AIG Sues its Competitors

July 3, 2010: U.S. District Judge Robert Gettleman of the Northern District of Illinois today has authorized AIG to pursue a lawsuit against Hartford Financial Services, Liberty Mutual, and Travelers Insurance for alleging conspiring to damage AIG’s position in the workers compensation insurance market. But he also dismissed a number of other actions sought by AIG against these same parties. (American International Group Inc et al v. ACE INA Holdings Inc et al, U.S. District Court, Northern District of Illinois, No. 09-02026.)

Coventry Health Fined $262 for WC Fraud

July 3, 2010: Coventry Health Care, Inc. (NYSE: CVH) announced today that the Court Of Appeal, Third Circuit for the State of Louisiana has affirmed the trial court’s decision to grant summary judgment against First Health Group Corp., Inc. (a wholly-owned subsidiary of Coventry) for $262 million in previously-disclosed provider class action litigation in Louisiana state court. The suit involves claims of alleged violations of notice provisions of Louisiana’s Any Willing Provider Act in connection with providers providing services to injured workers with workers’ compensation claims. More specifically, a number medical/service providers have successfully argued that Coventry’s method of taking discount from the bills, in accordance with the contracts signed with these providers, submitted violates Louisiana Law.

This link will take you to link will take you to the statement on the potential liability included in Coventry’s Annual Report (Form 10-K) for the year ended December 31, 2009. In its statement regarding the Court’s decision, Coventry stated that it does not believe the decision is supported by the facts or the law and intends to file a motion for rehearing and explore other avenues of appeal. The Company believes that it has available resources to pay any final unappealable judgment in this litigation.

August 27, 2010 (Friday): Weekly postings of court decisions regarding injured workers compensation issues from the New York State Court of Appeals, New York State Appellate Division (1st, 2nd, 3rd, and 4th Departments), and various lower courts as well as decisions from other states that will be of interest to participants in the State of New York Workers Compensation system. Following the list of cases posted for this week is a list of cases. in which the NYS Workers Compensation Board is a party of interest, for which arguments have either already been made at the New York State Appellate Division, 3rd Department and for which decisions have not yet been issued or for cases which have been scheduled but not yet heard. If you would like to be added to our e-mail alert list or have any submissions or suggestions, send them to: TheInsider@InsideWorkersCompNY.com.

THIS WEEK’S POSTINGS: In the Matter of Aides At Home v State of New York Workers’ Compensation Board just issued yesterday (August 5, 2010), the Appellate Court 3rd Department ruled that a member of a group self-insured trust who had left that trust many years earlier was still liable for any deficiencies in the fund created during its membership by ‘mismanagement’ by the manager/trustee of that fund.. This outcome seemed likely when the 3rd Department on June 17 of this year in the Matter of Held v NYS WCB vacated the stay it issued January 15, 2009 to Held, a member of another trust, after a lower court (also in Erie County) ruled, in a Pyrrhic victory for Held, that the assessments were invalid. On the other hand, the 4th Department ruled on April 29, 2009 in the Matter of Metal Goods Mfg Insurance Trust Fund v. Advent Tool & Mold, Inc., et al that the Board could not hold the members of a self-insured trust liable for assessments made due to any deficiencies in the plan. Well, there is always the Court of Appeals.

AUGUST 26, 2010 - FULL BOARD REVIEWS - Now being posted: The New York State Workers Compensation Board announced in March 2010 that it would each month post a few of the 15-20 Full Board Decisions it issues each month. Our FRB page will offer a permanent but brief summary of those decisions with a link to another page in this website to the entirety of the decision issued by the Board. As of today’s date, we have posted the 25 cases made available from the Board.

AFFIRMED a lower court order dismissing petitioner’s application to review a determination of respondent Workers’ Compensation Board imposing a deficit assessment against the petitioner as a member of an underfunded workers’ compensation group self-insured trust.

Petitioner was a member of the New York State Health Care Facilities Workers’ Compensation Trust (hereinafter the Trust) from September 1, 1997 through October 14, 2000. In August 2006, the Board terminated the Trust due to severe underfunding, assumed the administration and distribution of the Trust’s assets and liabilities, and in March 2008, issued a deficit assessment to each current and former Trust member, including petitioner, to cover the costs of fulfilling the Trust’s workers comp claims. Petitioner commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, dismissed by the Albany County Supreme Court March 23, 2009, challenging the Board’s assessment, claiming inter alia that the Board did not have the statutory or regulatory authority to impose the assessment and that the assessment was arbitrary and capricious and violated petitioner’s due process rights, a challenge dismissed by the Albany County Supreme Court on March 23, 2009.

Initially, the Appellate Court’s review of the Board’s determination was is limited to whether it “was affected by an error of law or was arbitrary and capricious or an abuse of discretion“. Or if “the construction given statutes and regulations by the agency responsible for their administration will, if not irrational or unreasonable, be upheld“. Although petitioner was not a member of the Trust when the assessment was levied, petitioner nevertheless remained jointly and severally liable for the liabilities of the Trust that were incurred during petitioner’s membership until such time that those liabilities were satisfied (see WCL §50 [3-a] [former (2), (3)]). [Court Note: WCL §50(3-a)(3) was amended in 2008 to clarify that a member of a group self-insured trust remains jointly and severally liable for unpaid claims that accrued during the period of membership even after the member leaves the trust (see L 2008, ch 139, § 1)]. A key fact supporting the Board’s appropriate interpretation of the statute was that the petitioner, upon joining the Trust, accepted this statutory mandate which was explicitly articulated in the trust and indemnity agreements along with a provision that petitioner was liable for its share of a deficiency assessment “for any Trust year or part thereof that [it] participated in the Trust,” which language the Board reasonably construed as meaning that petitioner could be assessed for the Trust deficiency as of 2000. As to the amount of the assessment, petitioner was held to be responsible only for deficiencies incurred during its membership, amounts supported by detailed actuarial analysis. Prevailing party represented by: Owen Demuth of counsel to Andrew M. Cuomo, Attorney General for respondents.Click here to read the full court decision of the NYS Appellate Division…

PENDING DECISIONS
August 5, 2010 Thursday: Decisions have been issued on all the cases which have been argued before the Appellate Court, Third Department during this session which stated in the Fall of 2009. There are a large number of cases which have been set down for argument for the fall, certainly based on all the motions that have been issued by the Court to allow for continuance.

Hilbrandt v Village of Red Hook
July 29, 2010 NYS Appellate Division, Third Department
§ 28: time bar

AFFIRMED the Board’s ruling that claimant’s application for workers’ comp benefits was time-barred by WCL §28. Claimant, working as a volunteer emergency medical technician, was injured on August 26, 2005 causing her to fall on her back and side. Her workers’ comp claim, was initially established for a left ankle and leg injury and later for consequential injuries to her right shoulder.

In April 2008, claimant was first treated for an injury to her right hip and, based upon the report of her treating physician, sought to amend her claim to include a consequential right hip injury. The Law Judge, affirmed by a Board Panel, dismissed the claim for right hip injury as time-barred pursuant to WCL §28. Claimant contends this claim is governed by the Volunteer Firefighters’ Benefit Law (VFBL), which implements a separate and distinct statute of limitations per VFBL §41. The Court wrote that “This issue, however, is unpreserved for our review due to claimant’s failure to raise it before the Judge or the Board. In any event, while we agree that VFBL §41, rather than WCL §28, should have been applied in this case, we would nonetheless find that claimant’s claim for right hip injury, as presented to the Board, is time-barred under either statute.” In addition, both the Board and the Court rejected the claimant’s contention that the hip injury was consequential rather than directly resulting from the accident, based on (1) claimant’s testimony that she began noticing hip pain as early as November or December 2005, but “just kept going with the pain” and did not seek treatment for that condition until April 2008 and (2) claimant’s treating physician concluded that the hip injury was a direct result of the August 2005. Prevailing party represented by: Glenn M. Forman of counsel to Gregory J. Allen, NYSIF, for Village of Red Hook and another, respondents. Click here to read the full court decision of the NYS Appellate Division…

Wooding v Nestle USA, Inc
July 29, 2010 NYS Appellate Division, Third Department
Disability: Industrial v SLU

AFFIRMED the Board’s ruling that claimant did not have a total industrial disability. Claimant suffered an injury to his left arm performing manual labor in 2003. Later confirmed by a Board panel, the Law Judge found that claimant had sustained a schedule loss of use to his arm and not, as he claimed, total industrial disability. Whether a claimant sustained a total industrial disability is a question of fact, and the Board’s resolution thereof will be upheld if supported by substantial evidence. While one vocational counselor opined that the claimant’s physical condition, when coupled with his age, educational background and employment history, seriously impaired his ability to find employment, the Board accepted a vocational evaluation finding incapable of forming sedentary work in fields such as sales or customer service with appropriate training. The counselor conceded that, despite his doubts as to the likelihood of claimant succeeding in retraining, success was possible. [ED. NOTE: Not addressed in this decision is the question as to what will happen if the claimant is unsuccessful in the retraining program. Would the Board then, as it should, reopen the case?] Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Nestle USA, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division…

Galanos v Nevada Utils
July 22, 2010 NYS Appellate Division, Third Department
Coverage: Opting out

AFFIRMED the Board’s ruling that the claimant was not a covered employee under the Workers’ Compensation Law, having opted out of coverage as an executive officer of the corporation. After the claim was established, the carrier requested that payments be suspended because, prior to the incident, claimant had signed a C-105.51 form opting out of workers’ compensation coverage due to her status as an executive officer in the employer corporation (WCL §54[6][d]). The claimant countered that (1) she was never an officer of the corporation, (2) the form was filed in error, and (3) since the carrier had been making payments on the claim, it should be estopped from disclaiming coverage. Both the Law Judge and the Board panel found in the employer’s favor. After admitting signing the C-105.51 notice, which stated coverage would not be provided unless and until this election was “revoked by the [employer] corporation” (WCL §54[6][d]), she admitted never revoking it. As to her claim she was not given an adequate opportunity to submit evidence at the hearing supporting her various arguments, the WCB’s decisions noted that she had two months notice of the hearings and that her employment status would be a key factor in the decision. Finally the Court agreed with the Board that, on these facts, the doctrines of laches and estoppel have no application to this proceeding and coverage was properly denied. Prevailing party represented by: Edward Obertubbesing of counsel to Gregory J. Allen, NYSIF, for Nevada Utilities and another, respondents. Click here to read the full court decision of the NYS Appellate Division…

Smallwood v Mereda Realty
July 15, 2010 NYS Appellate Division, Third Department
Employment: Dual?

AFFIRMED the Board’s ruling that a general employment relationship existed between claimant and Pueblo Nuevo Associates. Claimant, the superintendent of a building owned by Pueblo Nuevo and managed by Mereda Realty Corporation, who sustained injuries while providing maintenance at the site, received comp benefits and also commenced an action in Supreme Court against both firms. After a Board Panel modified a Law Judge ruling (claimant was an employee of Mereda) finding that claimant was a general employee of Pueblo and a special employee of Mereda, each responsible for 50%, claimant appealed, contending there was no employment relationship with Pueblo. The Board noted that although Mereda hired claimant, Pueblo retained the authority to fire him. Although his day-to-day activities were directed by Mereda, part of his compensation included a rent-free apartment in Pueblo’s building and his paychecks were from Pueblo’s general payroll bank account, checks noting that they were from Mereda as agent for Pueblo. Added to other indicia, the Court affirmed the Board’s decisions, writing that the existence of an employer-employee relationship, even if there is a written agreement indicating otherwise, is one for the Board to resolve and “its determination in that regard must be upheld if supported by substantial evidence, even if other evidence in the record could have supported a contrary conclusion.” Prevailing party represented by: Rudolph Rosa DiSant of counsel to Gregory J. Allen, NYSIF for Pueblo Nuevo Assoc and another, respondents. Click here to read the full court decision of the NYS Appellate Division…

Poulton v Martec Indus
July 8, 2010 NYS Appellate Division, Third Department
Injury: new or aggravated

REVERSED the Board’s ruling that claimant aggravated a prior injury and awarded workers’ compensation benefits. Claimant, who applied for benefits alleging that he injured his back at work on June 7, 2006, had his claim controverted as he had sustained back injuries in 1998 and 2000 while working for a prior employer; claimant did not apply for workers’ comp benefits in 1998 but the 2000 incident resulted in an established WC claim. The Law Judge, affirmed by a Panel, awarded benefits, concluding that the 2006 incident constituted “an accidental work related aggravation of prior neck and back injuries.” The appeal asserted that the June 7, 2006 incident did not cause a new disability. The Appellate Court determined that “Under the circumstances, ‘the proper inquiry is whether claimant’s employment acted upon [a] preexisting condition in such a way as to cause a disability which did not previously exist’” and concluded it did not, thus reversing the Board.

[ED. NOTE: Not knowing who was on the Panel, it is difficult for me as a former commissioner to speculate as to how, as happens far too often, the Law Judge, the lawyers in the ARD, the Panel, and ultimately the attorneys in the Office of the General Counsel missed the following key indicia used by the Court to support their reversal.]

Claimant testified that he had experienced the same type of back pain ‘every day’ since 1998. On June 2, 2006, claimant scheduled a June 8, 2006 appointment with his treating physician — who had been seeing claimant for his back problems on a monthly basis — to discuss his desire to cease working [Court’s footnote FN2: While scheduling the appointment, claimant informed personnel in his physician’s office that he had increasing back pain and that it had become hard for him to function at work. On June 6, 2006, claimant contacted his physician’s office again and reiterated his desire to discuss going out on disability. We note, in addition, that claimant made no reference to the June 7, 2006 work-related incident on an application for disability benefits that he completed on June 9, 2006.] “At that appointment, claimant made no mention of an incident at work the prior day and, following the examination, claimant’s physician concluded that claimant was disabled and unable to work ‘[b]ecause of his old injuries and his continued decline.’ … Furthermore, claimant’s supervisor testified that claimant regularly complained of back pain and that, before June 2006, claimant stated that he might stop working and seek permanent disability benefits as a result of a back injury sustained at his former job. Finally, a second physician who examined claimant opined that he suffered from degenerative disc disease and that his disability was caused primarily by preexisting problems.” Prevailing party represented by: Jacklyn M. Penna of counsel to Buckner & Kourofsky (Rochester) for appellants. Click here to read the full court decision of the NYS Appellate Division…

Parkhurst v United Rentals
Lloyd v Kelly
Robinson v Gould Pumps
*Collins v Dukes Plumbing
*Earle v Batavia Nursing Home
*Raynor v Landmark ChryslerJuly 1, 2010 NYS Appellate Division, Third Department[*ED: NOTE: The decision issued in Collins, Earle, and Raynor are identical almost word for word with the exception that in the latter three cases, a constitutional issue was raised. See notes below.]AFFIRMED the Board’s ruling, in these six cases, that the Board’s mandating payment, per WCL §27(2), to the aggregate trust fund (ATF) does apply retroactively to claimants’ injuries even if they were sustained before the amendments effective date. In affirming the Board’s decision, the Court also rejected the carriers’ argument that mandating lump-sum payment of claimants’ uncapped PPD awards is improper because the actual amounts of their future benefits are unpredictable and there is no reliable way to calculate their present values.In each of these cases, claimants’ injuries were classified as a PPD with benefits awarded under §15(3)(w). These PPD awards, however, were not capped because claimants’ injuries all preceded the effective date of the amendment. Because each of these uncapped PPD awards was made after July 1, 2007, the private insurance carriers for claimants’ employers were ordered to make a lump-sum payment of the present value of the award into the ATF pursuant to the amendment to §27(2). The full Board found the language of §27(2) as amended to be unambiguous and to evince a clear intent to require payment into the ATF of all §15(3)(w) awards made after July 1, 2007 regardless of the date of injury.The Court wrote that “We do not view these cases as presenting an issue of the retroactive application of the amendment to §27(2).” They then followed with their interpretation of the statute and and legislative intent, including in their decision, “Here, the plain language of the statutes and the legislative history of their amendments persuades us that the inclusion of a reference to §15(3)(w) in §27(2) was intended to expand the types of awards to which the latter’s mandatory payment provision applies rather than to restrict it to awards that are capped by the amendment to §15(3)(w) . … Nor do the principles of statutory construction permit us to imply the limitation suggested by the carriers. Where, as here, “a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.“
The Court also explained its rejection of the carriers’ contention that the Board’s computation of the present value of each claimant’s award is speculative or arbitrary and capricious because the tables used cannot accurately predict the amount or duration of an uncapped award.

[*ED. NOTE: The following is the Court’s response to the constitutional issues discussed the Matters of Collins, Earle, and Raynor. ]

As for the constitutional arguments made by two of the carriers, “we are not persuaded that the Board’s application of amended Workers’ Compensation Law § 27 (2) violates the Taking Clause of the Fifth Amendment of the US Constitution. To determine whether there has been a compensable taking of private property for public use, we weigh the economic impact of the challenged statute on the carriers, the extent to which it has interfered with their distinct investment-backed expectations and the character of the governmental action involved. Here, the carriers do not claim that the amendment has increased the amount of compensation owed to claimants, and they offer no evidence of an unexpected additional expense other than administration fees, “a necessary consequence of the . . . regulatory scheme.

“The argument that the amendment violates the Contract Clause of US Constitution, article I, § 10 also is unpersuasive because their existing insurance contracts already had to account for the possibility of a discretionary direction to pay awards into the ATF. We are similarly unpersuaded that §27(2) violates the carriers’ equal protection rights under the 14th Amendment. To the extent that the carriers also contend that the mandatory deposit violates their substantive due process rights, they have not demonstrated that they were deprived of a protected property interest and “that the governmental action was wholly without legal justification.” Prevailing party represented by: In Parkhurst et al, Diana R. H. Winters and, in Collins et al, Karen Schoen both of counsel to Andrew M. Cuomo, Attorney General for respondent (WCB) Click here to read the full court decision in Parkhurst et al… and here for Collins et al…

THIS WEEK’S MOTIONS
July 2, 2010: The following list Motions ruled upon this week by the 3rd Department:

• Blacknall v Lander et Workers’ Compensation Board
  Motion granted to to perfect the appeals is extended to 30 days from the date of this Court’s decision in Matter of Cotugno v Albany Park & Fly, Inc. [#508365]

In each of the following cases, motion has been granted, without costs, and the time to perfect the appeal is extended to August 23, 2010.

• Villa v American Fire Restoration et and James Steffen Doing Business as Professional Cleaning Company. Workers’ Compensation Board.
• Guidice v Herald Company et and Fund for Reopened Cases Workers’ Compensation Board.
• Kakuriev v Home Service Systems LLC et and Special Disability Fund Workers’ Compensation Board
• Baxter v T.g. Peppe Inc. et Workers’ Compensation Board.
• Card v Kendall Company et Workers’ Compensation Board.
• Hamza v Steinway & Sons et Workers’ Compensation Board
• Clark v New York Technologies Corporation et Workers’ Compensation Board
• Falkouski v City of Rensselaer Fire Department et Workers’ Compensation Board

Held v NYS WCB
June 17, 2010 NYS Appellate Division, 3rd Department, Motion Decision
§ 50(5) Assessments

ORDERED that the the motion is granted, without costs, and without prejudice to a motion to vacate the stay in the event appellants-respondents do not file a record and brief on or before August 2, 2010. William Held Jr., as Chair of Contractors Compensation Trust, et al., group self-insured trusts (hereinafter GSITs), commenced that earlier proceeding to annul certain assessments levied against them by respondent New York State Workers’ Compensation Board.

Visic v O’Nero & Sons Constr
June 24, 2010 NYS Appellate Division, Third Department
Disability: Degree of
Decision Inadequately/Poorly Written

In part AFFIRMED the Board’s ruling that the pro-se claimant has a marked permanent partial disability rather than a total disability but ‘CORRECTED’ the Board for reopening an issue (AWW) not being controverted. Following two surgeries necessitated by a 2000 injury to his back, the claimant was classified in 2004 with a permanent partial disability.After the case was reopened in 2007 based on a C-27 from claimant’s doctor opining a total disability, a Law Judge determined that there was no total disability but a marked permanent as previously determined and the parties stipulated as to AWW. On review, the Board agreed with all Law Judge on the Degree of Disability but remitted the matter back to the Judge to reconsider average weekly wage.

The Board relied on the medical reports of physicians Edward Simmons, who performed claimant’s surgery in 2004, and Jerry Tracy whereas the claimants testifying physicians gave conflicting testimony and the doctor who supplied the C-27 did not base his opinion on the Board’s Medical Guidelines of June 1996. In summary, the Court, while knowledge and conflicting medical information found that the Board’s decision was adequately supported. However, in returning the case to the Judge to reconsider the AWW, the Court noted the parties reached a stipulation on the AWW. “Inasmuch as a timely appeal was not filed on that decision, and given the absence of circumstances justifying revisiting the issue, the decision is final and binding per WCL §23.” Prevailing party represented by: Thomas P. Etzel of counsel to Gregory J. Allen, State Insurance Fund for O’Nero & Sons Construction Company and another, respondents. Click here to read the full court decision of the NYS Appellate Division…

Perez v Licea
Moreno v Licea
June 24, 2010 NYS Appellate Division, Third Department
Employment: Who is
Procedure: Denial Full Board Review

AFFIRMED the Board’s rulings in these two related cases which (1) determined that an employer-employee relationship existed and (2) which denied claimants’ requests for reconsideration or full Board review. In 2006,Edelman, as the owner and sole officer of 2180 Realty Corporation, asked Luis Licea to perform maintenance work on his company’s building. Licea requested that Edgar Ruano Perez and Jorge Moreno, claimants and appellants in these two cases, assist him shortly after which all three sustained injuries in an explosion while work was being performed. After hearings were held to determine whether claimants were employees of Licea or 2180 Realty, a Law Judge ruled Licea the general employer liable for 75% and 2180 Realty special employer liable for 25%. After both claimants and Rochdale Insurance Company (2180 Realty’s workers’ comp carrier) sought review of that decision,the Board affirmed the Law Judge and denied both parties’ requests for full Board review or reconsideration.

