April 2, 2009 Appellate Division 3rd Judicial Department
Shea v Iceland Air
REVERSED the Board and the Law Judge who denied the application of claimant’s counsel for an award of counsel fees. Essentially the case was a ‘no lost time’ case in which the claimant ligated for out-of-pocket medical and travel expenses, litigation ultimately resolved by a §32 settlement. “The WCLJ approved the agreement except for the provision pertaining to counsel fees, which was not approved on the ground that an award of medical and travel expenses is not an award of compensation subject to a lien for counsel fees. . . . Construing the law in claims involving disputes about only medical benefits such that claimants are essentially left to find an attorney willing to undertake their cases on a pro bono basis will make it more difficult to find representation in such situations.” The court concluded that “our state’s statutes permit such a construction and that doing so will best foster the purposes of the Workers’ Compensation Law. Potential abuse by counsel in requesting fees is minimized by the fact that all such requests are subject to approval by the Board Here, the Board incorrectly concluded that counsel fees were precluded by the germane statutes, and thus did not exercise its broad discretionary review of counsel’s requested fee. We remit to the Board for an exercise of its review power in such regard.” A second issue under appeal, that denied the request of claimant’s counsel for reconsideration and/or full Board review, was rendered moot. Prevailing party represented by: Patrick M. Quinn of counsel to Alan W. Clark & Associates, LLC (Levittown) for appellant. Click here to read the full decision of the Court..
Western Bldg. Restoration Co., Inc. v Lovell Safety Mgt. Co., LLC
The Court agreed with the defendant that the workers compensation policy issued to the plaintiff did NOT cover employees in another state. There were a number of issues raised in this case but, in essence, the plaintiff made a number of assumptions as to the coverage, assumptions which the Court ruled that “aside the fact that no one within plaintiff’s employ could have been confused by language in a policy that was never read, we find the disputed phrase, when read in complete context, is not ambiguous here. . . . Thus, any alleged ambiguity in the excised phrase “regular New York employees” is sophistry.” This case should serve as a warning to firms who have contracts outside of New York State to insure, certainly in writing, that those employees are covered under their NYS comp policy. Prevailing party represented by: Scott C. Paton of counsel to McNamee, Lochner, Titus & Williams, (Albany) Lovell Safety Group. Click here to read the full decision of the Court..
March 27, 2009 Appellate Division 4th Judicial Department
Shumway v Kelley
Court determined that the plaintiff claim could proceed. Shumway was injured when Kelley, in an act which the Court ruled was horseplay, injured Shumway. The Appellate Court reversed the Surpeme Court ruling “that defendant failed to meet his burden of establishing that he was ‘acting within the scope of his employment’. . . . In addition, defendant submitted his deposition testimony in which he admitted that he approached plaintiff from behind without any warning, and he thus surprised plaintiff by colliding with him. We therefore conclude that, by his own submissions, defendant failed to establish that his actions occurred within the scope of his employment.” In essence, the Appellate Court in the 4th Department determined that, pursuant to WC Law, the injury was caused by horseplay and not within the jurisdiction of the WC Board Prevailing party represented by E Robert Russell of counsel to Plaintiffs-Appellants. Click here to read the full decision of the Court..
