further benefits due to claimant’s failure to maintain a sufficient attachment to the labor market subsequent to December 12, 2009, prompting a pro-se appeal.
In reversing the Workers Compensation Board, the Court wrote, “The Board’s finding that claimant’s retirement was involuntary ‘gave rise to an inference that his reduced earning capacity continued after retirement’. That inference is removed only by ‘direct and positive proof that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement’. Further, ‘[p]roof that the claimant has not sought work postretirement, by itself, does not defeat the inference or shift the burden to [the] claimant to show that the disability was a cause of the reduction’ . Rather, the employer or workers’ compensation carrier ‘must demonstrate that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement, such as age, economic conditions or other factors unrelated to the disability. Here, the Board relied solely on the fact that claimant failed to actively search for employment or avail himself of any employment services after retirement in denying him further benefits. Given the lack of any proof by the employer that something other than claimant’s disability was the sole cause of his reduced earnings after retirement, we conclude that the Board’s determination denying claimant further benefits is not supported by substantial evidence and must be reversed.” Prevailing party represented by: Mark Du of counsel to the Law Office of Joseph Romano (NYC) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0985 8460 [1D157-7676]
[ED. NOTE:] It seems that the Workers Compensation Board did a review on its own motion of this same June 4, 2009 decision for which the 3rd Department has just issued the above opinion. Based on that review, issued September 29, 2011, the Board panel determined that Full Board Review was not warranted, had determined that the MOD should be amended, and, in effect, reversed itself, finding involuntary withdrawal from the labor market. While one can agree or disagree with the result of the Board panel’s ‘voluntary’ review of its own decision, one is prompted to ask, “At what point does a Board panel decision become final if the Board can change its mind when the fancy (or a politician’s phone call) generates an arbitrary review and reversal?”]
►While we await what will be a clarification on the issue of Voluntary Withdrawal From the Labor market, the record shows that the Workers Compensation Board has a failing grade on this issue this year, getting only 7 of 11 affirmances (63%) of its decision to date.
Lewis v Stewarts Marketing December 22, 2011 NYS Appellate Division, Third Department Untimely Submissions/Defenses
REVERSED the Workers Compensation Board’s ruling that claimant sustained a permanent total disability because the Board denied the carrier the right to cross examine witnesses. In 2008, the employer sought a hearing to determine the degree and permanency of claimant’s disability for injuries sustained in a compensable accident in 1997. After claimant provided an updated medical report indicating that he had a permanent total disability, the employer submitted an independent medical report indicating that claimant suffered a moderate partial disability of a permanent nature and was capable of performing some type of work. A law judged denied the employer’s request to cross-examine claimant and his physician concerning claimant’s ability to work, determined that claimant had a permanent total disability, and awarded benefits with videotapes proving §114-a fraud. In reversing the Board, the Court agreed with the carrier that its request to cross-examine claimant and his physician was improperly denied since they did make a timely request to do so (see 12 NYCRR 300.10 [c]). In its reversal the Court also noted that “Moreover, inasmuch as the record contains conflicting medical reports regarding the nature of claimant’s disability, denial of the employer’s request to cross-examine claimant’s physician clearly prejudiced the employer.” Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for appellants. Commissioners of Record: Higgins, Libous, Foster WCB #6980 0429 [1D157-7675]
[ED. NOTE:] The carrier had also sought a ruling on §114-a but the Law Judge and Workers Compensation Board’s Panel determined that medical reports found the claimant totally disabled, and did not directly rule on the §114-a issue. The carrier then raised this issue again with new evidence and, in a December 8, 2009 decision, was hit by a Law Judge with a §114-a(3)(i) penalty for raising this issue, an issue for which no decision (certainly not noted in any of the Board panel MOD’s) had previously been rendered. The carrier’s appeal to the Board on this penalty was not only denied but the carrier was then hit with a $500 penalty under §23 for a frivolous appeal. Yet (1) the record show that the Board had yet to rule on the fraud issue and (2) the decision of the Appellate Court to remand for testimony on both degree of disability and work ability would appear to make the videotapes and investigator’s report, the basis of the fraud claim, neither a waste of the Board’s time nor a frivolous appeal. Or did I miss something?]
►This is the first Workers Compensation Board case on this issue to make it to the Appellate Court since posting started here in late 2008
Carlineo v Snelling & Snelling December 15, 2011 NYS Appellate Division, Third Department Employment: Temp Worker
AFFIRMED the Workers Compensation Board’s ruling that Snelling & Snelling (S&S), a temp agency, was solely liable for workers’ compensation benefits paid to claimant. Claimant obtained his position with F.T. Well Support, through S&S, LLC, a temporary employment agency. His claim was established after he injured both of his legs in a work-related motor vehicle accident while working at the location of Fortuna Energy, a client of FT Well. S&S was ordered to pay temporary awards and the case continued on the issue of general/special employment with S&S contending the either/or both Fortuna and FT Well were totally or partially liable for the claim. After claimant and FT Well testified, the Law Judge found that S&S was claimant’s employer and there was no special employment relationship with Fortuna. There were numerous appeals and Board panel decisions regarding testimony by S&S and its witnesses but ultimate the Board determined that S&S was provided a full and fair opportunity to develop the record. S&S’s appeal to the Appellate Court on this issue was dismissed as interlocutory. The Law Judge determined that claimant was a special employee of FT Well, and not any other entity, but that S&S was 100% liable for payment on the claim pursuant to the contract between S&S and FT Well. Although claimant and FT Well testified that FT Well set claimant’s hours, directed and supervised his work and provided the necessary equipment, substantial evidence supports the Board’s determination that S&S is solely liable for payment of the claim: S&S obtained workers’ compensation insurance for the temporary employees that it provided to FT Well and part of the fees that FT Well paid to S&S were intended to include the cost of such coverage. Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy respondent. Commissioners of Record: Ferrara, Finnegan, Bell WCB #5050 7422 [1D156-7674]
►This is the only Workers Compensation Board case in 2009, 2010, and 2011 regarding the employment relationship and ensuing liability of a temp agency towards an injured worker.
Dudas v Town of Lancaster December 15, 2011 NYS Appellate Division, Third Department §18 notice to employer
AFFIRMED the Workers Compensation Board’s ruling that denied the claim’s establishment [ED. NOTE: see ED. NOTE below] for what appears to be late notice, while rejecting the carrier’s argument that claimant did not give timely §18 notice of injury. Claimant allegedly injured his right ankle on February 28, 2007 when he slipped on a patch of ice at the employer’s Town Hall. He continued to work and did not seek medical treatment until March 9, 2007 when he presented at the local emergency room complaining of pain and swelling. A review of the March 9 emergency room report indicated that the claimant injured his right ankle when he fell off a porch whereas a review of additional medical records, including the medical opinion of the carrier’s consultant, show that the history provided by the claimant was that he injured himself at work, when he slipped on some ice. When these symptoms persisted, claimant sought treatment from an orthopedist in May 2007 following which the prospect of surgical intervention was discussed. Despite his ongoing difficulties and treatment, he did not report his injury to the employer until June 27, 2007.
The carrier initially authorized medical care, but then controverted the claim following receipt of the emergency room records, which indicated that claimant twisted his ankle falling off a porch, thus raising a question as to whether the underlying injury actually was work related, a question first brought to the Board’s attention by the carrier two months after receiving the emergency room report. Following a hearing, Law Judge found that claimant failed to timely report the accident and disallowed the claim.
While the claimant asserted that the employer waived the defense of timely notice, the carrier had shown that its receipt of the claimant’s emergency room records constituted “newly discovered evidence” sufficient to allow the late filing of its notice of controversy. The Workers Compensation Board panel then addressed the issue of, “How soon after the receipt of newly discovered evidence must the notice of controversy be filed.” While the carrier argued that there is no time limit in the statute or regulations, the Board agreed with the Law Judge who found that the notice of controversy must be filed “within a reasonable period of time” after the newly discovered evidence is discovered, although neither of these decisions set a fixed date for such, finding that in this case that the notice of controversy was “unreasonably” late.
Nonetheless, the Court affirmed the Workers Compensation Board’s denial of the claim, asserting, “Here, despite ongoing symptoms, claimant continued working and delayed both reporting the accident and seeking treatment, which may well have permitted claimant’s condition to worsen and, more to the point, prevented the employer from promptly investigating the underlying incident. Under these circumstances, we cannot say that the Board abused its discretion in disallowing the claim.” Prevailing party represented by: Russell D. Hall of counsel Hamberger & Weiss (Buffalo) for Town of Lancaster and another, respondents. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB# 8071 2755 [1D156-7673]
[ED. NOTE:] The Workers Compensation Board panel decision states, “the WCLJ found that the evidence supported finding that the SIE failed to timely controvert the claim. . . In addition, the WCLJ also found that the claimant failed to timely provide notice to his employer and disallowed the claim.” I am still not clear as to how the Law Judge, Board, and Court would find that the insurer failed to timely controvert the claim on the issue of notice and then disallow the claims because there was no timely notice.
Pucci v DCH Auto Group December 15, 2011 NYS Appellate Division, Third Department Reopening by claimant
AFFIRMED the Workers Compensation Board’s rulings (1) which denied claimant’s application to reopen his claim, and (2) denied claimant’s request for reconsideration or full Board review. In October 2003, claimant, after sustaining work-related injuries, was awarded workers’ compensation benefits. Although he returned to work in December 2003, he left his employment with DCH in May 2004 and accepted a position at another firm at a lower rate of pay. Two months later, claimant requested a reduced earnings award, denied in August 2005 by the Board, finding that claimant left his job at DCH for personal reasons unrelated to his compensable injuries. The case was closed and claimant did not appeal that decision. In April 2008, claimant sought to reopen his claim again seeking a reduced earnings award. The Board affirmed the Law Judge concluding that such claim merely was a reiteration of the original claim filed in 2004 and denied in 2005 and that claimant had not set forth sufficient facts to warrant reopening the claim. Claimant’s subsequent application for reconsideration or full Board review was then denied.
The Court stated that, because the Workers Compensation Board had already denied his original request for reduced earning in a decision never appealed, the merits of that claim were not properly before the Court. Although the Board may reopen, modify or rescind a prior determination (see 12 NYCRR 300.14 [a] [2]) where claimant presents proof that a material change in condition has occurred, “here the claimant relied solely upon the fact that he underwent back surgery in 2007 as well as other of his and his employer’s submissions,” it concurred with the Board’s findings of an insufficient basis upon which to reopen. Claimant’s remaining arguments, to the extent not specifically addressed, were been examined and found to be lacking in merit. Prevailing party represented by: Jill M. Johnson of counsel to Ryan, Roach & Ryan (Kingston) for DCH Auto Group, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5031 5308 [1N156-7672]
►The only prior Workers Compensation Board case on this issue was in 2010, also affirmed for the carrier. Thomas v Crucible Materials
Elrac Inc v Exum December 13, 2011 NYS Court of Appeals §11: Jurisdiction Uninsured Motorist
We hold that a self-insured employer whose employee is involved in an accident may be liable to that employee for uninsured motorist benefits, notwithstanding the exclusivity provision of the Workers’ Compensation Law. Exum, while driving a car owned by and in the course of his employment with his employer Elrac, was in an accident with another car, driven by a person without liability insurance. Elrac was legally self-insured and thus had not obtained an insurance policy to cover the car Exum was driving. Exum served a notice of intention to arbitrate on Elrac, seeking uninsured motorist benefits, a notice stayed by a lower court but affirmed by the Appellate Division.
“Insurance Law § 3420 (f) (1) requires every policy of motor vehicle liability insurance to contain a provision requiring payment to the insured of all sums that the insured is entitled to recover as damages from the owner or operator of an uninsured motor vehicle. In Matter of Allstate Ins. Co. v Shaw (52 NY2d 818 [1980]), we held that a self-insurer had the same liability for uninsured motorist coverage that an insurance company would have. There is no policy reason why Exum’s uninsured motorist protection should decrease because he happened to be driving the car of a self-insurer.”
