insideworkerscompny.com » 2009» December

Every Monday I pose a question that is of interest to everyone who participates in the New York State Workers’ Compensation system: attorneys, carriers, 3rd party vendors, and, yes, even the Board staff and other state agencies. The following Monday, I will publish an analysis of the results as well as a new poll. If you have any suggestions for a poll or would like to make a comment, contact me at TheInsider@InsideWorkersCompNY.com.

This Week’s Poll: What were the key issues in 2009

December 21, 2009: In my first poll, March 16, 2009 Poll asked: “What will be the most important legal issue to come before the Law Judges and Commissioners in 2009?” and you said:

at 50% Medical Guidelines Regarding Classification
at 22% Voluntary Withdrawal from the Labor Market
at 21% The ATF Deposit
at 4% Rocket Docket
at 3% The closing of the 2nd Injury Fund

So the December 21, 2009 poll asks “What was the most important issue decided by the Court last year?”

So far since January 1, 2009, I have posted 4 decisions from the Court of Appeals and 168 from the Appellate Courts (1st, 2nd, 3rd, and 4th) of which 148 came from the 3rd Department, as well as 12 decisions from other jurisdictions). And while the Workers Compensation Board was not a Party of Interest in all 168 decisions, all these cases dealt with issues covered either by specific sections of the WCL or medical issues often the subject of Board decisions, a total of 71 different issues. My ‘issue index’ is attached.

The answer is open ended: you can fill in what you want, either by case name or by issue.

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The result of this poll will be publishedMonday January 4, 2010

Poll Results: What do we do
with Undocumented Workers?

December 14, 2009: Last week my poll asked how we should treat undocumented workers, a poll based on the extensive discussions at LinkedIn which in turn were based on a press release from Ohio State Senator Bill Seitz seeking to deny workers compensation to undocumented workers.

After I posted this poll, recently appointed Supreme Court Justice Sonia Sotomayor in one of her first rulings used the term “undocumented” rather than “illegal”. In my poll I used the term “undocumented” but based on the following comment I shall now use the term “illegal immigrant” rather than “undocumented worker”. Political correctness, such as it may be, is the purview of the legislature and not those involved in the law, be it civil, criminal, or administrative. The comment was:

Aren’t you glad you had an education which stressed accuracy in choice of terms? An “undocumented” immigrant is a person who is in the US but is a citizen of another country and who, somehow, lost the papers which would demonstrate their current status. An “illegal” is a person whose status, after an inquiry, shows that there is nothing to support legal residency. Sotomayor’s deliberate use of incorrect terms to cloud or mischaracterize a status does not demonstrate incompetence, it demonstrates a violation of an oath to support the laws as they are.

Now to the poll which asked you to select those comments with which you agree as to the treatment of illegal immigrants as compared to documented workers. Other than for the first question on distinguishing between the two classes, all those who answered were virtually unanimous, with the majority seeking enhanced penalties against the employer and the illegal immigrant.

In response to the first question, 55% said there should be a distinction between classes and 45% said there should not be. As the following responses indicate, with one exception, everyone agreed that the illegal immigrant should get the same medical treatment as a documented worker. But also it appears to be agreement that the illegal immigrant should qualify for compensation only for a limited period of time. Many of those who said that there should be no distinction did not participate in the rest of the poll.

To the question of whether the federal government should deport illegal immigrants and limiting their compensation, 41% were in favor, 18% were against deportation, and a 41% had no opinion.

As to the question of penalties 60% were in favor of penalties similar to those imposed on hiring underage workers (§14a), 9% said New York State should not distinguish between employers, and 31% expressed no opinion. However, everyone who supported the penalty agreed it should go to the Workers Compensation Board.

In fact, 45% of participants selected all four of the following: treating the two classes of workers differently, penalizing the employer, with the money to go to the Board, and at the appropriate time deporting the illegal immigrant.

SUMMARY

In summary, the consensus seems to be that as long as an illegal immigrant is unable to work because of an established workplace injury, that person should get both compensation and medical treatment identical to that of a documented worker, but, once no longer disabled, the illegal immigrant should be deported. And the employer should be penalized with that money going to the Board.