March 26, 2009 Appellate Division 3rd Judicial Department
Monzon v Sam Bernardi Construction
AFFIRMED the Board and the Law Judge who ruled that claimant did not violate WCL §114-a. After the claimant testified that he had been unable to work since the accident, the employer requested an adjournment so that it could present a surveillance videotape which allegedly would show that claimant had worked since his accident. Per established Board policy regarding surveillance videotapes, the Board barred the employer from offering its videotape and related materials because it had not informed claimant of their existence before his testimony. At the next hearing, the employer’s counsel failed to appear. Further, the Court noted that there is no evidence in the record that the employer was denied an opportunity to cross-examine claimant as to when he returned to work or regarding any other matter which claimant allegedly misrepresented. Essentially because the carrier failed to follow board rules and procedures, the Court agreed that the Board’s decision was correct. Prevailing Party represented by: Les Jarmol of counsel to Polsky, Shouldice & Rosen (Rockville Center) for Monzon, respondent and Estelle Krausher of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court…
Rios v Goodwill Industries
AFFIRMED the Board and the Law Judge that the claimant did not sustain an accidental injury arising out of and in the course of his employment. After being physically accosted by a coworker, claimant filed a claim for injuries allegedly suffered. The Board found that claimant had exaggerated the incident and that no credible medical evidence demonstrated compensable injuries arising from it.Prevailing Party represented by: Patrick M. Conroy of counsel to Greenblatt, Manning & Baez (Syosset) for Goodwill Industries and another, respondents, and Fay Ng of counsel to Michael A. Cardozo, Corporation Counsel, New York City for New York City Board of Education, respondent. Click here to read the full decision of the Court…
Wheeler v Mail Contractors of America
AFFIRMED the Board, who reversed the Law Judge, which ruled that the death of claimant’s decedent was causally related to his employment. While returning a truck tractor to the lot in Buffalo, decedent pulled to the side of the road. He suffered a cardiac arrest shortly thereafter and was found slumped over in the cab. The Law Judge disallowed the claim, finding that the carrier had rebutted the presumption contained in WCL §21 and that decedent’s death was not causally linked to his employment. The employer’s medical expert testified that decedent’s death was directly related to a preexisting heart condition but admitted that stress could have caused decedent’s sudden death given his heart condition. Additional evidence established that, on the day in question, decedent did experience work-related stress. The Court ruled, as “it was the province of the Board to weigh the conflicting evidence and determine whether the presumption of compensability had been rebutted.“, the Board should be affirmed. Prevailing Party represented by:Estelle Krausher of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court…
[EDITOR’S NOTE] Lauritano v. Con Edison
This case, in which the Appellate Court on February 5, 2009 unanimously affirmed the Board’s finding that §25-a applied, is now the subject of the Special Fund’s Motion to the 3rd Department for reconsideration or permission to proceed to the Court of Appeals. All papers have been submitted. Click here to read the original decision from the Court …
March 19, 2009 Appellate Division 3rd Judicial Department
Colley v Endicott Corp(Case#1) and MCS Carriers (Case #2)
AFFIRMED the Board and the Law Judge who ruled that the claim was barred by Workers’ Compensation Law § 123 in Case No. 1 and that New York does not have jurisdiction over the claim in Case No. 2. In 2004, the claimant allegedly injured his back while working in Ohio as a truck driver for MCS Carriers, prompting him to file a new claim and asking for his 1985 case to be reopened.
In Case No.1, the 1985 case was closed in March 1986, albeit without payment of compensation. Insofar as claimant did not appeal that decision and failed to submit a further application to reopen prior to the tolling of the time limits, the Court concluded that the Board properly determined that WCL §123 was applicable. In Case No. 2, the Court concluded that the Board did not err in determining that there were not enough significant contacts to confer New York jurisdiction over this claim. Although the claimant resided in NY and his initial job interview was conducted by phone from his NY residence, the call came from the employer in Ohio and the hiring process was completed in Ohio. It is in Ohio where all the truck terminals are located and from where control over claimant’s employment was exercised, and only 5% of MCS’s total business is in New York. Although the claimant lived in NY and his commute was between the two states, these last two factors were insufficient to reverse the Board’s decision. Prevailing Party represented by: Jill Waldman of Counsel to the Special Funds Conservation Committee and Jeffrey A Brown of counsel to Coughlin & Gerhardt (Binghamton) for MCS Carriers, respondent. Click here to read the full decision of the Court..
