August 20, 2009 Appellate Division, Third Department

D’Errico v New York City Dept. of Corrections
Procedure: Denial Full Board Review
§ 23 Late Appeal
Causal Relationship: Stress

AFFIRMED BY 3-2 VOTE OF THE COURT the Board’s determination (1) to reverse the Law Judge by denying the claimant’s application for benefits and (2) to deny claimant’s request for reconsideration or full Board review (FBR). Claimant sought workers’ compensation benefits, asserting that his severe major depressive disorder with psychotic features, posttraumatic stress disorder and panic disorder with agoraphobia were caused by his exposure to violent incidents in the course of his employment as a maintenance worker for the NYC Department of Corrections. The Board ultimately denied the claim, concluding that claimant was not exposed to a greater amount of work-related stress than that normally experienced by similarly situated employees at correctional facility.

Both the Majority and the Dissent agreed to deny review of the denial of the underlying claim because the claimant failed to timely perfect his appeal from the underlying decision.

As to the claimant’s request for FBR, the Majority held that the issue being appealed in this case was the same as others in which the Board properly rejected applications for reconsideration or full Board review, where such evidence did not exist or the relevant issues were considered in the original decision. The Dissent disagreed, writing that the Board in its rejection did not explain its reasoning on a key issue in this case:

As a matter of law in which class of employees was the claimant to be considered? Although the Law Judge found the claimant to be part of a ‘large’ class and established the claim, the Board reversed, ruling in favor of a ‘narrow’ class, disallowing the claim. The Dissent ruled that the Board failed to properly decide as it did note explain why it chose the narrow class rather than the wider one, and determined the case should be sent back to the Board for a clarification on this issue.

[ED.NOTE: See this week’s COMMENTARY & REPORTS for a discussion of this case.] Prevailing party represented by: Susan Choi-Hausman of counsel to Michael A. Cardozo, Corporation Counsel, New York City for NYC Dept of Corrections, respondent. Click here to read the full decision of the Court…

August 13, 2009 Appellate Division, Third Department
Feliciano v New York City Health & Hosps. Corp.

§ 28 time bar

Affirmed the Board which ultimately ruled that claimant’s application for workers’ compensation benefits for left carpal tunnel syndrome was time-barred by WCL § 28. In December 2003, claimant sought medical treatment for pain in her left hand from carpal tunnel syndrome caused by her work. She continued to work until February 2006 when she underwent surgery for that condition. After she began to feel similar pain in her right hand, surgery was performed on that hand on August 28, 2006. Approximately one month later, claimant submitted an application for benefits for bilateral hand injuries. At a December 3, 2007 hearing, a Workers’ Compensation Law Judge (hereinafter WCLJ) stated that the claimant’s application for the injury to her left hand was time-barred pursuant to WCL §28 while accepting the claim for the right hand. On appeal to the Board, claimant, inter alia, that the claim for her left hand should not be considered time-barred and August 28, 2006 should be found to be the date of disability for both hands. The Board, while declining to disturb the conclusion that August 28, 2006 was the proper date of disability for claimant’s right hand, noted that the WCLJ had failed to establish a date of disability for claimant’s left hand and, on its own motion, set December 2003 as the date of such disability. Consequently, the Board modified the WCLJ’s decision to the extent of finding that the application for benefits with respect to claimant’s left hand was untimely, prompting this appeal.

The Court then added a very important footnote: “We note that while claimant contends that the Board failed to adhere to precedent it set forth on this point in Matter of New York State Dept. of Social Servs. (2000 WL 33395667 [WCB No. 5942 3590, July 13, 2000]), the employer correctly notes that this case does not involve ‘essentially the same facts’ as is set forth therein (Matter of Teal v Albany Capitaland Enters., 259 AD2d 859, 860 [1999], lv dismissed 93 NY2d 1041 [1999]). Specifically, in Matter of New York State Dept. of Social Servs. (supra), the claim involved a bilateral carpal tunnel syndrome diagnosis where the injuries to the respective hands began at approximately the same time and, therefore, one date of disablement was appropriate.” Prevailing party represented by: Susan B. Eisner of counsel to Michael A. Cardozo, Corporation Counsel, New York City for NYC Health and Hospitals Corporation and another, respondents. Click here to read the full decision of the Court…

July 28, 2009 Appellate Division, Second Department
LMK Psychological Serv. v American Tr. Ins. Co.
§ 11 Election of Remedies

LMK, as assignees of no-fault benefits (see Insurance Law § 5101, et seq.), brought this action to recover for health services rendered to the beneficiaries of the American Transit’s no-fault insurance contracts. Each assignor received medical treatment from LMK following separate automobile accidents. The Appellate Court determined that the Supreme Court should not have entertained American’s contention that LMK was barred from recovery pursuant to Workers’ Compensation Law § 11. Those claims must be referred to the Workers’ Compensation Board for a determination as to whether the plaintiffs have a valid cause of action to recover no-fault benefits, or whether they are relegated to benefits under the Workers’ Compensation Law. And the Court agreed with the lower court that the medic al provider’s motion for summary judgment on the complaint, as the they failed to demonstrate, prima facie, their entitlement to judgment as a matter of law. Click here to read the full decision of the Court…

July 23, 2009 Supreme Court, Queens County
Imperial Structured Settlements v Angelillo
§ 11 Election of Remedies

The Court found that the proposed transfer of structured settlement payment rights from Vincent Daniel Angelillo to Imperial Structured Settlements is neither in Mr. Angelilli’s “best interest” nor that the rate is “fair and reasonable.”Title 17 of New York’s General Obligations law, known as The Structured Settlement Protection Act (SSPA) requires judicial approval before a plaintiff can sell their rights to future structured settlement payments to a third party. In addition, General Obligations Law §5-1706, states that the Court must make the following findings before a transfer can be effectuated. These are “that (a) the transfer complies with the requirements of this title; (b) the transfer is in the best interest of the payee, taking into account the welfare and support of the payee’s dependants; and whether the transaction, including the discount rate used to determine the gross advance amount and the fees and expenses used to determine the net advance amount, are fair and reasonable. Provided the court makes the findings as outlined in this subdivision, there is no requirement for the court to find that an applicant is suffering from a hardship to approve the transfer of structured settlement payments under this subdivision; (c) the payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received such advice or knowingly waived such advice in writing; (d) the transfer does not contravene any applicable statute or the order of any court or other government authority; and, (e) is written in plai/n language and in compliance with section 5-702 of this article.” Click here to read the full decision of the Court…

July 6, 2009 Civil Court Of The City Of New York, Richmond County

Lenox Hill Radiology v Global Liberty Ins. Co. of NY

Lennox Hill, as assignees of no-fault benefits (see Insurance Law § 5101, et seq.), brought this action to recover for health services rendered to the beneficiaries of the Global Liberty’s no-fault insurance contracts. Each assignor received medical treatment from Lennox Hill following separate automobile accidents. Unlike the majority of cases on the issue of WCL §11, election of remedies, in this case, Global failed to raise the defense that claimant is eligible for workers compensation or that workers compensation is primary in a timely denial, Lennox Hill is entitled to summary judgment that Global is the responsible party, although the matter proceeded to trial on the issue of medical necessity. Click here to read the full decision of the Court…

July 23, 2009 Appellate Division 3rd Judicial Department
Porcelli v Pma Assoc.
[ED.NOTE: A conclusion to this case has taken 11 years from the date of the claimant’s death.]

AFFIRMED the Board, which reversed the Law Judge, which precluded the written reports and testimony of claimant’s medical expert, resulting in the claim being disallowed.

Claimant’s husband (hereinafter decedent), employed as a printer for over 30 years, died in 1998 as a result of respiratory failure. Claimant applied for death benefits, claiming that the death was attributable to inhalation of toxic chemicals during the course of employment. Although a Law Judge determined, et alia, that decedent’s death resulted from an occupational disease and awarded claimant benefits, the Board found that claimant’s failure to timely furnish her medical expert’s original report to the Board and other parties pursuant to 12 NYCRR 300.2 (d) (12) required preclusion of the report as well as an addendum to the report and the expert’s hearing testimony. Thereupon, the Board found that claimant failed to establish a causal relationship between decedent’s death and his employment.

Here, the original report was not filed prior to the hearing where the claimant expert was to testify, the employer objected, and the matter was adjourned. On the new hearing date two months later, the report still had not been filed with the Board. Based upon claimant’s failure to file the report with the Board (i.e., furnish it to the WCLJ), as well as the uncertainty concerning whether the report was provided to all parties prior to the hearing, the record supports the Board’s conclusion to preclude the report. Without claimant’s expert proof, the Board’s determination that claimant failed to establish a causally-related death is supported by substantial evidence.

Prevailing parties represented by: David W. Faber of counsel to Edson & Kelly (Carle Place) for Fireman’s Fund Insurance Company, respondent; Patrick M. Conroy of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for EMR Systems and another, respondents; Louis R. Salvo of counsel to Weiss, Wexler & Wornow (New York City) for Hartford Excelsior Insurance, respondent. Click here to read the full decision of the Court…

July 9, 2009 Appellate Division 3rd Judicial Department
Chmura v T&j Painting Co., Inc.