“But there is a difference between this case and Shaw: here the person claiming uninsured motorist coverage was an employee of the self-insurer. It is undisputed that Exum was entitled to workers’ comp from Elrac, and Elrac claims that he is therefore barred from recovering uninsured motorist benefits. Exum points out that we permitted an employee of a self-insurer to recover in Matter of Country-Wide Ins. Co. (Manning) (62 NY2d 748 [1984]), which involved essentially indistinguishable facts. Because we did not discuss the workers’ compensation issue in Manning, however, we assume that the issue is open.”
“Workers’ Compensation Law § 11 says: ‘The liability of an employer [for workers’ compensation benefits] . . . shall be exclusive and in place of any other liability whatsoever, . . .’ Although the words “any other liability whatsoever” seem all-inclusive, there are cases of which this is one in which they cannot be taken literally. Specifically, the statute cannot be read to bar all suits to enforce contractual liabilities. An action against a self-insurer to enforce the liability recognized in Shaw is, in our view, essentially contractual. The situation is as though the employer had written an insurance policy to itself, including the statutorily-required provision for uninsured motorist coverage. This action is therefore not barred by WCL §11” and the order of the Appellate Division should be affirmed. [1D156-7671]
Grilikhes v Intl Tile & Stone December 13, 2011 NYS Appellate Division, First Department 3030…Employment: Who is or dual
Supreme Court granted defendants International Tile & Stone Show Expos’s and Metropolitan Exposition Services’ motions for summary judgment dismissing the Labor Law §241(6) cause of action as against them. The plaintiff worked for a contractor (MES) who was on a list approved by the New York Convention Center Operating Corporation (NYCCOC), the operator of Javits. The terms of that between the exhibitor, New York Convention Center Operating Corporation (NYCCOC), the operator of Javits, allegedly gave MES all “Obligation to control the work site, and the responsibility of ensuring that the work contemplated by the permit was performed in a safe and proper manner.”
Plaintiff, who worked at the Javits Center and was injured while dismantling one of the exhibit booths, received his paycheck from NYCCOC as were the workers’ compensation benefits he began to receive after the subject accident. He signed in at an NYCCOC desk and was then sent to an MES desk, to sign in there as well. MES gave plaintiff a list of tasks to complete each day and supplied him with all necessary work materials, including safety equipment, for which among other reasons, plaintiff considered MES his supervisor during the tile show.
Plaintiff commenced this action against MES and ITSS alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). MES moved for summary judgment dismissing the complaint on the ground that plaintiff was its special employee and therefore his claim was barred by Workers’ Compensation Law § 29(6). ITSS also moved for summary judgment, on the ground that it was neither an owner nor a contractor and therefore could not be held liable. The lower court granted both motions finding that (1) MES was plaintiff’s employer for workers’ compensation purposes since it told him what to do, and when and where to do it, and (2) because there was no evidence that NYCCOC retained any control over plaintiff once he left the NYCCOC sign-in desk in the morning. As for ITSS, The Appellate Court found that “[T]he key criterion is the right to insist that proper safety practices were followed. . . . Because ITSS had no authority or ‘Obligation to control the work site, and the responsibility of ensuring that the work contemplated by the permit was performed in a safe and proper manner . . ., it cannot be deemed an owner for purposes of Labor Law liability.’ ” Accordingly, its motion for summary judgment dismissing the § 241(6) claim was properly granted. [1D156-7670]
Like the case above involving a claimant working for a temp agency, the specific of this case are unlike any which have been to the Appellate Division in the last three years.
Smith v TWA December 8, 2011 NYS Appellate Division, Third Department Voluntary Withdrawal
AFFIRMED the Workers Compensation Board’s ruling that the claimant voluntarily withdrew from the labor market. After filing a claim for injuries sustained while working as a baggage handler in 2001, claimant was awarded compensation benefits. Although a Law Judge determined that she had a permanent partial disability and had not voluntarily withdrawn from the labor market, a Board panel reversed. In this case, medical experts opined that claimant was capable of returning to work with some restrictions and claimant acknowledged that she had not worked since August 2001, she refused to return to work when her employer offered her the opportunity to do so, she made no efforts to seek other employment within her restrictions, and she failed to pursue available vocational or employment services. The Court agreed that, “Substantial evidence supports the Board’s determination that claimant voluntarily withdrew from the labor market.” Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for TWA and another, respondents. Commissioners of Record: Foster, Bell, Higgins WCB #0015 3845 [1N155-7669]
►In view of the upcoming Court of Appeals decision in the Matter of Zamora v New York Neurologic, the listing of prior Workers Compensation Board cases for reference may well become moot.
Maye v Alton Mfg December 8, 2011 NYS Appellate Division, Third Department Hearing Loss
REVERSED the Workers Compensation Board’s ruling by finding that the pro-se claimant had a further causally related disability. After claimant retired in March 1994, his work-related occupational hearing loss was established with a 59.5% binaural hearing schedule loss of use and the case was closed in 1997. In 2005,the claimant contended that the causally-related binaural hearing loss had increased to 71.56%. Although the Law Judge agreed, a Board panel in an amended decision reversed. Bearing the burden of establishing that a causal relationship exists between his injury and his employment, the claimant relied on the medical report of his treating otalaryngologist, who stated unequivocally that “[claimant’s] hearing loss is 100% causally related to his job.” The Court then noted that, “Inasmuch as there was no conflicting medical evidence presented here, the Board’s rejection of the treating physician’s uncontroverted medical opinion on causation was improper.”[ED. NOTE:] The Board panel, and subsequently, the full board apparently determined, incorrectly, that once the hearing loss was established, no further modification in the degree of disability would be accepted if they fell outside the time lines in §49-bb, a point emphasized in the amended decision. Prevailing party represented by: Bobby C. Maye Rochester, appellant pro se. Commissioners of Record: Finnegan, Paprocki, Bell WCB #7941 6753 [1N155-7668]
►No prior Workers Compensation Board cases on this increase of a change in disability under §49-bb. The other two hearing loss cases in 2010 dealt with establishing the case.
Ortiz v Rose Nederlander December 8, 2011 NYS Appellate Division, First Department Employment: special employee
DENIED defendants’ motion for summary judgment dismissing the complaint as defendants failed to demonstrate that plaintiff was their special employee and, thus, barred from maintaining this personal injury action under the Workers Compensation Law. The claimant brought this civil action after being injured during the course of her employment cleaning defendants’ theater. The record shows that plaintiff was compensated by nonparty Nederlander Producing Company of America (NPCA), which was also her supervisor’s employer. Although identifying the entity which controlled the work of plaintiff’s supervisor is highly probative of who controlled the injured plaintiff’s work, the record does not support defendants’ assertion that they controlled the work of plaintiff’s supervisor. Moreover, the fact that defendants and NPCA appear to be affiliated, does not establish, as a matter of law, that they were “alter egos or joint venturers for the purpose of barring plaintiff’s claims under the Workers’ Compensation Law“. The argument that NPCA was merely a “common paymaster” is not dispositive of the special employer issue as the record showed that NPCA also entered into an employment contract with plaintiff’s supervisor. Furthermore, even if one defendant funded NPCA’s payroll, such fact is just a single factor militating in favor of a special employment relationship. Standing alone, and without, inter alia, the additional showing that, defendants directed and controlled plaintiff’s duties, or the existence of a contract by which defendants directly undertook duties in relation to plaintiff, the funding-source element is not dispositive. [1N155-7667]
Zamora v New York Neurologic Decision dated :not yet issued NYS Court of Appeals Voluntary Withdrawal from the Labor Market
Because of the potential impact of the decision in this case on those thousands of injured workers whose fate rests on the Workers Compensation Board’s determination if they have or have not voluntarily withdrawn from the labor market, I have written a COMMENTARY on this case along with my prediction of the ultimate decision. Click here for the link.
Sauers v K-Mart Corp December 1, 2011 NYS Appellate Division, Third Department 25-a: True Closing
RESCINDED and returned to the Workers Compensation Board for proper review the Board’s ruling that §25-a did not apply. The basic question was whether or not the deferral of a medical procedure commended during a medical examination just prior to the end of a seven-year period which would have transferred the case under §25-a. In this case, the claimant’s medical provider recommended surgery during an exam on March 17, 2009,two weeks prior to the seven-year anniversary of her April 1, 2002 injury, the date after which the claim would have been transferred under §25–a. The claimant shortly thereafter decided to defer what she considered to be very serious surgery and opted for remediation of her pain through prescriptions rather than surgery. A few weeks later, after the seven-year period elapsed, she decided that medication was not working and requested the surgery. The carrier argued that the case was closed based on the March 17 exam in the claimant did not pursue surgery. The Board determined that the March 17, 2009 report kept the case open whereas the carrier argued that the case was closed when the claimant decided not to proceed with surgery and was then reopened after the seven-year period when the claimant decided to pursue surgery. The court determined that the Board could not consider whether or not the claimant’s deferral and then reconsideration constituted a form of closing and reopening and therefore sent it back to the Board review. [ED. NOTE:] In my opinion, the claimant’s deferral to await the results of using medication meant that a clearly foreseeable event (her decision) would be forthcoming in the immediate future which meant that the case was not closed. Had the board taken the time to review the carriers appeal rather than focusing on a daily March 17 exam, there would have been no delays in resolving this case nor the cost of thousands of dollars incurred by both sides as a result of this totally unnecessary appeal.] Prevailing party represented by: John M. Cordon Jr. of counsel to Hamberger & Weiss(Buffalo) for appellants. Commissioners of Record: Ferrara, Libous, Paprocki WCB #4020 8675 [1D154-7666]
Cooper v Cosmopolitan Care November 23, 2011 NYS Appellate Division, Third Department §32 Reopening
AFFIRMED the Workers Compensation Boards’ decision that a §32 waiver agreement could not be reopened. The pro se claimant settled both of his cases with a §32 waiver agreement in 1999. His request in 2008 to reopen his claims based on additional alleged injuries was rejected by the Board on the grounds that it did not have the jurisdiction to review a waiver agreement once it has been approved. The Court also noted that it, too, did not have the jurisdiction to review a waiver agreement, thus affirming the Board’s decision, “that it lacked jurisdiction to consider claimant’s request.” Prevailing party represented by: Charlotte Flynn of counsel to the NY State Insurance Fund for Cosmopolitan Care Corporation and another, respondents. Commissioners of Record: Firestone, Paprocki, Henry WCB#0855 4127 [1N153-7665]
►Only prior Workers Compensation Board case in 2011 on this issue was reversed for the claimant because the §32 was done administratively and not at a hearing. Nickel v Pilgrim Psychiatric (05/05/2011)
Levy v Plainview Fire Dept November 23, 2011 NYS Appellate Division, Third Department Employment: Dual
AFFIRMED the Workers Compensation Board’s ruling that there was dual liability between the volunteer fireman’s organization and the City of New York. Claimant, a volunteer member of the Plainview Fire Department, submitted a volunteer firefighters’ claim for benefits based upon injuries allegedly sustained while assisting the NYC Fire Department at the WTC terrorist attack on 9/11/2001 and thereafter. The decision references General Municipal Law §209-I(1) which essentially states that whenever a volunteer firefighter volunteers outside his district to another fire department and that fire department accepts his services, “the volunteer . . . shall then be entitled to all powers, rights, privileges and immunities granted by law to volunteer [firefighers] during the time such services are rendered, . . .” Although the claimant originally volunteered on his own, on September 12, 2001, the Plainview Fire Chief asked for volunteers who would be reporting to the headquarters of the New York City Fire Department where their activities were then directed and controlled by the City. “Inasmuch as a substantial evidence supports the Board’s factual conclusions regarding claimant’s dual employment, the determination will not be set aside even if the record could support a contrary conclusion.” Prevailing party represented by: Jacqueline C. Delorbe of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Plainview Fire Dept. and another, respondents. Commissioners of Record: Ferrara, Foster, Libous WCB#107 0004 [1N153-7664]
►There were no Workers Compensation Board cases in 2011 dealing with dual employment although the two VFBL cases in 2011 involved causally related death.