The following are comments from two of the respondents and, while the second comment may be “tongue-in-cheek” (we hope), it does raise the issue of what are the economic conditions that result in the hiring of illegal immigrants. We know that some conditions are attributable to the economic advantages but it has been proposed that American workers believe that many of these jobs are beneath their dignity and only economically unviable wages would get them to take those jobs. Fortunately, these economic issues are not within the jurisdiction of the Board and, therefore, in this website, will not be commented upon. Two comments are:

The U/W should not be given Workers Compensation, and any amount deemed what would have been paid were he/she a documented worker should be doubled and split between the WCB and the State. Further, the employer should be investigated to determine the amount they didn’t pay both the WCB and the State. Legitimate employers through their insurance and self-insured funds are being assessed staggering amounts while constantly facing increases in HICRA and covered lives to pay for these fly-by employers. They need to be taken to task and it should start with the WCB.

And

Other - illegal immigrants are dependent on illegal employers. the employers want illegals because they work cheaper and accept more hazardous work conditions. if we do not penalize the complicit employers–as a society we should accept the reality of the situation and bring back child labor; and give bail-out money to aid the triangle shirt waist factory. think of all the jobs that could be created. maybe we could just rename our country New China.

Thank you for your participation in this interesting issue. If you care to add to the discussion, click here to send me your comments.

This Week’s Poll Results:
The WCB, §32’s, Child Support Liens

November 16, 2009: The results of this poll were interesting, in particular, because it was pointed out that Workers Compensation Law already allows for the acceptance of liens against alimony and federal taxes. But, first to the poll results.

As to the question of whether or not the Board should follow precedent regarding attachments for future child support, alimony, and federal taxes, two-thirds supported the position that the Board should rule in favor of these attachments and effectively force the issue, with one-third of the participants disagreeing.

One participant wrote:

What makes child support or tax liens so special?

And a second participant wrote:

The Board should seek to have the Legislature amend §33 to get rid of the lien for outstanding child support liens. Section 33 only creates problems within compensation cases and delays and prevents resolution of the cases. To paraphrase former Chairman Weiss, it just creates unnecessary friction within the system. [ED. NOTE: I do not believe that Weiss mean to get rid of any controversial laws just to ‘speed up’ the system.

But 80% also felt the state legislature should change the law to allow for the deduction of alimony liens as well as future child support liens although 80% of the poll participants felt that federal and state tax liens are not within the jurisdiction of the Workers Comp Board.

But key to this issue was a comment from one participant who wrote:

Section 33 permits deduction for judicial orders of support for “alimony maintenance support or child support.” There is no basis for treating alimony differently from child support.

This participant is correct, for §33 includes the phrase “. . . that compensation or benefits other than payments pursuant to section thirteen of this chapter shall be subject to application to an income execution or order for support enforcement . . .”. And the Court was quite clear on this issue as it wrote, with reference to §33, in the case of Dallesandro v Dallesandro (1981, Fam Ct) 110 Misc 2d 342, 442 NYS2d 400:

It is clear from a reading of the statute that the benefits are exempt from all claims of creditors and from levy or execution for recovery, or collection of a debt. However, it has been generally stated that claims for alimony and support are an exception to the exemptions granted by statute on the theory that an adjudication of alimony or support is not a debt within the meaning of the exemption statute. The whole theory and purpose of the Workers’ Compensation Law is to provide a substitute for the loss of wages and for the protection of the employee and his dependents from want and to prevent, if possible, the injured employee and his family from becoming objects of charity or dependent upon the State. (Matter of Wilkosz v Symington Gould Corp.,14 A.D.2d 408; Westchester Light. Co. v Westchester County Small Estates Corp., 278 NY 175; Matter of Bowne v Bowne Co., 221 NY 28; 22 NY Jur, Exemptions, § 57, p 260; 65 NY Jur, Workmen’s Compensation § 14, p 323-324.)

The protection of section 33 of the Workers’ Compensation Law, is not restricted only to the family that is intact but also to the beneficiary and his family whether they are living together as a family unit or separated. It appears quite clear that the Legislature did not intend to insulate the husband and father against his legal responsibilities and obligations to support his wife or child, only the family against creditors.

And while state tax liens may be exempt until the state legislature changes WCL §33, there are several cases which state otherwise for federal taxes, such as in McCampbell v Di Nuzzo (1966) 50 Misc 2d 437, 278 NYS2d 685.