RESCINDED the decision of the Board and the Law Judge by finding that Traveler’s Indemnity Company was not the liable workers’ compensation carrier.
The employer, a NJ corporation with its sole office located in NJ, maintains NJ compensation insurance through Travelers. Claimant fell while working as a painter for the employer in New York and filed a workers’ compensation claim in NY. The Board found that the work done by claimant in NY was temporary and, thus, covered under the employer’s insurance policy. While the Court agreed that the work was temporary, that conclusion does not end the inquiry; all conditions must be met for the policy’s endorsement to apply. Because the Board only addressed one condition before holding that Travelers was the proper carrier, The Court returned the case to the Board for it to determine whether all of the policy endorsement’s conditions were met, in particular a “limited other states insurance endorsement.” Some condition were listed in the Court’s decision: “the employee claiming benefits must have been hired in New Jersey; at the time of the injury the employee must have been principally employed in New Jersey; the employer must not be required by law to have separate workers’ compensation insurance coverage in the state where benefits are being sought; and the work being performed in the other state must be temporary.“ Prevailing party represented by: Beverly M. Barr of counsel to Reger, Rizzo & Darnall (White Plains) for Appellant. Travelers Indemnity Company. Click here to read the full decision of the Court…

July 7, 2009 Appellate Division 2nd Judicial Department
State Ins. Fund v American Hardware Mut. Ins

IN AFFIRMING the lower court, the Appellate Court found the SIF was corrected in demanding that American Hardware Mutual Ins Com (American), the carrier for the employer, had to pay their proportionate share of the settlement and defense costs incurred in an underlying action to recover damages for injuries sustained by its employee. American provided two insurance policies in effect at the time of the accident: a commercial general liability policy and a garage policy. Although the American initially defended the employer, SIF took over the defense after American disclaimed coverage on the ground that both policies excluded coverage for bodily injury to an employee arising out of and in the course of employment.

Since the disclaimer was based on policy exclusions, America was required to provide the employer with timely notice of its disclaimer under Insurance Law § 3420(d) but the Supreme Court properly found that the defendants’ disclaimer, issued more than four months after receiving notification of the third-party action, was untimely as a matter of law. In addition, the Court rejected American’s argument that the injury did not arise out of and in the course of employment. Prevailing party represented by: Donald S. Neumann of counsel to Montfort, Healy, McGuire & Salley, LLP (Garden City) for respondent. Click here to read the full decision of the Court...

July 2, 2009 Appellate Division 3rd Judicial Department
Torre v Logic Tech., Inc.

AFFIRMED the Board and the Law Judge decision that claimant’s injury arose out of and in the course of his employment and awarded workers’ compensation benefits. The Court noted that “The notice of appeal states that both the employer and its workers’ compensation carrier are appellants, but the employer opposed the carrier’s application for Board review below and has not submitted any brief on this appeal. As such, we deem the appeal to have been taken by the carrier alone.” Claimant, employed by a firm that performed on-site contracting work for G.E., suffered a spinal cord injury while participating in an exercise class at the G.E. Fitness Center during work hours. Although as a rule claims for injuries incurred during “voluntary participation in an off-duty athletic activity” are usually not accepted, this case was one of the exceptions. Claimant was both encouraged to join the gym, with the employer reimbursing the claim 50% of the fee, in order that the claimant develop contacts with current and prospective clients. Based on the substantial evidence offered, the Court affirmed the decision. Prevailing party represented by: John T. Dall Vechia of counsel to Dall Vechia & Kraft, L.L.P. (Kingston) for Frank P. Torre; David J. Wukitsch of counsel to McNamee, Lochner, Titus & Williams, P.C. (Albany) for Logic Technology, Inc.; and Iris Steel of counsel to Andrew M. Cuomo, Attorney General, New York City for the WCB. Click here to read the full decision of the Court…

Hassanein v Yankee Stop Corp.

AFFIRMED the Board and Law Judge who ruled that claimant was not an employee of Yankee Stop Corporation and denied his claim for workers’ compensation benefits. And this was after the Board had reopened the case, after the Judge’s first disallowance, to allow the introduction of new evidence by the claimant. The Court ruled, as often occurs in such cases, that “Whether an employer-employee relationship exists is a factual issue for the Board and its determination will be upheld if supported by substantial evidence.” The Court also ruled that “nothing in the record substantiates claimant’s assertion that the WCLJ who decided his case was biased against him.” Prevailing party represented by: Paul D. Jaffe, White Plains, for Yankee Stop Corporation, respondent. Click here to read the full decision of the Court…

Dory v New York State Elec. & Gas

AFFIRMED the Board and Law Judge’s decision that claimant did not knowing commit fraud when he denied that “he ‘engaged[d] in squat pressing’ as a follow-up question inquiring whether he lifted weights. He was not asked if he had ever used a squat press machine. In explaining his negative answer, claimant admitted that he had used the machine in question twice, at most, but did not know its actual name. Moreover, he stated that his conception of a squat press involved the use of free weights.” Accordingly the Board determined that claimant did not willfully misrepresent the facts. [Editor’s note: As Clinton said, “It depends on your definition of ‘is’”.] Prevailing party represented by: Mary Jo Long (Afton) for George M. Dory, respondent; Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the WCB. Click here to read the full decision of the Court…

Defayette v Verizon

AFFIRMED the Board’s decision not to reopen the case, “inasmuch as the additional evidence proferred by claimant was either available at the time of the prior determinations or failed to indicate a material change in his condition.” Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead, L.L.P. (Albany) for Verizon and another, respondents. Click here to read the full decision of the Court…

June 18, 2009 Appellate Division 3rd Judicial Department

Gardner v Nurzia Constr. Corp.

AFFIRMED the Board and Law Judge that claimant’s injury did not arise out of and in the course of his employment and (2) two decisions of the Board which denied claimant’s requests for reconsideration or full Board review. Claimant filed for benefits, alleging that he had fallen from a ladder sustaining disabling head injuries while working alone at the employer’s construction site. Finding claimant’s testimony incredible, the Law Judge disallowed his claim and the WCB affirmed. The Court disagreed with the claimant’s argument that the statutory presumption of WCL §21(1) that an unwitnessed accident at the time and place of employment arose out of that employment applies here. “Here, the central issue is whether an accident occurred at work. As this is a factual question for the Workers’ Compensation Board, its determination will not be disturbed if supported by substantial evidence.” The Court also noted, in detial, that the claimant presented no witnesses or evidence and, while the employer’s evidence largely consisted of hearsay, the WCLJ nonetheless rejected claimant’s account, deeming his alleged actions to be unusual, inconsistent and uncorroborated. Inasmuch as the Board had broad authority to credit the testimony of the employer’s witness and discredit claimant’s testimony and given that hearsay testimony was admissible in this proceeding, the Board properly found that claimant failed to establish that his injuries were sustained in the course of his employment. Further, in light of this, the Court could not agree with claimant that the Board’s denials of his applications for full Board review were arbitrary and capricious or an abuse of discretion. Prevailing Parties represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead, L.L.P.(Albany) for Nurzia Construction Corporation and another, respondents. Click here to read the full decision of the Court…

Baker v Horace Nye Home

Affirmed the Board’s decision which ruled that the employer is entitled to reimbursement for certain benefits paid to claimant. The self-insured employer and its third-party administrator did not dispute a WCB decision that claimant suffered a 17.5% schedule loss of use to her left foot, but did request reimbursement for wages paid to claimant while she was absent from work. Although otherwise satisfied with the Board’s proposed decision granting that request, the employer objected to language in the decision describing circumstances under which an employer would not be entitled to reimbursement, and asked that a hearing be held to resolve the matter; the Board declined to disturb that decision. Having successfully obtained the relief it sought “the employer requested and received reimbursement in the amount of $1,146.89” the employer is not an aggrieved party with standing to appeal the Board’s decision. Prevailing Parties represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the WCB, respondent. Click here to read the full decision of the Court..

Curley v Binghamton-Johnson City Joint Sewage Bd.

Affirms the Board’s two decisions which, among other things, granted the employer’s request for reimbursement. Although the employer received reimbursement from its third-party administrator, the Public Employers Risk Management Association, for the wages it had paid claimant during this period, the WCLJ determined that for the period during which the employer continued to pay claimant wages, it should be reimbursed, except for any wages paid “pursuant to a contract of employment, for the use of non-restorable leave credits.” Taking issue only with the language in the decision regarding claimant’s leave credits, the employer applied for Board review. The Board affirmed the WCLJ and later denied Full Bard Review. The court agreed with the WCB that the employer is not an aggrieved party and has no standing to appeal that decision. Prevailing Parties represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the WCB, respondent. Click here to read the full decision of the Court…

June 11, 2009 Appellate Division 3rd Judicial Department
Donovan v Boces Rockland County

Affirmed the Board which, among other things, rescinded a prior finding of a causally related left shoulder injury. Claimant filed a claim for workers’ compensation benefits asserting that she sustained a right shoulder injury when a student grabbed her. An MRI of her right shoulder revealed a rotator cuff tear, which was surgically repaired after which she was released to return to work but remained at her job less than a week. Thereafter, she continued to seek medical care for both shoulders and had surgery on the left shoulder and was also being treated for anxiety and depression. Her claim was eventually amended to include adjustment disorder with anxious and depressed mood and a left shoulder injury.