Hope v Warren County Bd Elec November 23, 2011 NYS Appellate Division, Third Department §14(6): Concurrent Employment
AFFIRMED the Workers Compensation Board’s decision that the employer was not entitled to a §14(6) reimbursement from the Special Disability Fund (Fund) based on the date of the injury. The claimant was injured November 3, 2009 working as an election polling inspector while also having concurrent employment with a retail clothing store. The Law Judge established claimant’s average weekly wage (AWW) at $80.69, combining her $3.56 [yes, $3.56] as a poll inspector and $77.13 from the clothing store, and directed the carrier to continue awards at the temporary partial disability rate of $80.69. The carrier appealed, unsuccessfully arguing that awards should have been based only on claimant’s primary AWW of $3.56 inasmuch as it could no longer obtain reimbursement from the Fund for additional amounts attributable to an employee’s concurrent employment.
While Workers Compensation Law §14(6) provides that, where an injured employee has concurrent employment, compensation is computed based upon the combined average weekly wage of those employments and payment for that compensation is made in the first instance by the primary employer in whose employment the injury occurred, in 2007, WCL §14(6) was amended so as to bar reimbursement from the Fund for claims with a date of accident or disablement on or after July 1, 2007.
The Court wrote,
The carrier argues that the sentence in that statute providing that primary employers “shall be liable for the benefits that would have been payable if the employee had no other employment” (WCL §14[6]) operates to impose a ceiling that limits the liability of primary employers, and that the ceiling survived the 2007 amendments.
We do not agree. Clearly, this statutory phrase does not rule out greater liability on the part of the primary employer, and the carrier’s citation to cases from this Court decided prior to the 2007 amendments does not call for a different result …. Nor does the amended statutory language provide support for the proposition that concurrent employment should no longer be taken into account when calculating a claimant’s average weekly wage. Indeed, the unambiguous language of §14(6) expressly provides that the injured employee’s “average weekly wages shall be calculated upon the basis of wages earned from all concurrent employments.” Notably, the overall purpose of the WCL is to provide benefits payable by an employer to an employee injured in the course of employment, without regard to fault. The legislative history of the 2007 amendments indicates that, as relevant here, its purpose was to close the Fund to new claims. We find nothing in the legislative history indicating that the Legislature intended that injured workers receive reduced benefits as a result of the phasing out of that Fund.
Prevailing party represented by: Michael D. Violando of Sullivan, Keenan, Oliver & Violando, L.L.P. of counsel to Martin, Harding & Mazzotti (Albany) for Hazel Hope, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Paprocki, Higgins WCB #021 3160 [1N153-7663]
►There were no prior Workers Compensation Board cases on this issue in 2009, 2010, or 2011.
Longo v Graphic Packaging November 23, 2011 NYS Appellate Division, Third Department §3(29)/(30) OD-Who pays
AFFIRMED the Workers Compensation Board’s decision that, because the claim was for an occupational disease, the carrier at time of disablement was liable. Claimant was employed as a maintenance mechanic at a food packaging facility from 1961 to 2001. Throughout claimant’s employment, the company was sold several times. Six years after his 2001 retirement with his employer then being Graphic Packaging Corporation, a subsidiary of Coors Brewing Company, he was diagnosed with interstitial lung disease attributable to exposure to asbestos and awarded comp for an occupational disease, with March 15, 2007 set as date of disablement. A Law Judge determined that Zurich, the comp carrier for Coors/Graphic on the date of disablement, was liable for the claim. In their defense Zurich and Coors claim that there is insufficient evidence in the file to establish that Coors was the employer but failed at two hearing to present any contrary evidence, thus giving the Board uncontroverted evidence that Zurich was the carrier of record on the date of disablement. Prevailing party represented by: Leith Carole Ramsey of counsel of counsel to Stockton, Barker & Mead (Albany) for Kraft General Foods and another, respondents and Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for Liberty Mutual, respondent. Commissioners of Record: Lower, Bell, Finnegan WCB #5070 3549 [1N153-7662]
►There have been no Appellate Court cases on this issue in 2009, 2010, and 2011.
Newman v Old Glory RE Corp November 23, 2011 NYS Appellate Division, Third Department §11: Jurisdiction
In vacating a default judgment against the employer, the Supreme Court, New York County, stated that the employer established that “[it] did not receive personal notice of the summons in time to defend and has a meritorious defense” against the claim that it was the decedent’s employer when she was injured. The Court then ruled the claim was limited to recovery from workers compensation. [ED. NOTE: My assumption is that, had proper notice been given of the civil action, recovery could have been sought both through the civil court as well as workers compensation. But this is not clear in the preceding decision.] [1N153-7661]
Borgeat v C&A Bakery November 17, 2011 NYS Appellate Division, Third Department Special Errand
AFFIRMED the Workers Compensation Board’s ruing that decedent’s death occurred in and out of the course of employment (IOCE). In October 2006, after his regularly scheduled work shift as a delivery driver had concluded, decedent was involved in a motor vehicle accident that resulted in his death. Alleging that the after work activity was a special errand, a Law Judge, affirmed by a Board panel, determined that decedent’s death was causally related to his employment and awarded death benefits.[ED. NOTE:This issue and employer/employee relationship was the subject of two prior Board panel decisions, all of which rescinded or modified the underlying Law Judges’ decisions: February 29, 2008 and February 4, 2009. And the matter of Average Weekly Wage, after four years of hearing and three Board panel reviews still remains open, as noted in this March 25, 2010 decision in which IOCE was the only issue determined by the Board.]
While injuries occurring while traveling to and from work are not normally considered in and out of the course of employment, the record supported by both the decedent’s family and the employer, reported that, on occasion, the employer would request that decedent deliver special order cakes to a certain restaurant on his way home from work. Not only was the site of the accident a two-minute drive from the site to which the delivery was to be made, an inspection of the vehicle after the accident showed a cake box bearing the name of the bakery that made the special order cakes. The Court found that “substantial evidence supports the Board’s determination that decedent’s death arose out of and in the course of his employment.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #4070 1555 [1N152-7660]
Cassaro v Horton November 17, 2011 NYS Appellate Division, Third Department employer-employee relationship
AFFIRMED the Workers Compensation Board’s decision that an employer-employee relationship did not exist between claimant and Horton. Injured when the truck he was driving, owned by Horton, flipped over while he was making a delivery, the Law Judge, affirmed by a Board panel, found that claimant was not an employee of Horton. [ED. NOTE: A similar Law Judge decision was rescinded by a Board panel 10/15/2009 and returned to further develop the record.] In finding that the Board had substantial evidence after it considered the key factors as “the right to control the work, the method of payment, the right to discharge and the relative nature of the work; however, no single factor [was] dispositive.“
Horton, who ran a trucking company out of his home, specializing in arranging to transport scrap metal and waste tires, would contact claimant when he had work available and claimant would use Horton’s truck. Claimant did not have a set schedule and was not paid a salary or hourly wage, but was paid a percentage of the amount that Horton collected for each load and no taxes were withheld from claimant’s pay. Horton was not present at the job sites and did not supervise claimant’s work. Claimant could choose how many loads he transported and the amount of time he took to transport the loads, so long as he arrived at the destination yard prior to its closing. Horton testified that he and claimant had an agreement that claimant was an independent contractor and that Horton would not take out any insurance on claimant. Further, claimant represented on his 2008 tax return that he was self-employed with respect to the income he earned from Horton. The Court then added, “Finally, inasmuch as claimant’s injury predates the effective date of the New York State Construction Industry Fair Play Act, such Act is not applicable here.” Prevailing party represented by: John D. Dunne of counsel to Ryan, Roach & Ryan (Kingston) for Horton, respondent. Commissioners of Record: Ferrara, Libous, Paprocki WCB #008 1465 [1N152-7659]
Leslie v Eastman Kodak November 17, 2011 NYS Appellate Division, Third Department Voluntary Withdrawal
AFFIRMED the Workers Compensation Board’s ruling that claimant was not entitled to additional comp benefits pursuant to WCL §15(3)(v). As the result of work-related injuries to both shoulders in March 1999 and several subsequent operations, in February 2006, claimant was awarded a 55% schedule loss of use (SLU) of his left arm and a 52.5% SLU for his right arm, entitling him to 355 weeks of benefits. When the schedule awards were exhausted, claimant applied for additional comp benefits per §15(3)(v). After first finding the claimant did qualify, in a February 2, 2009 decision reversing the Law Judge, after a Full Board Review, the Full Board on March 25, 2010 reversed the Board Panel’s February 2, 2009 decision, [ED. NOTE: 14 months to do a Full Board Review] and affirmed the original Law Judge ruling, based on a finding that the loss of income was not due solely to his established injury. In supporting the Board’s final decision in this case, the Court wrote, “Here, claimant testified that, after being laid off by the employer, he attempted to obtain employment in both real estate sales and tax preparation but was unable to do so because of the poor economy. Claimant further testified that he was currently employed as a security guard for 16 hours per week and was available to work more, but the employer had no additional work available. In light of such testimony, substantial evidence supports the Board’s decision that the impairment of claimant’s earning capacity is due in part to economic factors and not solely to his established injury.” Prevailing party represented by: Daniel P. Kuhn of counsel to Hamberger & Weiss (Rochester) for Eastman Kodak Company and another, respondents. Commissioners of Record: Bargnesi, Bell, Libous WCB #7010 6695 [1N152-7658]
►There were seven Workers Compensation Board cases on this issue in 2011: four affirmed for the employer, one affirmed for the claimant, one reversed for the claimant, and one sent back for the Board to reconsider the claimant’s appeal. But in view of the upcoming Zamora case at the Court of Appeals, reference to these may soon be moot.
Parish v DiNapoli November 17, 2011 NYS Appellate Division, Third Department
AFFIRMED the decision of the office of the Comptroller of the State of New York which denied petitioner’s untimely applications for disability and performance of duty disability retirement benefits. The petitioner claimed that her successfully filling for workers compensation benefits was sufficient notice for her to qualify for disability retirement benefits pursuant to Retirement and Social Security Law Article 15. However, there are several conditions that must be met when asserting that the workers compensation filing qualifies as proper notice for asking for disability retirement benefits , condition detailed in the Appellate Court’s decision Court’s decision. [1N152-7657]
Raynor V Landmark Chrysler - Lead Case
Collins v Dukes Plumbing
Hardy v Trico
Parkhurst v United Rentals
Salgy v Halsted Communications November 15, 2011 NYS Court of Appeals Aggregate Trust Fund
[ED. NOTE:] Because of the length and importance of this case, the attached copy of the decision has line numbers to which reference is made in this summary. Underlining has been added to emphasize key wording.
AFFIRMED the Workers Compensation Board’s ruling that the Workers’ Compensation Board (the Board) and the Appellate Division properly construed the amended statute by requiring the carrier to deposit a lump-sum amount into the Aggregate Trust Fund (ATF) representing the present value of the award. The carrier objected on three basic grounds: The Board was incorrect to make the payment mandatory and retroactive and the decisions was unconstitutional. The Court wrote [Line #35] “This appeal requires us to address the amendments to Workers’ Compensation Law §§ 27 (2) and 15 (3) (w) as they pertain to insurance coverage by private insurance carriers only.”
In rejecting the ‘mandatory’ issue, the Court wrote that which was discretionary is now mandatory [Line #46].
Prior to 2007, the Workers Compensation Board, at its discretion, could also order a private insurance company to deposit into the ATF the present value of an unscheduled permanent partial disability indemnity award (see former Workers’ Compensation Law §27[2]). The 2007 amendment to Workers’ Compensation Law §27(2) added language to the existing statute now making such payments for unscheduled awards mandatory, (L 2007, ch 6, §46).
In rejecting the ‘retroactive’ issue, the Court wrote [Line #142],
The carrier further claims that the Workers Compensation Board and the Appellate Division are improperly applying the statute retroactively. The statute, however, only governs non-scheduled permanent partial disability awards made after its passage. The fact that the award may relate to an injury that occurred prior to the enactment of the statute does not render it retroactive. “‘A statute is not retroactive . . . when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events‘” (Forti v New York State Ethics Commn., 75 NY2d 596, 609-610 [1990] quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 51). That is the case here. Thus, the carrier’s claims of inequity due to the overturning of settled expectations as the result of the amended statute is without merit as the statute neither altered the carrier’s pre-existing liability nor imposed a wholly unexpected new procedure. It merely changed the time and manner of payments of non-scheduled permanent partial disability awards.
As to the constitutional issues, the law does not violate the Taking Clause because [Line #178]
The statute neither increases the amount of compensation owed to claimant, nor does it appropriate the carrier’s assets for the use of the State. . .