Henderson v New York City Transit Authority
AFFIRMED the Board, rather than the Law Judge, finding that claimant did not sustain a causally related injury and disallowed her claim. The Law Judge found a work-related exacerbation of claimant’s preexisting conditions and established the claim. The employer appealed and the Board directed that claimant be examined by an impartial medical specialist (IMS) on the basis of whose opinion the Board disallowed the claim. First the claimant contended that the Board improperly referred the matter to an impartial specialist but the Court agreed that the divergence of opinions between the claimant’s and carrier’s medical experts warranted an IMS. The claimant also argued that the Board’s rejection of her claim is not supported by substantial evidence. The Court agreed with the Board that the IMS made a diagnosis fundamentally different than that of the parties’ experts and attributed her condition not to her work activities, but to her morbid obesity and possible lung disease. “Thus, there is substantial medical evidence in the record supporting the Board’s determination that there is no causal relationship between her disabling condition and her employment”. Prevailing Parties represented by: Louis R. Salvo of counsel to Weiss, Wexler & Wornow (New York City) for New York City Transit, respondent. Click here to read the full decision of the Court..
March 12, 2009 Appellate Division 3rd Judicial Department
VanDermark v Frontier Insurance
AFFIRMED the Board which (1) modified the Law Judge’s (WCLJ) decision increasing the degree of disability to total permanent and (2) denied the request for reconsideration and/or full Board review. In December 2006, a WCLJ issued a decision finding a permanent partial disability. The WCB, however, concluded that claimant had a permanent total disability (PTD). Initially, the employer argued that insufficient evidence was presented to support the WCB’s finding of PTD. The Court stated, “Conflicting medical evidence was presented concerning the extent of claimant’s disability. This Court accords great deference to the Board’s resolution of issues concerning conflicting medical evidence and witness credibility.” As to the WCB’s decision denying carrier its applications for reconsideration and/or full Board review, the Court found, “[t]here is no indication that new evidence germane to this issue was not previously available as the medical reports cited by the employer were in existence prior to the close of the hearings [such that] we do not find that the Board’s denial of the employer’s applications was arbitrary, capricious or an abuse of discretion.” Prevailing Party represented by: Steven Segall of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court..
Robbins V Mesivtha Tifereth
AFFIRMED the Board, which reversed the Law Judge (WCLJ), finding that claimant violated WCL §114-a, disqualifying him from receiving compensation. Due to a May 1999 injury, a WCLJ found the claimant permanently, totally disabled. Subsequently, the carrier raised an issue of fraud, requesting benefits be suspended per WCL §114-a, asserting that claimant had misrepresented his degree of disability but the WCLJ found no violation. Upon review, the WCB reversed, finding that claimant intentionally misrepresented the degree of his disability in order to obtain compensation benefits, imposed a mandatory disqualification penalty of $35,059.10, and permanently disqualified claimant from receiving any further compensation. The Court found that “the testimony of the independent medical examiner, fully supported the carrier’s assertion that claimant misrepresented his daily activities [as shown on] surveillance videos. Moreover, claimant’s treating physician, indicated that based upon claimant’s representations, he was under the impression that claimant was unable to perform the types of activities [just noted]“. The Court found that the WCB set forth an adequate explanation for its imposition of a discretionary sanction, and its determination that disqualification is not disproportionate to the offense is supported by substantial evidence. Prevailing Party represented by: Tommasino S Conte of counsel to the State Insurance Fund, for Mesivtha Tifereth and another, respondents. Click here to read the full decision of the Court…
March 3, 2009 Appellate Division 2nd Judicial Department
Ascencio v Briarcrest
Although the majority of the argument dealt with the injuries sustain by the injured worker and whether or not the claim was covered by Labor Law §241(6), the Court ruled that the Supreme Court erred and should have granted the third-party defendant’s cross motion for summary judgment dismissing the third-party cause of action for contractual indemnification. “Where the plaintiff has not sustained a grave injury, WCL §11 section Law bars third-party actions against employers for indemnification or contribution unless the third-party action is for contractual indemnification pursuant to a written contract in which the employer expressly agreed’ to indemnify the claimant” and, in this case, the orders governing the plaintiff’s work contained no contractual indemnification provisions. Click here to read the full decision of the Court…
Franco v Carriel