Both before and after the amendments, various hearings were conducted that included, among other things, claimant’s testimony and the viewing of a surveillance videotape of claimant, as well as depositions and reports of several physicians and psychologists. In June 2006, a WCLJ rendered a detailed determination that rejected the claim of a causally related psychological condition, found that the credible medical evidence established that the left shoulder surgery was necessary, and concluded that claimant voluntarily withdrew from the labor market in 2002. Awards included, among others, lost wages for 24.6 weeks as a consequence of the October 2003 surgery on the left shoulder.

The employer and its third-party administrator appealed seeking review of the lost wages award related to the left shoulder, arguing that such award was not proper in light of the determination that claimant had voluntarily withdrawn from the labor market before the surgery. After discussing at some length its review of the record, the Board stated that it was exercising its discretion pursuant to Workers’ Compensation Law § 123 and reversing the determination of a causally related injury to claimant’s left shoulder. It did so “without prejudice to the claimant producing contemporaneous medical evidence to document that such an injury actually occurred.”

As to the claimant’s argument that the Board erred in finding that she lacked credibility, the Court quoted precedent, “Upon our review of a Board decision, we will not disturb such if it is supported by substantial evidence, despite the existence of evidence that may have supported a different result“, citing specific examples in the Board’s decision. Prevailing Parties represented by Ralph E Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown), for Boces Rockland County and another, respondents. Click here to read the full decision of the Court…

Durkee v Renaud

Affirmed an order of the Supreme Court in Schenectady County, which, among other things, granted defendant’s motion for summary judgment dismissing the complaint. In 2003, the parties were both employed by Raymond Renaud, boss and president of Keystone Masonry & Remodeling, Inc. Plaintiff, employed as a mason, fell and injured himself. He thereafter collected workers’ compensation benefits and also commenced this negligence and Labor Law action. The Court agreed with the Supreme Court dismissal of the action on the grounds that it was barred by the exclusivity provisions of WCL§ 29 (6). Prevailing Parties represented by: Paul J. Campito of counsel to Flink Smith, L.L.C. (Lathami) for respondent. Click here to read the full decision of the Court…

Hopkins v Alcas Corp., Cutco Cutlery

Affirmed the Board that Zurich North America is responsible for claimant’s workers’ compensation benefits. Claimant was injured at work in June 2003 while pulling a brake lever on a machine. Although he immediately reported the injury to his supervisor, the incident was apparently not documented by the employer. Shortly thereafter, claimant presented to his primary care physician with complaints of shoulder and arm pain, but did not provide a history of the injury until January 2004, when the physician with whom he had been treating for continuing pain and numbness ordered him not to return to work and the appropriate forms were filed which identified Liberty Mutual Insurance Company as the workers’ compensation carrier. Based upon claimant’s testimony that the injury actually occurred in 2003, Liberty contested liability for the accident and requested that Zurich North America, the carrier which provided workers’ compensation coverage during 2003, be placed on notice.The WCLJ ultimately concluded that Liberty remained the proper carrier and set the date of accident as January 21, 2004, finding that Liberty was estopped from denying payment on the claim because it had been paying for two years and had shown no new evidence, and determined that claimant’s injury gradually accrued over a reasonably definite period after the 2003 work accident. Upon review, the Workers’ Compensation Board reversed, finding that the doctrine of laches did not preclude Liberty from disputing coverage and there was substantial evidence that claimant’s injury occurred in June 2003 during Zurich’s period of coverage. The Court found that Liberty’s delay in contesting coverage was both explained and reasonable. In any event, even assuming an inexcusable delay, we find substantial evidence [listed in the decision] to support the Board’s determination that Zurich failed to demonstrate that it suffered actual prejudice as a result.

Zurich also asserted that Liberty is the proper carrier because claimant’s injury gradually occurred over a period of months. Here, claimant consistently maintained, both in his reports to his various treating physicians and his testimony at the hearings, that when he reached forward to apply a brake lever in the summer of 2003 he heard a “pop” and suffered immediate pain in his shoulder/back. Given the wide latitude afforded to the Board in resolving factual questions such as this, we are satisfied that substantial evidence supports its determination that the occurrence of claimant’s compensable injury was sudden, rather than gradual. Prevailing Parties represented: Jared L. Garlipp of counsel to Williams & Williams (Buffalo) for Liberty Insurance Company, respondent. Click here to read the full decision of the Court…

Manticoff v American Bldg. Maintenance

Affirmed the Board’s decision that the doctrine of laches was not applicable against Reliance National Indemnity Company. Claimant, in June 2000 lifting heavy boxes, had a C-2 form was filed by his employer indicating RSKCo as the employer’s workers’ comp carrier. The WCB indexed the case, serving notice on Reliance National Indemnity Company identifying it as the carrier on the claim instead of RSKCo. In July and August 2000, RSKCo filed multiple forms including a C-7 form indicating that claimant was not entitled to compensation under the policy. Despite these filings on this claim, the Board continued to notice Reliance, rather than RSKCo, as the carrier responsible for covering the claim and, on October 17, 2000, provided Reliance, and not RSKCo, with notice of a hearing scheduled for November 15, 2000.At tis hearing Reliance raised all issues but the WCLJ directed Reliance to pay benefits. At the same time, RSKCo, unaware of what transpired, continued to file monthly requests with the Board for a priority hearing on the medical claims it was receiving for claimant. In January 2002, Reliance and claimant appeared before the WCLJ and again discussed coverage issues. At that time, the WCLJ agreed with Reliance that RSKCo should be given notice of the proceedings and RSKCo was notified to appear with its file on March 4, 2002. RSKCo filed an appeal from the WCLJ’s decision, asserting that Reliance should be barred by laches from denying coverage, a position with which the WCLJ and a Board Panel ultimately agreed. But a Full Board review ultimately reversed this position, finding that RSKCo, and not Reliance, was the proper carrier.

In fact, it is uncontroverted that Reliance was only involved in this claim due to an administrative error by the Board in which it served notice on Reliance regarding the claim. Moreover, Reliance denied coverage of the claim when it first appeared on the matter at the initial November 2000 hearing. At the same time, RSKCo received the initial notice of the claim and, throughout this process, never denied its status as insurer, but instead, filed numerous forms that, in effect, claimed that it was not responsible for payment of claimant’s medical treatment under the policy. Therefore, the Board’s determination that there was no inexcusable delay by Reliance upon which the doctrine of laches would apply was supported by substantial evidence. Prevailing Parties represented by: Patrick M. Conroy of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Reliance National Indemnity Company, respondent. Click here to read the full decision of the Court..

VanWinkle v Harden Furniture

Affirmed the Board’s decision that claimant did not voluntarily withdraw from the labor market. Claimant after sustaining a work-related injury in October 2004, returned to work in January 2005 with the restriction that she not lift anything over 10 pounds. Claimant continued her employment under that restriction until the summer of 2005 when she requested a transfer to a less physically demanding office position. After being informed that such positions were not available, claimant resigned and obtained employment with lower pay but less strenuous physical requirements, thus earning a temporary award of reduced earnings. The employer challenged the award, raising the issue of whether claimant voluntarily withdrew from the labor market as a result of her resignation to pursue other employment. The WCLJ found that claimant did not voluntarily remove herself from the labor market and the WCB affirmed.

The Court determine that “Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve and, if supported by substantial evidence in the record, the Board’s resolution of that issue will not be disturbed. Inasmuch as the record supports a finding that claimant’s back injury motivated her to resign and seek new employment, we decline to disturb the Board’s decision.” Prevailing Parties represented by: William W. Crossett IV of counsel to Meggesto, Crossett & Valerino (Syracuse) for Melissa VanWinkle, respondent and Iris Steel of counsel to Andrew M. Cuomo, Attorney General, New York City for Workers’ Compensation Board, respondent. Click here to read the full decision of the Court…

May 28, 2009 Appellate Division 3rd Judicial Department
Renteria v Santino’s Café

AFFIRMED the Board and Law Judge that the claimant exacerbated an earlier injury rather than suffering a new one and did not voluntarily withdraw from the labor market. Claimant, a chef, sustained a work-related back injury in May 2007 and did not return to work. Five months later, worsening pain prompted him to seek medical attention at an emergency room. Inasmuch as a report completed at the time of his examination included a notation that claimant “twisted his back again,” the carrier asserted that he had suffered a new accident /injury unrelated to his employment, and had also voluntarily withdrawn from the labor market as his physician authorized his return to light duty work as of July 24, 2007. The Board and the Court were satisfied when the claimant testified that his efforts to find work were unsuccessful because prospective employers were hesitant to give him a job until he was “fully cleared to work” even though his efforts were limited to employment in the restaurant industry inasmuch as the 34-year-old claimant had been working in restaurants for the previous 15 years. The Board’s determination that claimant exacerbated an existing injury, rather than a new accident, is similarly supported by substantial evidence. Given the Board’s exclusive authority to evaluate if witness credibility and witness testimony are worthy of belief, the Court declined to disturb its decision. Prevailing Parties represented by: Karen Arndt of counsel to Buckley, Mendleson, Criscione & Quinn, (Albany) for Jose M. Renteria, respondent and Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full decision of the Court…