The Board’s factual determination that a general employee of one employer is a special employee of another must be upheld if it is supported by substantial evidence. While no single factor is dispositive, “it has been held that the key to the determination is who controls and directs the manner, details and ultimate result of the employee’s work.” Licea testified that Edelman instructed him to employ additional workers such that the two claimants and Licea were doing so when the explosion occurred. Both Edelman and Licea testified as to their conversation regarding their relationships with the two claimants to investigators for the NYC Fire Department as well as adding additional information in their testimony before the Board, information the Board used to make it determination. In supporting the Board, the Court wrote, “To the extent that evidence in the record might support a different result, we note only that ‘the Board was entitled to resolve the conflicting evidence based upon its assessment of the witnesses’ credibility and the reasonable inferences drawn therefrom.’”

The Court addressed the denial for reconsideration or full Board review in a footnote: “Although claimant[s] and Rochdale have each appealed from the Board’s underlying decision, only claimants have appealed from the Board’s denial of request for full Board review or reconsideration; however, claimants’ appeals from that denial are deemed abandoned as they did not raise any issues with respect thereto in the brief on appeal.” Prevailing party represented in both cases by: Amy L. Fenno of counsel to O’Connor Redd (White Plains) for 2180 Realty Corporation, respondent and Kim Stuart Swidler, Uninsured Employers’ Fund, Albany, for Uninsured Employers’ Fund, respondent. Click here to read the full court decision in Perez v Licea… and Click here to read the full court decision in Moreno v Licea…

Grill v Fashion Inst. of Tech
June 24, 2010 NYS Appellate Division, Third Department
§ 15(8)(e) 2nd Injury Fund
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling (1) that because claimant did not have a ‘dust disease’, WCL §15(8)(ee) did not apply and (2) which denied the application of the employer and its third-party administrator for full Board review. After the claim was established for a compensable occupational disease (interstitial pulmonary fibrosis and lung disease) the question thereafter arose as to whether the condition constituted a dust disease entitling the employer to reimbursement from the Special Disability Fund (Fund) per WCL§15 [8] [ee]), the Board determined that it did not.

Whether a condition constitutes a dust disease within the ambit of WCL §15(8) (ee) depends “upon the pathological distinction between pneumoconiosis (diseases caused by the inhalation of dust particles which affect the parenchyma, or essential functioning aspects, of the lungs) and those diseases which affect the pleura, or lining, of the lungs. If a lung disorder arises from pneumoconiosis, it is properly viewed as a dust. Here, claimant’s treating pulmonologist determined that she suffered from pneumonitis arising from her exposure to aerosolized paint, but did not find that she had pneumoconiosis. As the Board was free to credit that opinion over the equivocal diagnosis of pneumoconiosis rendered by another physician, we are satisfied that substantial evidence supports its decision.”

In a footnote the Court ruled, “Inasmuch as the employer fails to raise any issue with respect to its separate appeal from the Board’s denial of its application for full Board review, we deem that appeal to have been abandoned.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division…

Stojanov v Eastman Kodak
June 17, 2010 NYS Appellate Division, 3rd Department, Motion Decision
§ 23: Late or Interlocutory Appeal

ORDERED that the motion for reargument or, in the alternative, for permission to appeal to the Court of Appeals is granted. In the original decision issued April 1, 2010, the Court rescinded and sent back for reconsideration the Board’s ruling that claimant’s applications for review were untimely per WCL because the applications were not received by the Board within 30 days. However, in explaining its rescission in April 2010, the Court noted that, “In Matter of McLaughlin v Saga Corp. (242 AD2d 393, 394 [1997]), this Court concluded that the mailing of an application for Board review within the 30-day limitation period “was sufficient to satisfy the time limitation of Workers’ Compensation Law § 23. Subsequently, the Board promulgated the current version of 12 NYCRR 300.13 (a), which provides that an ‘application is deemed filed with the [B]oard on the date of actual receipt of such application by the [B]oard’ (emphasis added). This amendment is obviously at odds with this Court’s holding in McLaughlin and, as such, violates the rule that ‘[a] court’s affirmance or reversal of an administrative body’s interpretation of its governing statute becomes binding on the agency.’ Therefore, the Court reversed the Board stating that the Board could not promulgate administrative regulation that was inconsistent with this Court’s interpretation of WCL §23, remaining the case back to the Board for further proceedings on the original issue raised by the claimant.” Click here to read the full court decision of the NYS Appellate Division…

Len v NYS
June 17, 2010 NYS Appellate Division, Third Department
§11: Jurisdiction

AFFIRMED an order of the Court of Claims which, among other things, granted defendants’ motion to dismiss the claim and/or for summary judgment dismissing the claim.

On December 7, 2006, decedent tragically fell to his death from one of the movable dams used by his employer New York State Canal Corporation, the chief lock operator for the Green Island Bridge in the City of Troy, Rensselaer County. The decedent’s estate commenced this action against the Corporation, defendant State of New York and defendant New York State Thruway Authority alleging both wrongful death and conscious pain and suffering.

Asserting, among other things, that these claims are barred by the exclusivity provision of WCL §11, defendants moved to dismiss the action and/or for summary judgment. Conceding only that his claims against the Corporation are barred, claimant otherwise opposed the motion and cross-moved to amend his claim as against the State and the Authority to allege Labor Law violations. The Court of Claims granted defendants’ motion, holding that the claims against the Authority, by virtue of its parent-subsidiary relationship with the Corporation, were barred by the exclusivity provision of WCL §11. Key to this decision was the Court’s determination as to whether the Authority should be deemed decedent’s employer for workers’ compensation purposes. Although the standard for finding an alter ego relationship is high, requiring “direct intervention by the parent in the management of the subsidiary to such an extent that ‘the subsidiary’s paraphernalia of incorporation, directors and officers’ are completely ignored”, here the Court found that the Corporation is but an arm of the Authority, justifying a finding that the Corporation is the Authority’s alter ego.The Court concluded that “this evidence of shared purpose, intermingling of finances and unity of management is sufficient, on this record, to uphold the Court of Claims’ finding that, for the purposes of canal operations, the Authority is indistinguishable from the Corporation and, as a result, is entitled to assert the exclusivity provisions of the WCL.”

With respect to his claims against the State and the claimant assertion that he should have been permitted to amend the complaint to include claims under Labor Law § 240 (1) and § 241 (6), the Court reviewed the specifics of the appeal and agreed that the Court of Claims properly found that claimant’s proposed claims under Labor Law § 240 (1) and § 241 (6) lack merit. The Appellate Court then added, “In light of this conclusion, we need not address the State’s proposed alternative ground of affirmance, namely that it is also entitled to assert the defense of workers’ compensation. Finally, we reject claimant’s alternative argument that the granting of the State’s summary judgment motion was premature (see CPLR 3212 [f]). Claimant ‘has failed to identify any evidence that might . . . [be] developed if additional discovery [is conducted] that would . . . serve[] to bar [the Court of Claims] order granting the State’s motion’.” Prevailing party represented by: Kathleen M. Treasure of counsel toAndrew M. Cuomo, Attorney General for respondents. Click here to read the full court decision of the NYS Appellate Division…

Brown v NYC Dept Corrections
June 17, 2010 NYS Appellate Division, Third Department
Causal Relationship:Heart Condition

AFFIRMED the Board’s ruling that claimant did not sustain a causally related injury and denied his claim for workers’ compensation benefits. Claimant’s lightheadedness at work in 1999 was determined to be due to cardiomyopathy. Absent from work for several months, he applied a claim for workers’ comp, arguing that work-related stress led to hypertension which, in turn, triggered the cardiomyopathy, a claim the Board denied, finding that he had not established a causal link between job stress and his cardiac condition.

Claimant suggests that the manifestation of his condition at work gave rise to a presumption that it arose out of and in the course of his employment. But as he failed to raise this issue before the Board, the Court ruled that “it is accordingly unpreserved for our review.” Nonetheless the Court reviewed the medical evidence submitted by the claimant and the carrier noting that an impartial cardiologist who examined the claimant at the Board’s request found no causal link between claimant’s work and his cardiac distress. The Court, in referencing several medical reports supporting the Board’s decision, did note that the “medical proof provides substantial evidence to support the Board’s decision, notwithstanding the fact that other evidence in the record could support a contrary result.” Prevailing party represented by: John Sweeney of counsel to Michael A. Cardozo, Corporation Counsel, NYC for NYC Department of Correction, respondent. Click here to read the full court decision of the NYS Appellate Division…

Dupuis & Frito Lay v SFCC
June 17, 2010 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board’s ruling that the employer’s workers’ compensation carrier is entitled to reimbursement from the Special Disability Fund per WCL §15(8)(d). After the claimant’s claim for a work-related knee injury was established and he received workers comp benefits, the employer’s carrier sought reimbursement from the Fund asserting the claimant’s diabetes, among other pre-existing conditions, had contributed to his disability, an argument with which the Board agreed. In order to obtain reimbursement under WCL§15(8)(d), the carrier was obliged to show that claimant had (1) a preexisting permanent impairment that hindered his job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than what would have arisen from the work-related injury by itself. The Court, in referencing several medical reports supporting the board’s decision, did note that the “medical proof provides substantial evidence to support the Board’s decision, notwithstanding the fact that other evidence in the record could support a contrary result.” Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for Frito Lay and another, respondents. Click here to read the full court decision of the NYS Appellate Division…

Kaja v Siller Bros
June 10, 2010, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

ISSUED A SPLIT DECISION on the Board’s ruling which denied pro-se claimant’s application for reconsideration and/or full Board review. Claimant, whose left thumb was severed in May 2003 and later reattached, had his case closed in August 2004 with an award for 75% schedule loss of use of his left thumb. In August 2004, the WCLJ, based upon a report from claimant’s orthopedist, found prima facie medical evidence of a consequential neck injury related to the 2003 incident and continued the case. However, following the submission of medical reports and a hearing in 2008, the Law Judge determined that claimant failed to establish a consequential neck injury. As to the additional claim for further causally related disability to claimant’s thumb, the Law Judge also denied relief, noting that an October 2004 independent medical report from the workers’ compensation carrier’s consultant, Joseph Fulco, had only found, at that time, left thumb disability “of a moderate partial rate.” After all the decisions were affirmed by a Board panel, claimant applied for reconsideration and/or full Board review which was denied.

As the claimant’s appeal dealt with the denial for reconsideration and/or full Board review and not the underlying decision, the Court limited its review to the denial, resulting in a “split” decision. The Court agreed with the Board regarding the neck, ruling no new evidence was presented justifying a modification of prior decision.

However, regarding the thumb, the Court found that a new independent medical report of January 2009 from the carrier’s consultant opined that claimant has “a 100% schedule loss of use of the left thumb.” The Curt then wrote, “Here, given the circumstance that, among other things, the report by the impartial specialist describing a change in condition was generated at the request of the carrier and expeditiously presented to the Board, we cannot agree with the Board’s ruling that claimant’s application should be denied on the basis that ‘[n]o new evidence has been offered which could not have been produced earlier.’ Accordingly, we deem it appropriate to remit the matter to the Board for further proceedings related to that issue.” Prevailing party represented by: Since this was a split decision, no one had the prevailing argument but kudos to EDIP KAJA, the pro se appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Sulecki v City of New York
June 3, 2010 NYS Appellate Division, First Department
Course of Employment: Egress/Ingress

REVERSED the Order, Supreme Court, New York County (Karen S. Smith, J.), entered February 2, 2009, which denied the municipal defendants’ motion to amend their answer to assert the defenses of workers’ compensation and collateral estoppel. In its decision the Court wrote, “Plaintiff, an engineer employed by the New York City Department of Design and Construction, was injured after tripping on a sidewalk adjoining a City-owned building while on his way to a work-related meeting. The Workers’ Compensation Law provides the exclusive remedy where, as here, the employer and the landowner are essentially the same party and the plaintiff is injured while performing his job No exception should be made simply because plaintiff’s injury did not occur at the location of the work-related meeting. Accordingly, the motion for leave to amend the answer should have been granted and the complaint dismissed as against the municipal defendants.” Click here to read the full court decision of the NYS Appellate Division, Third Department….

Keles v Santos [Cleaning]
May 27, 2010 NYS Appellate Division, Third Department
Employment: Who is

AFFIRMED the Board’s ruling that claimant was not an employee of Augusto B. Santos and denied his claim for workers’ compensation benefits. Claimant, employed by Plymouth Beef Company, was allegedly injured at the facility prior to the start of his scheduled shift with Plymouth, thus seeking workers’ comp benefits. He claimed that his early presence at the facility was due to inspection work he performed for Santos, the proprietor of the business that cleaned the facility. A Law Judge, later affirmed by a Board Panel, disallowed the claim, finding that no employer-employee relationship existed between claimant and Santos. Although the claimant at one time worked for Santos, the relationship ended months before the injury. Nonetheless as part of his job at Plymouth, he was required to interact with employees of Santos. The Court wrote, “While claimant testified that he felt morally obliged to continue performing the safety inspections which he had done for Santos even though Santos no longer needed his services, that gratuitous work, absent other indicia suggesting an employer-employee relationship, and the fact that substantial evidence supports the Board’s determination we affirm the decision not to award workers’ compensation benefits.” Prevailing party represented by: Daniel Becker of counsel to Gregory J. Allen, State Insurance Fund for Augusto B. Santos and another, respondents and Patrick M. Conroy of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Plymouth Beef Company and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Turner v Jaquith Indus
May 27, 2010 NYS Appellate Division, Third Department
Disability: Further Causally Related

AFFIRMED the Board’s ruling that claimant had no further causally related disability. Claimant, a machine operator, began experiencing respiratory problems after being exposed to toxic fumes in the course of his employment in July 1997 resulting in losing three weeks of work and an established comp claim involving his lungs and airways. He returned to work in August 1997 but in the summer of 2006, he was again exposed to fumes causing breathing difficulty. Subsequent to a diagnosed of asthma and chronic obstructive pulmonary disease, he submitted a second claim for benefits. A Law Judge, later affrimed by a Board Panel, authorized awards for February 16, 2007 to June 8, 2007, but found no futher causally related disability beyond June 2007. While the claimant’s and carrier’s medical providers submitted opposong opinions, the Court, as its norml position on such controversies, wrote, “[I]t is within the Board’s discretion to determine witness credibility and resolve conflicting medical opinions. . . . inasmuch as the resolution of conflicting medical opinions is within the Board’s province and both of the latter opinions constitute substantial evidence supporting the Board’s determination, we decline to disturb it.”Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent and Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for PMA Insurance Group, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Clark v Suny Upstate Med. [SFCC]
May 27, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

AFFIRMED the Board’s ruling that the award of workers’ compensation benefits be paid by the Special Fund for Reopened Cases. Claimant injured her back while working for the employer in 1994, initially paid for compensable lost time which came to an end in March 1977 when a Law Judge authorized treatment and closed the case. Further work-related injuries in 2001 and 2003 also resulted in the payment of workers’ comp benefits, beginning in 2003. The 1994 claim was reopened in 2004, when a hearing was held to determine, among other things, whether apportionment between the various claims was appropriate at which time the. The Special Fund for Reopened Cases (Fund) was then placed on notice that it may be required to assume liability for the 1994 claim per WCL §25-a.

Although on the face of the record, both of the times limits under §25-a (three years and seven years) were satisfied in this case, the Fund argued that the employer’s workers’ compensation carrier voluntarily paid benefits it knew were attributable to the 1994 claim in the three years prior to reopening. The carrier received the November 2003 report of an orthopedic surgeon who examined claimant and opined that the 1994 accident was partially responsible for her ongoing disability. Although the carrier did subsequently pay benefits under both the 2001 and 2003 claims, it also raised the issue that the Fund may be liable for any portion attributable to the 1994 claim, and the Fund was notified of its potential liability (see WCL §25[1][f]). The Court then wrote, “As substantial evidence in the record thus supports a finding that the carrier did not voluntarily assume liability for payments attributable to the 1994 claim, the Board appropriately followed the spirit and purpose of WCL §25-a to shift liability of that stale claim to the Fund.” Prevailing party represented by: Susan B. Marris of counsel to Gregory J. Allen, State Insurance for SUNY Upstate Medical Center and another, respondents Click here to read the full court decision of the NYS Appellate Division, Third Department….

Monteleone v Town of N. Castle
May 27, 2010 NYS Appellate Division, Third Department
§ 25(4)[a] Reimbursement

AFFIRMED the Board’s ruling that the employer was entitled to reimbursement for wages paid to claimant during the period of disability. After suffering a 2005 inury, claimant ultimately negotiated a 25% schedule loss of use encompassing 78 weeks of compensation. As claimant had been paid full wages for 46 days due ot his injury, the agreement also called for the employer to be reimbursed $11,380 of the total $31,200 award per §25(4)[a]. After a Law Judge approved the stipulation, the claimant requested that the amount of the employer’s reimbursement be modified because approximately eight days of claimant’s vacation and sick leave accruals had allegedly been deducted during those 46 days. Although the Law Judge agreed with the claimant and reduced the amount of the employer’s reimbursement, a Board panel reversed and affirmed the original reimbursement of $11,380. Here the Court noted that “pursuant to a collective bargaining agreement governing claimant’s employment, the employer was required to pay claimant’s full wages, without deducting any of claimant’s leave accruals, for the initial six months of any lost time arising from a compensable injury. Inasmuch as the instant record does not support claimant’s assertion that the employer did otherwise, the Board properly concluded that reimbursement of $11,380 to the employer would not create a disproportionate result in its favor.”Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for Town of North Castle and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Bran v Wimpish
May 20, 2010 NYS Appellate Division, Third Department
Employment: Who is
§14: Average Weekly Wage

AFFIRMED the Board’s ruling that claimant was an employee of Ralph Wimpish but REVERSED the Board’s ruling on the average weekly wage.

After sustaining injuries on February 12, 2008 when he fell from a ladder while working in the apartment owned by Ralph Wimpish, the injured workers claim was established after a Law Judge found an employer-employee relationship and set the claimant’s average weekly wage at $620, decisions affirmed by a Board Panel. The Appellate Court noted that, “Wimbish hired the claimant in the parking lot of a home improvement store, provided daily transportation between the store and the worksite and instructed the claimant on what work needed to be done. . . . Wimbish paid claimant in cash at the end of each workday and supplied him with equipment, including spackle, spackling tools and a ladder.” Citing prior case law, the Court added, “The existence of an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its finding must be upheld if supported by substantial evidence. . . . In our view, the record contains substantial evidence supporting the Board’s determination that an employer-employee relationship existed between claimant and Wimbish, notwithstanding evidence in the record that could support a contrary result.“

However, the Court did find merit in Wimbish’s contention that the Board’s calculation of claimant’s average weekly wage at $620 was improper and return this particular matter to the Board for further proceedings. Prevailing party represented by: John F. Clennan, Ronkonkoma, for appellant, on the issue of average weekly wage and Iris A Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent on the issue of employee/employer relationship. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Catapano v Jaw
May 20, 2010 NYS Appellate Division, Third Department
§ 29: MVA liens

RESCINDED and sent back for reconsideration the Board’s ruling that the Special Disability Fund’s consent to a third-party settlement was not required. Claimant suffered injuries in an accident at work, and this workers’ compensation claim was established in 1996. The employer’s workers’ compensation carrier then filed a notice of claim for reimbursement out of the Special Disability Fund and, in 2000, the Fund was found liable for reimbursement pursuant to Workers’ Compensation Law §15(8)(d). Shortly thereafter, claimant settled a personal injury action arising out of the accident, and the carrier (State Insurance Fund) gave its consent to the settlement, waived its lien on the proceeds, and took a credit against claimant’s net recovery (WCL §29[4],[5). The Fund’s consent to the settlement was not sought and, as a result, it refused to reimburse payments of deficiency compensation made by the carrier. The Board ultimately held that the Fund’s consent was not required, and the Fund appealed.

“While the Board is free to alter a course previously set out in its decisions, it must set forth its reasons for doing so, and the Board’s failure to do so renders its decision arbitrary and capricious. The Board had previously held that where the Fund has been found liable for reimbursement to the carrier under WCL §15 (8)(d), the carrier waives its right to that reimbursement if it does not obtain the Fund’s consent to a settlement (see Matter of Care Diagnostic Laboratory, 2006 WL 832793, *2, 2006 NY Wrk Comp LEXIS 2612, *4 [WCB No. 29317021, March 28, 2006]; see e.g. Matter of Brigotta Farmland, 2006 WL 1064007, *2-4, 2006 NY Wrk Comp LEXIS 3343, *5-10 [WCB No. 80213739, April 18, 2006]). Indeed, the carrier here readily admits that the cited precedent does not support the Board’s present holding, but nonetheless argues that the prior cases were wrongly decided. However, as that prior precedent was not addressed in any way in the Board’s decision, the Court remitted this matter back to the Board for further proceedings.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Bush v Montgomery Ward
May 13, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

AFFIRMED the Board’s ruling that WCL § 25-a is inapplicable to claimant’s award of workers’ compensation benefits. Although claimant was injured at work in June 1978 and awarded compensation benefits, it appears that claimant did not receive awards for her injury after 1981; however, most of the records associated with her original claim were destroyed that year in a fire at the Binghamton office of the Board and the record contains no evidence indicating that the issue of permanency was resolved.

Accordingly, when claimant sought to reopen her claim in 2006, hearings held to determine the applicability of WCL §25-a lacked the benefit of documentation regarding the manner in which earlier proceedings were resolved. Claimant stated that her claim had never been closed and that she had worked in a light duty capacity since her injury. Medical reports submitted in April 1979 and April 2006 indicate that she was capable of performing only light duty work. Additionally, in 2008, her treating physician opined that claimant had suffered a 15% to 20% schedule loss of use of her right knee. Following the hearings, a Law Judge, affirmed by a Board panel, ruled that the claim was never truly closed and discharged the Special Fund for Reopened Cases from liability. The Court then ruled that “substantial evidence support[ed] the Board’s determination that, because further proceedings were contemplated to establish the extent of her disability, claimant’s case was not truly closed”. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Thomas v Crucible Materials
May 13, 2010 NYS Appellate Division, Third Department
§ 15(6) Reopening by claimant

AFFIRMED the Board’s ruling which denied claimant’s application to reopen his workers’ compensation claim. In 2002 claimant suffered injuries to his right shoulder, underwent surgery to repair a massive tear in his right rotator cuff, which was not successful. At a November 25, 2003 hearing, claimant agreed to accept his doctor’s opinion regarding schedule loss of use (SLU), was classified with a 70% schedule loss of use of his right arm, awarded benefits, and the case was closed.