Nor does it violate the Contracts clause because [Line #191]
The amendment merely makes what was once discretionary, mandatory.
The Court then summarized its decision [Line #226]
This amendment is neither retroactive, arbitrary and capricious nor unconstitutional. Although the carrier argues that the legislation, as enacted, is unfair and places an unanticipated financial burden on private insurance carriers, we are merely interpreting the statute by applying the rules of statutory construction. It is not our role to pass on its fairness or wisdom. It is for the legislature to limit the statute, if it so desires.
[ED. NOTE:] I see a potential legal issue arising when the ATF settles a claim with a §32 settlement for a sum less than what has been deposited. To whom does the balance of the money belong? The fund or the carrier? The Court of Appeals wrote [Line #177]
The Takings Clause prohibits the government from taking private property for public use without providing just compensation. The amended statute, as applied, does not violate this clause. The statute neither increases the amount of compensation owed to claimant, nor does it appropriate the carrier’s assets for the use of the State (see Connolly v Pension Benefit Guar. Corp., 475 US 211, 225 [1986]; cf. Alliance of Am. Insurers v Chu, 77 NY2d 573, 577-578 [1991] [statute held unconstitutional because insurers had a property interest in the fund whose earnings were diverted to the State’s general fund]). Here, there is no such diversion, the mandatory deposit only reflects the present value of what is owed to an injured worker.
I read this to state that these funds are held in trust by the ATF for the beneficiary, the injured worker. When events transpire that end that relationship and the terms of the trust, i.e., the trustee’s responsibilities have been completed but the fund not depleted, it seems that the remaining balance of the fund is to be returned to the depositor and not the trustee. For what other purpose would the ATF hold these funds? But with the State’s overreaching on ‘surplus’ insurance funds, such as those held by the State Insurance Fund, will the State simply move the unused funds into the general budget?
A lengthier analysis of this issue and other issues that will arise from the Court’s decision can be found on the COMMENTARY page.
Prevailing party represented by: Steven C. Wu for respondent Workers’ Compensation Board. [1N151-7656]
Jin v Chen 3rd November 10, 2011 NYS Appellate Division, Third Department §14: Average Weekly Wage
AFFIRMED the Workers Compensation Board’s decision that set the average weekly wage for decedent at $780. Decedent was delivering food on a motorcycle for the employer when he sustained fatal injuries in a motor vehicle accident. Two days after the accident, the employer filed a C-2 form reporting his death and stated that decedent’s gross weekly wage was $350. Claimant, decedent’s widow, subsequently filed an application for death benefits, alleging that decedent’s monthly pay was $2,500. Thereafter, the employer filed a C-11 form which reported that decedent earned $780 per week. After extensive deliberation, the Board determined that the $780 reported by the C-11 submitted by the employer was the best measure of the decedent’s wages and tips for the six-day week he regularly worked. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #012 3983 [1N155.7655]
[ED. NOTE:]: My reading of the underlying MoD gave me the impression that the employer and the carrier had different perspectives on the proper AWW.
►In the only Workers Compensation Board cases on Average Weekly Wage in 2011, Bran v Wimbish (10/06/2011) and Whittaker v Central Sq CSD (09/29/2011), the Court supported the claimants’ positions, affirming the Board in Bran and reversing it in Whittaker.
Browne v Medford Multicare November 3, 2011 NYS Appellate Division, Third Department 5110…Voluntary Withdrawal
AFFIRMED the Workers Compensation Board’s decision that claimant voluntarily withdrew from the labor market. [ED. NOTE:] The August 26, 2010 amendment was a Full Board Review which modified this decision only to the extent of adding that the claimant did have a moderate partial disability. Both Board decisions reversed the Law Judge decision awarding benefits.] Claimant, a certified nurse’s aide, injured when she fell at work, successfully applied for workers’ comp benefits. After she rejected the employer’s offers to place her in a light-duty assignment, the carrier asserted that she had voluntarily withdrawn from the labor market, holding that claimant had no compensable lost time following the employer’s last offer of light-duty work. In affirming the Board the Court held that, “Whether claimant’s failure to accept a light-duty assignment constituted a voluntary withdrawal from the labor market presented a factual issue for the Board, the resolution of which will be upheld if supported by substantial evidence.” The Board found that the detailed light duty position offered to her was withing the restrictions listed by an IME, more than offset the opinion of her medical provider who told her not to accept the assignment. Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman (Hauppauge) for Medford Multicare and another, respondents. Commissioners of Record: Bargnesi, Foster, Finnegan WCB #4080 6362 [1N155-7654]
Fazzary v Niles November 3, 2011 NYS Appellate Division, Third Department Employment: Who is
AFFIRMED the Workers Compensation Board’s decision which ruled that apportionment applied to claimant’s workers’ comp award. In November 2002, claimant began employment with Borg Warner Company (hereinafter the employer). In July 2003, claimant began experiencing pain. He eventually stopped working in July 2004. His claim for workers’ compensation benefits was established for an occupational disease of the neck and shoulder. Thereafter, the employer raised the issue of apportionment, per WCL §44, with claimant’s previous employer, Shepard Niles, where he had been employed for 28 years performing various manual labor tasks. After a Law Judge denied the apportionment, a Board panel reversed. Although claimant was asymptomatic and was not treated for neck or shoulder pain while employed by Shepard, both Shepard Niles and the employer presented reports of independent medical experts who examined claimant and reviewed his medical records. Each expert opined that claimant’s prior employment with Shepard Niles was partly responsible for his cervical degenerative disease. Considering this medical proof, the Court agreed that there was substantial evidence to support the Board’s determination that claimant contracted the occupational disease while employed by Shepard Niles, rendering apportionment appropriate. Prevailing party represented by: Gary C. Tyler of counsel for Hinman, Howard & Kattell (Binghamton) for Travelers Insurance Company, respondent. Commissioners of Record: Ferrara, Libous, Williams WCB#9040 3898 [1N155-7653]
►There were no Workers Compensation Board cases on this issue in 2010 and 2011.
Machajewski v Town of Cambria November 3, 2011 NYS Appellate Division, Third Department VFBL
AFFIRMED the Workers Compensation Board’s decision to grant claimant’s application for death benefits pursuant to the provisions of the Volunteer Firefighters’ Benefit Law (VFBL). The decedent, who collapsed while responding to an automobile accident and died shortly thereafter, was determined to have suffered an acute coronary artery thrombosis, uncontested by the carrier. The Board applied the presumptions contained in VFBL §§ 44 and 61 and established a claim for workers’ comp death benefits by his widow, thus reversing the Law Judge. Claimant is entitled to death benefits if that condition “resulted from the duties and activities in which [decedent] was engaged” (VFBL §61[1]). Here, decedent had never been diagnosed with a heart condition, was examined by his physician just weeks before his death and was found to be in good health. The accident scene where he collapsed was described as chaotic and emotional, [detailed in both the Board’s and Court’s rulings.] Although the carrier’s consulting cardiologist opined that death resulted from various risk factors unrelated to his duties as a volunteer firefighter, the doctor admitted that exertion could trigger heart problems and that wearing bulky gear placed additional stress on decedent’s heart. While the cardiologist characterized decedent’s actions at the accident scene as “routine” for a volunteer firefighter, even typical firefighting tasks were unusual in the course of decedent’s daily life, and the Board properly determined that claimant’s demonstration of entitlement to death benefits had not been rebutted. Prevailing party represented by: Carrie Q. Curvin of counsel to Lewis & Lewis (Buffalo) for Mary S. Machajewski, respondent and Estelle Kraushar of counsel to the NYS Attorney General, for WCB. Commissioners of Record: Ferrara, Libous, Paprocki WCB #806 0027 [1N155-7652]
►In the one VFBL case in 2011 and 2010, the Workers Compensation Board and Court ruled that there was no death claim: Falkouski v City of Rensselaer (01/27/11)
Williams v NYC November 3, 2011 NYS Appellate Division, Third Department §161 World Trade Center Cases & Notice
AFFIRMED the Workers Compensation Board’s ruling that claimant was not a participant in the WTC rescue, recovery or cleanup operations and denied workers’ comp benefits. [ED. NOTE:]: An earlier decision by the Board denying this claimant’s appeal was rescinded by the Court because of the Board’s decision “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.” The case was reviewed by the Panel and a Full Board review which again denied the claim.]
Prior to her September 2002 retirement, claimant was employed in the NYC Dept of Social Services when shortly after September 11, 2001, she among others was reassigned to issue relief checks to individuals who lived or worked below Canal Street and suffered various damages as a result of the terrorist attacks. This assignment did not require claimant to work outdoors or, according to her supervisor, cause claimant to come into contact with soot or dust from the WTC site. Claimant, who had a history of bronchitis and asthma and also was a former smoker, returned to her regular office duties in February 2002. Alleging that her special assignment caused an aggravation of her preexisting respiratory problems, claimant filed four claims for workers’ comp benefits between December 2005 and June 2007 and, to avoid having these claims dismissed as untimely, twice registered as a “participant in [the] World Trade Center rescue, recovery and clean-up operations” (WCL §162).
The basis for the Court agreeing with the Workers Compensation Board’s denial of the claim and the Panel’s reversal of the Law Judge decision Board’s conclusion that the term “recovery” did not encompass the sort of economic recovery efforts engaged in by claimant and her coworkers rather than in any rescue-related activities within the meaning of WCL Article 8-A. Both the Court’s and the Board’s decision cover in detail the definition of the classes of workers covered and those not covered by WCL §162 and Article 8-A. Prevailing party represented by: Larry A. Sonnenshein of counsel to Corporation Counsel, New York City for City of New York, respondent. Commissioners of Record: Ferrara, Libous, Higgins/Henry WCB #0060 0519 [1N155-7651]
►In the only prior case in 2010-2011 Rodgers v NYC Fire Dept - 01/27/2011), the Court returned the case to the Workers Compensation Board to clarify its denial of the claim (thus reversing the Law Judge). On September 15, 2011, The Board reissued its decision, again denying the claim.