May 19, 2009 Supreme Court, New York County
Lovell Safety Management v Cardinal Tank

Ordered that the Plaintiff motion to dismiss the counterclaim against it is granted. In the underlying action, Lovell sought to recover group manager’s fees allegedly owed to it by Cardinal who then countersued seeking indemnification for what they claim were inflated premiums paid to NYSIF and a number of other related issues regarding premiums paid by Cardinal to NYSIF through the safety group managed by Lovell. In favoring Lovell, the Court ruled that some of Cardinal’s allegations were speculative, failed to properly address the issues at hand, and in general failed to present any evidence in support of it claim. The inference is that, had Cardinal better prepared its case at the administrative appeals level, it may have received a better reception, although not necessarily a better result, from the Court. Click here to read the full decision of the Court…

May 21, 2009 Appellate Division 3rd Judicial Department
Hanna v Able Body Labor

AFFIRMED the Board, who reversed the Law Judge, which ruled the death of claimant’s decedent was not causally related to his employment. Not having been seen for 30 minutes, coworkers found the decedent unresponsive and not breathing. He died shortly thereafter. Both the autopsy report and the death certificate list the cause of death as cardiac arrhythmia due to atherosclerotic coronary artery disease. Following a hearing at which the employer failed to appear, a Law Judge found that decedent’s death was unwitnessed and that the presumption contained in WCL §21(1) applied. Upon review, the Board reversed and disallowed the claim. Although a presumption of compensability exists when an unwitnessed or unexplained death occurs during the course of the decedent’s employment, the presumption may be rebutted by substantial evidence to the contrary. The Court agreed with the Board that “the autopsy report and death certificate indicate that decedent’s death was caused by factors unrelated to his work and, thus, the Board could determine that the presumption of compensability had been overcome.” The Court also denied the claimant’s request to submit further proof that decedent’s death was work related given her failure to request such relief before the Board. Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for Able Body Labor and another, respondents. Click here to read the full decision of the Court…TS

EDITOR’S NOTES: This is the third case this year in which the Board, after reversing the Law Judge on the issue of an unwitnessed death, disallowed the claim and was affirmed by the Appellate Court. See Ruper v Transport System (January 9, 2009) and Wheeler v Mail Contractors of America (March 26, 2009) further down this page

Govan v New York City Health & Hosps. Corp.

AFFIRMED the Board that the pro-se claimant had sustained a permanent partial disability. The Law Judge also ordered the self-insured employer to withhold $2,800 pending a determination on the issue of counsel fees. On appeal, the Board affirmed the finding of a permanent partial disability but did not consider the issue of counsel. Claimant appealed seeking a permanent total disability and payment of the fees. The Court affirmed the level of disability, “Substantial evidence supports the Board’s finding that claimant was properly classified as permanently partially disabled, as opposed to permanently totally disabled.” and because no other medical expert testified that claimant, as of the hearing, was permanently totally disabled. The appeal on the legal issue was denied as there is no indication that the Board itself has yet rendered any decision or that claimant timely filed a notice of appeal from any such Board decision. Prevailing party represented by: Marta Ross of counsel to Michael A. Cardozo, Corporation Counsel, New York City for New York City Health and Hospitals Corporation, respondent. Click here to read the full decision of the Court…TS

May 14, 2009 Appellate Division 3rd Judicial Department

Bowersox v Prime Time Express, Inc.

AFFIRMED the Board’s decision to deny claimant’s application for review and then the claimant’s request for full Board review. In October 2005, a Law Judge awarded benefits. By letter dated November 22, 2005, claimant’s attorney advised the Board of claimant’s desire to appeal this decision. The Board then advised claimant that the application for review failed to comply with 12 NYCRR 300.13 and that the application may be denied if claimant failed to submit the prescribed cover sheet indicating proper service to all parties within 30 days. Although claimant provided a cover sheet to the Board on December 19, 2005, he failed to indicate proper proof of service upon all interested parties. The Board denied claimant’s request to review citing 12 NYCRR 300.13 (a). Claimant thereafter sought full Board review, which was denied. In its response to the claimant’s appeal, the Court wrote that they were unable to conclude that the Board abused its discretion in denying review of claimant’s application claimant’s or subsequent application for full Board review. Prevailing party represented by: Kevin R. Doering of counsel to Hamberger & Weiss (Buffalo) for Prime Time Express, Inc. and another, respondents. Click here to read the full decision of the Court…

May 14, 2009 Appellate Division 3rd Judicial Department
Miraglia v H & L Holding Corp.

AFFIRMED the 2007 decision of the Bronx County Supreme Court awarding plaintiff damages against both defendant (H&L Holding) and third-party defendant (Lane & Sons) in the principal amount of $18 Million on the basis that the defendants failed to timely raise the defense of exclusivity under WCL. After the 2007 decision, the 3rd party defendant asserted for the first time that since it was plaintiff’s employer, the court could not enter a judgment in which plaintiff was granted a right to recover directly against it because the worker’s compensation paid to plaintiff was his exclusive remedy. The first judgment, affirmed in the 2007 appeal also provided plaintiff with a direct recovery against third-party defendant, which failed to raise any objection based on worker’s compensation exclusivity at that time. A defense of worker’s compensation exclusivity is waived if the employer ignores the issue “to the point of final disposition itself” especially where belated assertion of the defense will prejudice the party opposing the assertion. Here, the 3rd party defendant fail to raise this objection to the judgment on the 2007 appeal but it committed a number of other procedural errors.[To now allow this defense] is unacceptable. Worker’s compensation exclusivity is important as a matter of state public policy, but so is the finality of the result when a party charts its own course. Prevailing party represented by: Brian J. Isaac of counsel to Pollack, Pollack, Isaac & DeCicco (New York) for Frank Miraglia, respondent-appellant. Click here to read the full decision of the Court…

May 7, 2009 Appellate Division 3rd Judicial Department

Lynch v Buffalo Bills v Special Funds

AFFIRMED that Board and Law Judge that liability under WCL §25-a did shift to the Special Fund for Reopened Cases but REVERSED so much thereof as directed payment of reduced earning benefits by the self-insured employer. Claimant was classified with a permanent partial disability in 1984 and all payments stopped on September 24, 2001 due to new and higher earnings, with the case being formally closed July 11, 2002. On April 27, 2005, the Self-Insured employer (SIE) sought §25-a relief which as granted, transferring liability to the Fund effective September 24, 2009, three years after the formal closing. The real issue arose when prior to the hearing transferring §25-a liability, the claimant filed for reduced earnings for January 1, 2003 to January 1, 2006. The Board bifurcated the new claim for reduced earnings. But the Court ruled that “claimant’s recovery was limited to payment by the Special Fund for the two-year period prior to the April 27, 2005 application“. Prevailing party represented by: Jill B. Waldman of counsel to Steven M. Licht, Special Funds Conservation Committee, appellant. [EDITOR NOTES: (1) The date of the application by the claimant to reopen and the specific periods of reimbursement supported by the Board Panel decision were omitted in the Appellate Court decision. (2) This a case in which the WCB will in its annual report count this decision as a MODIFICATION and not a REVERSAL, (3) Because the finding of §25-a liability was so clear, I do not consider this the real issue for which reason I consider the only prevailing argument that presented by Ms Waldman.] Click here to read the full decision of the Court…

May 5, 2009 Court of Appeals

Passante v Agway Consumer Prods., Inc.

MODIFIED with a DISSENT the cause of action for failure of the manufacturer and installer of the equipment to properly warn a user of the equipment who was injured should be reinstated. Claimant was injured when a device used to connect a loading dock with the back of a truck making deliveries fell while the claimant was standing on it, causing an injury. The claimant sued his employer (Agway), the manufacturer of the ‘bridge’ (Rite-Hite Corporation) and the firm which sold and then installed the device (Mullen Industrial Handling Corp.). In its summary, the Court of Appeals wrote, “on this record, we cannot conclude as a matter of law that Passante was fully aware of the danger of standing on the dock leveler lip /after/ it had engaged the trailer bed, or that site-of-operation warnings of the type recommended by the industrial engineer would have been superfluous. ‘[I]n cases where reasonable minds might disagree as to the extent of plaintiff’s knowledge of the hazard, the question is one for the jury.’”