It is true that a Federal statute which mandates an act supersedes a State statute prescribing procedures to be followed by State or local statutes. (Hoye v. United States, 277 F. 2d 116 [C. A. 9th, 1960].) Also liens for Federal taxes and provisions for their collection are strictly Federal and strictly statutory. (Bank of Nevada v. United States, 251 F. 2d 820 [C. A. 9th, 1958], cert. den. 356 U.S. 938.) Further that State exemptions statutes such as subdivision 2 of section 166 of the New York State Insurance Law and section 33 of the Workmen’s Compensation Law are ineffective against Federal statutory liens for Federal taxes; and States may not interfere with power of Congress to levy and then to collect Federal taxes on income. (Fried v. New York Life Ins. Co., 241 F. 2d 504 [C. A. 2d, 1957], cert. den. 354 U.S. 922.)

Call it what you will, compensation or otherwise, the employer must still pay wages to his employee, albeit on a reduced scale, either directly as a self-insurer or indirectly through an agent, while that employee is incapacitated from employment for injuries sustained in his employer’s business.

Had that injured worker been drawing a wage instead of compensation, liens not only for child support but also for taxes and alimony could legally be deducted from wages. Since workers compensation awards are in lieu of wages, there is no logical reason that these compensation awards should be exempt.

The majority of participants to this poll agree with this concept.

It is now time for the law judges to insist that the legal financial rights of children, spouses, and the American taxpayer be taken into account at the time that awards are made, either for continuing disability, Schedule Loss of Use, or §32 settlements. And it is the responsibility of the Commissioners to support the law judges by affirming these decisions citing precedent, including but not limited to the decisions noted above.

Poll Results: NYC’s Toxic WTC Tactics

November 2, 2009: In Sunday’s NY Post, the headline of a story read “Toxic WTC Tactic” which prompted my poll of October 26, 2009 asking about your thoughts on NYC’s aggressive approach in deny all the claims.

“The WTC claimant should not be treated any differently than any other worker claiming on-the-job injuries. There is no need to create a special class of claimants simply because of the emotional nature of the WTC collapse.”

This comment from one of the participants in the poll summarizes the vast majority (77%) of the votes and comments.

Another participant wrote, “These cases should be subject to the same standard of proof of causation as any other claim. The only reason they are treated differently is for political reasons.”

In looking back at the history of the legislation which established the WTC fund, it appeared that one unspoken goal of the legislation was to avoid the necessity of determining the ‘employer of record’ and/or the apportionment of payments when multiple employers were established. After all, the reason for establishing ‘employer of record’ is to determine who will pay the bills. In this case, the Federal Government established a fund to pay for all related awards so that the issue of determining who is the ‘employer of record’ became moot. The only remaining question is whether or not the injured workers claim met the workers compensation standard of ANCR: accident, notice, and causal relationship, and not whose fault it was.

This is the forte of the workers compensation system.

And now to the poll questions and answers regarding the Post story.

Question #1: Who is better equipped to handle these claims: workers comp attorneys or personal injury attorneys?

As if to emphasize the fact that these cases should be dealt with as standard workers compensation claims, of the 77% who responded to this question, 100% voted in favor of the workers compensation attorneys. “Personal injury attorneys often inflate claims and/or conditions to increase settlement potential. The potential for exaggerated/inflated claims is worse in the personal injury field then the compensation field.”

I feel this is a rather harsh assessment. The difference between these types of litigation is that personal injury includes pain-and-suffering proof of fault whereas workers compensation is no-fault and takes less time to litigate (in most cases). I do have some personal injury attorneys on my e-mail list but do not know any participate in this poll, but in my discussions with them I have found that they have the same level of integrity as the attorneys in the workers comp system even though their tactics may be different.

QUESTION #2: Is the city being unfair to these injured workers?

The vote was 66% fair and 34% unfair. Those who felt the city was doing the right thing by denying the claims felt that the City, like any self-insured employer or carrier, had the right to defend itself although most agree the city was being inordinately aggressive. Unfortunately it appears that the attorneys, outside attorneys at that, who represent the City take the expected position of any defense attorney: “There are no injuries. If they are any injuries, they are not related to anything for which my client is responsible. If there are any injuries the majority not related. The claims exaggerated.” Of course one can ask why Mayor Bloomberg does not get involved in this issue. This would resolve this problem. However, that is a separate issue and not the subject of this poll although, when I use the term ‘City’, I do mean Mayor Bloomberg. As for the respondent who asked me a direct question on this issue, please read my response posted today on the COMMENTARY page.