AFFIRMED Carriel and Lopez were injured in a motor vehicle accident in a car owned by Lopez but driven by Carriel. Carriel and Lopez sought and were awarded Workers’ Compensation benefits. They then commenced the instant personal injury action against the defendants, alleging that they were injured as a result of the defendants’ negligence. As to the exclusivity provision of WCL §11, the court ruled that the appellants failed to demonstrate that the exclusivity provisions of the Workers’ Compensation Law provided Lopez with a complete defense, as it is not clear what Lopez’s relationship is to the plaintiffs’ employer. Click here to read the full decision of the Court…
March 5, 2009 Appellate Division 3rd Judicial Department
Petrillo V Walter B Cook
AFFIRMED the Board, and the law judge, that claimant voluntarily withdrew from the labor market. After her injury, she was (1) out of work for one month, (2) then returned to light duty, (3) subsequently filed a claim for workers’ compensation benefits and (4) was awarded benefits. Almost two years after her accident, claimant was laid off due to downsizing. Claimant did not look for another funeral director position because of her injury and, as a result of her injury, she was found to be permanently partially disabled. After receiving training at VESID, she earned a Bachelor’s degree in legal assistant studies in 2001. In 2005, the carrier filed a request for further action to reopen the case and suspend or reduce claimant’s continuing disability payments because she had failed to secure any employment, claiming she voluntarily withdrew from the workplace. While she initially did send out resumes, she told her doctor she was not interested in working and admitted the same at a hearing. As such, the Court found that the Board was within its discretion to find voluntary withdrawal. Prevailing Party represented by:Nance L. Schick, New York City, for Walter B. Cooke and another, respondents. Click here to read the full decision of the Court…
Webb v Cooper Crouse Hinds
AFFIRMED the Board, and the Law Judge (WCLJ), that decedent’s death was causally related to his occupational illness and that there was to be no apportionment. The decedent was found to have a permanent partial disability, which was apportioned 75% to an occupational lung disease and 25% to noncompensable causes. While the decedent suffered from a number of medical conditions in the years prior to his death, the Board found that, based on reference to his work-related illnesses, that there was sufficient causal relation to make its finding. As to the carriers’ claim that the benefits had to be apportioned 75%/25%, the Court reiterated its and the Board’s long standing position that, in the absence of any indication in WCL §16, death benefits are not apportioned in the same manner as disability. “Inasmuch as substantial evidence supports the Board’s determination that decedent’s illness was a contributing factor in his death, claimant is entitled to benefits without apportionment.” Prevailing parties represented by: Steven Segall of the Office of Andrew Cuomo, Attorney General of the State of New York for the WCB, respondent. Click here to read the full decision of the Court…
Cagle v Judge Motor Corp
AFFIRMED the Board on decisions to deny pro-se claimant’s (decedent’s estate) request (1) to reopen two cases seeking workers’ compensation benefits, and (2) for reconsideration for full Board review. The decedent filed a claim in 1988 but, in 1990 before that case was resolved, he died from ventricular fibrillation, resulting in the filing of a consequential death claim. A WCLJ found no medical evidence of causally related death, closing that case in June 1991. In 1993, decedent’s estate filed a second claim alleging that decedent’s death was caused by occupational stress which was disallowed as time-barred pursuant to WCL §28, and the Court affirmed that decision (Matter of Cagle v White Auto Parts, 297 AD2d 897 [2002]. In 2003 and again 2007, the decedent’s estate requested that the first claim be reopened based on newly discovered evidence of various medical documents. In all these cases the Board denied the applications as untimely per WCL §123. Remaining issues raised by the pro-se claimant were deemed “unavailing” by the Court. Prevailing Party represented by: Joseph P. DeCoursey of counsel to Hamberger & Weiss (Buffalo), for Judge Motor Corporation and another, respondents. Click here to read the full decision of the Court…
Cipriani v Onondaga County Corrections
AFFIRMED the Board, and the Law Judge (WCLJ), that the claimant sustained a permanent total disability. The claimant suffered a heart attack in 1987 and was awarded workers’ compensation benefits in 1989. In 1990, he stopped working due to stress-related angina episodes, also accepted. Claimant was found to have a permanent partial disability, which was apportioned equally between the two claims. Beginning in 2005, after the claimant underwent further treatment,the carrier alleged that, among other things, it was not causally related to his employment. The WCLJ rejected that allegation and determined that claimant sustained a permanent total disability. Prevailing parties represented by: Michael P Daly (Syracuse) for Peter A Cipriani, respondent and Steven Segall of the Office of Andrew Cuomo, Attorney General of the State of New York for the WCB, respondent. Click here to read the full decision of the Court..