What is interesting is that the Majority stated “Mullen and Rite-Hite rely on our decision in the Matter of Scarangella v Thomas Built Buses, Inc./ (93 NY2d 655 [1999])” in reversing the decision whereas the Dissenting Justice wrote “[I] think both the majority’s holdings are wrong. But the more troubling of the two is the evisceration of Scarangella, which I fear will have real economic consequences. The predictability that was offered until today to manufacturers and distributors of equipment in this State is gone, and the result can only be an increase in cost: in the cost of liability insurance, and in the cost of safety features that buyers will no longer have the option to refuse. In much of this State, our economy struggles in the best of times, and these are not the best of times. Decisions like today’s can only make things worse.” You can find all the details in this 12 page decision by clicking here....

May 5 , 2009 Appellate Division 1st Judicial Department

AIU Insurance Company v Nationwide Mutual Insurance Company

The Supreme Court ruled that the parties have an equal obligation to indemnify their mutual insured in the underlying action. The underlying action giving rise to the coverage claims in this action involved a fatal accident at a construction site. Under a so-called wrap-up insurance policy, plaintiff insured both the owner of the site and the subcontractor that employed the decedent; defendant also insured the employer under a workers’ compensation policy that provided coverage for damages claimed by a “third party as a result of injury to your employee.” After the decedent’s wife was granted summary judgment against the owner on the issue of liability, plaintiff caused the owner to commence a third-party action against the employer, but plaintiff settled the main action after a trial on damages was held, and the employer was not involved in either the trial or the subsequent settlement. There is no merit to plaintiff’s present claim that, because the employer was the only possible active tortfeasor, defendant is obligated to reimburse it for half of the settlement. Although the third-party action did not go forward after the settlement of the main action, the anti-subrogation rule would have required its dismissal, and thus any attempt by plaintiff, having paid the settlement, to obtain reimbursement from a co-insurer must fail. Click here to read the full decision of the Court..

April 30, 2009 Appellate Division 1std Judicial Department

Rathbun v D’Ella Pontiac & SFCC

REVERSED both the Board and the Law Judge by finding that the case had been closed and that WCL §25a did apply. In February 2000, the carrier accepted a claim and approved payments for medical treatment for Carpel Tunnel Syndrome. In 2003 the carrier agreed to her doctor’s request for surgery but claimant decided not to undergo surgery. In October 2006, despite not having missed any work, the claimant decided to have the surgery done. This time the carrier denied authorization, concluding that the case fell within WCL §25-a: liability for medical treatment shifting to the Special Fund. The WCLJ determined, and the Board affirmed, that § 25-a was inapplicable. The Court determined that “Here, there is no evidence to support the Board’s finding that further proceedings were contemplated once authorization for the surgical procedure was given in July 2003. While it is true that claimant’s medical condition remained uncertain and unresolved throughout this period, we note that she continued to work, no payments of compensation were made and no evidence exists that other issues remained outstanding and required action either by the carrier or the Board. In such a circumstance, a finding that a case has been truly closed can be made ‘where symptomatic medical treatment is authorized, even if the claimant’s condition may change or worsen in the future’ and could bring about a reopening of the case. When the carrier authorized payment for the surgical procedure 2003, all that remained to be resolved was whether claimant herself would decide to undergo this surgical procedure. No action by the Board was contemplated or required and the claim, as a result, was truly closed.” Prevailing party represented by: Nancy E. Wood of counsel to Gregory J. Allen, State Insurance Fund for appellants. Click here to read the full decision of the Court…

Nkrumah v Thomas v UEF

AFFIRMED the Board’s ruling that an employer-employee relationship existed between claimant and Venesen Dispatch Company. Claimant was injured while driving a passenger for hire in a vehicle with NYC Taxi and Limousine Commission (hereinafter TLC) license plates registered to Venesen. Claimant leased the vehicle from Venesen and had a hack license. Although he and Venesen were only authorized to pick up passengers by prearrangement through a licensed radio base, the vehicle did not have a dispatch radio and claimant picked up passengers through street hails. Because Venesen did not carry WC insurance, the Uninsured Employers’ Fund (hereinafter UEF) would be responsible per WCL §26-a [1] [a]). The Board’s determination that Venesen and claimant had an employer-employee relationship is supported by substantial evidence. Also, UEF asserted that claimant engaged in illegal activity by picking up street hails, thus removing his actions from the scope of his employment. The Board determined that, because the vehicle was without a dispatch radio and claimant testified that his employer expected him to pick up street hails, Venesen was aware of, and either tolerated or outright encouraged, violation of TLC rules. The Court finished its decision writing, “Under the circumstances, we find disingenuous any argument on behalf of the employer that claimant’s conduct should be considered outside the scope of employment and preclude him from receiving workers’ compensation benefits.” Prevailing party represented by: Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full decision of the Court…

Metal Goods Mfg Insurance Trust Fund V Advent Tool & Mold, Inc., et al
April 24, 2009 Appellate Division 4th Judicial Department

AFFIRMED that the Board could not hold the members of a self-insured trust liable for assessments made due to any deficiencies in the plan. On January 15, 2009 in the Matter of Held v New York State Workers’ Compensation Bd.(2009 NY Slip Op 00159 [58 AD3d 971]), attempts by the Board to collect additional assessments were denied, although the grounds in the Matter of Held were different. The reason behind the decision in the Appellate Courts affirmance of the Erie County Supreme Court in the Matter of Metal Goods can be found by Clicking here to read the full decision of the Court… For the full decision on the Matter of Held v New York State Workers’ Compensation Bd, click here ….

April 21, 2009 Appellate Division 2nd Judicial Department

Turner v Irving Finkelstein & Meirowitz, LLP

The court dismissed an action by a pro-se claimant to recover damages, inter alia, for legal malpractice. The plaintiff’s workers compensation claim based on an assault by a coworker was was disallowed, the Board affirmed that decision, and Full Board Review was denied. No later than May 2002, the defendant informed the plaintiff that its representation was complete. It also advised him of his right to appeal the Board’s decision to the Appellate Division, and referred him to an attorney who might have been able to represent him on the appeal. The plaintiff, pro se, unsuccessfully pursued an appeal of the denial of his Workers’ Compensation claim to the Appellate Division. In November 2006, the plaintiff, pro se, commenced the instant action, alleging that, after he was denied Full Board Review, the defendant failed to advise him of “any other legal remedies” relating to the workplace incident. The defendant moved to dismiss and the Court agreed, that pursuant to CPLR 3211(a)(1) dismissal is warranted if documentary evidence conclusively establishes a defense as a matter of law. Here, the defendant submitted the parties’ retainer agreement, which clearly stated that its representation was limited to the proceeding before the Board. Prevailing party represented by: Jonathan B. Bruno and Bain R. Loucks of counsel to Kaufman Borgeest & Ryan LLP (New York) for respondent Click here to read the full decision of the Court…

April 23, 2009 Appellate Division 3rd Judicial Department

Andryshak v Town of Goshen

Affirmed the Board and the Law Judge which found that because the claimant had no compensable lost time from work, the claim could be transferred to the Special Fund for Reopened Cases (SFCC) pursuant to WCL §25-a. Claimant suffered a work-related injury in 1987 and 2003, receiving benefits in both. Finding that claimant had no compensable lost time on the 1987 claim from December 2006 to May 2007 and on the 2003 claim from March 2003 to May 2007, the WCLJ transferred the claim under WCL §25a and the Board affirmed. From at least 2003 forward, claimant was an elected town highway superintendent, testifying that he did not go into work on some days due to his injuries but that he had no regular work hours, continued to be paid his salary, and did not use any annual or sick leave as a result of his. Given the lack of proof that “the employer paid for something [it] did not get in the way of service,” the Board’s finding that claimant had no compensable lost time during the periods at issue was supported by substantial evidence. The SFCC’s appeal on a second issue was denied as it never sought review by the Board on that issue. The prevailing party represented by: Sean J. McKinley of counsel to Vecchione, Vecchione & Connors (Williston Park) for Town of Goshen, respondent. Click here to read the full decision of the Court…

Littles v NYS Dept. of Corrections

AFFIRMED the Board, who reversed the Law Judge, which ruled that claimant did not sustain an accidental injury arising out of and in the course of her employment. While en route to her job at a prison, claimant was injured when she was involved in an automobile accident approximately 10 feet from the entrance to the facility. She had not yet reached the entrance gate. After the WCLJ established the claim, the Board reversed finding that while the street where the accident occurred was in close proximity to the employer’s premises, no evidence was provided to show that the street was closed to the public or otherwise controlled by the employer, that workers were encouraged to use it or that it existed solely to provide access to the prison, nor that there was a risk related to a special hazard connected to claimant’s employment as opposed to a risk shared by the general public. The prevailing party represented by: Jeremy B. Davis of counsel to Gregory J. Allen, State Insurance Fund for NYS Dept. Of Corrections and another, respondents. Click here to read the full decision of the Court…

April 16, 2009 Appellate Division 3rd Judicial Department

Ogbuagu v Ngbadi v Uninsured Employers Fund

APPEAL DISMISSED. Claimant filed a claim alleging that he sustained personal injuries during the course of his employment as a driver for Sophisticated Express Service (SES). The Law Judge disallowed the claim on the ground that claimant was not an employee of SES at the time of the accident. The Board reversed, finding that a statutory employer-employee relationship existed and restored claimant’s case to the calendar for further development of the record on all outstanding issues, including accident, notice and causal relationship. The UEF then appealed. The Court ruled that, “Inasmuch as the Board’s decision herein regarding the employer-employee relationship is interlocutory in nature and does not dispose of all substantive issues nor reach legal threshold issues that may be determinative of the claim, that decision is not the proper subject of an appeal.” The prevailing party: Iris Steel of counsel to Andrew M. Cuomo, Attorney General, New York City for WCB, respondent. Click here to read the full decision of the Court…

State Ins. Fund v Hallmark Operating, Inc.