Again quoting one of my respondents (his third reference in this commentary), “issues involving work conditions are best left to the comp realm WC attorneys (claimant and defense alike) know how to deal with such issues best and fairly.” This also holds true for the attorneys in the NYC Department of Law, under the direction of John Sweeney, who represent the City in workers compensation cases: they are far better qualified to handle these cases then the current outside guns.

In the workers comp system, attorneys for carriers and self-insured do recognize that people are injured in the course of their work and, after fighting that ½% of cases that do not belong in the system, accept the fact that money is going to be paid for both compensation and medical expenses. This is not the primary responsibility of the personal injury attorney on the defense side.

One respondent commented, “Re-examine the complex disability benefits, workers compensation, negligence, retirement benefits interactions in civil service workers claims.” But these are issues workers compensation sees all the time and, while some of these issues may be complex (I was one of four commissioners involved in 2,000+ cases and four Appellate Court decisions dealing with the interpretation of ERISA for Verizon employees), the Board has shown its ability to deal with these complex issues.

SUMMARY

The most important fact to consider in this issue is that the federal government, by establishing this fund, has aknowledged that there would be claims involving thousands of injured workers with enough claims being sufficiently legitimate that a fund in the hundreds of millions of dollars was necessary to pay these injured workers, not the City’s outside defense attorneys. For the City, through its hired guns, to fight every claim with some of the tactics noted in the New York Post article presupposes the City and the Mayor has taken a position that there are no legitimate claims.

RECOMMENDATIONS

I propose legislation be written at both the state and federal level that moves the adjudication of all these cases from the control of the City of New York into the jurisdiction of the New York State Worker’s Compensation Board. As for any arguments that this would necessitate more hiring by the Workers Comp Board, the cost of additional personnel and physical assets will be far less than the tens of millions of dollars the City has spent on outside attorneys and denying as many of the claims as it has.

I also recommend that a fee schedule be established with a sliding scale of fees from 5% to 10% for compensation awarded and another sliding scale of fees of 3% to 5% (paid for out of the fund and not the claimants awards) on medical expenses. Some may feel the fee schedule on WTC cases represents the “nose of the camel under the tent” for fee schedules on regular workers compensation cases. It is not as these cases do differ in many ways fromthe standard workers compensation claim.

The Workers Compensation Board and the attorneys for both sides who appear before it understand the humanitarian nature of the underlying law. The City must understand that a proper humanitarian goal is not counting how many donuts we have with our lattes but to treat each WTC claim on its merits.

POLL: Legal Fees on Medical Expenses

October 12, 2009: Our poll questions of October 5, 2009 makes reference to the Michigan State Supreme Court decision (Matter of Petersen v. Magna Corporation, SC Docket Nos. 136542 and 136543) which supports the proposition that carriers should pay legal fees to claimant attorneys when the only issues being controverted deal with medical expenses. Our poll consisted of three questions and the overwhelming majority of our readers took the position that carriers should pay for legal fees if the only issue at hand is medical expenses.

84% agreed that fees should be paid in medical only cases/hearings.

16% disagree.

68% agreed that they should be paid on §32 set-asides.

32% disagreed.

89% agreed that, if fees are to be paid, carriers should pay them.

11% disagree.

It is interesting to note that while 32% disagreed that legal fees should be paid on Medicare set-asides, half of that 32% (16%) agreed that, if it is a regular hearing and the only issue is medical, the fee should be paid.

89% agreed that carriers should be responsible for paying the fees rather than the claimant. And while I do not have a breakdown of the categories of voters (carrier, claimant, law judge, or other), based all the prior polls I have gotten, I think that respondents represent an even mix of these groups. Therefore it appears that carrier attorneys also feel it is appropriate that the claimant attorneys be paid a fee by the carrier.

One respondent stated the claimant attorneys are not retained to represent the interests of the medical providers. But the issue here is not the financial interests of the doctors but is almost always whether or not the claimant should get medical treatment in the future or have access to certain types of “appliances”. As to the appropriateness of the treatment or the costs, these questions are covered by the medical fee schedule set by the Board and the right of the medical provider to seek arbitration.