In 2007, claimant resumed treatment for his injury, then successfully applied to reopen his claim based on recent medical reports indicating that his medical condition had worsened since the 2003 classification. The Law Judge found sufficient medical evidence of a change of condition, rescinded the 2003 SLU determination, reclassified claimant with a permanent total disability from 2003 onward, and modified claimant’s award accordingly. Upon appeal, a Board panel reversed, concluding that claimant failed to show that his condition changed to such an extent that a reopening of his prior classification was justified.

The Board’s decision as to whether to reopen a case per WCL §15(6) is a matter committed to the Board’s discretion and will not be disturbed on appeal absent an abuse of discretion. Furthermore, it is for the Board to resolve conflicting medical evidence and, in so doing, it “may selectively adopt or reject portions of a medical expert’s testimony“. The Court agreed with the Board that there was no “meaningful distinction between Smallman’s preclassification and postclassification medical narratives. . . . Despite the existence of other medical evidence in the record to support a contrary result, we find that the foregoing constitutes substantial evidence in support of the Board’s conclusion that claimant did not establish a sufficient change in his medical condition warranting a reopening of his 2003.” Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Crucible Materials Corporation and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Yarleque v Sally Lou
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s denial of claimant’s two requests for reconsideration or full Board review. Having worked for the employer for less than four months in 1996, claimant submitted in June 2000 two applications for benefits allegedly arising out of that employment — one for carpal tunnel syndrome and the second for back, neck and shoulder injuries. Although the carrier argued that both were time-barred pursuant to WCL §28, the Law Judge found the claims timely and established both. A Board panel reversed the Law Judge per §28. The claimant then requested and was denied full Board review on both cases, hence the appeal to the Appellate Court. The Court wrote,“In that regard, the grounds for seeking review or reconsideration are narrow; the movant must generally show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination”.

In this case, the Board in its underlying decision concluded that claimant’s CTS was an occupational disease for which the latest possible date of disablement was November 1, 1996, when claimant stopped working, thus making her claim untimely. As for the second claim,the Board found that her admission in the footnote of her brief confirms that she knew that those injuries were work-related no later than December 21, 1996 together with the evidence that claimant stopped working on November 1, 1996 because of her injuries, amply support the Board’s decision that both claims involved occupational diseases and were filed beyond the two-year period. Prevailing party represented by: Jeremy B. Davis of counsel to Gregory J. Allen, State Insurance Fund for Sally Lou, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Barone v Interstate Maintenance
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling which denied the employer’s request for reconsideration and/or full Board review. Although the main issue in this case was jurisdiction as the claimant, an employee of a New York firm, was injured in 1993 while making deliveries in New Jersey, the appeal is based on the Board’s denial of a review on the basis that the case was dormant for 10 years, until the employer and its president applied for reconsideration and/or full Board review of the Board’s 1996 decision finding subject matter jurisdiction. The Court wrote, “the employer failed to demonstrate the existence of any newly discovered evidence, a material change in condition or that the Board improperly failed to consider the issues raised before it. Furthermore, the employer failed to make its application ‘within a reasonable time after [it] . . . had knowledge of the facts constituting the grounds upon which such application [was] made’ (12 NYCRR 300.14 [b]). Accordingly, we cannot say that the Board abused its discretion in denying the employer’s request for reconsideration and/or full Board. . . .Finally, we note that the employer’s arguments regarding personal jurisdiction and allegedly improper conduct of Travelers were not raised before the Board in the application for reconsideration and/or full Board review and, thus, are unpreserved for our review.. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Carlineo v Snelling & Snelling
May 6, 2010 NYS Appellate Division, Third Department
Procedure: Due Process

AFFIRMED the Board’s ruling which returned a case for development of the record on the issue of general/special employment. Claimant was employed by Snelling, a temporary employment agency, and was injured in a car accident for the owner of the car (Michael Comstock) to whom he been assigned as a laborer, providing services to Fortuna Energy.

Hearings were conducted on the claim, but before Snelling completed its examination of Comstock, a Law Judge rendered a decision finding, among other things, that, at the time of the accident, claimant did not have a general/special employment relationship with Comstock or Fortuna and that Snelling’s carrier was responsible for the payment of this claim. Snelling appealed, requesting that the hearing be reopened so that additional evidence could be submitted as to claimant’s employment status at the time of the accident. Although a Board Panel affirmed the Law Judge, a Full Board Review resulted in the case being returned to the Panel which determined that Snelling’s counsel should have been permitted to complete his examination of Comstock, and the case was sent back to a law judge for this further examination.

In its appeal to the Appellate Division, Snellng argued that the Board panel erred by restricting the hearing on remand to Comstock’s testimony and contends that it should be provided with an opportunity to present additional evidence on the employment issue from other witnesses. The Court ruled that “As the decision being appealed rescinds the original decision and remands the matter to the Law Judge for a new ruling on all issues, it is interlocutory in nature and does not dispose of all substantive issues nor reach legal threshold issues that may be determinative of the claim. As such, this decision may not be the proper subject of an appeal and this appeal must be dismissed.” Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Renz v Home Depot
May 6, 2010 NYS Appellate Division, Third Department
Causal Relationship: Aggravation or New

AFFIRMED the Board’s ruling that claimant was precluded from pursuing her neck injury claim by stipulating to a schedule loss of use award to her arms. The Board found that the claimant injured her left shoulder and authorized surgery and benefits. Following a hearing at which claimant asserted consequential injuries to her right shoulder and neck, a Law Judge amended the case to include a right shoulder injury, authorized medical tests of claimant’s neck and upper extremities for diagnostic purposes, and directed the parties to submit deposition transcripts regarding the issue of whether claimant suffered a neck injury. at a March 2007 hearing before a different LJ and without the submission of depositions related to the neck injury, the parties stipulated that claimant suffered a 25% schedule loss of use of her left arm and a 20% schedule loss of use of her right arm. When the WCLJ asked if there were “[a]ny other body parts,” claimant’s counsel replied, “[n]o.” The parties’ agreement which awarded the claimant approximately $55,000 in total benefits and indicated that “[n]o further action [was] planned” in the case.

Then one month later, claimant moved to reopen the claim, seeking benefits related to her neck injury, right thumb and right ring finger. The case was referred back to the original WCLJ, before whom claimant conceded that she had agreed to forego her neck claim when she entered into the stipulation. Claimant asserted, however, that her neck condition had since deteriorated. The WCLJ noted that claimant’s neck had been symptomatic since the date of the accident and concluded, as relevant here, that the claim for the neck injury and any claims flowing from that injury were barred by the parties’ stipulation. Finding that claimant’s bilateral carpal tunnel syndrome was linked solely to her neck injury, the WCLJ determined that there was no prima facie medical evidence of carpal tunnel syndrome. The Board affirmed, concluding that claimant had not been “forthright” about her intention to pursue the neck claim at the time she entered into the stipulation, and stating that “no further claim regarding the neck may be made at this time.” The Court in its affirmance wrote, “In light of the medical guidelines, the procedural history of this case, evidence that claimant’s neck was symptomatic at the time of the stipulation and the negative response of claimant’s attorney when asked by the WCLJ whether there were ‘[a]ny other body parts,’ the Board did not act irrationally in concluding that the stipulation barred pursuit of the neck claim and denying claimant’s application to reopen the case.” Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman(Hauppauge) for Home Depot USA, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Wilson v General Mills
May 6, 2010 NYS Appellate Division, Third Department
Course of Employment: Assault

AFFIRMED the Board’s ruling that claimant’s injury arose out of and in the course of her employment due to an assault and awarded workers’ compensation benefits. Claimant filed for benefits after a coworker struck her in the face with a work tool. The Law Judge ruled. and the Board affirmed that the assault upon claimant stemmed from work-related differences finding a sufficient nexus between the assault and the employment. The Court agreed that the claimant’s testimony was supported by an affidavit that claimant filed with the Equal Employment Opportunity Commission in support of her discrimination complaint, upon which the employer and its carrier heavily rely, which could be read as suggesting that at least some of the assailant’s offensive comments and conduct stemmed from a promotion and pay raise that claimant received in 2005. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Hiser v Richmor Aviation
April 29, 2010 NYS Appellate Division, Third Department
§29(4) 3rd Party Liens

REVERSED the Board’s identical that the employer’s workers’ compensation carrier was entitled to offset its future compensation to claimant pursuant to WCL§ 29(4), to wit, one half of a $500,000 voluntary settlement paid pursuant to a policy of insurance is subject to the workers’ compensation carrier’s lien and offset rights under WCL§ 29. [In 2008, the Court reversed the Board’s determination that rejected claimant’s application for review of a Law Judge decision as untimely (2008 NY Slip Op 04981 [52 AD3d 915]).

The undisputed facts are that the claimant’s spouse died in a crash while in the employ of Richmor Aviation even though the plane was owned by Abrams Aviation. Case is established without controversy and paid benefits to claimant and surviving children. In addition to WC benefits, Richmor offered claimant a voluntary $500,000 settlement pursuant to the terms of an insurance policy purchased by and issued to Richmor. The policy required Richmor, as the first named insured, to request payment from the insurance company. Payment was to be made irrespective of legal liability and the claimant, individually and as executor of decedent’s estate, was to execute a release of all claims against Richmor and Abram’s. The Board found that the portion of the proposed voluntary settlement payable under the policy and attributable to Abram’s”constitutes a substitute for the usual third party recovery” and is subject to the lien and offset rights of the compensation carrier provided for in Workers’ Compensation Law § 29. [The Board found that $250,000 of the $500,000 was attributable to Abram’s.] The Court, in reversing, concluded such finding is not supported by substantial evidence.

In summary the Court agreed that WCL §29 does provide for reimbursement for “whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits.” The Court noted that the Board relied on Matter of Ryan v General Elec. Co. (26 NY2d 6 [1970]) which was misplaced because the accident in Ryan was attributable to a US Navy jet whereas the parties in this case agreed that the crash was caused by “an act of mother nature.” The decision continued, “. . . there is no evidence that Abram’s caused decedent’s death or committed any wrong that contributed to his death and the Board’s decision to find Workers’ Compensation Law § 29 applicable to that portion of claimant’s voluntary settlement attributable to Abram’s, under these facts, was not supported by substantial evidence.” Prevailing party represented by: James E. Buckley of counsel to Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Whiteman v Richmor Aviation
April 29, 2010 NYS Appellate Division, Third Department
§29(4) 3rd Party Liens

The current case arises from the same aircraft accident as in Matter of Hiser v Richmor Aviation, Inc. (___ AD3d ___ [decided herewith]) and involves the identical issue. For the reasons set forth in Hiser, we reverse and remit to the Workers’ Compensation Board for further proceedings. Prevailing party represented by: James E. Buckley of counsel to Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Thompson v Wiltsie Constr
April 22, 2010 NYS Appellate Division, Third Department
§ 21(4): Intoxication

AFFIRMED the Board’s ruling that claimant sustained a compensable injury and awarded workers’ compensation benefits. After the claimant filed for benefits after an injury sustained at work, the employer controverted the claim because a urine sample taken from the claimant approximately 18 hours after the incident revealed the presence of an abnormally high level of marijuana metabolites. The Court agreed with the Law Judge and Board that “the statutory presumption that the claimant’s injury was not solely caused by his intoxication” per WCL §21 (4) precludes disallowing a claim unless “all the evidence and reasonable inferences therefrom allow no other reasonable conclusion than that the intoxication intoxication is the sole cause of the claimant’s injury.” In addition, the claimant testified that while working on a lift, he removed his safety harness, climbed out of the lift, lost his balance, and fell. The Court then added “while claimant’s removal of his safety harness may have been in violation of the employer’s safety regulations, it is not a bar to his recovery of workers compensation benefits under the circumstances presented here.” Prevailing party represented by: Christopher Richmond, Oswego, for William Thompson, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Maher v NYS Div. of Budget
April 22, 2010 NYS Appellate Division, Third Department
Course of Employment: in and out of

AFFIRMED the Board’s ruling that claimant’s injury did not arise out of and in the course of her employment and denied her claim for workers’ compensation benefits, after she fell from a second story roof at a hotel while attending a training conference. After an evening of consuming several beers, claimant and two coworkers returned to the hotel where they had overnight accommodations and shortly after arriving at the suite of one of her coworkers, the claimant and two coworkers stepped onto the roof of the hotel which was accessible only via the bathroom window. Shortly thereafter, claimant placed her hands on the railings surrounding the roof, heard a loud crack, and fell to the ground below. Although the Law Judge allowed the claim, the Board reversed by concluding that “claimant deviated from her employment by climbing out onto the roof, that such action was not reasonable and, hence, claimants injury did not arise out of and in the course of her employment”. The Court summarized its decision by writing, “Based upon our review of the record as a whole, we cannot say that the Board erred in concluding that claimant’s conduct – accessing the hotel roof via the bathroom window – was unreasonable under the circumstances.” Prevailing party represented by: Thomas A. Phillips of counsel to Gregory J. Allen, New York State Insurance Fund, for NYS Division of the Budget and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Lopez v 395 Brook Realty Corp.
April 22, 2010 NYS Appellate Division, Third Department
§ 23: Late or Interlocutory Appeal

AFFIRMED the Board’s ruling that the application by the employer for a review of the Law Judge decision was untimely. Two months after the Law Judge found an employer-employee relationship between the claimant and the employer and awarded benefits to the claimant, the employer filed an application review which was denied by the Board per WCL §23. The Court referenced the Board’s decision which, in turn, “noted that [the employer] failed to acknowledge at the time of the filing that the application was untimely or offer any explanation as to why the application could not have been timely filed.Under these circumstances, the Board’s denial of the application for review as untimely was not an abuse of its discretion.” Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent.Click here to read the full court decision of the NYS Appellate Division, Third Department….

McLean v Amsterdam Nursing Home
April 15, 2010 NYS Appellate Division, Third Department
§ 25-a: Advance Compensation

REVERSED the Board’s ruling that liability shifted to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a. The claimant, who sustained a work-related injury in 1996 and whose case was closed in 1997 when she returned to work, applied to reopen the case in 2006. Evidence was submitted showing that the claimant was absent from work, due to her 1996 work-related injury, for numerous days from 2002 to 2005 for which she was paid. After several hearings, the Board ultimately decided liability for the claim had shifted to the Fund. The real issue was whether the payments were “[a]dvance payments that are made voluntarily, in recognition of an employer’s liability, [and] are payments of compensation” or “[w]ages paid and credited to accumulated sick leave are not payments of compensation“. In reversing the Board and affirming the Fund, the Court determined that “[i]n the absence of proof regarding the manner in which claimant was compensated for the time absent from work, the Board could not properly assess whether the employer made an advanced payment of compensation precluding a transfer of liability to the Special Fund.” Prevailing party represented by: Jennie J. Choy of counsel to Steven M. Licht, Special Funds Conservation Committee for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Zahm v National Fuel
April 15, 2010 NYS Appellate Division, Third Department
§123: Late Appeal (7 years)

REVERSED the Board’s ruling that claimant had a 20.4% schedule loss of use for binaural loss of hearing. Claimant worked for the employer in numerous capacities - first as a data entry clerk and then in various customer-related positions - for 31 years until she retired in July 2005. A preemployment hearing examination conducted in 1974 revealed that claimant had a measurable loss of hearing at that time. In August 2007, claimant filed this claim contending that she had sustained an occupational hearing loss due to long-term noise exposure “from being on the telephone for years.” The Board affirmed the Law Judge’s finding of a 20.4% schedule loss of use for binaural loss of hearing. While there was no dispute that the claimant suffered a hearing loss, the Court agreed with the employer the record as a whole fails to establish “both that claimant was exposed to injurious noise during the course of her employment and that [the medical testimoney did not support her contention that] her documented hearing loss was causally related to her employment.” The Court ended its opinion by writing “[b]ased upon our review of the record as a whole, we cannot say that her doctor’s testimony was sufficient to establish the requisite causal connection between claimant’s loss of hearing and her employment.” Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Rebeor v Moose Lodge #1280
April 8, 2010 NYS Appellate Division, Third Department
§ 25-a: no current liability

AFFIRMED the Board’s ruling that liability shifted to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law §25-a. Originally injured in 1988 and awarded a 10% schedule loss of use with less payment made in 1990, the claimant in August 2007 was denied his request for payment for additional medical treatment. The carrier sought relief under WCL §25-a debt which time a law judge authorized medical treatment and found that liability had shifted to the Special Fund.

The Court wrote “The Special Fund argues that there has been no evidence of medical treatment since 1990 and, thus, no actual liability to shift. However, liability for compensation shifts to the Special Fund when an application to reopen a case is made after a lapse of seven years from the date of the injury and a lapse of three years from the date of the last payment of compensation (see Workers’ Compensation Law § 25-a. While it may be true that there was no current liability to be shifted to the Special Fund, we find no abuse of the Board’s discretion in reopening claimant’s case and determining that he has a potential claim for further medical treatment that would be the responsibility of the Special Fund. Nor are we persuaded that the Board improperly departed from its own precedent. Contrary to the Special Fund’s contention, the Board has sufficiently explained its reasons for shifting liability despite the absence of payable medical benefits in Matter of Del Labs (2009 WL 193434, *4-6 [WCB No. 2940 8739, January 14, 2009]). Although that decision postdated the Board’s decision here, it would provide the necessary explanation if we were to remit the matter as we did in Matter of Rogers v Del Labs (52 AD3d 1129 , 1130 [2008]).” Prevailing party represented by: [ED.NOTE: corrected 04/10/10] Gary G. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Moose Lodge #1280 and another, respondents Click here to read the full court decision of the NYS Appellate Division, Third Department….

Wadsworth v K-Mart Corp.
April 8, 2010 NYS Appellate Division, Third Department
Course of Employment: Assault

REVERSED the Board, who in turn reversed the Law Judge, when the Board ruled that the claimant sustained an injury arising out of and in the course of her employment. Claimant’s personal vehicle was stolen while she worked as an assistant store manager. A week later, on seeing the car idling in the store’s parking lot, she approached the vehicle getting into an altercation with the driver. During the scuffle, a store employee who was acquainted with claimant’s assailant exited the store, jumped into the vehicle and began driving away. Claimant’s assailant then ran off, eventually got into the vehicle with the employee, and the two fled. Her claim for benefits based on psychological damages were disallowed by a Law Judge found that her injuries did not arise out of employment. The Board reversed finding the injuries were sufficiently related to her employment to be compensable. While the employer/carrier conceded the assault occurred course of employment, they rebutted the contention that the injuries arose out of her employment by submitting evidence that the assault was motivated by curly personal animosity. While noting that the Board can award benefits if “There is a nexus, however slender, between the motivation for the assault in the employment . . ., the decision must be based on such relevant evidence has a reasonable mind might accept as adequate to support a conclusion.” It seemed that although the Board used the involvement of a coworker to prove the nexus, the Court found the involvement to be peripheral and not providing a nexus. After further explanations, the Court concluded that the Board’s determination was arbitrary and should be reversed, thus supporting the Law Judge’s original determination. Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for appellants. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Kitkas v Windsor Place Corp.
April 6, 2010 NYS Appellate Division, 2nd Department
§ 11: Grave Injury

REVERSED order of the Supreme Court, Queens County which denied the second third-party defendant/third third-party defendant, Boca Electric Corp. motion for summary judgment dismissing all causes of action for contribution and common-law indemnification asserted against it, on any matter relating to WCL §11. On January 22, 2003, the plaintiff was performing electrical work on a construction project in Long Island City and allegedly was injured when an electrical panel exploded. At the time of the accident, the plaintiff was employed by the second third-party defendant/third third-party defendant, Boca Electric Corp. In support of its motion for summary judgment dismissing all causes of action for contribution and common-law indemnification asserted against it, Boca met its burden of demonstrating that the plaintiff’s injuries to his right hand did not constitute a “grave injury” within the meaning of WCL §11. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Howard v Stature Electric
April 1, 2010 NYS Appellate Division, Third Department
§114-a Fraud & Alford Plea

RESCINDED and sent back for reconsideration the Board’s ruling that claimant violated Workers’ Compensation Law § 114-a.. Although the claimant’s original claim of a work-related injury was properly established, the claimant was subsequently indicted on various charges of fraud and a violating Worker’s Compensation Law §114. In June 2007 after entering an Alford plea to insurance fraud of the fourth degree and he was convicted and sentenced accordingly.

At a subsequent hearing, SIF asked the WCLJ to find that claimant’s plea and conviction disqualified him from receiving benefits pursuant to WCL §114-a. Although the claimant requested a hearing, the Law Judge determined that the criminal proceedings did not involve a full hearing on the merits and, thus, claimant was entitled to a hearing. SIF sought review. The Board found that,based upon claimant’s criminal conviction, a violation of WCL §114-a§, modified the WCLJ’s decision, and returned the case for the determination of appropriate penalties.

In recognizing the Boards reliance upon the equitable doctrine of a collateral estoppel in rendering its decision, the Court ruled that “the determinative issue was not whether claimant had been convicted of a crime, but whether he ‘knowingly ma[de] a false statement or representation as to a material fact’ for the purpose of obtaining workers’ compensation benefits or influencing a payment determination. An Alford plea, by its very nature, is accepted on the explicit basis that the person making the plea does not admit having committed the charged acts . On the contrary, he made no factual admissions, his counsel specified that he was pleading guilty ‘without an admission of wrongdoing’. Thus the question of whether claimant committed the charged conduct, though decisive in determining whether he violated Workers’ Compensation Law § 114-a, was not determined in the criminal action. Thus, the requirement of identicality was not met, and collateral estoppel does not apply. Claimant must be provided ‘an ample opportunity to address the issue of whether he knowingly misrepresented material facts’ sufficient to establish the charged violation.” Prevailing party represented by: Christine A. Scofield, Syracuse, for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Stojanov v Eastman Kodak Company
April 1, 2010 NYS Appellate Division, Third Department
§ 23: What does “late” mean?)