REVERSED the Supreme Court on a case in which the WCB was not a direct party but was generated by a Board decision on a consequential death claim. An employee suffered an injury in 1996 and subsequently died in 2000 as a result of the 1996 injury. The employer had a policy in 1996 that was a retrospective rating plan (RRP) for which the rates were based on actual retroactive costs. In 2o00, they changed to a guaranteed cost plan (GCP) which was a fixed rate regardless of experience. The issue was whether or not the costs relating to the death case could be retroactively billed under RRP as part f the 1996 claim or under already covered in the premium under the GCP which was in effect at the time of death. While the WCB always consider these as two separate claims with two separate dates (per §15 and WCL §16), the Court ruled the death benefits claim was payable under the RRP policy. In a four-page decision, the Court ruled, in summary that “the character of the administrative proceedings does not define the contractual relationship between the insured and insurer under a workers’ compensation insurance policy. . . . the 1996 accident date was the actual date of loss for both the original injury and the causally related death.” The prevailing party: Jan Ira Gellis of counsel to Gregory J. Allen, State Insurance Fund (NYC), appellant. Click here to read the full decision of the Court…

April 9, 2009 Appellate Division 3rd Judicial Department

Torrance v Loretto Rest Nursing Home

AFFIRMED the Board, who reversed the Law Judge (WCLJ), which ruled that claimant’s discharge was not in violation of Workers’ Compensation Law § 120. Claimant who had an established workers comp claim was a member of the New York Health and Human Service Union, 1199 SEIU, AFL-CIO and was subject to its collective bargaining agreement with Loretto. While receiving partial disability benefits, claimant secured a light duty position with another company. When the income from her light duty position was taken into account, she received an additional reduced earnings award.
After Loretto learned of claimant’s light duty position, it terminated her employment in accordance with the terms of the collective bargaining agreement. In response, claimant filed a discrimination claim pursuant to WCL §120. The WCLJ found discrimination and directed reinstatement. The Board, however, reversed this decision and claimant appealed. In this case, claimant had not demonstrated discharge in retaliation for filing a claim for benefits. Rather, the discharge was necessitated by the provision of the collective bargaining agreement, to which Loretto was contractually bound, requiring the termination of employees who work for another employer while on an authorized leave of absence. Here, the collective bargaining agreement provision at issue provided a reasonable basis for claimant to refuse the light duty position with the other employer. Prevailing party represented by: Patrick V. Melfi of counsel to Bond, Schoeneck & King (Syracuse) for Loretto Rest Nursing Home, respondent. Click here to read the full decision of the Court..

McHugh v Daily Freeman

AFFIRMED the Board which ruled that the employer’s carrier may be entitled to future reimbursement from the Special Disability Fund pursuant to WCL§14(6) and §15(8)(l) and from a January 26, 2007 decision, which, among other things, directed the parties to submit further medical evidence. Claimant who suffered work-related injuries and began receiving workers’ compensation benefits had a second job at the time of his injury and benefits were increased as a result. Carrier sought reimbursement for those additional benefits from the Fund. The WCLJ denied that application, noting that the carrier had failed to file a necessary form with the Board prior to requesting reimbursement, after which the carrier appealed and filed the required form. The Board affirmed the WCLJ’s decision, but noted that the carrier would be entitled to reimbursement on any subsequent concurrent award given the belated filing of the form. The Fund appealed from that decision as well as from a WCLJ’s January 26, 2007 decision. As to the Fund’s appeal from the January 26, 2007 decision, the Fund failed to seek Board review of that decision and the appeal therefrom must also be dismissed. As both appeals are dismissed, the Court stated it need not reach the merits of the Special Disability Fund’s underlying claims. Prevailing party represented by: Nancy E. Wood of counsel to Gregory J. Allen, State Insurance Fund (Albany) for Daily Freeman and another, respondents Click here to read the full decision of the Court..

Neville v Magazine Distribs., Inc.

AFFIRMED the Board which ruled that claimant’s application for workers’ compensation benefits was barred by WCL §28. The claimant asserted that his disabling membranous nephropathy was an occupational disease caused by exposure to chemicals at his workplace. At the conclusion of his direct examination before a WCLJ, however, his counsel conceded that the claim was for an accident rather than an occupational disease and that the date of the accident was more than two years prior to the filing of the claim. Accordingly, the Board found that claimant had sustained an accidental injury and that his claim was untimely under §28 because he did not assert it until more than two years after the accident. On appeal, the claimant contended that the employer waived the defense of untimeliness by not specifically raising it at the first hearing and that, in any event, the tolling provision for occupational diseases in §28 should be applied to his injury. As the employer’s counsel stated at the first hearing that it was raising “all . . . issues” in the C7 form which included a reference to §28, the Court agreed that the timeliness objection was not waived. Inasmuch as the parties then discussed the threshold issue of whether claimant had an occupational disease, the Board rationally concluded that “all issues” included the timeliness of a claim filed in November 2006 for an accidental injury allegedly sustained no later than August 2004. As to the claimant’s argument regarding tolling the provisions of §28 for accidental exposure to hazardous materials, it was never raised before the WCLJ or the Board and is unpreserved for the Court’s review. Prevailing party represented by: Daniel L. Millman of counsel to Goldstein & Avrutine (Syosset) for Magazine Distributors, Inc. and another, respondents. Click here to read the full decision of the Court..

The NEWSWIRE Index

Below is an index of all the NEWSWIRE postings since this page was first started though those posted September 18, 2009.

It is broken down into five categories within which it is index by date, the most recent at the top. By clicking on the appropriate article, the link will take you back to the NEWSWIRE page but to the specific articles in which you have an interest. As you can see by reading the NEWSWIRE page itself, the articles are listed in the order in which they were posted, the most recent at the top, the oldest at the bottom.

▼ BOARD STAFF & PERSONNEL ▼

10/09/09 Exec. Dir. Pennisi Resigns 10/08/09 WCB’s Executive Staff Changes 09/09/09 New Commissioner, at last (Lower) 09/09/09 No Retirement Party, Again! 07/16/09 New NYSWCB Commissioner still pending 07/17/09 Commissioner Scott Firestone Resigns 07/17/09 Resignation of Weiss & Firestone = 2 less Attorneys = Chaos?? 07/01/09 Beloten Is New WCB Chairman 06/01/09 My Open Letter to the Chairman 06/01/09 I Defend the WCB’s Chairman & IG 06/03/09 Governor’s New Appointee on the Fast Track 06/03/09 Board Has New Medical Director 05/28/09 Another Nominee to the WC Board [Conrad Lower] 05/28/09 Up-Date: Commissioner Bios 05/21/09 New Commissioners Finally Approved 05/21/09 Commissioners’ Biographies 05/14/09 Former WCB Employee Agrees to Pay $3,000 Fine 05/07/09 UPDATE ON NEW COMMISSIONERS: 05/07/09 Commissioner Edel Groski Leaving the Board 05/01/09 Patterson Nominates Two New Commissioners [Beloten, Foster-Tolbert] 04/22/09 Commissioner Karl Henry to Retire 04/23/09 New Commissioner(s) 03/18/09 The Board does have new Law Judges 03/14/09 No More District Administrators 03/14/09 A New Law Judge! (☹W/corrections) 02/19/09 A 100% Salary increase at the WCB by Patterson?!? 01/22/09 Former Commissioner McManus to Speak 01/16/09 Berns to Speak January 31 at The Injured Workers Bar Association Meeting 01/09/09 New Commissioners [Higgins, Chapey,McCandless] ► Back to the NEWSWIRE ◄

▼ BOARD ADMINISTRATION & PRACTICES ▼

10/08/09 PROJECT 2015 Still Lives per WCB Memos 10/08/09 Electronic Transcription DOA 09/09/09 Senate Labor Hearings on Transcription 07/22/09 NYS WCBs enforcement Efforts Applauded 07/22/09 New State by State WC Report Cards Released NYS Get an “F” 07/30/09 The Big Boss Syndrome 06/01/09 Without good reason, NYSWCB closes Rockland office 06/30/09 9/11 Worker Protection Task Force Issues 2009 Annual Report 06/01/09 WCB Enforcement program: Useful or Abusive 04/16/09 WCB Has no response to the NY Times 04/14/09 The WCB Formally Defines Independent Contract 04/09/09 Gov Patterson: WCB Must Cut 92 Jobs 04/09/09 Do Those 92 Jobs Belong to the Reporters? 04/02/09 The New York Times Articles 04/02/09 Our Current Poll on §32’s 03/25/09 The Board has a new Database 02/26/09 Rocket Docket Fizzles a Little 02/19/09 The New York Times Article on the WCB 02/13/09 Tip of the Hat 02/13/09 Olean’s District Office to Close ► Back to the NEWSWIRE ◄