(Seminerio, claimant): Glen Partitions v Special Disability
REVERSED the Board and Law Judge’s (WCLJ) decision, by finding that employer’s workers’ compensation carrier (SIF) was, in fact, entitled to reimbursement from the Special Disability Fund. After a series of decisions the claimant was found to have asbestos-related pleural disease and dust disease of asbestosis. In 1997, the WCLJ found that the establishment of occupational disease for the dust disease of asbestosis rendered the Special Disability Fund subject to liability to the carrier for reimbursement pursuant to WCL§15(8)(ee). After the claimant’s death in 2003, the WCLJ determined it to be causally related but also found and was affirmed by the Board, that the carrier was not entitled to reimbursement for the payment of death benefits because it failed to comply with WCL§15(8)(f) by filing a separate notice of claim. However, the Court ruled, “Under most circumstances, strict compliance with the filing provisions for separate disability and death benefit reimbursement applications pursuant to WCL§15(8)(f) is required. However, in the limited context of dust disease claims, this Court has held that, ‘[i]n light of the expressed purposes of WCL§15(8)(f)] to make [dust disease] cases compensable without limit . . . and to impose a substantial part of the burden upon [the] industry as a whole.’ ” the Board should not deny reimbursement to the carrier because of its failure to file a formal, written notice in accordance with WCL§15(8)(f). Prevailing Party: Charlotte Flynn of counsel to the State Insurance Fund, New York City, for appellants. Click here to read the full decision of the Court…
Norton v N. Syracuse School District
REVERSED the Board and law judge’s (WCLJ) decision, by finding that the claimant did not suffer a work-related injury. Claimant alleged that during the course of her employment as a school bus attendant, she sustained an injury to her left foot when she fell trying to assist a wheelchair-bound student. The WCLJ, affirmed by the Board, found sufficient evidence of a causal relationship between the nature of claimant’s employment and her disability, establishing the case. The Court ruled that “Even giving deference to the Board’s credibility determinations and crediting claimant’s testimony as to the December 2005 accident and resulting injury to her foot, the medical evidence did not demonstrate a reasonable probability that her fracture was linked to this accident….and the Board’s resulting determination lacked a rational basis and was not supported by substantial evidence.” Prevailing Party: Robert E. Geyer of Counsel to Wolff, Goodrich & Goldman (Syracuse) for appellant. Click here to read the full decision of the Court…
Lamantia v Midland Elevator
REVERSED the Board and the law judge (WCLJ), ruling that under certain conditions a schedule loss of use (SLU) in one case can NOT overlap a non-schedule award in another, further refining its decision in the Matter of LaCroix v Syracuse Exec. Air Serv., Inc., 8 NY3d at 357. The WCLJ awarded a non-schedule temporary disability award (back injury) at the maximum rate of $400 per week. Two years later, he determined that claimant was entitled to a schedule loss of use award based upon his original carpal tunnel claim. This award entitled claimant benefits over the period of March 10, 2005 to July 14, 2006 at $400 per week. On the same day, the WCLJ found permanently partially disability due to the established back injury, continuing the maximum $400 per week rate for life. The carrier argued that these awards resulted in an overlap, impermissibly enabling claimant to collect weekly compensation of $800 per week, or double the statutorily allowed maximum under WCL §15(6). The Court stated “Because we agree that the combined schedule and non-schedule awards would result in claimant receiving more than the weekly maximum allowed pursuant to WCL §15(6), we reverse.” The Court gives a detailed explanation and comparison between this case and LaCroix in its 5-page decision. Prevailing Party: Janis M. Riekstins of counsel to the State Insurance Fund, for appellants. Click here to read the full decision of the Court…
February 19, 2009 Appellate Division 3rd Judicial Department
Hayes v Nassau County Police Dept
RESCINDED the Boards’ decision which ruled that claimant voluntarily removed himself from the labor market and denied his claim for workers’ compensation benefits due to the Board’s failure to consider all the evidence. Although the doctor did not testify as to whether or not the claimant could have returned to the labor market, the Court stated it can not weight the evidence as it can not “ surmise what decision the Board would have reached had it not overlooked Lesniewski’s testimony.” Prevailing Party: John F. Clennan (Ronkonkoma) for Ronald Hayes, respondent. Click here to read the full decision of the Court…
April 4, 2007 Appellate Division 2nd Judicial Department
and the subsequent
February 12, 2008 Court of Appeals
Castillo v 711 Group, Inc.