Guidice v Herald Co October 27, 2011 NYS Appellate Division, Third Department §25-a: Advance Compensation
RESCINDED and returned to the Board its decision which improperly shifted liability to the Special Fund for Reopened Cases per WCL §25-a. After filing her claim for CTS in August 2000, the claimant had surgery, returned to work January 30, 2004, received a 15% SLU, then in January 2006 after a second surgery, claimant again returned to work. Over the course of the next two years, claimant worked at times without any restrictions and, on other occasions, was subject to varying degrees of restriction. In March 2009, the carrier successfully sought to transfer liability for the claim to the Fund per WCL §25-a. The decisions rested on the factual question regarding whether claimant received an advance payment of compensation, a factual question for the Board to resolve. The record reflects (as detailed in the Court’s decision), that the claimant was accommodated with certain limitations and restrictions on her work, due to her CTS. The Court then wrote, “Accordingly, in view of the various restrictions under which claimant did (or did not) work during the relevant time period, we cannot say that the Board’s decision is supported by substantial evidence. We therefore remit this matter for such further development of the record as will enable the Board to ascertain whether ‘the employer paid for something [it] did not get in the way of service’.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent.Commissioners of Record: Bargnesi, Libous, Bell WCB #6001 0966 [11107650]
Farm Family Cas Ins v Brady Farms September 30, 2011 NYS Appellate Division, Fourth Department § 11: Jurisdiction
The Appellate Court granted a motion stating that State Farm had no duty to defend or indemnify the Brady Farms, the owner and operator of a farm, in connection with fatal injuries sustained by Brady’s employee (hereafter, decedent) while working at the farm. At the time of the accident, the Brady was insured under a primary policy issued by State Farm as well as an umbrella policy also issued by State Farm. Brady did not have workers’ compensation insurance at that time. The decedent filed for workers compensation benefits, establishing that his estate elected to forego the recovery of damages through a civil action and instead sought to pursue what was essentially a claim for the workers’ compensation insurance benefits Brady should have secured for him. Per WCL §26-a (1) (a), an employer that failed to secure workers’ compensation benefits for an injured worker is liable for the payment of benefits awarded to the injured worker.I n effect, the employer (Brady) is substituted for the insurer it failed to hire as the party responsible for payment of the workers’ compensation benefits awarded to decedent.I n view of the uncontroverted proof in the record that the workers’ compensation award issued against Brady in connection with decedent’s death is outside the scope of coverage for Brady under the Package policy, the Appellate Court granted the summary judgement sought by State Farm. [11107649]
Gardner v Triple R Transport October 20, 2011 NYS Appellate Division, Third Department Income from self-employment Decision Poorly Written
RESCINDED and returned to the Board for proper review (1) the claimant’s average weekly wage, thus (2) rendering moot the issue of its denial for Full Board Review (FBR). Claimant, a truck driver who was injured 1999, and was awarded benefits based on claimant’s 1999 tax return, which reflected that his gross income was $49,224, resulting in an average weekly wage (AWW) of $946.61. The carrier sought a FBR, contending claimant’s AWW should have been based upon his net income, taking into account tax deductions taken by claimant for certain employment-related expenses. Whether claimant’s average weekly wage should be based upon his gross income or net income as reported on his tax forms is a factual determination to be made by the Board. While claimant is considered an employee for workers’ comp purposes, he is treated as self-employed for tax purposes. The Court noted that, “The Board has held in at least one case that is factually indistinguishable from the instant matter that, in determining the average weekly wage of such a ‘hybrid’ claimant, expenses which are characterized as mandatory/necessary should be deducted from the claimant’s gross profit.” The Court, in sending this back for a proper review, wrote, “There is no indication in the record before us that the Board reviewed claimant’s tax deductions and determined which, if any, should have been deducted from his gross earnings in fixing his average weekly wage, and the Board has not set forth an explanation for its deviation from prior precedent.” Prevailing party represented by: Rudolph Rosa DiSant of counsel to the NY State Insurance Fund for Triple R Transport. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #0002 9540 [11107648]
October 18, 2011 NYS Appellate Division, First Department Employment: Who is
REVERSED the motion of the lower court by finding it incorrectly denied a motion for nunc pro tunc approval of settlement of the underlying personal injury action pursuant to WCL §29(5). Plaintiff Medina, during his employment with Shiva Ambulette Service, was injured when the vehicle he was operating was struck by a vehicle operated and owned by defendants. Medina commenced a personal injury action against defendants, alleging he suffered a “serious injury,” as defined by Insurance Law § 5102(d). On or about October 3, 2008, Medina entered into a settlement of the underlying action with defendants in the amount of $20,000. Until that date, he had been receiving workers’ comp benefits from his workers comp, nonparty respondent First Cardinal.
The lower court erroneously denied Medina’s request for a nunc pro tunc order granting him a right-to-settle letter from First Cardinal. “A judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even in cases where the approval is sought more than three months after the date of the settlement, provided that the petitioner can establish that (1) the amount of the settlement is reasonable, (2) the delay in applying for a judicial order of approval was not caused by the petitioner’s fault or neglect, and (3) the carrier was not prejudiced by the delay.” The record does not show that the delay in obtaining approval was attributable to the fault or neglect of plaintiff but rather that First Cardinal “unwittingly lulled [plaintiff] into believing that it was willing to waive [plaintiff’s] failure to obtain timely consent or court approval of the settlement.” The remained of the decision details the many indicia supporting the Appellate Court’s decision. [11107647]
Morato-Rodriguez v Riva ConstrOctoober 18, 2011 NYS Appellate Division, Third Department Employment: Who is
Granted the motion for summary judgment dismissing the complaint against it as being barred by WCL §11. The motion court correctly determined that plaintiff’s claims against defendant Riva are barred by WCL § 11. Riva demonstrated that it and nonparty WTS Contracting Corp. are alter egos by establishing that they share a president and chief executive, an office manager and an office address, and were insured by the same liability and WC policies. Although plaintiff was paid with a WTS check and WTS was identified as his employer in the report regarding his accident as well as in the Board’s notice of award, these facts are consistent with the averment by the president of both Riva and WTS that WTS was merely the payroll entity for all Riva employees. Additionally, plaintiff testified that his supervisor, a Riva employee, was the only person who instructed him regarding the work. [11107646]
Becker v Rauli & Sons October 6, 2011 NYS Appellate Division, Third Department Aggregate Trust Fund
AFFIRMED the Board’s ruling that, even if claimant is deceased, carrier must make a deposit into the ATF per WCL §27(2). After a finding of permanent total disability, a Law Judge directed the carrier to deposit the present value of all unpaid benefits into the aggregate trust fund by February 2009. Rather than appeal or make the required deposit, the carrier continued to make payments directly to decedent. After he died in August 2009, the carrier sought to be relieved of its obligation to make the deposit. The Board directed that the deposit be made with interest.
The employer and carrier do not dispute that the carrier’s “liability [was] fixed by the computation and mature[d] on the direction to pay,” and that it accordingly remained obliged to make a deposit into the aggregate trust fund despite decedent’s death (Matter of Marconi v Marshall, 284 App Div 728, 730 [1954]). Instead, they contend that the Board’s refusal to absolve the carrier of that obligation constituted an unexplained departure from prior precedent (see Matter of Applied Elec. Corp., 2001 WL 1017456, 2001 NY Wrk Comp LEXIS 93524 [WCB No. 08336389, July 11, 2001]). Specifically, the prior case involved a self-insured employer that made all death benefit payments to a claimant-widow until her death, notwithstanding an order 11 years earlier to make a deposit with the aggregate trust fund (see Applied Elec. Corp). In that case, however, the Board had mistakenly advised the employer to disregard the deposit order, the aggregate trust fund made no attempt to enforce it for almost eight years, and the extensive delay resulted in the employer paying out more in benefits than the ordered deposit amount (see Applied Elec. Corp). In contrast, the deposit order here was indisputably valid, the carrier did not make unduly large benefit payments to decedent in the brief period between the order and his death, and the Board emphasized that the carrier had not adequately explained its failure to make the deposit. Inasmuch as the prior decision was not based upon “essentially the same facts” as those presented here, the Board was not required to expressly distinguish it. Prevailing party represented by: Nancy E Wood of counsel to the State Insurance Fund for Aggregate Trust Fund, respondent Commissioners of Record: Firestone, Henry, Paprocki WCB #0013 0012 [11097645]
Hamza v Steinway & Sons October 6, 2011 NYS Appellate Division, Third Department §114-a: Fraud
AFFIRMED the Board’s ruling that claimant did not commit §114-a fraud. Claimant received benefits based on a back injury and associated depression from a 2001 accident. In 2004, after a private investigator retained by the carrier recorded claimant performing snow removal outside the apartment building in which he resided, the carrier’s medical consultants changed their opinions regarding claimant’s disability status. Following testimony of several witnesses, the Law Judge found that claimant did not violate §114-a and is permanently partially disabled. Claimant acknowledged that he spread ice melt and shoveled for short periods of time on occasion to assist his wife in her responsibilities as superintendent of the building in which they reside. Claimant further testified that prior to his work-related injury, he assisted his wife to a greater degree than he is now able. Claimant’s treating physicians testified that spreading ice melt and shoveling for a brief period were not inconsistent with claimant’s medical limitations and did not affect their opinion as to his degree of disability. Although the carrier’s medical consultants offered conflicting opinions, credibility determinations and resolution of conflicting medical evidence are issues that rest within the exclusive province of the Board, and it was free to credit the testimony of claimant and his treating physicians over that of the carrier’s witnesses. Prevailing party represented by: Estelle Kraushar of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Firestone, Henry, Paprocki WCB #0013 0012 [11107644]
Gillan v NYS Dept of Corrections October 6, 2011 NYS Appellate Division, Third Department §114-a: Fraud
Procedure: Denial Full Board Review
AFFIRMED the Boards rulings that (1) the claimant did not violate §114-a and (2) properly denied employer’s request for Full Board Review. In July 2002, claimant sustained injuries to his back, right knee and left wrist, later amended to include consequential major depressive disorder; was awarded workers’ comp; and determined to have a permanent partial disability. Following the accident, claimant did not return to work and, in 2003, filed for disability retirement benefits at which time he was classified for that purpose as partially disabled. In May 2007, the carrier unilaterally stopped paying compensation benefits to claimant on the basis that a “fraud referral” concerning claimant had been submitted by a local District Attorney’s office, a charge subsequently dismissed. In July 2008, claimant alleged that the carrier improperly suspended compensation payments without following proper procedures. In September 2008, a Law Judge awarded claimant back benefits, penalized the carrier for the unilateral suspension and scheduled a hearing on §114-a. Following a hearing, the Law Judge found no violation. Essentially the decision rested on the claimant’s testimony, supported by that of his physician that the claimant was not restricted from light activity as long as he remained within the restrictions of his partial disability.
The Board, which “is the sole arbiter of witness credibility” found an absence of any discrepancy between claimant’s testimony regarding his activities and the medical proof in the record. Thus the Court determined that there was no basis to disturb the Board’s conclusion that claimant did not knowingly make a material false statement to obtain benefits. The Court also noted that the Law Judge afforded the Fund the opportunity to have claimant reexamined by an independent medical examiner, the Fund did not do so and instead chose to have the medical practitioner review claimant’s medical file and videotaped surveillance footage. In the absence of an actual physical examination, the Board specifically found the resulting report to be of little weight and declined to credit it. “As to the carriers remaining arguments, including their contention that the Board erred in not finding that claimant voluntarily withdrew from the workforce and their challenge to the denial of the employer’s application for full Board review,” the Court found them to be unpersuasive. Prevailing party represented by: Iris A. Steel of counsel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Foster, Lower, Finnegan WCB#3020 7239 [11107643]
[ED. NOTE:] When a Full Board Review is denied, only Vice-Chairman Libous participates in that decision, a procedure whose legality I questioned in my May 26, 2009 COMMENTARY “Judicial Economy vs Judicial Integrity“
Bran v Wimbish October 6, 2011 NYS Appellate Division, Third Department §14(3),(4): Average Weekly Wage
AFFIRMED the Board’s ruling which increased the claimant’s average weekly wage, after the Court, on May 20, 2010, rejected the Board’s earlier ruling in this case of a $620 AWW, sending it back to the Board for a proper review. The Court now affirmed a $500 AWW based upon the record which reflected that claimant worked for the employer three to four days a week at a rate of $130 per day and that the Board’s calculation of claimant’s average weekly wage upon remittal was proper per §14[3],[4]. The Court also rejected the employer assertion that claimant was an undocumented worker who was not legally entitled to earn any wages and, therefore, no average weekly wage should be established, inasmuch as this argument was not raised at the administrative level. Prevailing party represented by: Iris A. Steele of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Ferrara, Finnegan, Foster WCB #2080 2639 [11107642]
Dipippo v Accurate Signs October 6, 2011 NYS Appellate Division, Third Department Procedure: Denial Full Board Review
AFFIRMED the Board’s decision to deny claimant’s application for Full Board Review. Claimant, initially injured when he slipped off the back of a truck suffering multiple injuries, thereafter developed a deep venous thrombosis in his left leg, which he sought to add to his claim as a consequential injury. A Law Judge denied the application, the Board affirmed, and the claimant’s subsequent application for full Board review was denied. The Court wrote, “Inasmuch as claimant has appealed only from the Board’s denial of his request for full Board review, the merits of the underlying decision are not properly before us. Rather, our analysis is limited to ascertaining whether such denial was arbitrary and capricious or otherwise constituted an abuse of discretion. To that end, claimant did not establish a material change in his condition or present evidence that previously was unavailable, and the record reflects that the Board considered all relevant material in rendering its initial decision. Under these circumstances, the Board’s decision denying full Board review will not be disturbed.” Prevailing party represented by: Matthew E. Weerth of counsel to Weiss, Wexler & Wornow (New York City) for Accurate Signs and Awnings and another, respondents. Full Boar Decision issued by Libous WCB #0064 4097 [11067685]
[ED. NOTE:] When a Full Board Review is denied, only Vice-Chairman Libous participates in that decision, a procedure whose legality I questioned in my May 26, 2009 COMMENTARY “Judicial Economy vs Judicial Integrity“
Palermo v Primo Coat Corp October 6, 2011 NYS Appellate Division, Third Department §25-a: True Closing
AFFIRMED the Board’s decision that liability shifted to the Special Fund for Reopened Cases(Fund) pursuant to §25-a. Although the claim was established and awards made, in 2005, the claimant plead guilty for fraudulently collecting workers’ comp while working. Nonetheless, claimant’s assertion that she had suffered a consequential left elbow injury was not resolved. As a result of her guilty plea, she was permanently disqualified from receiving further lost wage benefits in 2005, although her medical expenses continued to be paid. In 2008, the carrier applied for a §25-a finding: that liability for the claim should be shifted to the Fund, an application approved by the Board. As there was no dispute that the requisite time periods under §25-a have passed, the sole issue was whether the case was truly closed given the unresolved claim of a consequential injury. The fact that a “claimant’s condition may change or worsen in the future” does not preclude a finding that the claim is truly closed. Whether a case is truly closed is a factual question for the Board to determine based on whether further proceedings related to the payment of compensation were contemplated at the time of the presumed closing, with the Court noting that compensation is distinct from the payment of medical expenses. While the issue regarding the alleged left elbow injury remained outstanding, those issues related to the payment of medical expenses and not compensation, as claimant was disqualified from obtaining further lost wage benefits in 2005. Thus, substantial evidence supported the Board’s determination that the claim was truly closed. Prevailing party represented by: Charlotte Flynn of counsel to the State Insurance Fund for Primo Coat Corporation and another, respondents. Commissioners of Record: Ferrara, Higgins, Finnegan WCB #0006 2038 [11107640]
Burke v Verizon September 29, 2011 NYS Appellate Division, Third Department Legal Fees
REVERSED the Board’s decision which denied an application for an award of counsel fees to claimant’s counsel. After the claimant suffered a May 2009 injury but prior to any award of benefits, the carrier began making payments to claimant in the amount of $550 per week. In addition, as part of its benefit plan, the employer began paying claimant wages in lieu of workers’ comp benefits so that claimant was receiving his full salary. The employer requested reimbursement for the payments it had made in lieu of the workers’ comp. Although there were issues relating to the employer’s right to seek reimbursement, the claimant’s attorney’s request for a legal fee was denied, based on the Board’s conclusion that since there were no payments currently being made to claimant and no current reimbursement owed to the employer, there is no source of funds upon which a lien for counsel fees can attach. The Court, in reversing the Board determined that a line for counsel fees “attaches to any compensation awarded,” and the fact that there is presently no balance due to claimant does not necessarily preclude an award of such fees, payable either now or as a lien against any future awards made to claimant.