▼ NYSIF, NYCIRB, DEPT OF INSURANCE ▼

08/28/09 NYSIF Declares First Year of eCHECK a Success! 09/01/09 New Head for NY Liquidation Bureau 08/05/09 NYSIF CEO Wrynn Moving On? 07/27/09 Brooks Named to Head Key Committee by the NAIC 06/30/09 SIF has new Deputy Exec Director 05/28/09 State Insurance Commissioner Dinallo Resigns 04/29/09 NYSIF Choses New Executive Director 03/12/09 SIF Chairman Defends His Agency 03/04/09 State’s IG investigates SIF’s patronage jobs ► Back to the NEWSWIRE ◄

▼ LEGAL ISSUES & LEGISLATION ▼

09/26/09 New Medicare Offset Guide 09/24/09 Win Workers Comp and then Win under ADA 09/24/09 Exotic dancers: employees, not independent contractors 09/24/09 VA Drops Facebook Fine in Workers Comp Case 09/21/09 Daycare Worker: Get Flu shot or you’re Fired 09/17/09 H1N1 Pandemic : Compensable? 09/17/09 Weight Loss surgery covered by WC 09/11/09 Upcoming Appellate Court Decisions 08/27/09 Paterson Signs The LaCroix Bill 08/28/09 The book “Liens & Subrogation” and Medicare 08/18/09 The NYS Comp Alliance Pushes the LaCroix Bill 08/12/09 Firefighter’s Widow Finally Wins her Death Claim 08/05/09 No-work state worker wins hearing 08/04/09 Independent Contractor Issue Heats Up 07/31/09 3rd Circuit Upholds Bar to Litigation Over Litigation 07/31/09 Delphi deal OK’d by court 07/10/09 Ronald Balter Commentary on Chmura v T&j Painting Co., Inc. 07/02/09 GM Bankruptcy: So Where’s NY State? 05/28/09 FUBAR: The NewMedicare Offsets Rules 05/22/09 A “Motion” is in Motion on FBR’s 05/06/09 Chrysler/Sedgewick Stops Comp Payments to Injured Workers 04/21/09 Why Claimant Attorneys appeal losing cases 04/22/09 Retroactive ATF Deposits are Legal 04/16/09 “Minimum work” Judge Censured 04/16/09 Carriers face $1000 per diem penalty on WC/Medicare 04/15/09 Bar Group Creates Model Code for NY’s Administrative Law Judges 04/09/09 ATF Case Sent Back To The Board 04/01/09 National Workers Comp and Illegal Aliens 04/02/09 Skydiving and Comp Awards 03/26/09 Will a §25-a Case go to the Court of Appeals? 03/25/09 Value of Structured Settlements Jumps by 25% 03/18/09 Autopsy Barred in Asbestos Death Claim 03/17/09 Did the Board secretly define an Independent Contractor? 02/26/09 Workers moving from Jones Act to Workers Comp 02/13/09 Chief Judge Nominee Lippman and Workers Comp cases 02/05/09 Will the Feds Define Independent Contractors for Comp Insurance 01/29/09 Spelling Errors 01/22/09 A Black Car Fund for Truck Drivers? ► Back to the NEWSWIRE ◄

▼ RATES & COSTS ▼

10/15/09 NYCIRB Analysis: COLA Increase in WCB Rates = Higher Rates 09/30/09 How Much Money Do Insurance Companies Make? 09/01/09 NYCIRB Estimates $ Impact of LaCroix 08/14/09 Employers billed $133M to cover unfunded workers comp claims 08/07/09 Frankfort agrees to settle with county 07/27/09 NYCIRB Approved WC Loss Rate Increase 07/18/09 Workers Comp Rates Leap for Some Firms 07/16/09 How to save on insurance premiums 07/04/09 NYSWCB: “Workers Comp Rates Decline” 03/04/09 Wanna Buy a Carrier?? Cheap, too! ► Back to the NEWSWIRE ◄

▼ FRAUD ▼

08/11/09 Prisoners Collecting Unemployment Benefits 07/18/09 Facebook helps prove a claimant was lying. 07/10/09 Brooklyn Doctor Charged With WC Fraud 03/04/09 NY’s Got Crooked Doctors, too 03/04/09 But beats up an Honest One 02/02/09 Boy, Did They Catch Some Crooked Doctors 01/29/09 Fraud - Who’s More Guilty ► Back to the NEWSWIRE ◄

▼ OTHER STATES ▼

08/17/09 CAL SIF to Sue State over Raid on Funds 08/19/09 Medicare: The Damocles Sword over §32’s 08/12/09 FL tells WC insurer: Return your profits 05/28/09 Florida Now Limits WC Fees for Claimant Attorneys 05/14/09 TX Court Says no WC suits allowed against GC’s 05/12/09 Utah’s workers comp provision unconstitutional: Court 05/12/09 CA Seeks Large WC Insurance Rate Hike 05/11/09 FL Again Approves WC Legal Fee Limit 04/30/09 CA. Workers’ comp ‘reforms’ failed to protect workers 04/23/09 Up-Date on Colorado’s Insurance Fund Raid 04/16/09 Colorado Raids Its Own ‘State Insurance Fund’ 03/16/09 Conn. Tries to Balance Budget with WC Funds! 03/04/09 Fla Legislatures revisits Legal Fees 02/26/09 Wyoming Now Has COLA for Comp benefits 02/26/09 SC: No Comp for Undocumented Workers? 02/05/09 NYCOSH Complains about Budget Cuts 02/05/09 States look to dissolve monopolies in workers comp. insurance 01/29/09 Solvent Exposure in Kentucky 01/22/09 Legal Fees, Again 01/16/09 North Caroline to set Legal Fees? ► Back to the NEWSWIRE ◄

MEDICAL, MISCELLANEOUS

10/15/09 NYS Issues Bonds for 2nd Injury Fund 09/29/09 Injured Workers Alliance Scholarship Fund 07/29/09 Upstate WC Attorney runs for Congress 04/09/09 Consumer Reports: Relief for Aching Backs & 173 Fixes 03/12/09 NY Workers’ Comp Alliance has New Leaders 03/04/09 New Fee Schedule for Dentists 02/26/09 Who says the Assembly’s not busy? 01/16/09 New York Self-Insurers Association 2009 Annual Meeting ► Back to the NEWSWIRE ◄

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POLL: §32’s and Medical Guidelines:
Something’s Missing?

August 24, 2009: The poll question of August 17, 2009 was:

Without the new Medical Guidelines to let them know their level of disability and amount of future benefits, are both parties to a §32 being shortchanged?

The answer was overwhelmingly “YES” but interestingly enough while 15% said the carriers had the advantage no one said that the claimant had an advantage.

85% felt that both sides were being equally shortchanged.

And finally virtually everyone said that the Board has to get the guidelines done.

The fact that the claimant attorneys and the unions fought for years for higher rates while the carriers fought for time limits on compensation would seem to show how important was the 2007 Legislation that was passed.

Yet, despite the importance of this legislation and the impact it would have on injured workers and their families, the Board has yet to set any medical guidelines such that the vast majority of the workers compensation community in New York State feel that the Board has to get this project done and they mean DONE NOW.

In view of the fact that there are 139,000 or so claims indexed every year and about 12,000 §32’s done every year, one would think that this would be THE top priority of the Board. The fact that the Board was able to get enough staff together to find 10,000 employers who have not allegedly had workers compensation insurance for the past 10 years is certainly important but those resources had best have been directed towards helping the 100,000 or so injured workers who every year need the information that is supposed to be in the medical guidelines in order to make an informed judgment. In fact, I am sure that the law judges and carriers would like to have this information as well.

There are a rather large number of other states who have workers compensation as well as medical guidelines more up-to-date than the Board’s 1996 guidelines. Is the ego of those involved in the development of the New York State guidelines so great that they must reinvent the wheel while letting the world wait?

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POLL: Who should take CLE’s?

[ED. NOTE:This poll has resulted in a lot of extensive e-mail responses and several commentaries on CLE’s and better training for licensed rep and commissioners and the importance of attorney/commissioners are each panel. For details go to COMMENTARY & REPORTS.]

August 10, 2009: The poll of August 3, 2009 asked who should take the CLE’s (Continuing Legal Education) courses that are required annually for attorneys in the State of New York.

The bottom line is that virtually every participant in the poll believes that more training is necessary, that both the commissioners and licensed reps (L/Rs) should have to take the CLE courses that are required annually for attorneys in the State of New York.

There were only two participants who were not in favor of requiring that L/R’s take CLE’s.

One participant wrote that there was no way to make them do so. Since this was one of the earlier answers to the poll, I added the comment in the poll that, since L/Rs are, by definition, licensed by the NYS WCB, the Board has the right to define what are their requirements for renewal. So it would not be too difficult for the Board to add to the current requirements of renewing a license (now just paying a fee and filling in a form) that they earn a certain number of CLE credits. No credits would mean no renewal.