AFFIRMED the Appellate Division 2nd Judicial Department’s as to the definition of the loss of a finger under WCL §11 in so far as whether or not how much loss constitutes a grave injury. The claimant suffered from the complete loss of both interphalangeal joints on an index finger, leaving less than the bottom one-third of the index finger. Both courts found that 100% ‘loss of use’ and the physical amputation of two joints of his finger met the definition. Click here to read the full decision of the Court of Appeals and here for the Appellate Court…
January 23, 2007 Appellate Division 2nd Judicial Department
Mentesana v Bernard Janowitz Constr. Corp.
This Court held that, while “loss of an index finger” is an injury enumerated by Workers’ Compensation Law § 11 as a “grave injury” that allows a nonemployer defendant in a tort action to seek contribution from the plaintiff’s employer, the partial amputation of an index finger to just above the proximal interphalangeal joint (i.e., leaving intact both the bottom one-third of the finger and the first joint) does not constitute the “loss” of the index finger. Click here to read the full decision …
February 11, 2009 Appellate Division 3rd Judicial Department
Green v Kimber Mfg., Inc.
AFFIRMED the Boards’ decision to deny claimant’s application for reconsideration and/or full Board review in as much as claimant appeals from only the denial of his request for reconsideration and/or full Board review, the merits of the Board’s underlying decision were not before the Court. The Court also noted that “proffered evidence, however, was not new evidence that was previously unavailable at the time of the hearing . . .”. Prevailing Party: Louis R. Salvo of to Weiss, Wexler & Wornow, P.C.,(New York City) for Kimber Manufacturing, Inc.,respondent. ISSUES: Procedure- Denial of FBR, Procedure –Appeal, Issue not raised before Click here to read the full decision of the Court…
Delee v Crouse Hinds Div. of Cooper Indus
AFFIRMED the Board’s decision, which reversed the law judge, that claimant’s permanent partial disability contributes to her reduced earnings and made an award of reduced earnings. The claimant returned to work but her disability prevented her from satisfying the job requirements and her employment was terminated shortly thereafter. Then claimant obtained other employment within her physical limitations until seven years later when she developed neuropathy and cardiomyopathy as the result of the chemotherapy for cancer and has not returned to work. Then, the carrier contended that claimant’s inability to work was now due solely to complications arising from the cancer and, consequently, she was no longer entitled to reduced earnings. The Court agreed with the Board that supervening nonindustrial causes of disability do not relieve an employer of responsibility for a permanent partial disability that was previously established and continued to contribute to a claimant’s reduced earning capacity. Prevailing Party: Iris A. Steel of the office Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Issue: Voluntary Withdrawal from the Labor Market. Click here to read the full decision of the Court…
Droogan v Raymark Indus., Inc.