[ED. NOTE:] ON July 31, 2001, the Full Board deliberated at length on this issue and made a decision It recognized that in some cases, it had been argued that since there is no additional/fresh money moving to the claimant, an award of legal fees is not appropriate. References were usually made to both Scandale and Dickman but in WCB #09610566 Westbury (Feb 2001), the Full Board’s reversed the Board Panel decision by distinguishing the prior two cases from Westbury: while a fee was due, it was to come from future payments to the claimant, not by the carrier/self-insured. Then, in Rodd ex rel. Rodd v. Coram Fire Dist., 12 A.D.3d 890, 785 N.Y.S.2d 753 (2004), the Appellate Court agreed with the Full Board that legal fees could come out of awards not yet made or necessarily contemplated.
Prevailing party represented by: Vincent Rossillo of counsel to Fine, Olin & Anderman (NYC) Commissioners of Record: Bargnesi, Higgins, Foster WCB #0078110 [11097639]
Butler v General Motors September 29, 2011 NYS Appellate Division, Third Department Untimely prehearing conference statement
AFFIRMED the Board’s ruling that claimant sustained a compensable injury. After he filed a claim, the carrier controverted the claim, and a prehearing conference was scheduled. The employer filed an untimely prehearing conference statement but argued that, because it simultaneously filed an amended notice of controversy, the scheduled conference was premature and should be rescheduled, rendering its statement timely. The Law Judge disagreed citing NYCRR 30.38 [f], declined to excuse the employer’s late filing, found that the employer waived its defenses as a result of its untimely statement, and ultimately established the claim. In affirming the Board, the Court wrote, “A prehearing conference is required to be scheduled ‘as soon as practicable . . . after receipt of notice of controversy and a medical report referencing an injury’ and the Board has specified that it must occur within 30 days after those documents are filed. Contrary to the employer’s argument, claimant had already filed a medical report referencing his injury, and the prehearing conference was correctly scheduled upon the employer’s filing of its initial notice of controversy. Therefore, it was incumbent upon the employer to submit an affidavit demonstrating that its failure to timely file the prehearing conference statement ‘was due to good cause’ and occurred despite its ‘good faith and due diligence’. The employer did not submit the required affidavit and wholly failed to explain why it was unable to file its statement in a timely fashion.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Bell, Finnegan WCB #013 4027 [11097638]
Pacatte v SUNY Cobleskill September 29, 2011 NYS Appellate Division, Third Department Causal Relationship: Death & Insufficient Evidence
REVERSED the Board’s decision that the death of was causally related to employment, based on their conclusion that supposition does not support a legal decision. The decedent, a maintenance supervisor, died as the result of chronic obstructive pulmonary disease and lung cancer in 2007. Claimant, decedent’s wife, filed for death benefits, asserting that his lung conditions resulted from exposure to asbestos and other substances in the course of his employment. Although there was an issue pertaining to prehearing documentary submissions, the Court found that “substantial evidence does not support the Board’s finding that decedent’s death was causally related to his employment.” It noted that the decedent’s primary care physician submitted a death certificate which states that his death resulted from chronic obstructive pulmonary disease caused by tobacco use and “possible occupational exposure,” with lung cancer playing a contributory role, and then added in a covering letter that environmental factors during his employment that “could” have played a role in causing his lung conditions. The Court noted that she did not offer an firm opinion but rather referred specific questions regarding causation to decedent’s pulmonologist and oncologist. The Court, in reversing, concluded that, “Inasmuch as these equivocal statements amounted to ‘mere surmise, or general expressions of possibility’ [they] cannot ‘support a finding of causal relationship.” Prevailing party represented by: Edward Obertubbesing of counsel to the NY State Insurance Fund for for SUNY Cobleskill and another, appellants. Commissioners of Record: Lobban, Paprocki, Higgins WCB #011 8789 [11097637]
Warner v Franklinville Schools September 29, 2011 NYS Appellate Division, Third Department Decision not based on the facts
REVERSED the Board’s ruling that the carrier’s §15(8)(d) application for reimbursement from the Special Disability Fund was untimely, on the basis that the Board did not follow legal procedure. Essentially, in a question as to whether or not the carrier timely filed its reimbursement request forms, it submitted an affidavit detailing the carrier’s practice of filing such forms. Although the Law Judge found the affidavit sufficient, the Board panel determined that the affidavit insufficient to show that the reimbursement requests were timely, as the affiant did not have personal knowledge about the form in relation to this claim. While thee Board panel determined that the affidavit submitted by the carrier was insufficient, the Court stated that the carrier should have been given an opportunity to further develop the record. But “because the Law Judge found that the affidavit submitted by the carrier was sufficient, no further testimony from the carrier’s employees was required. Significantly, in reversing the Law Judge’s’s decision, the Board noted that neither the claims examiner who allegedly sent the forms nor her supervisor submitted documentation or testified. Because the carrier has not been given an opportunity to offer such testimony, and the Board reversed based upon the specific factual issue that the testimony was intended to address, we find that the matter must be remitted for further development of the record.” Prevailing party represented by: Joseph A. Caligiuri of counsel to Gielowski, Federice & Caligiuri (Buffalo) for appellants. Commissioners of Record: Bargnesi, Higgins, Foster WCB #8000 7424 [11097636]
Whittaker v Central Sq CSD September 29, 2011 NYS Appellate Division, Third Department § 14: AWW multiplier
REVERSED the Board’s decision to determine average weekly wage under §14(3) and (4) using a 200 multiplier. While both the claimant and the Board found that Law § 14 (1) and (2) are inapplicable because claimant did not work substantially the whole of the year nor is there a similar employee who worked substantially the whole of the year, they disagree on the multiplier. Case law states that the 200 multiplier is a minimum to be applied in calculating a claimant’s average annual earnings. In this case the Court found that the 200 bears no rational relationship to the number of days that claimant actually worked and results in an average weekly wage that does not fairly reflect his actual annual earnings. The case was sent back to the Board for review. Prevailing party represented by: Michael P. Oot of counsel to Oot & Stratton (East Syracuse) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #006 9531 [11097635]
Held v WCB September 13, 2011 NYS Court of Appeals §50(5): Assessments & GSITs
DISMISSED. In a major setback for those carriers and self-insured seeking a ruling fro the Court that the Board’s determination that the required Aggregate Trust Fund payments is not legal, New York State’s Court of Appeals on its own motion dismissed the appeal on the grounds that no substantial constitutional question was involved. The Appellate Court, Third Department opined in its April 21, 2011 ruling that the Board’s determination that retroactive assessments against group self-insured trusts (GSITs) per WCL §50 (5) (former [f]) are valid, the second time this case has been before the Appellate Court, Third Department. [1109764]
[ED. NOTE:] No word yet as to how this decision, Held v WCB, will impact on the cases still pending at the Court of Appeals (Collins v Dukes Plumbing, Parkhurst v United Rentals, Raynor v Landmark Chrysler, Hardy v Trico, and Salgy v Halsted Communications), as noted in the following list.
Cicciarelli v Westchester HCC July 14, 2011 NYS Appellate Division, Third Department Causal Relatinship: Was there?
AFFIRMED the board’s decision that the claimant did suffer from an electric shock while using a pneumatic tube. A key factor in this determination was the failure of the employer to read but the claimants description of the incident when the employer failed to bring in for testimony two coworkers who could allegedly disproved the claimant’s story. Prevailing party represented by: Jacob J. Meranda of counsel to Cohen & Siegel (White Plains) for Michelle Cicciarelli and Steven Segall f counsel to the NYS Attorney General for the Board. Commissioners of Record: Bell, Paprocki [Beloten], Finnegan WCB #3060 5820 [11077633]
Gaddis v Niagara Mohawk July 14, 2011 NYS Appellate Division, Third Department §25-a: A true closing?
REVERSED the Board’s decision that §25-a applied when the Court found “We discern no basis in the statute or the case law for the Board’s conclusion that the lack of further lost time awards precludes consideration of a medical report as an application to reopen that, if made prior to the lapse of seven years from the date of injury, would operate to bar liability from shifting to the Special Fund“. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee. Commissioners of Record: Ferrara, Paprocki, Foster WCB #6980 4353 [11077632]
Veeder v NYS Police Dept July 14, 2011 NYS Appellate Division, Third Department Causal Relationship: Death claim
RESCINDED and returned for review the Board’s determination that the claimant’s husband’s death by suicide was not closely related. The decedent, a forensic scientist, for the employer, was extensively interviewed by the employer after errors were found in some of his procedures, errors which could have jeopardized the lab’s continued existence. After becoming extremely depressed by the stress of these meetings and the potential negative determinations, claimant after writing a suicide note committed suicide. In denying the claim, the Board found that the disciplinary actions brought by the employer were of such a nature that WCL §2(7) precluded the claim. The Court noted that the claimant argued, and the employer agreed, that there was no disciplinary action but simply a set of required interviews on the procedures under review. Since the Board omitted addressing this aspect of the claim, the Court reversed the Board’s decision and returned it for additional review. Prevailing party represented by: Brenda Quinn of counsel for Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Commissioners of Record: Ferrara, Libous, Paprocki WCB #0005 4606 [11077631]
Fitzgerald v Berkshire Farm July 7, 2011 NYS Appellate Division, Third Department
§25-a: True Closing
REVERSED the Board’s decision which ruled that WCL §25-a is inapplicable to the award of workers’ compensation benefits. The decedent received benefits for a February 1994 from the date of injury through June 1996 when he got an SLU and the case was closed. IN May 2005, after claiming a consequential injury, surgery was approved and liability for the claim went to the Special Fund (Fund). He had surgery in November 2005 after which he was awarded additional comp, paid by the Fund. But as the result of surgical complications, decedent died in October 2007. When his widow in January 2008 filed for death benefits, the carrier sought to shift benefits to the Fund. The Board disagreed [editor’s emphasis] because since the Fund paid compensation benefits from 2005 to 2007, the time requirements to shift the death claim to the Fund, per §25-a(1), had not been satisfied. In reversing the Board, the Court wrote:
Here, WCL §25-a was triggered and the Fund became liable in November 2005 since both the pertinent seven-year and three-year time frames had undisputedly passed. Under the well-established interpretation of §25-a, the Fund stepped into the carrier’s shoes regarding this stale claim and made payments from November 2005 to October 2007. It would be antithetical to the settled statutory purpose to permit these payments to serve as a basis to place liability for the death claim on the carrier, which had already been discharged from liability for claims related to the 1994 incident.