RESCINDED and sent back for reconsideration the Board’s ruling that claimants applications to review were untimely. After a Law Judge decision dated May 7, 2008 the claimant’s council on June 6, 2008 mailed application seeking Board review per WCL §23. Because the applications were not received by the Board within 30 days, the Board found that they were untimely (see 12 NYCRR 300.13 [a], [e]) and denied claimant’s requests for Board review. In Matter of McLaughlin v Saga Corp. (242 AD2d 393, 394 [1997]), this Court concluded that the mailing of an application for Board review within the 30-day limitation period “was sufficient to satisfy the time limitation of Workers’ Compensation Law § 23.” Subsequently, the Board promulgated the current version of 12 NYCRR 300.13 (a), which provides that an “application is deemed filed with the [B]oard on the date of actual receipt of such application by the [B]oard“. This amendment is obviously at odds with this Court’s holding in McLaughlin and, as such, violates the rule that “[a] court’s affirmance or reversal of an administrative body’s interpretation of its governing statute becomes binding on the agency.” Therefore, the Court reversed the Board stating that the Board could not promulgate administrative regulation that was inconsistent with this Court’s interpretation of WCL §23, remaining the case back to the Board for further proceedings on the original issue raised by the claimant. Prevailing party represented by: James G. Brooker, Rochester, for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Turdo v Dellicato Vineyards
April 1, 2010 NYS Appellate Division, Third Department
ATF Compensation: Mandatory vs Discretionary

RESCINDED and sent back for reconsideration the Board’s ruling that the New York State Insurance Department Liquidation Bureau was required to make a deposit into the Aggregate Trust Fund pursuant to WCL §27 (2). After awarding claimant widow death benefits, the Law Judge directed that the Liquidation Bureau, which had assumed liability for the claim following the liquidation of the original carrier, deposit the present value of any unpaid death benefits into the ATF. The substantive but very narrow issue in this case was whether or not the Liquidation Bureau was “an insurance carrier which is a stock corporation or mutual association” in which case “the Board shall immediately compete the present value thereof require payment of such amount into the ATF” (WCL §27 (2)). The Court agreed that, although the Board set forth a rational argument for considering the Liquidation Bureau as standing in the shoes of the insolvent insurer, the Court determined that the Legislature left no room to find that the Liquidation Bureau is subject to the mandatory deposit requirements of WCL §27. Essentially the ruling by the Board requiring payment to the ATF should have been based on the Board’s discretionary authority rather than a mandatory direction for which reason the Court, in its five page decision, returned the matter to the Board for consideration of the discretionary issue. Prevailing party represented by: Daniel A. Tufo of counsel to Rothstein & Tufo (Commack) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Cassata v General Motors Powertrain
March 25, 2010 NYS Appellate Division, Third Department
§25a: What is proper filing of the C-250

AFFIRMED the Board’s ruling that the self-insured employer was not entitled to reimbursement by the Special Funds Conservation Committee due to the late filing of the C-250 seeking reimbursement per WCL §15(8).

Although the injury occurred on September 14, 1998 the case was neither indexed or filed until November 22, 2000. At a May 2005 hearing, a dispute arose as to whether or not self-insured employer had filed with the Workers’ Compensation Board a claim for reimbursement from the Special Funds (form C-250) as required by WCL §15(8)(f). As neither the Board nor the Special Funds Conservation Committee had a copy of the form, the Law Judge directed the employer to provide evidence that it was timely filed. In, 2007, the employer filed with the Board a form C-250 bearing the date “November 30, 2000,” which it argued had been timely filed, but must have been misplaced by the Board. While the record showed that the Special Funds had hand written notes referencing the C-250 and “WCL §15.8″ dating back to “11/30/00″, the Special Funds argued that this document did not establish the employer’s timely filing of a form C-250 with the Board and that it had not waived the timely filing requirement. The Board affirmed the Law Judge finding that the form C-250, filed in 2007, was untimely and, thus, the employer was not entitled to reimbursement from the Special Funds, which it discharged. After reiterating long-standing case law to the effect that “A prerequisite to reimbursement, however, is the filing of a timely claim with the Board”[emphasis added by the Appellate Court]) on a form prescribed by the Board’s chair, here, form C-250…” , the Court agreed with the Board that it was undisputed that the Board’s file did not contain a form C-250 in 2005, when a finding of permanency was made. No documentation existed in the record to establish that the form C-250 bearing a 2000 date was sent to the Board until 2007. Court agreed that the Board’s decision was based on substantial evidence, notwithstanding that the evidence would also have supported the contrary conclusion of timely filing. Prevailing party represented by: Jennie Choy of counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

D’Avilar v New York Univ. School of Medicine
March 25, 2010 NYS Appellate Division, Third Department
Causal Relationship: Consequential while at treatment

AFFIRMED the Board’s ruling that claimant did not sustain causally related consequential injuries incurred after a session of therapy.

In August 2005, claimant sustained a work-related injury to her right knee, requiring reconstructive surgery and physical therapy and her claim was established. In 2006, right after undergoing physical therapy, she slipped and fell at that facility incurring additional injuries which the Law Judge determined were consequential to her initial compensable injury and amended claim. The Board reversed, concluding that the later injuries were not compensable because they occurred while she was engaged in personal errand. While agreeing with the claimant that injuries sustained in the course of traveling to and from treatment for a cause elite related injury may warrant a workers’ compensation claim, the Court agreed with Board that the claimant’s decision to get coffee after treatment “add[ed an additional] factor which weakens the connection between the initial consequential injuries” sufficient that “the Board could rationally conclude that the work-related aspects of claimant’s trip had ended and that the causal connection between claimant’s employment and her off-duty injuries was severed by her pursuit of a personal errand.” Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman (Hauppauge)for NYU School of Medicine and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Sacco v Mast Advertising/Publishing
March 18, 2010 NYS Appellate Division, Third Department
Disability: Total Industrial
§ 14: Average Weekly Wage - Commission Salesman

ISSUED A MIXED DECISION AFFIRMING the Board’s ruling that claimant was totally industrially disabled but AMENDING his average weekly wage.

Claimant, working as a salesman, injured his back in the course of employment after which his claim was established and based on a C-240 form, his average weekly wage was set for $447.36. Originally classified with a permanent partial disability he was reclassified in 2003 with a marked permanent partial disability.

In 2007, he sought a finding of total industrial disability and requested that his average weekly wage be recalculated pursuant to WCL §14, arguing that it should have been based on the wages of a similar worker at the time of his injury, rather than his actual wages. Although the employer indicated that, since it maintained payroll records only seven years, no such records were available for an employee at the time of claimant’s injury, the Law Judge found that the C-240 filed in 1992 was “improper on its face” and modified claimant’s average weekly wage to $624 per WCL §14 (3). The Board affirmed.

Substantial evidence supported the Board’s determination that claimant suffers a total industrial disability, a determination that would not be disturbed if supported by substantial evidence. The Court agreed with the Board that the combination of testimony from the claimant and a rehabilitation counselor substantially offset the testimony of the employer’s vocational counselor, thus affirming the finding of total industrial disability.

As to the Board’s action of modifying the claimants average weekly wage, the Court made three determinations. First, the court dismissed the employer’s claim regarding the C-240, basing it on the employer’s original failure 1992 to submit information regarding wages of a similar worker. Second, the Court rejected the carrier’s contention that the Board could not modify the 1993 decision, writing that the Board is empowered to “make such modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just.” Third, the Court supported the Board’s refusal to invoke the doctrine of laches to bar claimant from seeking modification of his average weekly wage. The Court cited WCL §14(3) which directs that a claimant’s average annual wage be computed based on “such sum as . . . shall reasonably represent the annual earning capacity of the injured employee” in agreeing with the claimant’s contention that his earnings in the last 10 weeks of employment would most accurately reflect his earning capacity at the time of the accident, since he was a new employee and did not receive commissions in his first several weeks of employment. However, the Court did not affirm that amount because of an arithmetical error in the original decision, an error overlooked in the Board’s affirmance of the Law Judge decision. Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Grant v New York City Transit Authority
March 18, 2010 NYS Appellate Division, Third Department
Course of Employment: Lunch Break

AFFIRMED the Board’s ruling that claimant did not sustain an accidental injury on her lunch break as it was not in the course of her employment. Claimant had walked to a deli across the street from her place of employment when she and the deli clerk were both robbed at gunpoint. Her application for workers compensation benefits claiming she suffered from psychiatric disabilities resulting from the traumatic experience was approved by the Law Judge, finding the injuries arose out of and in the course of employment. In supporting the Board’s reversal and disallowance of the claim, the Court wrote, “Significantly, ‘lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employees during the lunch break’. The record here shows that claimant had discretion over where she spent her lunch break, the incident occurred away from her place of employment and no evidence was produced that the employer retained authority or control over her during that time or benefitted from her going to the deli.” Prevailing party represented by: Andrea Rocchio of counsel to Weiss, Wexler & Wornow (NYC) for New York City Transit Authority, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Laezzo v New York State Thruway Auth
March 11, 2010 NYS Appellate Division, Third Department
§13-b Medical Bills: Who Pays for Gastric Bypass Surgery

AFFIRMED the Board’s ruling that as a result of consequential injuries from a work-related accident the injured worker qualified for gastric bypass surgery. The original 2002 accident resulted in a successful claim for injuries to his head, neck, back, and knees. He alleged that his morbid obesity contributed to his knee and back problems seeking authorization for gastric bypass surgery. Both the Law Judge and Board approved, holding that the surgery was causally related to the compensable injuries. The Appellate Court wrote in its decision that “The employer is obliged to pay for claimant’s medical care ‘for such as the nature of the injury or the process of recovery may require.‘” because the claimants treating orthopedic surgeon opined that the injuries imposed a sedentary lifestyle thus increasing his weight thus exacerbating his injuries, the surgery would be appropriate, a position supported by an independent medical examiner. In support of its decision the Appellate Court cited The Matter of Bolds v Precision Health, Inc., 16 AD3d 1007, 1009 [2005] in which a request for causally related breast reduction. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Cicinnati v Clare Rose, Inc.
March 11, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal after termination for cause

AFFIRMED the Board’s ruling that the injured worker voluntarily withdrew from the labor market. On March 30, 2007, four days after returning to work after having been out for more than two years due to a compensable back injury, claimant was terminated for insubordination arising out of an altercation that he had with a customer. He then sought benefits asserting his subsequent reduced earnings were due to his work-related injury. Despite concluding that claimant had been terminated for good cause, a Law Judge determined that claimant was permanently partially disabled, that he had not voluntarily withdrawn from the labor market, and that he was therefore entitled to awards beyond the date of his termination. The Board rescinded those awards, finding that claimant’s employment ended as a result of misconduct — not due to his compensable injury — and that he had failed to demonstrate an attachment to the labor market.

After finding that there was substantial evidence supporting the Board’s termination claimant was terminated for misconduct, the Court found that the claimant was not entitled to the inference that his loss of wages was attributable to his compensable injury but that he bore “‘the burden of establishing by substantial evidence that the limitations on his employment due to his disability were a cause of his subsequent inability to obtain employment.‘” Additionally, although the medical evidence indicated that claimant could perform full-time sedentary work, claimant admitted that he had made no effort to find employment of any kind since his termination. Since “the Board’s determination is supported by substantial evidence, the Court perceived no basis upon which to modify the Board’s decision.” Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Clare Rose, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Guz v Jewelers Machinist
March 11, 2010 NYS Appellate Division, Third Department
1130__Causal Relationship: Was there?

AFFIRMED the Board’s ruling that claimant did not have a causally related psychiatric disability. Five years after her injury during which time her case was established for bilateral carpal tunnel syndrome and amended to include a neck injury and an aggravation of a preexisting back condition, the claim was amended in 2007 to include major depressive disorder after which a Law Judge included this condition and continued the case to determine the extent of her disability. Upon review, the Board reversed the inclusion of the depressive disorder.

The carrier’s IME found some symptoms of depression, but opined that there were no psychiatric restrictions on her ability to perform her job and that her depression did not result in a disability. After a subsequent exam, he “concluded that claimant did not suffer a causally related psychiatric disability or even objectively suffer from a depressive disorder.” The Appellate Court agreed with the Board’s determination that the claimant’s treating psychiatrist’s position on causally related psychiatric disability was “entirely lacking in credibility.” The Court wrote “It is well settled that a claimant bears the burden of establishing, by competent medical evidence, a causal relationship between his or her employment and a disability. Further, the Board is the sole and final judge of witness credibility, and it alone can evaluate the factors relevant to determining whether the testimony of a party or witness is worthy of belief.” Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Jewelers Machinist, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Lupo v Cass
March 4, 2010 Appellate Term of the Supreme Court, First Department
Legal Malpractice

AGREED to grant defendants’ motion for summary judgment dismissing the complaint by Elaine Lupo, a workers compensation claimant, who sued her workers compensation attorney, Alan M. Cass, the defendant, for mishandling her case.

Although the Civil Court refused to dismiss the motion, the Appellate Court disagreed. They reviewed the complaints and the plaintiff’s “purported expert’s assertion” and summarized their rejection of the plaintiff’s positions as “nothing more than criticism of defendants’ considered, tactical strategy of how best to pursue plaintiff’s claim”, “insufficient to raise a triable issue”, and “rank speculation.” Click here to read the full court decision of the NYS Appellate Division, Third Department….

Dunn v American Tr. Ins. Co.
March 2, 2010 Appellate Term of the Supreme Court, Second Department
Which Court decides Jurisdiction

AFFIRMED The Appellate Court ruled that “[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board.” In this case, the defendant’s motion presented factual questions as to the plaintiff’s “status as either an independent contractor, as he claims he is, or as an employee of” a car service dispatch base, as the defendant claims. Accordingly, prior to rendering a determination on the motion, the Supreme Court should have referred the matter to the Workers’ Compensation Board for a hearing and determination as to whether the plaintiff is relegated to benefits under the Workers’ Compensation Law. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Garifo v Pathmark Stores
March 4, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board which ruled that claimant voluntarily withdrew from the labor market. After incurring injury in November 2001, claimant was awarded compensation until his return to work March 2002. He sought to reopen his case in January 2006, alleging that the worsening of his condition prevented him from working. In January 2007 a Law Judge affirmed causally related disability as of January 2006, continuing the case for further development of lost time. At a subsequent hearing, claimant testified he ceased employment in February 2006 when his employer closed the store where he worked, made no effort to seek employment or retraining, and was subsequently approved for Social Security disability benefits . The employer then raised the issue of voluntary withdrawal to which the claimant alleged total industrial disability. In November 2007 the Law Judge awarded additional benefits ruling that the claimant was relieved of his obligation to seek work given his receipt of Social Security disability benefits.

The Board reversed the Law Judge, finding that claimant’s loss of earnings and cessation of employment were unrelated to his compensable partial disability and, therefore, he was not entitled to an award of benefits for the period in question. Where, as here, claimant’s loss of employment was due to circumstances unrelated to his partial disability and no finding of involuntary retirement was made by the Board, “the burden rests on claimant to demonstrate ‘by substantial evidence that his disability contributed to his continued unemployment’”. Claimant testified that he probably would have continued to work had the employer not closed the store. Additionally, the weight of medical testimony established that claimant was capable of resuming employment despite any disability. This evidence, together with claimant’s admission that he made no effort to find employment or seek retraining, provides substantial support for the Board’s decision that claimant voluntarily withdrew from the labor market), notwithstanding evidence in the record that could support a contrary conclusion. Prevailing party represented by: Lauren Camo of counsel to Jones, Jones & O’Connell (NYC) for Pathmark Stores, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

420 E. 86th St./Carlton Mgmt

The Full Board, at its meeting held on February 23, 2010, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 16, 2009.

ISSUE

The issue presented for Full Board Review is whether the claimant has made an adequate search for work.

In a decision filed on December 5, 2008, the Workers’ Compensation Law Judge (WCLJ) noted that the claimant had testified regarding her job search and her medical impairments, declined to suspend benefits, and closed the case on the claimant’s prior classification.

The majority of the Board Panel affirmed the WCLJ’s decision, finding that the carrier had failed to produce sufficient evidence that the claimant’s post separation from employment loss of earnings was due to unrelated factors, and that the claimant had demonstrated that she intends to remain attached to the labor market, as evidenced by her job search and her request for retraining.

The dissenting Board Panel member found that although the claimant’s separation from her job as a porter was due, at least in part, to her disability, she had an obligation to look for work within her restrictions in order to be entitled to continuing benefits. The dissenting Board Panel Member further found that the claimant did not make adequate attempts to look for work within her restrictions, as she made only three inquires over the course of a 15 month period, and that she was not hired for any of these positions due to factors other than her disability. As a result, the dissenting Board Panel member found that the claimant’s loss of earnings was not causally related to her disability.

In its request for Full Board Review, the carrier asserts that indemnity benefits to the claimant must be suspended due to the claimant’s failure to conduct a good faith search for employment and subsequent failure to remain attached to the labor market.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The claimant, a porter, sustained a work related accident on September 22, 2002, when she lifted a heavy garbage bag. By an administrative decision filed on February 5, 2003, the case was established for an injury to the low back and the claimant’s average weekly wage was set at $676.71. The claimant subsequently raised the issue of a causally related neck injury, but prima facie medical evidence was never produced.

By decision filed on September 10, 2004, pursuant to a stipulation between the parties, the claimant was classified with a permanent partial disability, awards were made, the carrier was directed to continue payments at the rate of $225.00 per week (moderate partial disability), and the case was designated for no further action.

By form RFA 2 filed on May 16, 2008, the carrier requested a hearing to address the outstanding issue of Workers’ Compensation Law (WCL) § 15(8). At the hearing subsequently held on July 28, 2008, the claimant did not appear, but her attorney provided the carrier with medical releases so that it could obtain information regarding the claimant’s other medical problems, primarily her hypertension. The carrier asked that the awards be brought up to date at the permanent rate of $225.00 per week, and noted that an “activity check” had been forwarded to the claimant’s attorney (ECF Doc. ID #141772462), which the carrier requested be returned. The WCLJ made the awards as requested, and noted that if the claimant failed to cooperate by completing the earnings questionnaire, the carrier had a right to request that benefits be suspended. These findings and awards were memorialized in the decision filed on July 31, 2008.

On August 8, 2008, the claimant’s attending physician, Dr. Gideon Hedrych, filed a form C 4 and narrative for his follow up examination of the claimant on June 9, 2008. In his report, Dr. Hedrych indicated that the claimant could work, but was unable to work as a porter due to her back injury, as the job involved mopping, sweeping, and lifting heavy garbage and rain mats. Dr. Hedrych also noted that the claimant experienced low back pain and radicular symptoms when sitting or standing for 30 to 40 minutes, and when she walked four to five blocks. Upon examination, the physician found limited range of motion (with complaints of pain), moderate spasm, and lumbosacral tenderness.

On September 4, 2008, the Board received a copy of the carrier’s second attempt to obtain a work activity questionnaire from the claimant (ECF Doc. ID #143725560). Thereafter, on September 12, 2008, the carrier requested a hearing on the issue of the claimant’s failure to provide her medical contact information and her failure to return the work activity questionnaires. At the hearing subsequently held on October 21, 2008, the claimant briefly testified that she was not currently working, but that she would like to work and was currently looking, but she is unable to perform any of the jobs she sees because of her “health.” The WCLJ continued the case for more extensive testimony from the claimant. However, prior to closing the record, the carrier asked the claimant if she had earned any income from employment since September 20, 2004, to which the claimant replied “no.”

At the hearing held on December 2, 2008, the claimant was questioned by the WCLJ and testified as follows: She can no longer work as a porter because she cannot lift anything heavy, stand for long periods of time, or walk for long periods of time. Both her back and her neck are painful. When asked if she was currently looking for work, the claimant indicated that she “went to ask for places for job. And in office to work the front desk. She don’t give me that job because I don’t speak English good. And I don’t know how to write. And computers.” The claimant also inquired at a beauty salon, but the owner indicated that he could not hire her because she needed to be on her feet all day. When asked for examples of other places that she had inquired, the claimant named a retail clothing store (Express), where she was informed that they were not currently hiring. The claimant also testified that she had “mental problems” that she had been treating for seven or eight years (prior to her compensable accident); that she had been treated for high blood pressure prior to the accident; and that she had gall bladder problems prior to the accident. The pills that the claimant takes for her depression are “very strong,” as are the painkillers she uses for her back.

Upon cross examination, the claimant stated that she had looked for work at a total of three employers. She inquired about the secretary job at a construction company in September of 2007, the salon job in May of 2008, and the Express job in November of 2008. When asked by her attorney during the cross examination if she would like to be retrained for jobs that do not require lifting, the claimant replied “Of course. If I can handle it.” The claimant’s attorney then requested that she be referred to the Office of Vocational Rehabilitation ((VESID)) for retraining.

Upon the completion of the claimant’s testimony, the WCLJ denied the carrier’s request to suspend benefits. The WCLJ noted that the claimant was entitled to “an inference or presumption of limitation” on her ability to work; that her injury continues to limit her; that she has engaged in “some sort of work search”; and that she indicated a desire to be retrained. As a result, the WCLJ referred the claimant for vocational retraining and closed the case on prior findings and awards. These findings were subsequently memorialized in the decision filed on December 5, 2008.

The carrier filed an application for review of the WCLJ decision on January 5, 2009, asserting that the claimant, who is now only 45 years old, was not found to have involuntarily retired, and that she failed to make a good faith search for work during the four year period subsequent to her classification with a moderate partial disability. The carrier noted that the claimant failed to produce any documentation regarding her job search efforts, and testified that she had only inquired about three jobs during the year prior to her testimony. As a result, the carrier maintained that the claimant has not remained attached to the labor market and that benefits should have been suspended.

A report by the Board’s Rehabilitation Bureau subsequently filed on March 20, 2009, indicated that the claimant was interviewed on February 11, 2009, and “advised that as a result of her related compensable injury and her psychiatric condition, she is not well enough to participate [in] a vocational rehabilitation program at this time.”