AFFIRMED the Board which ruled that the death of claimant’s decedent was causally related to his employment by finding that decedent’s established injury for asbestosis was a contributing factor in his death and awarded benefits. Quoting from a prior case, the Court ruled that the illness “need not be the sole or even the most direct cause of death, provided that the claimant demonstrates that the compensable illness was a contributing factor in the decedent’s demise”. Citing the contradictory medical evidence and testimony, the Court concluded, as it usually does in these cases that “mindful of the Board’s discretion to resolve conflicts in medical opinion, we conclude that the Board’s determination in claimant’s favor was supported by substantial evidence and it will not be disturbed.” Prevailing Party: Estelle Krausher of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Issue Causal Relationship - Death Click here to read the full decision of the Court…
January 31, 2008 Appellate Division 2nd Judicial Department
Bellamy v Columbia Univ.
AFFIRMED the order of the Supreme Court, Bronx County denying defendant’s motion for summary judgment dismissing the complaint. Bellamy was temporarily assigned by his employer, Troy Associates, a temporary employment agency, to work in one of defendant University’s kitchens in which he was subsequently injured. Chief Judge Nominee Jonathan Lippman writing for the majority ruled that the indicia did not support ‘special employee relationship’ with Columbia, that WCL §§ 11 and § 29 (6) did not bar this action. An interesting dissent was filed in this case. Prevailing party:(Kevin J. Quaranta and Virginia D. Mallon of counsel to Quaranta & Associates (Mount Kisco) for respondent. Issue: Special Employee Click here to read the full decision of the Court…
February 5, 2009 Appellate Division 3rd Judicial Department
Peterec-Tolino v Commercial Electrical Contractors, Inc, et al
AFFIRMED the decision that the pro-se claimant did not suffer a compensable injury. BUT because this case proceeded under WCL §25 (2-c), the Alternate Dispute Resolution program, the Court in its affirmance stated “A court may not vacate an arbitration award except in those limited situations where the award ‘has been procured by fraud, corruption or misconduct, or is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power“. And they added, the Court of Appeals has repeatedly stated “that an arbitrator’s award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice” Prevailing Party:Matthew E. Weerth of counsel to Weiss, Wexler & Wornow (NYC) for Commercial Electrical Contractors, Inc. and another, respondents. Issue Alternate Dispute Resolution. Click here to read the full decision of the Court…
Mills v J.C. Penney
AFFIRMED the Board and the law judge that ruled that the pro-se claimant voluntarily withdrew from the labor market and denied her claim for further workers’ compensation benefits. The WCB affirmed the WCLJ’s decision finding that claimant, although classified with a permanent partial disability, was not entitled to further lost wages because she failed to demonstrate an attachment to the labor market. An important actor was that, altough the claimant did offer extensive testimony about her attempt to re-enter the labor market. after under cross-examination and lack of supporting evidence, the Board was entitled to discredit claimant’s testimony.Prevailing Party: Sean Denvir of counsel to Ryan, Roach & Ryan (Kingston) for J.C. Penney and another, respondents. Issue: Voluntary withdrawal Click here to read the full decision of the Court…
Lauritano & Consolidated Edison Co. of N.Y., Inc v Special Fund
AFFIRMED the Board, which reversed the law judge, finding that liability transferred to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a. The SFCC had argued that there advance payments made to the claimant but the Court stated “We note that this Court has repeatedly and expressly rejected the Special Fund’s contention that all payments made by a self-insured employer constitute payments of compensation.” As is often he case, these payment in question were done per a union contract and not as compensation. Prevailing Party: Leonard B. Feld (Jericho) for Consolidated Edison Company of N.Y., Inc. and another, respondents Issue: §25a: Advance Compensation Click here to read the full decision of the Court…
Banner v Anheuser-busch Cos., Inc.
AFFIRMED Board decision which ruled that claimant did not sustain a causally related disability and denied his claim. The Board (my panel) overruled the law judge who established the claim, sending it back for review by an impartial specialist. Following submission of the specialist’s report and additional testimony, the Board concluded that claimant’s disabling hip condition was not causally related to the 2005 work injury and, among other things, rescinded all prior awards. Prevailing party: Robert E. Geyer Jr. of counsel to Wolff, Goodrich & Goldman (Syracuse) for Anheuser-Busch Companies, Inc. and another, respondents. Issue: Causal relationship Compensation Click here to read the full decision of the Court…
January 29, 2009 Appellate Division 3rd Judicial Department
Curren v Carbonic Sys., Inc.