The second participant wrote that the Board should get rid of L/Rs altogether, that only attorneys should be allowed to practice before the Board. I have participated in probably 3000 oral arguments. Several hundred had L/Rs and the quality of their arguments and presentations was on par with that of the attorneys. Yes there are some lousy L/R’s but there are also a few attorneys who by virtue of their having passed the bar exam 10, 20, or more years ago, are allowed to come to the Board and represent claimants or employers. The carriers are too smart to hire them.

And there is the occasional attorney who comes in with no knowledge of WCL at all but assumes that they can win a case because they are an attorney who practices in a ‘real’ Court (Civil, Supreme, or whatever).And even if they do win, usually because the evidence is overwhelmingly in their favor, they are an embarrassment to everyone.

I have a friend who is a very successful attorney. Several years ago he had a client with a §32, probably the easiest issue with which to appear before a commissioner, in this case, me. He phoned to ask me if it was necessary to hire an attorney to do the hearing as he was not familiar with §32’s but was doing it as a courtesy. Now, in my mind, he was smart to ask. But how many non-WC attorneys come in who are either too stupid or arrogant who do appear before the Board.

Yes, it is a given that the 10 best attorneys are better than the ten best L/Rs. But if you were to list the top 100 who make appearances, you would find L/R’s among them and as you moved down the list you would find many L/Rs rated better than some the attorneys.

But to keep the playing field level, L/Rs should take CLEs. After all, if the top ten attorneys must take CLE’s why shouldn’t the top ten L/Rs?

And there were some who agreed with my oft stated position that there should be additional CLE requirements for inactive L/Rs: those who passed the exam but handle 10 or 20 or fewer cases a year.

The rumor mill has it that the issue of CLE’s for L/Rs is something being seriously talked about at the Board so only time will tell.

But a word of warning to the L/Rs: they had better get themselves organized lest changes take place without any input of them. And this would be a shame as I do not believe that one needs to pay a $150,000+ admission fee (law school tuition) to appear before the WCB.

In the COMMENTARY page I have PART II on this issue, which is an email from an attorney who makes some very good points as to why only attorneys should be allowed to practice.

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POLL: Are the Regional Managers
better than the old DA’s

July 27, 2009: Some time ago, a decision was made to replace the 11 District Administrators (political appointees) with two regional managers, also appointees, with the promise that the two regional mangers would meet periodically with the staff in each of the district offices under their supervision. The July 20, 2009 poll asked if this has been done and does it make a difference?

While I may have had a basic idea as to how people thought on this issue, I was surprised at the vigor of the responses which basically stated that the new regional managers were:

►Waste of Money
►Useless

Virtually everyone selected “They make no difference, with some very interesting comments, once of which seemed to summarize the overall results:

►I didn’t even realize they had been replaced!

There was not a single positive response. The consensus is that this change was done for one of two, or possibly both, reasons:

►This was a budget move to save money
►It was all about politics

As I wrote earlier, I do not believe that budget was a key issue but the excuse by which 11 political appointees (one district administrator per district) usually selected by the local county leaders were replaced by two regional administrators in the two areas in the State where there was the most Democratic Party political power. You will note that Binghamton, home district of Vice Chairman Frances Libous and her husband, powerhouse State Senator Thomas Libous, did not get a District Regional Administrator nor will they likely be the beneficiary of any future ‘new projects’ from the NYSWCB. Nor for that matter will Peekskill, the home of former Governor Pataki and many of his executive staff, be the recipient of more ‘projects’.

[While the selection of Binghamton as the scanning center for all the NYS WCB documents may have been based on political considerations, it is an example where excellent decision making went along with political considerations resulting in a well-run facility, albeit a private-sector, for-profit facility.]

Instead, once nine of the eleven district administrators were eliminated, Albany determined that some additional support was necessary for the two regional managers and, lo and behold, Albany got to hire some more people. These would cost less money but to paraphrase an old saying of a ‘bird in the hand is worth more than two in the bush’, for the Albany Democrats looking to build a power base, ‘two lower paying jobs in Albany are better for Albany than nine higher paying jobs elsewhere.”

There was one very strong criticism of the former District Administrators:

What did the DAs actually do other than respond to legislative inquiries? The few who did more than that usually tried to make power plays and created too many problems (i.e. “dual reporting” for WCLJs). It is really the District Claims Managers and Senior Law Judges that make a difference on a local level.

I will admit that a few of the DA’s I knew were useless at best. But a few were effective and some of the district managers were not that good and I know of one senior law judge whose administrative, let alone legal, talent, I among others often questioned. So a good DA, and there were several, were helpful.

Also, DA’s are political appointees. They are the sole representative of the Governor in each district office. The Governor has the right, and responsibility, to make sure that the Agencies under his control follow through on his policies. Just as the Governor selects commissioners and others to lead agencies, it is equally important that the Governor have someone on the ground at the various district offices and departments at these agencies. The definition of a political hack is (1) an appointee of the other party, (2) an appointee who is lazy or incompetent or dishonest, or (3) an appointee with whom the subordinates disagree on changes that the administration in power (the Governor) wants to take place. And it doesn’t nor should it apply to all political appointees. After all, I was an appointee and would like to think not perceived of as a hack.

Many years ago when I was involved in a hotly contested Democratic primary, someone representing my opponent called my candidate an ‘idiot’. My response, “Better my idiot than yours!” So one person’s appointee is someone else’s hack.

You can not call an appointee a hack if they are given a job that was designed to help improve an agency when, behind the scenes, those in charge do not let them do the work they were told they would have.

At this point in time, so it seems with the regional managers. It is up to them to go to the new Chairman and ask that they be allowed to do the jobs for which they were promoted. Otherwise, they too should be eliminated.

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POLL: Are the Mods better written
than in prior years?

July 20, 2009: In early 2008, Chairman Weiss made some substantive changes in the Office of Appeals, by bringing in a new department head, former Albany Senior Law Judge Madeline Pantzer and selecting as her assistant David Wertheimer, who had extensive experience working with the commissioners on proposed MoDs. The Office of Appeals was also renamed the Administrative Review Division (ARD) and placed under the direction of the Office of General Counsel. The new ARD was given the mandate to write better Mods, in terms of not only grammatically correct decisions but also coherent and consistent ones.

Overall, it seems to be working as testified to by the poll results from our July 13, 2009 poll:

36% Better 9% Worse

with

40% No change 15% Mixed

Although there was an even split as to whether the writing itself was better, the worse, or the same, the majority agreed there were better explanations given, although one participant stated that “more citations to precedent and case law” are necessary.

I have seen a number of the new MoDs including a few written when I was still on the Board. They now usually have a basic format, which increases both the readability and results in better explanations.

However, one participant wrote:

While the new MODs are more succinct, they continue an absence of legal reasoning and tend to conclusions rather than offering legal analysis. Thus, there tends to be some “disconnect” between the case analysis and the conclusion. It’s almost as if the WCB seeks to avoid criticism at the AD3d while parsing its decisions in the most economical way.

As to the comment regarding the WCB desire to avoid criticism from the Appellate Court, that is correct. I can confirm that by referencing my many comments throughout this website as to the desire of the Oligarchic Cabal whose priority, well above all else, is to get good PR.

I also am reminded of an instruction I used to give some of my volunteers who had occasion to come into contact with the press: “Say nothing and appear to be stupid. Say something and prove it.” The less said the less likely to make a mistake. Also the less said/written, the faster it is to write and to proofread. So there may well be a method to this madness of not writing as complete an MoD as some would like. The use of citations could be troublesome because very often as I did in WCB #0004-3437 New York University (2002), cited on pages 140-141 of my book Behind the Closed Doors, it would often be necessary to not only list citations supporting the conclusion, but because of the past history of the Board in issuing contradictory decisions, it would be necessary to explain why so many prior decisions were incorrect or not on point.

In summary, today’s MoDs are better written.

But there is a far more important consideration:

For whom is the MoD being written?

I can list several answers:

• To the losing side to explain why they lost.
• To the law judges to explain why they were not affirmed and what they should do the next time.
• To the lawyers and community at large to make a point on a key issue.
• To the Courts (Appellate and Appeals) so as not to be reversed or criticized.
• To the public to make the Board look like it doing what is correct

This is an issue that was the subject of conversation of many of the ‘engaged’ commissioners when I was on the Board. We took the position on some issues not only the facts but the reasoning for a decision had to be included. Again I reference NYU WCB#00043437, in which the Board had previously issued contradictory or unclear decisions and I attempted to write a decision that clarified the confusion generated by eight prior and contradictory decisions.

This issue will be subject of a commentary next week, based on an interesting email from an attorney who asked if the commissioners should get pro and con briefs with each decision.

But for now the poll does show that the management of the ARD is accomplishing Weiss’ goal of drafting better styled and more substantive decisions. And while there is more work to be done, more has been done by the ARD in the last year on this subject than had been done in the 10+ years of existence of its predecessor, the OOA.