LEGAL ANALYSIS

“[I]t is now settled that ‘[w]here a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions’ (cites omitted)” (Matter of Hare v Champion International, 50 AD3d 1254 [2008], lv dismissed 11 NY3d 863 [2008]). Likewise, a claimant who is temporarily partially disabled must also demonstrate an attachment to the labor market to be entitled to continuing compensation benefits (see Matter of Bacci v Staten Island University Hospital, 32 AD3d 582 [2006]). A partially disabled person need only seek employment within his or her medical restrictions (Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 [2007]) and for which he or she is qualified (see Matter of St. Francis Construction Co., 2009 NY Wrk Comp 30705539).

Attachment to the labor market can be demonstrated by credible documentary evidence showing that the claimant is actively seeking work within the restrictions through an independent job search that is timely, diligent, and persistent; is actively participating in a job location service such as (1) New York State’s Department of Labor’s re employment services, (2) One Stop Career Centers, or (3) a job service commonly utilized to secure work within a specific industry; is actively participating in vocational rehabilitation through VESID or other board approved rehabilitation program; is actively participating in a job retraining program; or is attending an accredited educational institution full time to pursue employment within the work restrictions (Matter of American Axle, 2009 NY Wrk Comp 80303659). Whether a claimant actually maintains an attachment to the labor market sufficient to justify continued compensation benefits is a factual determination for the Board to resolve (Matter of Rothe v United Medical Associates, 18 AD3d 1093 [2005]).

In the present case, the then 39 year old claimant was injured on September 22, 2002, and never returned to work for the employer. The claimant was eventually classified with a moderate permanent partial disability in September of 2004. It appears clear from the medical evidence, that the claimant’s back injury prevented her from returning to her employment as a porter, due to the standing, lifting, and bending required by the position. As a result, the claimant’s work stoppage with the employer was due, at least in part, to her causally related disability, and her failure to return to work with the employer did not constitute a voluntary withdrawal from the labor market. However, as the claimant did not “retire,” she was required to continue to search for work within her medical restrictions.

After making payments for four years post classification, the carrier eventually raised the issue of attachment to the labor market in 2008, following the claimant’s failure to return two separate work activity questionnaires. The claimant subsequently acknowledged that she had performed no work since her classification in 2004. In addition, the claimant testified that since September of 2007, she had inquired about only three jobs and was not hired for any of these positions. The claimant indicated that she was not hired for a desk job at a construction company in September of 2007, because of her lack of English and computer skills; that she was not hired by a beauty salon in May of 2008, because she cannot stand all day; and that she was not hired by a retail clothing store in November of 2008, because they were not hiring. However, the claimant has not submitted any documentary evidence corroborating her testimony, she was clearly not qualified for at least one of the three jobs, and another of the jobs was not even available (i.e., there was no actual opening). The claimant’s independent job search, which consisted of inquiring about only three positions over a period of approximately 15 months, was not sufficiently diligent and persistent to support a finding that she remained attached to the labor market.

The claimant also testified on December 2, 2008, that she was interested in being retrained. However, the report filed by the Board’s Rehabilitation Unit indicates that when the claimant was interviewed two months later, on February 11, 2009, she indicated that she believed that as a result of her work related back condition and her unrelated psychiatric problems she “is not well enough” to participate in a vocational rehabilitation program. However, the claimant’s back disability has been classified at only a moderate level, her physician has opined that she can work, and there is no evidence in the record that she is totally disabled as the result of a combination of work related and nonwork related injuries. Therefore, despite her earlier testimony, it is clear that the claimant is not actively participating in vocational rehabilitation, such that she could be found to be attached to the labor market.

Accordingly, a preponderance of the evidence in the record supports a finding that the claimant has not demonstrated sufficient credible evidence of a continued attachment to the labor market, whereby awards should be suspended as of her testimony on December 2, 2008. The claimant may subsequently show a reattachment to the labor market by producing evidence consistent with the decision in Matter of American Axle, 2009 NY Wrk Comp 80303659 noted above.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on December 5, 2008, is MODIFIED to suspend benefits as of the claimant’s testimony on December 2, 2008, based upon her failure to remain attached to the labor market. No further action is planned by the Board at this time.

United Cerebral Palsy Assoc

The Full Board, at its meeting held on February 23, 2010, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 30, 2009.

ISSUE

The issue presented for Full Board Review is whether the claimant sustained an accident arising out of and in the course of her employment on December 6, 2007.

In a reserved decision filed on June 24, 2008, the Workers Compensation Law Judge (WCLJ) found that the claimant’s accident, which occurred in her own driveway while she was on a lunch break, did not arise out of and during the course of her employment. As a result, the WCLJ disallowed the claim.

The majority of the Board Panel agreed with the WCLJ, finding that the claimant was not a portal to portal employee or in travel status at the time of her lunch break accident; that none of the exceptions for lunch time injuries applied; that the claimant’s choice to use her lunch hour to retrieve her paycheck, go to the bank, and get gas did not provide a sufficient nexus to conclude that her activity was a natural consequence of her duties; and that even if the claimant was an outside employee, her actions constituted a deviation from employment which would render the accident non compensable.

The dissenting Board Panel member found that that the claimant was an outside employee entitled to coverage during the performance of her duties throughout the day, and that her paid lunch time activities constituted a reasonable deviation, as the underlying purpose was to obtain money to purchase gas required for her to perform her job duties. As a result, the dissenting Board Panel member found that the claimant sustained a compensable accident, and that the case should be established for bilateral leg injuries, depression, and post traumatic stress disorder.

In her application for Full Board Review, the claimant asserts that the record does not support the legal conclusions reached by the majority, as the claimant was clearly an outside worker whose lunch time conduct “was directed solely for the benefit of her employer in facilitating the completion of her employment duties for the day.”

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The first document filed in this matter was a C 7, dated January 14, 2008, wherein the carrier controverted the claim for a December 6, 2007 accident on various grounds, including accident arising out of and in the course of employment. The employer subsequently filed a C 2, wherein it indicated that the claimant had injured her left leg while walking back from her mailbox, when a motorist ran over a curb and pinned her against her own vehicle.

On February 26, 2008, the claimant, an individualized service worker, filed a C 3 indicating that she had injured her left leg at 12:30 p.m. on December 6, 2007, when she was struck by a motorist in her driveway and pinned against her own car.

At the pre hearing conference held on March 11, 2008, the WCLJ found that prima facie medical evidence had been submitted for a left leg and right leg injuries, as well as post traumatic stress disorder, directed the carrier to produce a consultant’s report on the issue of post traumatic stress disorder, and continued the case for testimony from the claimant and two employer lay witnesses.

On March 19, 2008, the Board received a one page summary of the claimant’s schedule for the date of accident, which was signed by the employer’s Program Coordinator of Community Networks (Program Coordinator) and dated February 26, 2008. This summary indicated that the claimant reported to the office at 8:30 a.m.; the claimant left the building at 8:45 a.m. to provide transportation to two clients; the clients were picked up at 11:30 a.m. and brought home; and the claimant’s next client pick up (which did not take place due to the accident) was scheduled for between 12:45 p.m. and 1:15 p.m.

At the hearing held on April 22, 2008, the claimant testified as follows: On December 6, 2007, she was working as an individual aide service worker. She reported to work by 8:20 a.m. to sign in (which is mandatory), and left at approximately 8:40 a.m. to pick up her first client between 8:45 a.m. and 9:15 a.m. Her schedule for the day had been posted the Friday before (November 30, 2007), but had been changed, whereby the document previously submitted by the employer was incorrect. However, although the client names were different, her destination was the same. The clients finished with their activities at 11:30 a.m., socialized for 15 minutes, and she drove them home at 11:45 p.m. The clients are all required to be home for lunch between 11:45 a.m. and 12:15 p.m. She dropped the second client off at approximately 12:10 p.m. and proceeded home to pick up her paycheck.

She arrived home at approximately 12:20 p.m., which was during her designated lunch period of 12:15 p.m. to 12:45 p.m. This was not the first time that she had used her lunch period to go home and get her check. She did not eat lunch that day. When she arrived home, the mail had not arrived yet, so she let her landlord know that she was going to be sitting and waiting in her car in the driveway. She wanted to inform the landlord of her plans, as the neighborhood had experienced some criminal activity and her landlord is concerned with who parks in front of her house. She intended to take her paycheck to the bank so that she would have money for gas for the afternoon. She had already called the bank to arrange things, as the check was dated December 7, 2007, but the teller (whom she had called before) would let her cash it a day early. The mail carrier usually comes between 12:00 p.m. and 1:00 p.m. As she was walking back to her car from the front porch after speaking with her landlord, she was struck by another vehicle.

Her afternoon client (who was correctly identified by the employer’s document) was supposed to be picked up between 12:45 p.m. and 1:15 p.m., as he had to be somewhere by 1:30 p.m. The claimant needed the money before picking up her afternoon client because she did not have enough money for gas for her car. Although the claimant’s attorney attempted to question her regarding how much gas was actually in her car, and whether or not she owned any debit or credit cards to purchase gas, the WCLJ sustained the objections to such questioning. The employer never told her where or when to put gas in her car. She is reimbursed for mileage when transporting clients. The employer does not allow people to pick up their checks at the office. When she was hired, she was told that she would have a half hour for lunch, but that she may not always be able to eat lunch due to the schedule.

Upon cross examination, the claimant acknowledged that she could have had her check deposited directly into her bank account, but that she had elected not to do so. No one gets paid mileage for their lunch period (from 12:15 p.m. to 12:45 p.m.); mileage is only paid from when you leave the building to get the first client until you drop that client off at home. However, she would have claimed mileage from the gas station until she dropped off her afternoon client at home for the day of the accident had she not been injured. She goes “where [she] want[s] during [her] lunch break,” and sometimes she would go back to the office to eat lunch with a coworker friend. She would start her mileage after lunch from wherever she finished lunch.

The employer’s Program Coordinator testified on April 22, 2008 as follows: He approves the schedules that are prepared by the managers, and he directly supervises the managers. He previously submitted the correct schedule for the claimant on December 6, 2007, and contrary to the claimant’s statement, no changes had been made to the schedule. The clients referred to by the claimant during her testimony were actually transported by another individual under his employ, Samantha R., and he had her log notes (required by Medicaid) to confirm that fact. The claimant did sign in on the morning of December 6, 2007, and she was required to pick up her clients between 8:45 a.m. and 9:15 a.m. All of the employees in the claimant’s job receive a paid lunch break from 12:15 p.m. to 12:45 p.m. The claimant would have received mileage for her afternoon work starting at the client’s house; only if she left from the employer’s office would she be entitled to mileage prior to reaching the client’s house. He never discussed the employer’s mileage policy with the claimant, but her manager would have. The employer expects the employees to maintain their vehicles so that they can perform their jobs. Employees are not required to return to the office at the end of the day; they complete their timesheets and reports the following day.

The employer’s Benefit and Information Specialist testified on April 22, 2008, as follows: The employer has a written mileage policy, which would have been provided to the claimant during orientation and in a handbook. In accordance with the policy, the claimant’s mileage would not have been reimbursed from the gas station; the mileage either begins at the employer’s office or the client’s residence. She does not review mileage sheets or schedules. Mileage reimbursement is included in each biweekly paycheck (if a mileage sheet is submitted).

At the conclusion of the hearing on April 22, 2008, the WCLJ directed the employer to submit proof that the claimant had received the mileage policy, and directed both parties to submit memoranda of law. The employer subsequently submitted the proof as directed on April 29, 2008, and both parties submitted memoranda in May of 2008. Thereafter, the WCLJ issued his June 24, 2008, reserved decision disallowing the claim, and the claimant filed a timely application for administrative review on July 21, 2008.

LEGAL ANALYSIS

Outside Worker
The legal distinction between inside and outside workers developed in response to the rule that employees do not enter into the course of their employment until they reach the premises or the entrance to the employer. An exception to the rule was made for outside workers, who do not perform their work at a fixed work site and who are required to travel between various job locations; such employees have been deemed entitled to portal to portal coverage for workers’ compensation purposes (see Matter of Bobinis v State Insurance Fund, 235 AD2d 955 [1997]; Matter of Carpio v R&J Insulation Co., Inc., 269 AD2d 678 [2000]).

The seminal case in this area is Matter of Bennett v Marine Works Inc., 273 NY 429 (1937). In Bennett, the claimant was a salesman/repair supervisor who did not have regular work hours and who was not required to report to the employer’s office in New York City prior to commencing work. The claimant did go into the office at times, but he was not reimbursed for that travel, only his travel to see clients. The claimant was killed while traveling from his home to oversee the repairs of a ship docked in Brooklyn. In upholding the establishment of the case, the Court of Appeals stated that:

* “Examples of [outside employees] are traveling salesmen, collectors and solicitors. Naturally, such employees spend considerable of their time in traveling from customer to customer. When injured in so doing, it cannot be said that they are not in the course of their employment. Following the liberal approach in dealing with this branch of the law, the decisions have gone further and have held that employment begins when travel from home towards the first customer commences. So such employees, if they are not required to report first to the office of their employer, are held to be within the course of their employment from the time they leave their home, or the place where they passed the night, with the intention of going directly to visit a customer (emphasis added).”

In the present case, the claimant was required to report to her employer’s office every morning to sign in, submit the reports from the preceding day, and check her schedule (which was prepared every Thursday) for any changes that may have been made by the manager since the previous morning. These duties usually resulted in the claimant remaining at the office for approximately 20 minutes every morning. Thus, although she only performed minimal work in the office, and generally did not return to the office again during the day except to occasionally to eat lunch with a coworker, the Full Board finds that claimant was not an outside worker entitled to portal to portal coverage for purposes of compensation.

Furthermore, even assuming that the claimant had met the criteria of an outside employee, the classification of an employee as an outside employee does not automatically mean that any accident sustained during the course of the work day is compensable; if there is an insufficient nexus between the claimant’s employment and the accident, the accident is not compensable. For example, “[a]ctivities which are purely personal pursuits are not within the scope of employment and are not compensable under the [WCL], with the test being whether the activities are both reasonable and sufficiently work related under the circumstances” (Matter of Vogel v Anheuser Busch, 265 AD2d 705 [1999]). The determination of whether an activity constitutes a purely personal pursuit is one of fact for the Board to resolve (Matter of Pagano v Anheuser Busch, 301 AD2d 977 [2003]).

In Matter of Neacosia v New York Power Authority, 85 NY2d 471 (1995), the Court of Appeals set forth the rule for employees who are injured while engaging in an alleged work related errand while traveling between work and home. In those situations, the injury will be deemed to arise out of and in the course of his or her employment:

* “if the employer both encouraged the errand and obtained a benefit from the employee’s performance of the errand. Application of this two part test assures the legitimacy of the claim that the employee was engaged in the service of his or her employer, as distinguished from having undertaken a personal errand that had some incidental work related purpose. That the employer obtains some benefit from the employee’s errand will not alone sustain the claim; there must be evidence of affirmative conduct by the employer soliciting or encouraging the errand.”

In the present case, the claimant had completed her morning assignments and was using her lunch break to drive home to wait for her paycheck to be delivered by her mail carrier. The claimant then went to the door of her landlord’s house to inform the landlord why her car was parked out front, since the area had experienced criminal activity and she did not want her landlord to worry. It was after performing this errand within an errand that the claimant was injured. Such activities, standing alone, have absolutely no nexus to the claimant’s job duties.

Although the claimant attempted to link her personal errand to her job by testifying that she had to go home to get her paycheck in order to take it to the bank to cash it so that she could buy gasoline for her vehicle in order to perform her afternoon assignments, this testimony is insufficient to establish a nexus to the claimant’s employment. While the employer may have remotely benefited by the errand, as the end result of putting gas in her vehicle would allow her to complete her afternoon work assignments in addition to any personal travel, the employer did not solicit or encourage this practice. In fact, the claimant admitted during her testimony that the employer did not instruct the employees on how or when to put gasoline in their vehicles; the employer witness credibly testified that the employer did not reimburse employees for mileage incurred during lunch breaks; the employer also offered direct deposit for paychecks; and there is no evidence to indicate that the employer was even aware that the claimant occasionally engaged in this type of errand.

As a general rule, an accident that occurs during a lunch hour is not compensable, absent any special circumstances such as a direction on the part of the employer, performance of some duty during the lunch hour, or a lunch period at some odd time caused by something connected with the work (see Matter of Smith v United States Trucking Corp., 66 AD2d 939 [1978]; Matter of Bennersen v Checker Garage Service, 54 AD2d 1042 [1976]; Matter of Guido v Terra Rube Constr. Corp., 7 AD2d 554 [1959], aff’d 10 NY2d 858 [1961]; Matter of Smith v City of Rochester, 255 AD2d 863 [1998]).

In the present case, the claimant was given a 30 minute paid lunch break, which was to be taken from 12:15 p.m. to 12:45 p.m. every day, and she was not reimbursed for mileage incurred during her lunch break. It is noted that the claimant’s lunch period was not at an unusual time of day; that the claimant was not “on call” during her lunch period; that the claimant could eat (or not) at any location of her choosing; and that the claimant was not required to perform any work related duties during her lunch period. As a result, there are no special circumstances to make her lunch time injury compensable.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on June 24, 2008, is AFFIRMED. The claim is disallowed and the case is closed.

Manhattan East Auto

The Full Board, at its meeting held on February 23, 2010, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on August 28, 2009.

ISSUE

The issue presented for Full Board Review is whether the claimant sustained an accident arising out of an in the course of his employment on August 1, 2008.

In a decision filed on November 24, 2008, the Workers Compensation Law Judge (WCLJ), in pertinent part, found that the claimant sustained work-related injuries to his neck and left shoulder on August 1, 2008.

The Board Panel majority affirmed the WCLJ, finding that the claimant’s testimony was credible, that the claimant provided notice of the accident to the employer within two weeks, and that there was no evidence that the claimant had injured himself in a prior car racing incident that occurred on July 20, 2008.

The dissenting Board Panel member found that the record contained substantial evidence that the claimant’s injuries were due entirely to the July 20, 2008, drag racing competition incident, whereby the claim should be disallowed.

In its application for Full Board Review, the carrier asserts that the dissenting Board Panel member is correct; that the claimant’s testimony was not credible; that it is simply unbelievable that the claimant did not injure himself in the racing incident; and that there is sufficient credible evidence to disallow the claim.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

On August 22, 2008, the claimant, a mechanic, filed a form C-3, asserting that he had sustained injuries to his neck and left shoulder while pushing a motor on a motor stand at 3:30 p.m. on August 1, 2008. The claimant further indicated that he had provided oral notice to the employer on August 1, 2008, and that he stopped working due to his injuries on August 11, 2008.

On August 25, 2008, the Board received the first medical report, which was from Dr. Jacob Nir, a physiatrist. In this report, which was for examinations performed on August 13, 2008, and August 18, 2008, Dr. Nir indicated that the claimant was “injured during the course of employment” on August 1, 2008; diagnosed the claimant with causally related cervical radiculopathy and left shoulder derangement; noted that the claimant was totally disabled; and requested authorization for an MRI of the cervical spine and EMG testing. The narrative for his initial examination on August 13, 2008, which was subsequently submitted, set forth the accident history as follows: “…on August 1, 2008, [the claimant] injured himself while pushing a motor at work. The next morning he woke up with pain in the left shoulder, neck and mid back.” Dr. Nir noted his findings upon examination (i.e., pain, numbness, tingling, decreased range of motion, spasm, and swelling); diagnosed causally related cervical radiculopathy and left shoulder derangement; and indicated that the claimant was disabled.

By form C-7 filed on September 26, 2008, the carrier controverted the claim on the issues of accident, notice, “AOE/COE, ANCR and PFME.”

On October 10, 2008, the Board received numerous additional reports from Dr. Nir. Among these reports was a narrative, dated September 20, 2008, wherein Dr. Nir added the diagnoses of disc herniations at C5-C6, C6-C7, and C7-T1, as well as a disc bulge at C3-C4, and noted that the claimant was cleared to return to work at light duties (with a partial disability) on September 15, 2008. A second narrative, dated September 17, 2008, noted that the claimant was cleared to return to work at full duties on a trial basis as of September 22, 2008.

The carrier filed a form PH-16.2 on October 10, 2008, wherein it indicated that its investigation was complete; noted that it had not obtained a consultant’s report; identified the witnesses who would be providing testimony (i.e., the claimant, the claimant’s doctors, the carrier’s medical consultants, and two employer lay witnesses); and noted that the issues to be considered were the claimant’s “extensive attendance problem” from August 4, 2008, to August 14, 2008, and the fact that the claimant was involved in a motor vehicle accident while on vacation on July 18, 2008 (i.e., he is a race car driver and flipped his car three or four times).

At the pre-hearing conference held on October 22, 2008, the WCLJ found prima facie medical evidence, directed the carrier to obtain a consultant’s report, and continued the case for testimony.

The claimant was examined by the carrier’s consultant, Dr. Alan Wolf, on November 4, 2008. In his resulting report, Dr. Wolf noted the documents that he reviewed (which involved very few medical reports); set forth the accident history of pushing a motor on August 1, 2008; noted that the claimant reported no prior injuries to the upper back; and diagnosed a causally related resolved thoracic sprain.

On November 19, 2008, the claimant testified as follows: On August 1, 2008, he had difficulty while attempting to secure a motor inside of a car; he had to push and stretch a lot with his left hand. When he woke up the next morning, he had pain in his left shoulder/neck. He tolerated the pain for a week or two, but then went to the chiropractor and discovered that he had a problem (i.e., herniated discs). Once he learned of the damage to his neck he reported the accident to the employer, and he missed approximately six weeks of work. He did have a prior accident while racing cars on vacation on Sunday, July 20, 2008, but he did not sustain any injuries and he received no treatment. He races cars as a hobby. He took vacation starting on Thursday, July 17, 2008. Over the weekend, he was racing an old Datsun 1200 at approximately 90 miles an hour, when the car began to skid and in order to avoid hitting the wall, he turned the wheel and the car turned on its side and skidded to a stop. He did not hit the wall. When he returned to work the next week, after three more days off, he told everyone about his race and showed them the video on the internet. He is currently working full time, and his neck and shoulder only sometimes bother him when he sleeps. He did tell Dr. Nir about the racing incident, but he did not really notice that Dr. Nir made no mention of it in his reports.