In this case in which neither the WCB nor any carrier were a party of interest, the Appellate Court reviewed an Appeal from an order of the Supreme Court (Mulvey, J.), entered April 15, 2008 in Chemung County, which granted defendants’ motion for summary judgment dismissing an amended complaint. At issue were allegedly defamatory comments made by the employer in terminating the plaintiff. The Appellate Court write in its decision, “Despite finding questions of fact regarding whether the Caseys [owners of Carbonic Systems] published defamatory statements, Supreme Court found that the statements to Carbonic employees were protected by the qualified common interest privilege and all claims against Carbonic were barred by the Workers’ Compensation Law.” Next week we will have tracked down and reviewed the underlying decision to learn why workers compensation law was referenced in the underlying decision and the reason that the Appellate Court affirmed this case’s exclusion from WC law coverage. Click here to read the full decision of the Court…
January 22, 2009 2009 Appellate Division 3rd Judicial Department
Booth v NYS Department of Corrections
AFFIRMED the Board and the law judge that claimant’s injury did not arise out of and in the course of his employment. Claimant, a correction officer, was injured while practicing basketball off-duty at the facility. The WCB disallowed the claim for benefits, finding that the accident did not occur during an athletic event sponsored by the employer. “As claimant’s participation in the event was neither required nor compensated by the employer, his injury is compensable only if the employer overtly encouraged his participation. While the actual competition was held in another of the employer’s facilities, the use of those facilities, without any other encouragement to participate or control by the employer, is more a matter of convenience for the competitors than an overt sponsorship of the event by the employer. As substantial evidence [including other indicia] supports a finding that claimant’s injury did not arise out of and in the course of his employment, the Board’s determination must be affirmed.” Prevailing parties: Gregory J Allen of State Insurance Fund (New York City) and Charlotte Flynn of counsel for the NYS Department of Corrections and another, respondents. Issue: Course of Employment – special events. Click here to read the full decision of the Court...
Bradley v US Airways
AFFIRMED: The Board and the law judge ruled that pro-se claimant did not sustain a consequential psychiatric injury and denied her claim for further workers’ compensation benefits. During the pendency of the claim, she stopped working and raised the issue of a consequential psychiatric injury arising from her established injuries. As her treating psychiatrist provided no credible medical evidence to establish a causal relationship between claimant’s established injuries and her depression, detailed in the Court’s decision, the Board’s decision there was insufficient credible medical evidence to establish that claimant’s depression was causally related to either of her prior compensable injuries must be affirmed. Also, the Appellate Court ruled that other issues raised in the claimant’s brief never appealed to the WCB and, therefore, not properly before Appellate Court. Prevailing party: David W Faber of counsel to Cherry, Edson & Kelly (Carle Place) for US Airways and another, respondents. Issue: Causal Relationship. Click here to read the full decision of the Court…
January 9, 2009 Superior Court of New Jersey, Appellate
Doris Sexton v County of Cumberland / Cumberland Manor & The 2nd Injury Fund
REVERSED the law judge and ruled in favor of Sexton who filed a claim that her total permanent disability is the direct result of a co-worker applying perfume at work. Sexton alleged that her preexisting COPD was aggravated by her “inhaling a particular perfume sprayed by a co-employee in her employer’s workplace on three occasions on the same day [thus] arising out of employment.” The law judge decided it was an accident and not an occupational disease, citing a number of grounds for his decision. Both the Appellate Court and the law judge did note that the claimant was diagnosed with COPD in 1989 but continued her 43-year habit of smoking one pack of cigarettes a day until the January 3, 2004 incident in this case. Prevailing party: Christine DiMuzio Sorochen of counsel to Hoffman DiMuzio for Doris Sexton Issues: Accident vs Occupation Disease. Click here to read the full decision of the Court…