Another respondent noted that the payment of a classification fee does not end the attorneys’ involvement with the claimant, and the attorney should be prepared for future litigation.

There were two other interesting statements:

This is a contingency fee system. Therefore, fees should be paid on all recoveries. Simply look at the negligence claims. The jury pays damages on past present and future loses–including lost wages medical needs of every type–and the attorney generally receives 1/3 of all damages. Why should the comp attorney be short-changed. The comp system already limits damages and does not pay for physical pain or emotional suffering.

And

The claimant’s attorney should be compensated for his/her efforts concerning all issues. If the issue only concerns medical services the attorney should still be paid. The attorney’s efforts in resolving these issues is as much of a service for claimants and the Board as their efforts concerning indemnity issues. The big question is how to award a fair fee with the limited funds of a Section 32 or of an ongoing claim. This way I believe that medical issues will be resolve more expeditously and the medical providers who do not have any standing will have some representation.

But more importantly, one respondent noted that the “law already permits fees on medical IF the Board approves”. I reviewed NYCRR §300.17 and the sub sections therein. Although this refers to fees charged by claimant attorneys, it only states the manner in which the presentation of the bill must be done but does not in any way delineate who is ultimately responsible for paying the legal fee.

Therefore, in order to get the discussion rolling, I recommend the following:

In §32’s any money allocated for medical should be subject to a 5% fee paid by the carrier directly to the claimant’s attorney. And it should be for all expenses, be it in the general text of the agreement or a specific Medicare set-aside, whether the money is paid directly to the claimant or put into an escrow account.
In cases in which the claimant has been classified, the classification fee historically has meant that the attorney be available at no additional cost for future litigation. But there must be a limit as to how often the claimant’s attorney should be called upon to fight for medical treatment. I recommend that in all hearings and/or appeals necessitated by a medical-only controversy, in which the claimant’s attorney is successful, a fee of $75 per hearing and an additional $100 for an appeal should be awarded the claimant’s attorney, paid for by the carrier. These fees would not apply to the first hearing or appeal after the classification fee has been awarded.
For those claimants who have not yet been classified, I recommend that a fee of $75 be paid for each hearing and $100 for each appeal.

Both frivolous adjournments and appeals are subject to penalties. Also §25(2)(c) awards a penalty in those cases in which the carrier or employer has objected to an award of compensation without just cause, but does not subject them to a penalty for failure to agree to medical treatment, thus necessitating a hearing by the claimant.

This proposal to pay fees on medical-only controversies evens the playing field between the claimant and carrier and may help cut down on the number of hearings that deal with medical-only issues. Therefore, I suggest one of the law judges and/or one of the panels start instituting such fees. Be sure be sure to quote the Matter of Peterson v. Magna Corp.

POLL ANALYSIS: Secret Project 2015

September 21, 2009: Just a little more than two weeks ago, the news broke about a here-to-fore top secret project being conducted at the Board and we asked you your opinions:

Our September 14, 2009 poll asked “Based on what you have read about this here-to-fore top secret project, do you believe:

the Project should go forward?

the explanation given by the WCB?

there are too many hearing?

there are too few hearings?

less hearing help the claimants?

more hearing will help the claimants?

is there another agenda behind this Project?

Only 10% of you agreed that Project 2015 should go forward and these 10% were the only ones who felt that the Board’s explanation for Project 2015 gave the true purpose of the Project, that there is/was no hidden agenda. What was interesting was that only one person of this 10% who believed the Board’s explanation had other comments to make. It gives the impression that the others in this 10%, who supported the Board’s decision, may have been voting as ‘good employees’ as none took the time to justify what they thought was good about the project. Which goes to prove the adage that sometimes saying nothing says a great deal more than saying something.

Only 10% of you agreed that Project 2015 should go ahead and these 10% were the only ones who felt that the Board’s explanation for Project 2015 gave the true purpose of the Project, that there is/was no hidden agenda. What was interesting was that only one person of this 10% who believed the Board’s explanation had another other comments to make. This gives me the impression that the others in this 10%, who supported the Board’s decision, may have been voting as ‘good employees’ as none took the time to justify what they thought was good about the project. Which goes to prove the adage that sometimes saying nothing says a great deal more than saying something.

62% of you feel that the Board has a hidden agenda and had nothing else to say although some of you marked other choices. These other choices basically took the position that there were far too few hearings, which in turn would negatively impact on claimants.