The employer’s Manager, Louis L., testified on November 19, 2008, as follows: He splits the managing duties with his brother. The claimant had his wife call in after his vacation started on July 17, 2008, to indicate that he had hurt himself racing and would not be coming into work. As a result, the employer extended the claimant’s vacation (which was scheduled to end on July 22, 2008) until July 24, 2008 (although the claimant did not return until July 28, 2008). The claimant followed-up his wife’s call by telling the employer that he needed time to investigate the racing incident. The claimant did not provide any medical evidence regarding the racing incident. The claimant also called in on Monday, August 4, 2008, because he had to take his pregnant wife in for a check-up, following which he was out on August 5, 2008, and August 6, 2008. On Monday, August 11, 2008, the claimant was out again, but he did not call in with a reason. However, the next day he did call in, this time to indicate that he would not be coming in because he had to “check out” his pain. The claimant did not report a work accident to him until he showed up with a note from his doctor taking him out of work on August 14, 2008. The claimant returned to work on September 25, 2008. Although the claimant did have two coworkers with him on August 1, 2008, the employer did not question them because “we had no reason to. There was no complaint at all” by the claimant.

At the conclusion of the testimony, the WCLJ found that there was insufficient evidence that the claimant sustained any injuries in the July 20, 2008, racing incident; found that the claimant credibly testified to a work-related accident on August 1, 2008; determined that the claimant provided timely notice; found that the medical reports diagnosed causally related injuries; established the case for neck and left shoulder injuries; set the average weekly wage; and made awards. These findings were memorialized in the WCLJ decision filed on November 24, 2008, and the carrier filed a timely application for administrative review.

LEGAL ANALYSIS

It is well settled that it is exclusively within the Board’s province to resolve issues of witness credibility (see Matter of Moore v J&R Vending Corp., 297 AD2d 887 [2002]; Matter of Wright v Golden Arrow Line Inc., 206 AD2d 759 [1994]). In this case, the two witnesses provided conflicting versions of events. The WCLJ found the claimant’s version of events to be the most credible. Upon review of the record, there is a sufficient basis to support the finding of the WCLJ.

The claimant testified that he did not injure himself in the racing incident on July 20, 2008. Contrary to the carrier’s assertions, this testimony is actually supported by the fact that there are no medical records of any treatment immediately following such accident, as well as the fact that the medical records following the August 1, 2008, work accident also make no reference to any racing incident, as the claimant logically would not have reported injuries that did not occur. In addition, this testimony is supported by the employer’s assertion that the claimant’s attendance became problematic starting with the Monday after Friday, August 1, 2008. Moreover, although the employer witness provided other reasons for the claimant’s various alleged absences following August 1, 2008, the claimant testified that he continued to work with pain until it became too much on or about August 14, 2008. Thus, the employer witness’ testimony regarding the claimant’s lost time was contradicted by the claimant’s testimony, which the Full Board finds to be credible.

Therefore, the Full Board found that the preponderance of the credible evidence in the record supports a finding that claimant sustained an accidental injury arising out of and in the course of his employment.

CONCLUSION

ACCORDINGLY,the Full Board found that the preponderance of the credible evidence in the record supports a finding that claimant sustained an accidental injury arising out of and in the course of his employment.

While the basic text of the decision on this page is taken from the official website of the New York State Workers Compensation Board and can be found at http://www.wcb.state.ny.us/content/main/wclaws/decisions.jsp, the introductory remarks are the responsibility of this website. © 2010 www.insideworkerscompny.com [6012]

SAM Contracting

The Full Board, at its meeting held on April 20, 2010, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on October 16, 2009.

ISSUE

The issue presented for Full Board Review is whether the claimant sustained an accident arising out of and in the course of his employment on July 24, 2006.

By decision filed on August 27, 2008, the Workers’ Compensation Law Judge (WCLJ) found the claimant to be credible, found that there was sufficient credible medical evidence to support the claim, corrected the date of accident to be July 24, 2006, and established the case for an injury to the claimant’s back.

The Board Panel majority reversed the WCLJ, finding that the claimant’s testimony was not credible, as he continued to work until he was terminated and did not file a claim until after his termination. In addition, the majority found that the contemporaneous medical evidence did not support the claim, as it failed to make any reference to a work-related injury and noted preexisting degenerative problems. Based upon the foregoing, the Board Panel did not address the remaining issues raised by the carriers, i.e., Workers’ Compensation Law (WCL) § 18, proper employer, and causally related loss of earnings.

The dissenting Board Panel member found that the claimant’s testimony was credible, and that the preponderance of the evidence supported the WCLJ’s establishment of the case. In addition, the dissenting Board Panel member found that the claimant provided timely notice, pursuant to WCL § 18; that liability was properly allocated between the three employers; and that the awards were supported by the record.

In his application for Mandatory Full Board Review, the claimant asserts that the carrier(s) failed to present substantial evidence to rebut the presumptions contained in WCL § 21, and that the majority “improperly inserted themselves into this matter” by reversing the WCLJ’s credibility determinations.

In rebuttal, the carriers assert that the majority properly assessed the evidence and disallowed the claim.

Upon review, the Full Board votes to adopt the following findings and conclusions:

FACTS

On January 9, 2008, the claimant, a laborer, filed a form C-3 indicating that he had experienced “lower back pain” while working for SAM Contracting on July 23, 2006. Accompanying this form were numerous medical reports, including the initial treatment report from Dr. Madha Boppana, dated July 24, 2006. In this report, Dr. Boppana indicated that the claimant presented with “sudden onset of low back pain.” Although the claimant’s job as a laborer was noted, there was no mention of a work related injury or any opinion on the issue of causal relationship. The claimant was prescribed medication, a back brace, and physical therapy. In subsequent reports dated August 7, 2006, August 14, 2006, October 11, 2006, and June 25, 2007, Dr. Boppana noted that a lumbar CT scan revealed a pars defect; indicated that the claimant returned to work; noted that a cervical spine X-ray revealed an anterior spur at C5 and cervical straightening; and diagnosed cervical radiculopathy, myofascial pain with right shoulder girdle sprain, and lumbar radiculopathy. Once again, however, there was no mention of a work related injury or any opinion on the issue of causal relationship.

On January 11, 2008, the Board received additional medical reports from the claimant’s attorney. Among these reports were emergency room records from December 20, 2007, when the claimant was treated for sciatica, and a lumbar CT scan report, dated July 25, 2006, wherein the claimant was noted to have a disc herniation at L4-L5 with stenosis and anterior thecal sac effacement, as well as a disc herniation at L5-S1 with anterior thecal sac effacement and encroachment upon the nerve roots. None of these additional medical reports referred to a work related injury.

On January 24, 2008, the Board received a medical report for treatment rendered by Dr. Ariq Rabadi, a chiropractor, on January 21, 2008 (i.e., 18 months post-accident). This report indicates that the claimant was injured at work on July 21, 2006 [sic] when a heavy tool box hit him in the back. The claimant was diagnosed with a causally related lumbar sprain/stain, lumbar radiculitis, and unspecified sacroiliac sprain/strain.

By form C-7 filed on March 13, 2008, the carrier for SAM Contracting controverted the claim on numerous grounds, including accident arising out of and in the course of employment.

At the hearing held on April 4, 2009, the WCLJ found that prima facie medical evidence existed for a back injury, and continued the case for testimony.

On May 13, 2008, the claimant testified as follows. He was driving in the back of a truck on July 23, 2006, when the driver (a co-worker named Angelo) hit the brakes and a tool box hit him in the back. He has had problems with his back ever since. He called his boss and told him of the accident. He stopped working for the employer on December 20, 2007, when he called in to say that he had to go to the doctor because of his back. He went to the emergency room because he did not have any insurance. His boss called him later that week to tell him that he was fired because he “was out and went to the doctor.” He denied that he filed a compensation claim in retaliation for being fired.

Upon cross-examination, the claimant indicated that he had two bosses, Sam and Sean, and that he told both of them about the injury. Sean’s response was that the claimant should not have been riding in the back of the truck. He had been sitting on the floor of the truck, near the wheel. The toolbox was “huge,” over four feet high, and it was on wheels. He continued working that day, but he could not do anything and merely laid down. He went to Dr. Boppana, a neurologist, later that day, and informed the doctor that he had been hit in the back at work. He had never seen Dr. Boppana previously. Dr. Boppana told him that it was a workers’ compensation case, and gave him notes to stay out of work; he has no idea why the physician failed to record the accident history provided. However, the employer “pressured” him to return, and he has a family, so he did return to work only a couple of days later. The claimant paid for his visits with Dr. Boppana through his own insurance. The claimant denied that he had attendance problems, denied that he had intended to quit, denied that he had come to work with alcohol on his breath, and denied any other accidents involving his back after July of 2006.

The claimant’s supervisor, Sean G., testified on May 13, 2008, as follows. He is a partner (with Sam H.) in SAM Contracting. They are also partners in the LV Electric and Maintenance. Both companies operate out of the same location. SAM Contracting does not work on Sundays, so the claimant’s accident could not have happened on Sunday, July 23, 2006. The claimant never reported a work related accident with a toolbox to him. He first received notice of the claim in March of 2008, when he was contacted by the carrier and asked to complete a form C-2. No form C-2 had previously been completed because he did not know of any accident. He has never had an employee sustain an injury while working. He never received any medical reports regarding the claimant prior to March of 2008. The claimant worked from July 2006 to December 19, 2006 “without issue.” He was fired for being belligerent and for failing to do his job. The supervisor had also smelled alcohol on his breath. In addition, the claimant failed to show up without calling in sick. When the supervisor called him at home, the claimant said that his back hurt. He liked the claimant, and did not want to fire him, and was surprised when he did not collect unemployment.

Upon cross-examination, the witness indicated that Angelo worked for HUB Electric (a separate company in the same office space that is owned by Sam H.), and that he never discussed the case with Angelo because Angelo does not speak English very well. The claimant did miss two days of work in July of 2006 (i.e., July 24, 2006 and July 25, 2006), but he could not recall why and the claimant was paid for using his sick time. He was the claimant’s primary supervisor. The employer used a delivery service, Light Speed, to transfer ladders from site to site, but the employer did not own any toolboxes; the toolboxes were owned by HUB Electric. The claimant was actually on LV Electric and Maintenance’s payroll. Before the claimant was fired, he was coming to work, but was “just walking around in circles” and seemed disoriented. He had smelled alcohol on the claimant’s breath on several occasions, and he was worried about deadlines and safety at the workplace, which impacted his decision to fire the claimant.

At the conclusion of the May 13, 2008 hearing, the WCLJ placed the two other employers referenced during the testimony and their carriers on notice.

At the hearing held on July 16, 2008, the claimant testified that he called the secretary for HUB Electric following the accident. The accident involved a truck, not a car. They were traveling from a construction site in Manhattan (Kaleidoscope), but he could not remember where they were traveling to. He also notified Sean G. of the accident. Another man, Carl M., was in the truck with Angelo. Upon the conclusion of this brief testimony, the case was continued for three possible lay witnesses from HUB Electric (the secretary, Carl M., and Angelo).

At the hearing held on August 21, 2008, the lay witnesses for HUB Electric were precluded for failing to appear. Following summations, the WCLJ found that Sean G. conceded that the claimant performed the type of work alleged, found the claimant to be credible, found that the medical evidence supported the claim, and established the case for a back injury. The WCLJ also found that the three companies were interrelated, and that all three employed the claimant. Further, the WCLJ “corrected” the date of accident to be July 24, 2006, and made awards. The two carriers present (for SAM Contracting and LV Electric and Maintenance) noted objections on the record. The WCLJ’s findings were subsequently memorialized in the decision filed on August 27, 2008, and the same two carriers filed applications for administrative review.

LEGAL ANALYSIS

While accidents occurring in the course of employment are presumed to arise out of such employment (see Matter of Pinto v Southport Correctional Facility, 19 AD3d 948 [2005]), this presumption cannot be used to establish that an accident occurred (see Matter of Fedor-Leo v Broome County Sheriff’s Dept., 305 AD2d 760 [2003]; Matter of Strassberg v Hilton Hotel Corp., 299 AD2d 667 [2002]). In that regard, a credibility determination must be made.

It is exclusively within the Board’s province to resolve issues of witness credibility (see Matter of Moore v J & R Vending Corp., 297 AD2d 887 [2002]), and the Board is not required to accept the testimony of the claimant over that of other witnesses (see Strassberg, 299 AD2d 667 [2002]; Fedor-Leo, 305 AD2d 760 [2003]; Matter of Moore v J & R Vending Corp., 297 AD2d 887 [2002]; Matter of Harris v Revere Copper Products, 294 AD2d 792 [2002]; Matter of Owens v Village of Ellenville Police Dep’t, 280 AD2d 786 [2001]). In addition, the Board Panel is not bound by the credibility determinations of the WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 [2003]; Matter of Jones v New York State Dept. of Corrections, 35 AD3d 1025 [2006]). Thus, the Board Panel is entitled to reject the claimant’s version of events and to find that no accident occurred (see Matter of Neville v Diala Jaber, 46 AD3d 1135 [2007]).

In the present case, a preponderance of the evidence in the record supports the majority’s determination that the claimant did not sustain a work-related accident on July 24, 2006. Initially, it is noted that the claimant did not file a form C-3, or any medical evidence, until January 9, 2008, which was over 17 months after the alleged accident and over 12 months after the claimant had been terminated from his job. While such facts do not operate to bar the claim (see WCL § 28), they are relevant when evaluating the credibility of the claimant. In addition, such facts weigh heavily against the claimant, as it is simply not reasonable that a person who has allegedly been unable to work since December of 2006 because of a work-related back injury, and who received diagnostic test results showing two herniated discs in 2006, would wait until January of 2008 to file a claim for compensation.

In addition, none of the contemporaneous medical records from 2006 (or the emergency room records from December of 2007) make any reference to a work-related injury. The first medical report to contain a history involving a work-related accident was not filed until January 24, 2008, over 18 months post-accident. Moreover, the reports from 2006 that were prepared by Dr. Boppana include references to the cervical spine (not an alleged site of injury) and note degenerative problems. Although the claimant testified that he told Dr. Boppana of the work accident, and that it was Dr. Boppana who told him that it was a workers’ compensation matter, such testimony is highly suspect given the physician’s complete failure to note a work-related history, to prepare the appropriate Board form (i.e., form C-4), or to file any medical reports with the Board himself (all of Dr. Boppana’s reports were submitted by the claimant’s attorney).

Moreover, the claimant’s supervisor testified that the employer did not operate on Sundays, which would make the July 23, 2006 accident date set forth on the claimant’s form C-3 an impossible accident date, since such date fell on a Sunday. The claimant’s supervisor also testified that the claimant did not work on either July 24, 2006 or July 25, 2006, which undermines a claim for an accident on either of those dates. Further, the claimant’s supervisor testified that he received no notice of a work accident until he was contacted by the carrier in March of 2008 (after the filing of the form C-3); that the claimant did complain about his back in December of 2006, but made no mention of a work-related accident; and that the claimant was fired not only for failing to call in sick, but because of poor work performance.

The Full Board find that the claimant was not a credible witness, that the employer witness’ testimony sufficiently rebutted the claimant’s testimony, and that the contemporaneous medical evidence does not support a claim for work-related back injury on July 24, 2006. Therefore, the Full Board finds that claimant did not sustain an accidental injury in the course of his employment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on August 27, 2008, is REVERSED and the claim is disallowed. The case is closed.

While the basic text of the decision on this page is taken from the official website of the New York State Workers Compensation Board and can be found at http://www.wcb.state.ny.us/content/main/wclaws/decisions.jsp, the introductory remarks are the responsibility of this website. © 2010 www.insideworkerscompny.com

Igor Stiler, MD

The Full Board, at its meeting held on June 15, 2010, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on October 29, 2009.

ISSUE

The issue presented for Full Board Review is whether the claimant knowingly made a false statement or misrepresentation of a material fact in order to obtain compensation benefits in violation of Workers’ Compensation Law (WCL) § 114-a.

In a reserved decision filed on February 12, 2009, the Workers’ Compensation Law Judge (WCLJ) summarized the testimony; found that the claimant acknowledged her June 8, 2005, motor vehicle accident promptly at the July 11, 2005, hearing; found that the claimant’s alleged treatment for the motor vehicle accident was brief (and apparently billed incorrectly); determined that the claimant made no material misstatements of fact; found no violation of WCL § 114-a; and restored the case to the hearing calendar.

The majority affirmed the WCLJ on the issue of WCL § 114-a, finding that the claimant made no effort to conceal her unrelated motor vehicle accident; that Dr. Scudero conceded that the office staff erred in the handling of the claimant’s paperwork; that Dr. Black’s assessment of the claimant is of questionable worth given that he never treated her for her work related injury; that the carrier mischaracterized Dr. Choudhri’s testimony on the issue of causal relationship; and that, while the claimant may not have mentioned the motor vehicle accident to Dr. Tabakman, she did mention it to his colleague, Dr. Gouvernale [sic – Governale], who saw her the month prior to Dr. Tabakman.

The dissenting Board Panel member found that the claimant should face both mandatory and discretionary disqualification penalties, as the claimant lied under oath and misrepresented herself to doctors. The dissenting Board Panel member found that the claimant misrepresented the existence and impact of two motor vehicle accidents, and initially denied an accident of June 8, 2005, despite receiving extensive treatment for her injuries.

In its request for Mandatory Full Board Review, the carrier asserts that the claimant had an obligation to advise every medical practitioner of her unrelated motor vehicle accident, that the claimant’s injuries from that accident were significant, and that the failure of the claimant to disclose the accident prevented Dr. Tabakman from rendering a fully informed opinion. In addition, the carrier contends that the claimant’s initial denial that she was involved in an unrelated motor vehicle accident during her August 26, 2007, testimony constituted a material misstatement of fact. Based upon both of the foregoing, the carrier maintains that a violation of WCL § 114-a should be found.

In rebuttal, the claimant asserts that she has always been forthcoming with information; that she was not driving the vehicle at the time of the June 8, 2005, motor vehicle accident; that she did not receive any treatment regarding that accident, as all treatment rendered before and after the motor vehicle accident related to her compensable injuries; and that there is no evidence to substantiate a finding of a WCL § 114-a violation.

Upon review, the Full Board votes to adopt the following findings and conclusions:

FACTS

This case is established for a March 21, 2003, accident involving injuries to the claimant’s neck and back. By form RFA-2 filed on June 27, 2005, the carrier requested a hearing on the issue of awards and apportionment, as the claimant had been in a motor vehicle accident on June 8, 2005, and had allegedly injured her neck, back, and right leg.

At the hearing held on July 11, 2005, the claimant was not placed under oath, but stated that she had commenced a “lawsuit” in regard to the June 8, 2005, accident, but only with respect to her husband and son, who were also in the car. The claimant also stated that she had only received her “regular treatment” since the motor vehicle accident, and that she did not sustain any new injuries as a result of that accident, just “aggravated the condition.”

At the hearing held on December 9, 2005, the claimant, who had not yet been placed under oath, stated that only her husband was injured in the June 8, 2005, accident.

Dr. Tabakman, the claimant’s physiatrist, was deposed on March 27, 2006. The physician indicated that he had not treated the claimant until October 17, 2005; that the claimant was already an established patient in the medical practice when he joined it; that he had reviewed the claimant’s records; and that he had seen her on only four occasions. The claimant had complaints in the neck, low back, and left shoulder. He felt that the claimant was unable to perform her regular duties and was totally disabled; however, he acknowledged that his office did not have any equipment to evaluate disability in accordance with the Board’s Medical Guidelines; that his office only does physical therapy; that he was not a “disability doctor”; and that his opinion included the left shoulder. He did not recall the claimant informing him of any prior or subsequent motor vehicle accident(s), and he “usually” inquires, “but apparently [he] did not get any information about other accidents from [the claimant].”

At the hearing held on April 28, 2006, the claimant was placed under oath and testified that she did not see any doctors for the June 8, 2005, accident (thus there are no medical records). The claimant’s new attorney indicated that he did not believe that there was a third-party action pending for the motor vehicle accident of 2005.

At the hearing held on April 26, 2007, the claimant testified that she had been in three motor vehicle accidents subsequent to her work-related injury, on June 8, 2005 (as a passenger), March 27, 2006 (as a driver), and on April 30, 2006 (as a driver), but indicated that she did not sustain any injuries or seek any medical treatment as a result o these accidents, and did not file any lawsuits (only claims for damage to her vehicle). The carrier raised the issue of WCL § 114-a, as it allegedly had evidence from the claimant’s no-fault carrier that she had received “significant” treatment, some of which pertained to her established sites of injury, as a result of the June 8, 2005, motor vehicle accident. The WCLJ brought awards up-to-date at a tentative rate, the carrier was directed not to continue payments, and the case was continued for medical testimony and for both sides to produce medical evidence for treatment related to the June 8, 2005, motor vehicle accident.

On July 13, 2007, the Board received numerous documents from the carrier regarding the claimant’s March 27, 2006, motor vehicle accident. These documents were provided by Geico (the claimant’s automobile insurance carrier). Included among these documents were the police report; various pictures of the claimant’s car and the roads involved; a Certification of Automobile Repairs, dated March 30, 2006; and an estimate of repairs by Geico’s adjuster ($3,288.20). No medical reports were included.