Prevailing party represented by: Edward Obertubbesing of counsel to the NY State Insurance Fund for appellants. Commissioners of Record: Ferrara, Foster, Libous WCB #5080 1785 [11077630]
—— JUNE 2011 ——
DeGennaro v Island Fire Sprinkler June 30, 2011 NYS Appellate Division, Third Department
Schedule Loss of Use issues
AFFIRMED the Board’s decision that claimant was entitled to a schedule loss of use (SLU) award rather than permanent partial disability benefits. After 30 years of employment as a steamfitter, claimant was diagnosed with bilateral osteoarthritis in his long fingers and forced to discontinue working in March 2007. After several years of treatment which failed to resolve the medical issues, the issue arose as to an ongoing award of disability benefits or an SLU award, with the Board finding for a 40% SLU. The IME orthopedic surgeon opined that claimant had demonstrated no measurable improvement despite extensive occupational therapy and that, inasmuch as claimant refused surgery, he had reached maximum medical improvement and an SLU was appropriate. The claimant’s treating physician testified that because the claimant’s condition was likely to worsen in the future, classification was appropriate. In affirming the Board, the Court wrote, ” ‘Whether a condition warrants a schedule loss award or an award of continuing disability benefits is a question of fact for resolution by the Board,’ and its determination will be upheld if supported by substantial evidence”. Prevailing party represented by: Peter M. DeCurtis of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Island Fire Sprinkler, Inc. and another, respondents Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #2070 1022 [11067629]
Alm v Natural Health Fmly Chiro June 30, 2011 NYS Appellate Division, Third Department Causal Relationship: Is there
AFFIRMED the Board’s two decisions that (1) ruled that pro-se claimantdid not sustain a causally related injury and (2) denied claimant’s request for reconsideration or full Board review. Because claimant failed to address the decision denying her application for reconsideration or full Board review, the Court deemed that appeal abandoned. In January 2008, claimant filed a claim alleging that the installation of new carpeting in her workplace caused her to develop multiple chemical sensitivity, a claim denied by a Law Judge, finding that claimant’s health condition was not causally related to her employment. Although her treating physician concluded that claimant had developed multiple chemical sensitivity as a result of the carpeting installation in 2002, he was apparently not fully informed about other possible causes of claimant’s symptoms, including the presence of mold and dust mites in her home, and that by her own testimony, her symptoms began prior to the carpet installation, increased several years later in 2007, were most intense at night when she was in her home and failed to abate after she stopped working. The Board concluded that the claimant failed in her burden to establishing a causal relationship between her employment and her condition. Prevailing party represented by: Joseph Buttridge (Albany) for Natural Health Family Chiropractic and another, respondents. Commissioners of Record: Groski, Bell, Finnegan WCB #9080 0417 [11067628]
Eber v Jawanio [Jowanio per WCB] June 30, 2011 NYS Appellate Division, Third Department Consequential
AFFIRMED the Board’s ruling that claimant did not sustain a causally related injury. Claimant received workers’ comp for a 2001 work-related injury. After a second injury in 2002 she filed a claim, for her face, neck and right shoulder and then sought to amend this claim after allegedly developing complex regional pain syndrome (hereinafter CRPS) in her right arm. In March 2006, while the 2002 claim was still pending, claimant filed a third claim based upon alleged injuries to her right arm, hand and wrist suffered in a slip and fall in the employer’s parking lot, which she claimed aggravated her CRPS. In August 2006, the claim regarding the 2002 incident was established for injuries to claimant’s face, neck and shoulder, but the Board denied amending the claim to include CRPS, concluding that the credible medical evidence presented did not support a finding that claimant suffered from that condition. The medical evidence upon this third claim regarding CRPS was limited to the report and testimony of Walter Nieves, a neurologist chosen by the Board, who in 2009 opined that claimant suffered from CORPS as the result of the work-related injuries in 2001 and 2002, and the condition was exacerbated by the 2006 fall. Although, based upon this opinion, a Law Judge established the claim, a Board panel reversed, finding insufficient evidence to establish that the 2006 fall caused or aggravated the CRPS. The Court then wrote, “So long as the Board’s determination is supported by substantial evidence it will be upheld”. Further, “[t]hough the Board may not fashion its own expert medical opinions, it may reject medical evidence as incredible or insufficient even where . . . no opposing medical proof is presented”. Prevailing party represented by: Kenneth J. Gorman of counsel to Davis & Venturing (Hicksville) for Jawanio, Inc. and another, respondents. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #3060 2907 [11067627]
Hunt v Price Chopper-Golub Corp June 30, 2011 NYS Appellate Division, Third Department §25-a: True Closing
AFFIRMED the Board’s ruling that WCL §25-a did not apply as the case was not closed. After injuring his back in July 1994, claimant, a truck driver, had his claim established, missing work intermittently between the date of the accident and September 1995. When claimant began to miss work again as a result of his injuries in 2009, the carrier requested that liability be transferred to the Special Fund for Reopened Cases pursuant to WCL §25-a. A Board panel found that liability should not be transferred to the Special Fund because the case was never truly closed. Here, although a claim for an injury to claimant’s neck was not originally established, the employer’s medical experts indicated as early as 1995 that claimant had suffered a neck injury as the result of the July 1994 accident. Thus, although the Board purported to close the case in April 1997, unresolved issues remained as to the extent of claimant’s neck injury. “Accordingly, substantial evidence supports the Board’s conclusion that the case was never truly closed.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Lower, Paprocki, Bell WCB #5941 5663 [11067626]
Angamarca v NYC Partnership
June 21, 2011 NYS Appellate Division, First Department Undocumented worker
Although this case did not involve workers compensation or Workers Compensation Board, the key issue dealt with the amount of money awarded by a jury for future medical expenses and projected loss earnings with most of the arguments dealing with future medical expenses. The result was a split decision from the Appellate Court, First Department. The injured worker was hired as a construction worker by third-party defendant Roadrunner Construction Corp., despite its knowledge of his immigration status. Roadrunner never requested a social security number from plaintiff and paid him in cash or by check, and never withheld any payroll taxes from his wages. The defendants argued that, because the injured worker had suggested he would return to Ecuador, his home country, after earning a certain amount of money, the value of the future lost earnings and medical expenses should not be based on the American marketplace but rather the appropriate values for Ecuador.The majority, in agreeing with the injured worker that the American marketplace values should be used, wrote, “Although a worker’s immigration status may be a legitimate factor in litigating a lost wage claim (Balbuena v IDR Realty LLC, 6 NY3d 338, 362 [2006]), under the facts of this case, the trial court providently exercised its discretion in precluding defendant from inquiring about plaintiff’s immigration status. In addressing mitigation concerns, the Balbuena Court explicitly held that where a plaintiff has suffered serious injuries which prevent him from working (such as Angamarca).”The minority countered in part with, “the Court of Appeals suggested that disputes must be resolved without regard to a litigant’s immigration status; when material to the issue at bar, the Court has not hesitated to consider it, in one instance finding it dispositive of rights afforded by New York law (see Katz Park Ave. Corp. v Jagger, 11 NY3d 314, 317-318 [2008] [B-2 visitor’s visa was “logically incompatible” with a primary residence in New York for rent regulation purposes]).“The value of this case are the arguments raised by both sides regarding the issue of the injured worker’ s immigration status in determining awards for future medical and lost wages. [11067625]
NYS WCB v A&T Healthcare June 16, 2011 NYS Appellate Division, Third Department Aggregate Trust Fund: Statute of Limitations
Appeal from an order of the Supreme Court in Albany County, which denied a motion by defendant Rome Memorial Hospital (RMH) for partial summary judgment which asserted that the claims for all GSIT deficiencies known prior to June 2002 are barred by the statute of limitations. RMH was a member, from 1999 to 2003, of the New York Health Care Facilities Workers’ Compensation Trust (hereinafter the Trust), a trust established in 1997. Beginning in 1999, the Trust began operating at a level where its liabilities exceeded its assets. As this deficiency persisted, The WCB — which is required by law to oversee the Trust per WCL §50[3-a— worked with the Trust to enact measures to close the shortfall. By 2006, after the gap had become increasingly larger, the WCB terminated the Trust, assumed its administration, and retained an accounting firm to perform a forensic audit of the Trust. Upon completion of the audit, the WCB informed all former members of the Trust that they were liable, jointly and severally and on a pro rata basis, for the shortfall of $31,350,780. [Note: Defendant’s pro rata share of liability was $798,663.] In June 2008, the WCB commenced this action against all Trust members who failed or refused to pay their pro rata share. RMH moved for partial summary judgment, asserting that the claims for all deficiencies known prior to June 2002 are barred by the statute of limitations was denied. The Court rejected this position, stating that, “Although the Trust was operating with deficiencies [since 1999], the members themselves did not owe anything until an assessment was ordered or demanded. RMH did not breach the contract by not paying extra amounts in 1999 through 2002, as assessments had not been levied in those years. It appears that no breach arose until RMH refused to pay the assessment levied in 2008.” [11067624]
[ED. NOTE:]See my Commentary on this case and the ATF debacle itself: Who was Watching the Cookie Jar?
Castelli v NRG June 16, 2011 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund
AFFIRMED the Board’s ruling that the carrier was not entitled to reimbursement from the Special Disability Fund (Fund) per WCL §15(8). After the claimant developing asbestosis and chronic obstructive pulmonary disease, exposure to asbestos and other lung irritants in the course of his employment, his claim for benefits was established, with the Board determining that his date of disablement was November 13, 2008. The employer then sought reimbursement for those benefits from the Fund (see WCL §3[2][29]; §15[8][ee]) which the Board denied on the basis that amendments to WCL §15(8) in 2007 closed the Fund to claims with a date of disablement after July 1, 2007. While acknowledging that there were time limits imposed by under the 2007 amendments, the employer contended that the time limit imposed by WCL §15(8)(h)(2)(A) is inapplicable because it pertains only to “claims” for reimbursement and, in the context of dust diseases, a claim for reimbursement is not necessary. In its lengthy decision, the Court summarized its affirmance of the Board, writing:
Our interpretation of the statutory language added in 2007 is supported by the legislative history behind the amendments, which were specifically “intended to close the Fund to new claims as of July 1, 2007“). Indeed, one group expressly recognized that the 2007 amendments would result in “carriers . . . retaining full loss values on every claim, especially those cases involving dust and occupational disease” (Letter of New York Compensation Ins Rating Bd, Mar. 9, 2007, at 4, Bill Jacket, L 2007, ch 6, at 64 [emphasis added]). The employer’s preferred interpretation of the 2007 amendments would not only defeat its goal, but would result in an absurd and contradictory result — the Legislature would have subjected WCL §15(8)(ee) to the limitation contained in WCL §15(8)(h)(2)(A), but then defined that limitation in such a way as to render it inapplicable to §15(8)(ee). Accordingly, we hold that the Board’s decision is supported by both the language of the statute and its legislative history.
Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB and Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases.Commissioners of Record: Lower, Paprocki, Bell WCB # 002 2018 [11067623]
Walton v Lin-Dot June 16, 2011 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund§44 Apportionment Dust Diseases
AFFIRMED the Board’s decision which denied the carrier’s request for apportionment among claimant’s prior employers pursuant to WCL §44. Claimant, a plumber and pipe fitter with more than 20 years of experience, began working for Lin-Dot (hereinafter the employer) in March 2003, when he developed pains in his neck, subsequently diagnosed as cervical stenosis. Claimant ceased working for the employer in August 2003 and, after he underwent surgery for this condition in 2004, filed a claim for wc benefits, ultimately established for an occupational disease. The carrier’s request to apportion responsibility for the claim among his prior employers was denied. The Court agreed with the Board which found “that claimant, prior to being employed by the employer, was asymptomatic for the injuries subsequently diagnosed to his neck and did not seek or receive any medical treatment for this condition while previously employed” and “there [was] no objective medical proof that claimant’s occupational disease was contracted during his prior employment and, as a result, the Board’s determination that he contracted this disease while employed by the employer is supported by substantial evidence.” Prevailing party represented by: Timothy Bocek of counsel to Personius, Mattison, Palmer & Bock (Elmira) for Kimbel, Inc. and Jason M. Carlton f counsel to Gitto & Niefer (Binghamton) for CNA Insurance Company and another, respondents Commissioners of Record: Foster, Libous, Bell WCB #9040 2157 [11067622]
Burley v Theriault Transp June 16, 2011 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund
REVERSED the Board’s ruling by finding that the carrier is not entitled to §15(8)(d) reimbursement from the Special Disability Fund (Fund), a case decided on the issue of “employability”. Claimant, after sustaining multiple injuries in a head-on collision while driving a cement truck in July 2004, was awarded benefits based upon his injuries. Prior to 2004, claimant suffered from an array of maladies. Hence, carrier application for reimbursement from the Fund was approved by a Law Judge and Board panel. To qualify for reimbursement from the Fund, the employer must demonstrate that claimant suffered from (1) a preexisting permanent impairment that hindered job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than would have resulted from the work-related injury alone. The Court appeared to accept the Board’s fing in items (2) and (3) but agreed with the Fund that the employer failed to demonstrate that any of claimant’s preexisting conditions hindered or were likely to hinder his employment potential. The Court agreed with the Fund’s contention that the employer failed to demonstrate that any of claimant’s preexisting conditions hindered or were likely to hinder his employment potential. Furthermore, claimant’s testimony established that he was continuously employed as a truck driver for 20 years prior to his 2004 accident. Since “employability“, the third factor in determining this issue, was not proven by the employer, or even addressed by the Board panel in its decision, the Court reversed and denied reimbursement. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund Commissioners of Record: Lower, Bell, Finnegan WCB #5040 8847 [11067621]
Bobbit v Charbonneau Constr
June 9, 2011 NYS Appellate Division, Third Department Voluntary Withdrawal
AFFIRMED the Board’s ruling that claimant voluntarily withdrew from the labor market. As a result of the 1998 injury to his neck, shoulder, and back, the injured construction worker was awarded benefits and, later, via stipulation was determined to have a permanent partial disability. At that time the carrier contended the claimant had voluntarily removed himself from the labor market and requested discontinuance of benefits. The Law Judge found that because claimant had unrelated health problems that rendered him unable to work, he did not voluntarily separate from the labor market, a decision reversed by a Board panel. Evidence indicated that the claimant’s unrelated health condition and his compensable injury, while preventing him from working in the construction industry, did not render him so disabled he could not seek other employment. Claimant also admitted he has worked nor sought employment since shortly after his accident and has failed to participate in vocational educational services to which he was referred. The Court, in affirming the Board, wrote “substantial evidence supports the board’s determination that the claimant’s separation from the labor market is voluntarily in that it is due to causes other than his compensable injuries.” Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for Peter Charbonneau Construction and another, respondents. Commissioners of Record: This decision is not in Lexis. WCB #5981 [11067620]
—— MAY 2011 ——
Beder v Big Apple Circus
May 26, 2011 NYS Appellate Division, Third Department §25-a: True Closing
REVERSED the Board’s ruling which denied carrier’s request to shift liability to the Special Fund for Reopened Cases (Fund) per WCL §25-a and then denied a request for Full Board Review [rendered moot by this reversal]. Based on his 1987 injury, claimant was awarded benefits, classified as a permanent partial, and paid benefits through October 2005 when he returned to work. After filing three C-8.1 forms in May 2008 disputing bills for medical services provided in 2005, 2006 and 2007 as being untimely submitted, the carrier in November 2008 contended that liability should shift to the Fund per WCL §25-a. In affirming the Law Judge’s denial of §25-a, a Board panel found that the filing of the C-8.1 forms served to reopen the claim within three years from the last date of compensation, precluding the shift of liability to the Fund. This case was closed pursuant to a stipulation by the parties and the last payment of compensation was in October 2005. The Court noted that,
The Board determined, without providing any supporting rationale, that the carrier’s submission of the C-8.1 forms in May 2008 constituted an application to reopen the case within three years following the last payment of compensation and found Workers’ Compensation Law § 25-a to be inapplicable. The C-8.1 forms at issue here dispute three bills submitted by claimant’s medical provider for specific treatments rendered between 2005 and 2007. There does not appear to be any objection to the necessity of the treatments or any evidence that the treatments reflect a change in claimant’s condition. The only dispute that can be gleaned from the record is that the carrier contends that the bills for the treatments were not timely submitted (see 12 NYCRR 325-1.24 [b]). Inasmuch as the payment for continuing medical care does not bar the transfer of liability under WCL §25-a, we cannot conclude that the issues raised by the C-8.1 forms, which concern only the timeliness of submitted bills for medical care, would serve to toll the time limitations of WCL §25-a. Accordingly, based upon our review of the record, we find that the Board’s determination was not supported by substantial evidence and, therefore, it must be reversed.
Prevailing party represented by: Susan B. Marris of counsel to the NY State Insurance Fund for appellants. Commissioners of Record: Ferrara, Foster, Libous WCB #0878 7920 [11057619]
Steadman v Albany County
May 26, 2011 NYS Appellate Division, Third Department
Causal Relationship: Death
AFFIRMED the Board’s decision that decedent did not sustain a causally related injury and denied decedent’s former wife’s claim for death benefits for decedent’s two children. Decedent collapsed and died after suffering a heart attack while working for the employer as a mail courier in August 2007. A Law Judge, affirmed by a Board panel, denied the claim, finding that decedent had long-standing heart disease and his death was not causally related to his work activities. WCL §21 creates a presumption of compensability where, as here, an unwitnessed or unexplained death occurs during the course of employment, a presumption the employer may overcome by presenting “substantial evidence to the contrary” (WCL §21). While both sides presented medical evidence to bolster their positions, the Court in supporting the Board’s finding, wrote, as it does in these cases, “ conflicting opinion[s] .. created a credibility issue for the Board to resolve. Inasmuch as the Board’s determination is supported by substantial evidence, we will not disturb it.” Prevailing party represented by: George B. Burke III of counsel to Walsh and Hacker (Albany) for Albany County and another, respondents. Commissioners of Record: Ferrara, Finnegan, Foster WCB #5071 0554 [11057618]
Grugan v The Record
May 26, 2011 NYS Appellate Division, Third Department Schedule Loss of Use v PPD
AFFIRMED the Board’s decision that claimant was entitled to a schedule loss of use award for a 2007 work-related injury to her left hand, for which she received workers’ compensation benefits. After a dispute arose as to whether she should be classified as having a permanent partial disability or instead receive a schedule loss of use (SLU) award, the Board ultimately made a 15% SLU, and claimant, seeking a classification, appealed.The Court noted that, “There is no question that claimant has reached maximum medical improvement and her condition is stable, factors that ordinarily render a schedule loss of use award appropriate.” While both sides presented medical evidence to bolster their positions, the Court in supporting the Board’s finding determined that, “[r]esolving this conflicting medical evidence was a matter within the Board’s discretion and, accordingly, we will not disturb its finding that a schedule loss of use award was warranted.” Prevailing party represented by: John M. Oliver of counsel to Sullivan, Keenan, Oliver & Violando (Albany) for The Record and another, respondents. Commissioners of Record: Libous, Bell, Finnegan WCB #5071 0663 [11057617]
Fischer v UPS
May 19, 2011 NYS Appellate Division, Third Department Voluntary Withdrawal
RESCINDED and returned to the Board for proper review the Board’s ruling, which in turn reversed the Law Judge, that claimant voluntarily removed himself from the labor market and denied his claim for benefits. [ED. NOTE: Although the issue of §25-a was litigated at length, only the issue of voluntary withdrawal was appealed. Prior to retiring as a delivery driver for UPS in April 2006, claimant had two established work-related injuries to his back (1998 and 2001) neither of which caused him to lose time from work nor resulted in the payment of benefits. In August 2008 after claimant sought to reopen his case, whereupon a Law Judge classified him with an 80% PPD. Subsequently, after the claimant sought further action, the Law Judge found that claimant’s withdrawal from the labor market was involuntary due to his causally-related disability, and made awards retroactive to the retirement date. However, a Board panel reversed, finding that the retirement was a voluntary withdrawal from the labor market. In reversing the Board, the Appellate Court noted that contrary to the Board’s statement that “[t]here is no medical evidence of treatment for the period between February 15, 2001 and May 16, 2006″, a review of the Board’s own files show that the claimant treated regularly during that period. [ED. NOTE: The next sentence of the Board decision reads “In an attached treatment note dated May 2, 2006, Dr. Lasser noted …”]“Ordinarily, a determination by the Board that a claimant voluntarily withdrew from the labor market “will be upheld if supported by substantial evidence, but such finding cannot be based on incomplete facts or a misreading of the record.” As the Board had done just that, the Court remitted the case back to the Board for further proceedings. Prevailing party represented by: Kevin J. McDonald of counsel to Bond & McDonald (Geneva) for appellant. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #7050 8937 [11057616]
Krausa v Totales Debevoise May 12, 2011 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund
REVERSED the Board’s decision by finding that the employer’s workers’ compensation carrier was entitled to §15 (8) (ee) reimbursement from the Special Disability Fund (Fund). In 1994, Walter Krausa’s claim for occupational disease of silicosis was established, with a date of disablement of September 24, 1992. After being classified as permanently totally disabled, the carrier was found by a Law Judge to be entitled to reimbursement from the Special Disability Fund pursuant to WCL §15(8)(ee). After he died in 2007, the claimant, his widow, filed a claim for death benefits which were awarded in 2009 at which time the Law Judge, affirmed by a Board panel, removed and discharged the Fund as of the date of death, determining that it was no longer liable under §15(8)(ee). The Court indicated that the Board and Fund misinterpreted the WCL with their contention that because the date of death, the basis of the widow’s claim, was after July 1, 2007, §15(8)(h)(2)(A) prohibits the claim: the phrase “date of accident or date of disablement” refers to an employee’s date of death, and that no new claims can be entertained based upon deaths occurring on or after July 1, 2007. The Court has previously written that “the clearest indicator of legislative intent is the statutory text, [and] the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof.” They added, “the statutory terms refer to the ‘date of accident or date of disablement’; they do not reference date of death (Workers’ Compensation Law § 15[8][h][2][A]). Inasmuch as the “date of disablement” in this case was previously found to be September 24, 1992, the Board’s denial of reimbursement is contrary to the plain terms of the statute.” Also, they wrote, “while claims for disability and death benefits are legally distinct and have different accrual dates for statute of limitations, ‘death [is not] a new injury’ or accident, ‘but rather a new claim consequentially related to the original injury.’ ” After a detailed analysis of the language of various statues dealing with these issues, the Court concluded that the carrier was entitled to reimbursement from the Fund. Prevailing party represented by: Marc H. Silver of counsel to State Insurance Fund (NYC) for appellants. Commissioners of Record: Foster, Higgins, Bargnesi WCB #0080 3459 [11057615]
Klamka v Con Ed May 12, 2011 NYS Appellate Division, Third Department Causal Relationship: Was there?
AFFIRMED the Board’s ruling that claimant sustained a compensable injury and awarded workers’ compensation benefits. In July 2008, claimant submitted a claim alleging a March 31, 2008 a back injury during the course of employment, a claim denied by the self-insured employer. The Law Judge ultimately credited claimant’s testimony that he suffered a work-related injury to his back as the result of an accident on March 31, 2008. Upon review, insofar as is relevant to this appeal, a Board panel affirmed the injury but modified the date of accident to March 30, 2008. In affirming the Board, the Court wrote, “Whether a compensable accident occurred is a question of fact for the Board to resolve, and its determination will not be disturbed when supported by substantial evidence. Furthermore, the Board has broad authority to make credibility determinations and to draw reasonable inferences from record evidence.” Prevailing party represented by: Iris A. Steel of counsel to NYS Attorney General, for WCB and Joseph A. Romano (NYC) for Stanley Klamka Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #0083 3313 [11057614]