The claimant testified again on November 7, 2007, as follows: She had a motor vehicle accident on June 8, 2005, and she did initially obtain an attorney, Mr. Michael Sharp. However, that attorney had prepared an August 7, 2007, letter, wherein he noted that a no-fault application was filed as a precautionary measure for the claimant and her infant son, but that since neither of them suffered any injury, the matter was not pursued. The claimant confirmed the contents of this letter. She also acknowledged that it was her signature on the no-fault application, dated July 5, 2005, that had been prepared by Mr. Sharp. Although the no-fault application referenced $2,000.00 in medical bills for treatment involving the neck and back, she could not recall discussing medical bills with Mr. Sharp. She received no money or medical treatment as a result of the June 8, 2005, accident. She was still receiving physical therapy from her March 21, 2003, accident at the time of the June 8, 2005, accident. Her first medical treatment following the June 8, 2005, accident was a scheduled physical therapy appointment on June 13, 2005, regarding her compensation case. She had to change physical therapy locations because her prior physiatrist, Dr. Brener, was not getting paid by the carrier. Regarding the March 27, 2006, motor vehicle accident, she received no medical treatment and did not sue anyone. She also did not file a no-fault application. She tried returning to work part-time in her family’s pizzeria in March and April of 2007, but was unable to work and has not looked for work since then. No questions were asked regarding the April 30, 2006, accident.

Dr. Aleksic, the claimant’s attending neurologist, testified on November 7, 2007, as follows: He began treating the claimant on April 11, 2006, and has seen her on a weekly to monthly basis. The claimant has been totally and permanently disabled throughout his treatment due to her March 2003 injuries (due to cervical and lumbar radiculopathy and multiple disc herniations). The claimant requires surgery and cannot perform any work. The claimant told him of her three subsequent motor vehicle accidents, but denied needing or seeking any treatment because of those accidents.

On December 24, 2007, the Board received documents related to the claimant’s June 8, 2005, accident, which had been obtained from Geico. Included among these documents were several denials for chiropractic treatment by Geico; a denial for a positioning cushion/pillow and an electric heat pad; several New York Motor Vehicle No-Fault Insurance Law Verifications of Treatment by Attending Physician, signed by Dr. Scudero, a chiropractor, indicating that the claimant (a new patient as of June 13, 2005) had injured her neck, left shoulder, low back, and head (headaches) solely due to the June 8, 2005, accident; a medical narrative from Dr. Scudero, dated June 13, 2005, which makes no mention of the claimant’s work-related injuries from 2003; a July 1, 2005, narrative from Edward Black, a psychologist, noting that the claimant was “thrown about violently, causing her head to whip back and forth” and that the claimant reported the immediate onset of numerous symptoms (i.e., dizziness, severe headaches, loss of balance, right eye blurriness, weakness in fingers in left hand, noise sensitivity, fatigue, and irritability, as well as neck, back, arm, and leg pain); the claimant’s no-fault application claiming neck and back injuries; and a handwritten note to Geico from Mr. Sharp indicating that neither the claimant nor her son will pursue additional treatment.

Dr. Aleksic’s testimony was concluded on January 28, 2008, with no new information forthcoming. At the conclusion of hearing, the case was continued for Dr. Tikoo’s testimony, and MRIs were authorized (without prejudice). Dr. Tikoo was subsequently precluded for his second non-appearance at the March 10, 2008, hearing, at which time the case was continued for two lay witnesses and three additional physicians, Drs. Scudero, Black, and Choudhri.

Dr. Scudero was deposed on April 16, 2008, and June 12, 2008, and testified as follows: He treated the claimant for the first time on June 13, 2005, and treated her only four more times after that date. He is no longer with the practice where he treated the claimant. The claimant came in with her husband, who had begun treatment for a motor vehicle accident, and the claimant indicated that she also wanted to treat at the same facility for her workers’ compensation injury. She told him about her March 21, 2003, work injuries and the June 8, 2005, motor vehicle accident; noted that she was not working due to her March 21, 2003, injuries; and informed him that she had been treating with other doctors for her March 21, 2003, injuries. The office personnel “convinced” her to “just document the motor vehicle accident” in case she wanted to pursue a lawsuit later. However, the claimant told him that she did not wish to treat for the motor vehicle accident, just her workers’ compensation injury. The claimant complained of neck pain radiating into the left arm, back pain radiating into both legs, left shoulder pain, headaches, and dizziness. No MRIs were performed, but he diagnosed a left shoulder injury causally related to the June 8, 2005, motor vehicle accident. He could not recall which entity was billed for the treatment, since that is the billing personnel’s job, but he then conceded that the no-fault carrier was billed because he was relating the injuries to her June 8, 2005, accident. His treatment was stopped when the office manager informed him that the claimant was only treating for her workers’ compensation injury, at which time the claimant began to see a physical therapist in the office. He had no idea of the claimant’s current condition and did not have an opinion on the issue of degree of disability. However, when informed about the MRI results from 2003, he indicated that such results would substantiate many of the claimant’s complaints that she was reporting in 2005.

Dr. Black initially wrote a letter to the Board indicating that he had only seen the claimant twice, and had never treated the claimant for a workers’ compensation injury, only an automobile accident. In addition, he submitted the claimant’s intake questionnaire, wherein she indicated that she had headaches, dizziness, and flashbacks as a result of the June 8, 2005, motor vehicle accident, and that she “couldn’t move [and] went into spasm” after being rear-ended. However, he was eventually deposed on July 14, 2008, and testified as follows: He examined the claimant for the first time on June 15, 2005, for the June 8, 2005, motor vehicle accident, following a referral from Dr. Scudero. She had been rear-ended and felt light headed. He only examined the claimant twice. After her second visit, he had a conversation with the claimant about the workers’ compensation injury, at which time he explained that he would need a referral from a medical doctor in order to treat her for the workers’ compensation injury, and “that was the end of it.” He never treated her for a workers’ compensation injury, although he did record a history of that job injury during his initial intake. He diagnosed the claimant with anxiety and depressive reaction related to the June 8, 2005, motor vehicle accident.

At the hearing held on July 23, 2008, the claimant submitted a November 13, 2007, letter from her third-party attorney, wherein the attorney indicated that a no-fault form was filed as a preventive measure regarding the June 8, 2005, accident, but since the claimant did not sustain a serious injury or require medical care, no court case or claim of any kind was pursued. In addition, the Board received two letters drafted by the claimant regarding the alleged billing mix up by her doctors (i.e., no fault was billed when it should have been workers’ compensation), wherein the claimant asserted that the doctors were engaging in fraudulent billing practices. One of these letters was sent to the claimant’s Assemblyman.

Dr. Choudhri testified on July 23, 2008, as follows: He first treated the claimant for her March 21, 2003, work-related injuries on January 10, 2008. She reported the history of a work-related accident and the history of her symptoms. She also informed him of her three car accidents on March 27, 2006, April 30, 2006, and June 8, 2005. He reviewed the diagnostic test results from 2003, and believed that the claimant was a surgical candidate, but he wanted to perform new MRI studies to be sure. The new MRI studies performed in February of 2008 showed essentially the same findings in the neck and back, although the claimant was “slightly worse.” His notes indicated that the claimant’s symptoms all started following her March 21, 2003, work accident and persisted; however, the physician refused to offer an opinion on the issue of causal relationship.

Joseph Y., the carrier’s private investigator, testified on July 23, 2008, as follows: The carrier hired him to review Geico’s records for a June 8, 2005, car accident and the carrier’s records “to determine if the claimant was receiving concurrent treatment.” He interviewed both Dr. Bongiorno (for whom no reports were submitted) and Dr. Scudero, who worked for Dr. Bongiorno. According to Dr. Bongiorno (the owner of the practice), the claimant presented herself with her husband for treatment for a no-fault claim, but later on there was an issue regarding the workers’ compensation claim. “The claimant complained to Dr. Bongiorno that Dr. Scudero didn’t properly document her file and she never received treatment [for the no-fault accident].” The claimant stopped treatment in June, but later returned in September of 2005 for physical therapy for her compensation claim. There was no evidence that the claimant treated for both claims at the same time. He was not asked to interview Dr. Black or Dr. Tabakman. The witness subsequently submitted his investigative reports and a copy of the documents he reviewed (ECF Doc ID #142535918). It is noted that these documents reveal that the medical facility in question had closed and relocated to Staten Island.

Upon the conclusion on Joseph Y.’s testimony, the claimant’s attorney submitted an Affidavit from Antoinette Wooten, an attorney who attested that she had filed a fraud complaint with the New York State Insurance Board concerning the “fraudulent claims” filed by Dr. Scudero, Dr. Black, and Dr. Gouvanalli [sic - Governale] regarding the claimant.

In the reserved decision filed on February 12, 2009, the WCLJ found that the claimant acknowledged the June 8, 2005, motor vehicle accident promptly at the July 11, 2005, hearing; found that the claimant’s alleged treatment for the motor vehicle accident was brief (and apparently billed incorrectly); determined that the claimant made no material misstatements of fact; found no violation of WCL § 114-a; and restored the case to the hearing calendar. The carrier subsequently filed a timely application for administrative review.

LEGAL ANALYSIS

WCL § 114-a(1) authorizes the Board to disqualify a claimant from receiving future wage replacement benefits if it finds that the claimant knowingly made a false statement or misrepresented a material fact in order to obtain benefits or to influence any determination regarding such benefits (see Matter of Phelps v Phelps, 277 AD2d 736 [2000]; Matter of Johnson v New York State Dept. of Transp., 305 AD2d 927 [2003]). Although the statute does not define the word “material,” the case law has found that the “usual and commonly understood meaning” of the word should apply (see Matter of Orens v Novello, 99 NY2d 180 [2002]; see also Matter of Flow v Mark IV Constr. Co., 288 AD2d 779 [2001]. The Court of Appeals has found that “a fact is material…so long as it is ’significant or essential to the issue or matter at hand’” (Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265 [2003], citing Black’s Law Dictionary 611 [7th ed 1999]). Therefore, a false statement need not affect the dollar value of an award to be material within the meaning of WCL § 114-a(1).

Here, at the time of the claimant’s motor vehicle accident on June 8, 2005, this case had been established, the claimant had been out of work for almost eight months due to her work-related injuries, the carrier’s consultant had conceded a moderate partial disability, the claimant was still actively treating, and the claimant was receiving continuing awards at a tentative partial disability rate of $250.00 per week. The claimant was a passenger in the front seat of a car driven by her husband. The carrier learned of this accident within two weeks, and immediately filed a request for a hearing.

At the July 11, 2005, hearing, the claimant was not placed under oath. However, she did acknowledge the occurrence of the June 8, 2005, motor vehicle accident, and that she had obtained an attorney. However, she denied needing or receiving any treatment, and indicated that the attorney had been obtained because her husband and son were in the car and they might have a lawsuit. The claimant also did not testify regarding the June 8, 2005, accident at the December 9, 2005, hearing. While the claimant did testify at the hearing held on April 28, 2006, her testimony was brief. The claimant indicated only that she did not see any doctors for the June 8, 2005, accident, which was consistent with her prior statements. The claimant’s new attorney also indicated that there was no third-party action pending for the motor vehicle accident of 2005, which comported with the claimant’s testimony.

It was not until the April 26, 2007, hearing that the claimant provided any significant testimony, indicating that she had been in three subsequent motor vehicle accidents, one on June 8, 2005 (as a passenger), one on March 27, 2006 (as a driver), and one on April 30, 2006 (as a driver). However, the claimant further stated that she did not sustain any injuries in these accidents, did not seek any medical treatment, and did not file any lawsuits (only claims for damage to her vehicle). This testimony was once again consistent with the claimant’s prior statements. However, the carrier raised the issue of WCL § 114-a based on this testimony, as it had received several documents from the claimant’s no-fault carrier allegedly showing that the claimant had received neck and back treatment as a result of the June 8, 2005, accident.

It is noted that there are no documents in the record regarding the April 30, 2006, accident, and that the documents from the no-fault carrier indicate that the March 27, 2006, accident involved only minor property damage to the claimant’s car. As a result, there is no evidence to contradict the claimant’s testimony that she was not injured in these accidents. In addition, as the claimant sustained no injuries, and disclosed these accidents when she testified at length for the first time on April 26, 2007, there is insufficient evidence to support a finding that the claimant misrepresented the existence and impact of these two accidents.

With regard to the June 8, 2005, accident, a review of the no-fault documents from this accident reveals that, while Dr. Bongiorno’s chiropractic practice had (temporarily) attempted to bill the no-fault carrier for treatment rendered in June of 2005, such bills were actually denied by the no-fault carrier on the basis that the injuries being treated were from the claimant’s compensation claim.

In addition, the claimant subsequently testified again on November 7, 2007, and once again denied sustaining any injuries in the June 8, 2005, accident, and that she had commenced treatment with Dr. Scudero because her husband was going to the same facility (and she needed a new physician). The claimant reiterated that it was only her husband who was injured in the June 8, 2005, accident.

The claimant also produced a letter from her attorney, Mr. Sharp, wherein he noted that a no-fault application was filed as a precautionary measure for the claimant and her infant son, but that since neither of them suffered any injury, the matter was not pursued. In addition, Dr. Scudero confirmed during his testimony that he was aware of the claimant’s compensation case, and that the office personnel had directed the claimant to claim that her treatment was needed due to the June 8, 2005, accident, despite the fact that the claimant was asserting that it was related to her March 21, 2003, work accident. This billing “problem” was corroborated by the claimant’s testimony, the letters written by the claimant, and the affidavit from another outside attorney who was pursuing a fraud allegation against the claimant’s doctors with the New York State Insurance Department.

It is further noted that the claimant reported the June 8, 2005, accident to every physician who subsequently examined her (Drs. Scudero, Black, Aleksic, Choudhri), with the lone exception being Dr. Tabakman. However, contrary to the assertions made by the carrier, this fact is not sufficient to warrant a finding that the claimant “lied” to Dr. Tabakman. Dr. Tabakman acknowledged that the claimant was already an established patient in the practice when he joined it in 2005. In addition, it is unclear from the physician’s testimony or initial narrative whether he actually asked the claimant about any intervening accidents. While the majority found that the claimant had previously informed Dr. Governale, who practices in the same office with Dr. Tabakman and who began treating her first after the June 8, 2005, car accident, such a conclusion is not supported by the record. Dr. Governale was not deposed, none of his records contain narratives, none of his records refer to a June 8, 2005, car accident, and the claimant did not testify that she provided a history of the June 8, 2005, incident to Dr. Governale. Nonetheless, since Dr. Tabakman could not state with any certainty that he actually asked the claimant about any intervening accidents, since the claimant denied sustaining any injuries in the June 8, 2005, accident, and since the claimant was not seen by Dr. Tabakman until September of 2005, it simply cannot be concluded that the claimant intentionally misrepresented a material fact to Dr. Tabakman.

Based upon the foregoing, there is insufficient evidence that the claimant knowingly made a false statement or a misrepresentation of a material fact in violation of WCL § 114-a, and the WCLJ’s decision is support by the record.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on February 12, 2009, is AFFIRMED. The case is continued.

While the basic text of the decision on this page is taken from the official website of the New York State Workers Compensation Board and can be found at http://www.wcb.state.ny.us/content/main/wclaws/decisions.jsp, the introductory remarks are the responsibility of this website. © 2010 www.insideworkerscompny.com

Rosner Construction

The Full Board, at its meeting held on January 26, 2010, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on September 4, 2009.

ISSUE

The issue presented for Full Board Review is whether the decedent’s death constitutes a compensable accident or occupational disease under the Workers’ Compensation Law (WCL).

In a reserved decision filed on May 5, 2007, the Workers’ Compensation Law Judge (WCLJ) established the claim for death benefits, finding that the decedent, who was a recent recipient of a kidney transplant and who had a suppressed immune system, died as a result of an exposure to mold at work, which caused lung and kidney infections, and ultimately resulted in fatal septicemia.

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member found that the case should be referred to an Impartial Specialist in the field of pulmonology, due to the disparity in the medical opinions regarding the possible cause of the decedent’s Aspergillus infection.

In its application for Full Board Review, the carrier initially asserts that the record fails to establish that the decedent sustained either an accident or an occupational disease, as there has been no showing of an unusual environmental condition or events assignable to something extraordinary that caused an accidental injury, and there has been no showing of any exposure peculiar to and characteristic of the decedent’s employment as a carpenter. In addition, the carrier contends that there is insufficient evidence of causal relationship, as the opinion of the claimant’s physician was based upon evidence that is not in the record. Finally, the carrier contends that, if the claim is not disallowed outright, then the case should be referred to an Impartial Specialist for an opinion on causal relationship, as suggested by the dissenting Board Panel member.

In rebuttal, the claimant (decedent’s widow) contends that the employer had to take the decedent “as it found him”; that the record establishes that the decedent was exposed to mold at work; and that there is credible medical evidence linking such exposure to the decedent’s death.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

By a form C-62 filed on December 19, 2007, the claimant asserted that her husband had died on December 7, 2007, due to an infectious disease in his lungs that had been caused by his work environment.

By form C-7 filed on January 23, 2007, the carrier controverted the claim on numerous grounds, including causal relationship.

On February 8, 2008, the Board received a letter, dated January 11, 2008, from Dr. Alan Benvenisty of St. Luke’s Roosevelt Hospital. In this letter, Dr. Benvenisty opined that the decedent died due to complications from Aspergillus (a mold), and that his Aspergillus was acquired in the workplace.

At the hearing held on February 25, 2008, the WCLJ found that prima facie medical evidence existed for a causally related death, and directed the carrier to submit a consultant’s report within 90 days.

On May 2, 2008, the carrier submitted a report from its consulting physician, Dr. Carl Friedman. In this report, Dr. Friedman reviewed multiple medical records, including the records from the decedent’s kidney transplant on June 7, 2007 (following a history of chronic renal disease, as well as heart, hypertension, and lung problems); his hospitalization at Good Samaritan Hospital from November 6, 2007 through November 12, 2007; and his hospitalization at St. Luke’s Hospital from November 13, 2007 to December 7, 2007. The medical records revealed that the decedent had significant problems with his lungs and his kidneys; that a surgery wedge resection of an abscess in the right upper and lower lobes was performed; that biopsies of the failed kidneys were performed; that fungal, blood, and sputum cultures were taken; that the tests were negative for the Aspergillus antigen (although the lung cultures began growing sparse Aspergillus); and that the tests were positive for Mycobacterium kansasii and Mycobacterium xenopi, which are “atypical Mycoplasma organisms found in an ubiquitous environment,” as well as Acinetobacter baumannii. Dr. Friedman opined that the decedent’s work activities as a carpenter had no relationship to his development of the infection, as the development of the infection was due to the severe compromise to his immune system (from the transplant anti-rejection medications), and that his exposure to bacteria or fungal organisms could have occurred anywhere and is not associated to his work activities.

On October 24, 2008, the carrier submitted an addendum report from Dr. Friedman. In this addendum, Dr. Friedman reviewed additional medical reports and noted that the decedent had undergone rotator cuff repair surgery on September 5, 2007, and returned to light duty work on September 10, 2007; that the decedent developed sweating and fever on November 13, 2007, which resulted in his being hospitalized with sepsis due to Acinetobacter Baumannii and atypical Mycobacterium; that no definitive bacteriological diagnosis was made via lung biopsy; that the kidney biopsy revealed evidence of fungal hyphae suggesting localized infection with fungal organisms; and that the decedent died on December 7, 2007 from general sepsis. Dr. Friedman opined that the organisms at the source of the decedent’s infection are found in both indoor and outdoor environments, including hospitals, homes, and streets; that the decedent’s underlying conditions prevented him from fighting the infections; and that his death was not due to his work activity or exposures.

Dr. Benvenisty was deposed on November 7, 2008, and testified as follows. He is a specialist in general and vascular surgery. He first consulted on the decedent’s case in May of 2006, when he was awaiting a kidney transplant. He next saw the decedent in June of 2007, when his name came up on the transplant list, and he performed the transplant surgery. The decedent’s treating nephrologist cleared him to return to work. The decedent subsequently developed a pulmonary infection and was admitted to Good Samaritan Hospital on November 6, 2007. A bronchoscopy showed that the infection grew out of Aspergillus (a fungus). He believed that the infection was work related because the decedent’s work as a carpenter was a “high risk” job, exposing him to a lot of dust. Aspergillus is a mold that lives in damp surfaces; if you break down a wall where it is present, it will enter the air and then the lungs. There were several issues that developed while the decedent was hospitalized, but the decedent’s “eventual demise was the Aspergillus pulmonary infection.”

Upon cross-examination, Dr. Benvenisty indicated that his knowledge of the decedent’s job was based upon his pre-transplant surgery conversations with the decedent. He was told that he was a carpenter who was involved in demolition work. After the surgery, all he knew was that the decedent did eventually return to work. He did not receive any information regarding the duties being performed by the decedent upon his return to work. He wrote his January 11, 2008 letter at the request of the claimant. He filed no other medical reports with the Board. The lung biopsy performed at his hospital (once the decedent was transferred) failed to grow any fungal organisms after three weeks. However, the kidney biopsy performed on November 27, 2007 showed Aspergillus. When asked whether his serological testing for the Aspergillus antigen resulted in a finding of less than .5 units, and whether such a test result would be considered a “negative” result, the physician could not locate the actual test results in his notes, the claimant’s attorney objected, and the physician failed to answer the question, stating only that a blood test is not used to diagnose Aspergillus, and that such a result would not be considered in a vacuum. The physician acknowledged that other complications set in after treatment was started, that the other bacteria played a role in the decedent’s death (with the major problem being the Acinetobacter), and that the other bacteria were not present as a result of the decedent’s job. The physician also acknowledged that the immunosuppressants being taken by the decedent made him more susceptible to infection, Aspergillus included. Aspergillus is a mold found in closed, moist spaces, which can be located in homes (generally in the walls) or anywhere else. He had no test results to show that the decedent was exposed to Aspergillus at a work site, he “just know[s] that in construction sites the likelihood of being exposed…goes up dramatically.”

Dr. Friedman was deposed on November 10, 2008, and testified in accordance with his prior reports. In addition, Dr. Friedman explained that the decedent’s immune system was severely compromised by his anti-rejection medications, and that he was unable to combat various bacteria, fungi, and Mycoplasma organisms, which resulted in sepsis and renal failure. The organisms in question (Acinetobactor, atypical Mycobacterium, and Aspergillus) are found “in every area that he could visit, in his home, in his bedroom, in the street, even at work, and because of his immunosuppression he wasn’t able to fight off these common organisms.” In addition, Dr. Friedman indicated that “[w]e breathe in Aspergillus every day, it’s found in our nose, it’s found even in our lungs, but we don’t get systemic infections from it” because we have the sufficient white blood cells to produce antibodies. With respect to Acinetobacter Baumanii, it is generally found in a hospital environment, as it is a very resistant organism for which there is no antibiotic, so if you have a compromised immune system it can overwhelm your tissues, creating sepsis, fever, kidney failure, and death. Even if the decedent had been exposed to mold at work, the only result would be asthma; you do not get sepsis from Aspergillus. However, Dr. Friedman acknowledged that exposure to mold spores in a compromised patient can cause invasive organisms to invade the kidneys and lung cavities, which could in turn result in sepsis. Atypical Mycobacteria is generally found in dust, while Aspergillus is generally found in wet areas. Molds and fungi are not toxic or fatal, but if the immune system is compromised, a person could succumb to an infection. The decedent’s immune system was compromised, so any exposure anywhere could have been the cause of his subsequent infection and sepsis. The decedent did have Aspergillus in the lungs and the kidneys.

By reserved decision filed on December 16, 2008, the WCLJ found that in order to determine whether the decedent was exposed to Aspergillus, it was necessary to determine the details of his work activities from when he returned to work (following his kidney transplant) to his hospitalization on November 6, 2007. As a result, the case was restored to the hearing calendar for additional lay witness testimony.

At the hearing held on February 26, 2009, one of the employer’s Project Managers, Scott A., testified as follows. The decedent returned to work in July of 2007, following his kidney transplant. The job involved the renovation/rebuilding of multiple storefronts in a strip mall called The Woodbury Shopping Center following a fire. Another company performed all of the demolition work following the fire. The decedent had always performed restricted duty due to his kidney condition, both before and after the transplant surgery. The decedent’s job was limited to cutting framing material (metal studs) to the size specified; other workers performed the measurements and the installation. The decedent never climbed up on a scaffold; he was restricted to the ground. The job was an external job, as they were not working on the inside of a building, they were framing the outside and it was open to the air. At some point, the decedent left the job to have hernia surgery. When he returned, he was still on limited duty, and was prohibited from lifting anything, so all he did was cut the materials for other workers to pick up. The metal materials were stored in either a building with a roof or a fenced in area outside (covered with a tarp).

A second of the employer’s Project Managers, Eugene N., testified on February 26, 2009, as follows. The decedent worked for the employer for two and a half years. The decedent returned to work on July 16, 2007, following his kidney transplant. He worked until July 27, 2007, when he went out for hernia surgery. The decedent returned to work again on September 10, 2007, and returned to The Woodbury Shopping Center job overseen by Scott A. He was restricted to light duty the entire time he worked for the employer. The decedent was a “cut man,” which meant that he cut the materials to the size specified by the other carpenters. The decedent did switch work locations after his return to work in July, going down the street to a site supervised by Eugene N. (220 Crossways Park). This job involved the renovation of an office space that had been completely gutted before the employer started work. The employer was hired to reframe the building with metal studs, install the partitions, and install the door frames and hardware; the employer contracted out the sheetrocking work once the studs were installed. The decedent’s job on this project was to once again act as the “cut man” for the framing crew. On October 1, 2007, the decedent went to work as a “cut man” at yet another job site (Yellowstone Boulevard), which involved brand new six story construction (retail below and residential above). When the employer started work at this site, the residential area was completed, but the two retail floors only had the steel structure and the concrete slabs in place. The employer was responsible for the interior and exterior framing. The decedent left work sick on October 29, 2007, called in sick on October 30, 2007, October 31, 2007, and November 1, 2007, and returned to work on November 2, 2007 (which was his last day). The decedent also worked two Saturdays of overtime (October 6, 2007 and October 13, 2007) at another project where the employer was adding onto a clean room (i.e., a room where no dust is allowed to enter) at a company that makes filters (Pall Corporation). This job was an interior job, but no demolition was needed prior to the employer starting its work, as the filter company was reclaiming warehouse space. The decedent’s work at this job was finished prior to the sheetrocking. No demolition took place at any of the job sites where the decedent worked; all of the work sites involved new constructions; and all of the work sites involved open air environments except for his two days of overtime work.

Upon cross-examination, Eugene N. confirmed Scott A.’s assertion that all of the demolition had been performed prior to the employer starting work at The Woodbury Shopping Center. In addition, all of the demolition had been performed and the debris removed from the Crossways project before the employer started work. Although there was a dumpster on site, that dumpster was for the employer’s daily cleanup and did not contain demolition debris. Other contractors (electric, plumbing, HVAC, and aluminum storefront) were also present on the job site. The one-story building had a frame, a roof, and a concrete slab. The sheetrock was stored on site, inside, as it is susceptible to moisture, but it was not brought to the site until it was time to sheetrock, as there was no space to store it while all of the contactors were working. The project did include the installation of some thermal fiber (which is stored in plastic bags) for soundproofing purposes. The building was open (as the windows were not installed), but tarps would be placed over the window openings if it rained. The decedent was not present while the sheetrocking was being done, as his job had been completed and he had moved on to the Yellowstone Boulevard project. The decedent came back to help with the door hardware only after the sheetrocking had been completed. The decedent worked on the bottom three floors of the Yellowstone Boulevard project, primarily cutting for the exterior framing. No sheetrocking was performed while he was on the job site. Dumpsters were present outside; the builder provided laborers to carry all contractor debris out to the dumpsters, but the outside had to remain clear for his electric lifts (they did not use scaffolds). The decedent worked inside on this project, although no windows were in place.

On April 2, 2009, the testimony of Scott A. was completed. The witness testified as follows. The decedent worked a total of four or five weeks at The Woodbury Shopping Center site. There were seven buildings involved, four that had to be completely rebuilt and three that had to be renovated following a fire. The three renovations involved only the store fronts; the insides were not damaged and the businesses continued to operate. The decedent worked on all of the seven storefronts. The exterior work was done first to close in the stores. The inside work (including the sheetrocking) was not done until approximately October, after the decedent had left the job site. The employer arranged to have a dumpster on site at the beginning of the job, as the demolition contractor had completed its work and had removed its dumpster. The outside of the building was covered in Dense Glass, an exterior sheathing made of gypsum which was stored outside under a tarp. The Dense Glass was not installed until after the decedent’s work had been finished. The roofing was done prior to the decedent’s kidney transplant, although some unused roofing materials remained on a pallet at the job site. The roof is made with plywood, fabric, tapered insulation, and rubber. The metal studs used for framing were stored inside the stores. There was a pile of dirt on site that was from the plumbing contractor’s work.

In the reserved decision filed on May 5, 2007, the WCLJ found that a substantial part of the work performed by the employer would expose stored materials to dampness; that both doctors agree that dampness is an essential element for mold propagation; that the decedent did work on rainy days; that the description of the job sites was that of heavy traffic areas where the decedent would have been exposed to dust, gravel, and damp materials; and that the decedent’s death was causally related to his work. In a subsequent decision filed November 12, 2009, the WCLJ awarded benefits to claimant’s widow at the rate of $456.68 per week.

LEGAL ANALYSIS

Occupational Disease
As a general rule, an occupational disease is a condition that derives from the very nature of the employment and which is caused by conditions to which all employees of a class are subject, and not from an environmental condition specific to the place of work (Matter of Bates v Marine Midland Bank, 256 AD2d 948 [1998]; Matter of Paider v Park East Movers, 19 NY2d 373 [1967]; Matter of Goldberg v 954 Marcy Corp., 276 NY 313 [1938]). Thus, in order to demonstrate an entitlement to benefits based upon an occupational disease, a claimant is required to establish a recognizable link between his condition and a distinctive feature of his occupation (Bates, 256 AD2d 948 [1998]).

In the present case, it is conceded by both medical consultants that there is no connection between the decedent’s infections due to either Acinetobactor (found primarily in hospitals) or atypical Mycobacterium (found in all environments), and his job as a carpenter. It is also readily apparent that there is no recognizable link between the decedent’s job as a carpenter (working as a metal stud “cut man”) and the contraction of an infection due to Aspergillus. There is no evidence that all carpenters (or “cut men”) are exposed to mold during the course of their work, and it is clear that the claim in this case pertains to an alleged environmental condition specific to the locations where the decedent worked. As a result, the Full Board finds that decedent’s death was not the result of an occupational disease within the meaning of the Workers’ Compensation Law.

Accident
Pursuant to WCL § 2(7), “[i]njury” and “personal injury” mean only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom. Whether a particular event is an industrial accident is not determined by any legal definition, but by the commonsense viewpoint of the average man (Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130 [1975]).

Under some circumstances, the contraction of an infectious disease can be found to be an accidental injury within the meaning of the WCL (id.; see also Matter of Connelly v Hunt Furniture Co., 240 NY 83 [1925]). “As to infectious diseases contracted in the course of employment, the accident requirement has been interpreted to mean that ‘the inception of the disease must be assignable to a determinate or single act, identified in space or time [internal citations omitted]’” (Matter of Albrecht v Orange County Community Coll., 61 AD2d 1068 [1978], aff’d 46 NY2d 959 [1979]). “Compensation has been allowed for infectious disease in many cases, but only where there was some discrete event or series of events which could reasonably be deemed to mark the onset of the infection” (id. at 1069).

A discrete event resulting in the onset of an infection sufficient to constitute an accidental injury has been found, for example, when the record contains evidence that the claimant was exposed to a person known to be infected with the disease later contracted by claimant (Middleton, 38 NY2d 130 [1975]; Matter of McDonough v Whitney Point Cent. School, 15 AD2d 191 [1961]; Matter of Gardner v New York Med. Coll., 280 AD 844 [1952], aff’d 305 NY 583 [1953]), when a decedent contracted malaria from a mosquito bite (Matter of Lepow v Lepow Knitting Mills, 288 NY 377 [1942]), and when a decedent was infected though a cut on his hand while handling a gangrenous corpse (Connelly, 240 NY 83 [1925]). However, an infectious disease that is contracted through normal bodily processes (e.g., breathing), “at a time and place which cannot be specified,” cannot be considered an accidental injury within the meaning of the WCL (Albrecht, 61 AD2d 1068 [1978], affd 46 NY2d 959 [1979]). In Albrecht, the decedent, a professor, contracted polio and died while traveling in Africa during a sabbatical. The court in Albrecht concluded, based on the record before it, that because the decedent contracted polio through “normal channel of entry,” at a time and place that could not be specified, he did not sustain in accidental injury (id.).

In the present case, the record reflects that Aspergillus is a common mold found in most places, including the home environment, which can enter the human body through inhalation. There is no definitive evidence in the record of exactly when and where Aspergillus entered the decedent’s body, and the alleged work exposure is purely speculative. Under these circumstances, the Board Panel finds that decedent’s infection was not the result of discrete, identifiable event or series of events, and cannot be considered an accidental injury within the meaning of the Workers’ Compensation Law.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on May 7, 2009, is MODIFIED to find that the claim for a causally related death is disallowed. The medical testimony fee is AFFIRMED. The case is closed.

Protrans Services Inc

The Full Board, at its meeting held on January 26, 2010, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on September 4, 2009.

ISSUE

The issue presented for Full Board Review is whether claimant’s disability should be apportioned between this claim and a prior injury.

The Workers’ Compensation Law Judge (WCLJ) found that apportionment did not currently apply, but noted that it could possibly apply in the future, if and when the claimant reaches the point that he becomes entitled to a schedule loss of use for his right shoulder.

The majority of the Board Panel affirmed the WCLJ’s decision.

The dissenting Board Panel member found that “apportionment should have been found herein between the established injury and the prior compensable (though not established) injury, which would have been amenable to a schedule loss of use finding had the claimant pursued a claim in connection therewith.”

In its application for Full Board Review, the employer, a member of a group self-insured trust, asserts that the majority’s decision contains conflicting findings, as one paragraph concludes that the claimant’s prior right shoulder condition constituted a disability in the compensation sense which would be subject to a schedule loss of use, yet a subsequent paragraph finds that the claimant was not disabled in a compensation sense prior to March 1, 2008. The employer seeks clarification of these conflicting findings. The employer further asserts that insofar as claimant has now filed a claim for compensation based on his pre-existing shoulder condition (WCB #G0059523), the WCLJ and Board Panel majority incorrectly applied the legal standard relating to prior non work-related injuries.

In their rebuttal, claimant’s attorneys contend that apportionment is not warranted and that the WCLJ’s decision should be affirmed.

Upon review, the Full Board votes to adopt the following findings and conclusions:

FACTS

On March 1, 2008, claimant was injured when he slipped and fell on ice in his employer’s parking lot. This claim was established for the neck and right shoulder.

In a narrative report based on a March 5, 2008 office visit, Dr. Richard Saunders, an orthopedic surgeon, noted that he had previously performed surgery on the claimant’s right shoulder for calcify tendonitis. The claimant reported that he had been doing “reasonably well,” had returned to work, and was able to lift overhead (provided the objects were not heavy). However, on March 1, 2008, the claimant slipped and fell in the icy parking lot at work, and later that day went to the hospital after experiencing increasing pain in his right shoulder. Since then, the claimant has been unable to lift overhead and has been in “severe” pain. Upon examination of the right shoulder, Dr. Saunders noted well-healed surgical scars, some muscle atrophy, limited range of motion, and significant tenderness. X-rays taken at the hospital revealed significant calcify bursitis, as well as AC arthropathy.

In an April 11, 2008 report, Dr. Saunders noted that the claimant was working without restrictions at the time of his March 1, 2008 accident. Dr. Saunders indicated that the claimant had previously undergone right shoulder arthroscopy with subacromial decompression for calcareous deposits (May 23, 2007). Dr. Saunders found that claimant’s right shoulder was now “virtually immobile,” and that he was temporarily totally disabled.

On July 31, 2008, Dr. Saunders performed surgical decompression to repair impingement and a rotator cuff tear in claimant’s right shoulder.

In a report dated October 10, 2008, Dr. Saunders stated that the claimant now complained of neck pain radiating into his right scapula. He noted that the claimant had a prior history of treatment for the neck with Dr. James Greenspan, a neurosurgeon, and that the claimant had a worsening in his neck condition after his March 1, 2008, accident. X-rays of the cervical spine revealed degenerative joint disease at C5-C6 and C6-C7. Dr. Saunders opined that the claimant’s current right shoulder problems were causally related to the March 1, 2008 fall, but that the claimant’s neck problems were preexisting and merely aggravated by the fall, whereby he would apportion 50% of the claimant’s neck disability to the work accident.

The employer had the claimant examined by its consultant, Dr. Louis Benton, on January 5, 2009. In his resulting report, Dr. Benton found a marked partial disability, primarily due to the right shoulder, although the neck had pain and loss of motion. Dr. Benton further indicated that he would apportion 50% of the claimant’s right shoulder disability to his accident, and 50% to his preexisting conditions.

Dr. Greenspan filed his first report on January 15, 2009. In this report, Dr. Greenspan indicated that he had only previously examined the claimant on one occasion, in April of 2007, regarding his right shoulder and neck. At that time, the claimant did have evidence of spondylosis at C4-C5, but his shoulder condition was much more significant, whereby Dr. Greenspan referred the claimant to Dr. Saunders for treatment of the shoulder prior to any treatment for the neck. The claimant never returned to Dr. Greenspan, but had right shoulder surgery in May of 2007 (which was “very helpful”), and again in July of 2008, following his work-related fall. The second surgery did not help, and the claimant asserted that he was actually worse following that surgery. Dr. Greenspan noted that a comparison of the claimant’s cervical spine MRIs from 2007 and 2008 showed no significant change. Given the claimant’s current significant right shoulder problems, Dr. Greenspan hesitated to recommend cervical surgery. Instead, he requested authorization for EMG/NCV testing.

The claimant testified on March 17, 2009, as follows. He had surgery on the right shoulder on May 23, 2007. According to the claimant, the injury which necessitated that surgery was the result of repetitive motion at work, although no claim for compensation benefits was ever filed with respect to that injury. He was released to return to work with no restrictions after six months. Prior to March 1, 2008, he was “doing good as far as working”; he had no limits in his range of motion and he was no longer receiving any treatment for the right shoulder. On March 1, 2008, he fell in the parking lot and injured his right shoulder. He has not returned to work, as his shoulder has gotten progressively worse. He is unable to do many of the activities that he could do prior to March 1, 2008, such as splitting wood. He is now in constant pain, and can barely move his right arm. He saw Dr. Greenspan once in 2007 for his neck, but the physician did not provide any treatment, and only performed an MRI. After his shoulder surgery in May of 2007, he “was doing good,” so he did not need to return to Dr. Greenspan.

On April 13, 2009, the claimant filed a form C-3 with the Board, alleging that he had injured his right shoulder in 2007 due to repetitive lifting/overhead use at work. This case was assembled by the Board on April 15, 2009 (WCB #G0059523), and controverted by the employer. The claim was closed based on claimant’s failure to appear at a hearing scheduled for November 17, 2009. No decision on the merits has been rendered by the Board with respect to this claim.

The employer’s IME, Dr. Benton, was deposed on April 14, 2009, and testified in accordance with his report. His opinion on the issue of apportionment regarding the right shoulder was based upon the fact that claimant’s two surgeries (May 2007 and July 2008) were similar, as well as his belief that the claimant never reached maximum medical improvement following his 2007 surgery, as he had continued pain and limited range of motion, despite being cleared to return to work without restrictions. In addition, he testified that his 50% apportionment opinion would also apply to the claimant’s cervical condition. However, he acknowledged that he did not review any medical reports from prior to March 1, 2008, and that the claimant would likely never have needed additional surgery but for the March 1, 2008 accident.

Dr. Saunders was deposed on April 21, 2009, and testified in accordance with his prior reports. Dr. Saunders would not apportion liability for claimant’s right shoulder injury to his prior condition because claimant had returned to work with no restrictions prior to his March 1, 2008, work related injury. With respect to the claimant’s neck, however, it was his opinion that the claimant’s disability should be apportioned 50% to his preexisting condition and 50% to his March 1, 2008, work related injury. He last saw the claimant prior to his March 1, 2008, injury on December 27, 2007. At that time, the claimant reported increasing pain in his right shoulder and problems at work, as he was required to frequently lift overhead. No range of motion findings were noted. The claimant was prescribed physical therapy and anti-inflammatory medication, and it was recommended that the claimant take time off from work, but no note to that effect was provided. It was also recommended that the claimant limit his overhead lifting, but no official work restriction was provided to that effect. The office note from that examination indicated that the claimant refused to discuss the issue of work restrictions with his employer out of fear of losing his job. The claimant was supposed to return for a follow-up visit following the December 27, 2007 appointment, but he did not return until after his accident on March 1, 2008. Had the claimant’s 2007 surgery (i.e., subacromial decompression, excision of calcareous deposits, and Mumford type resection of the distal clavicle) been the result of a compensable work-related injury, the claimant would have been given a schedule loss of use award.

In the reserved decision filed on May 22, 2009, the WCLJ found that because claimant was able to work full time and without restrictions prior to his March 1, 2008, accident, apportionment was not available as a matter of law. However, the WCLJ further found that apportionment might apply in the future, should the claimant’s right shoulder injury be found to be subject to a schedule loss of use award (see Matter of Scally v Ravena Coeymans Selkirk Cent. School, 31 AD3d 836 [2006]; Matter of Trathen Logging Co., 2003 NY Wrk. Comp. 70000913).

LEGAL ANALYSIS

Apportionment- Prior Compensable Injury
Apportionment of liability between a compensable work-related injury and a prior injury “is appropriate where the medical evidence establishes that the claimant’s current disability is at least partially attributable to a prior compensable injury” (Matter of Rafferty v Four Corners, 25 AD3d 840 [2006][emphasis added]). Apportionment is not applicable as a matter of law where the preexisting condition was not the result of a compensable injury and the claimant was able to effectively perform his or her job duties at the time of the work-related accident despite the preexisting condition (Matter of Peck v Village of Gouverneur, 15 AD3d 735 [2005], lv denied 5 NY3d 707 [2005]). However, liability for an injury resulting in a schedule loss of use award may be apportioned to a prior non-compensable injury if there is evidence that the prior injury would have resulted in a schedule loss of use award had the injury been work-related (see Matter of Trathen Logging Co., Inc., 2003 NY Wrk Comp 70000913).

In the present case, the claimant injured both his neck and right shoulder as the result of his March 1, 2008, work-related accident and his continuing disability is based upon both of these sites of injury.

Neck
Although the claimant did have prior neck complaints in April of 2007, and an MRI test performed at that time revealed some degenerative changes, the claimant did not actually receive any treatment for his neck at that time and the origin of his neck condition is unclear. Unlike claimant’s pre-existing right shoulder injury, there is no suggestion in the record that claimant’s prior neck condition is work-related. Insofar as the evidence in the record indicates that claimant’s prior neck condition did not prevent him from effectively performing his job duties at the time of his March 1, 2008, work-related accident, apportionment of liability for claimant’s neck injury is not available as a matter of law, despite the medical opinions of Dr. Saunders and Dr. Benton that the claimant’s neck disability should be apportioned 50% to a preexisting condition.

Right Shoulder
In the present matter, claimant’s prior right shoulder condition, which necessitated surgery on May 23, 2007, has not been established as a compensable work-related injury. However, the claimant has filed a claim based on that injury (WCB #G0059523), the merits of which have yet to be addressed by the Board. Therefore, it is premature for the Board to address the issue of apportionment until a determination is made regarding whether or not claimant’s prior condition was a compensable work-related injury, so that the proper legal standard pertaining to apportionment can be applied. Moreover, it is premature for the Board to address the issue of apportionment until there is a finding of permanency in this claim (see Matter of Otsego County Highway Dept., 2009 NY Wrk Comp 90206449; Matter of The Friendly Home, 2008 NY Wrk Comp 70610032; Matter of Tops, 2006 NY Wrk Comp 89814908).

CONCLUSION

Accordingly, the WCLJ’s reserved decision filed on May 22, 2009, is modified to find that apportionment of claimant’s neck injury is not appropriate as a matter of law and that it is premature to consider apportionment of claimant’s right shoulder injury. The case is continued.