As to the question as to how Project 2015 will be help or hurt the system, this is the breakdown.

Are there are too many hearing?

Do less hearing help the claimants?

Not a single person voted for either of these two. To the two questions which asked the opposite:

Are there too few hearings?

Do more hearing will help the claimants?

28% stated that there are too few hearings and that more hearing help claimants.

The two sets of answers appear to go to the heart of the issue concerning Project 2015 and are better understood when reading the comments in OTHER:

no hearings-no attorney fees. with no attorneys the board can screw the parties all they want.

to eliminate lawyers from the system

There has been an underlying concern brought to my attention frequently over the past few months and commented upon in this poll:

Legal fees and attorneys’ involvement in the system

I was told that the goal of Project 2015 is to reduce the number of hearings and have administrative personnel review the paper files and make the decisions that are now before the law judges. In fact, as I write this posting, examiners who review certain submissions have been given the authority to determine if the medical submissions are sufficient for a hearing on SLU, examiners who do not have the formal training that law judges undergo before they are allowed to hear cases. And because decisions by administrative staff, unlike decisions by law judges, are not appealable under the current rules and regulations, the Board can in effect make a determination on claimant injuries that it, the Board, feels is best and that is the end of the matter.

And while it is true that claimants have the right to ask for a hearing, there is a question as to whether or not the Board has to give them that hearing. And this is as true for employer and carriers as well, as they too have perspectives they feel should be heard, not just read.

When this is combined with the increasing attempts by the Board to penalize both claimant and carrier attorneys for not being prepared, as defined by a law judge, it appears that the real goal is to reduce the income of the attorneys, thus minimizing their ability to serve their clients.

To eliminate lawyers from the system

After all, an uninformed claimant will not know their rights or alternatives.

The 2015 project will hurt the people that it should be helping…the injured worker. The Board will take hands off approach unless the claimant asks. How do the uninformed know what they are entitled to?

No hearings-no attorney fees. with no attorneys the board can screw the parties all they want.

The essential question is, not what is the goal of the Board, but what is the goal of the Oligarchic Cabal who is trying to impose this Project 2015 onto the claimants and employers.

About a year or so before I left the Board, I participated in a decision denying an undocumented worker additional compensation, a case that went to the Court of Appeals who affirmed my panel’s decision. If there were no hearings but simply decisions made by examiners, would that case have been appealed? Would the public have known about it and attempted to seek redress for what they felt was an improper decision through the political system? The recently signed ‘LaCroix’ law bill came about because of the public nature of the debate at the WCB, the public hearings, and public record of the appeals of those hearings. Project 2015, which to this date the Board has not yet explained, will deny all participants in the system an open window. Are these member of the Oligarchic Cabal setting up a Star Chamber with them as the members of this secret society or will we move in the other direction, as one voted stated, “ The more Hearings the greater the scrutiny the greater the public is served.”

The Board is here to serve the needs of the injured workers and their employers, not the secret ambitions of a select few who view cutting the Board budget and making faster decision making regardless of the fairness as a means to their personal advancement through government and into the private sector.

I think I can speak for the workers compensation community when I say,

“Dear Board, we await your explanation as to what is Project 2015 and its purported goals.”

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COURT DECISIONS

ON OUR OTHER PAGES

►Pending Legislation

OUR NEW POLL

►What should we do with illegal/ undocumented workers?

COMMENTARY

►Commentary on §32 and child support liens

THIS WEEK’S NEWSWIRE

Click here for the NEWSWIRE index

►Click here for the NEWSWIRE page

►NYS Sues CRM Civilly and Criminally

►‘Illegal Immigrant’ or ‘Undocumented Immigrant’?

Weekly postings of decisions regarding workers compensation issues from the New York State Court of Appeals, its four Appellate Departments, and various lower courts as well as decisions from other states that will be of interest to participants in the State of New York Workers Compensation system. Following the list of cases posted for this week is a list of cases for which arguments have either already been made at the 3rd Department and for which decisions have not yet been issued or for cases which have been scheduled but not yet heard.If you would like to be added to our e-mail alert list or have any submissions or suggestions, they can be sent to me at TheInsider@InsideWorkersCompNY.com.

The Winningest Attorneys My postings every Friday morning list workers compensation related decisions issued by New York State’s Appellate Court, 3rd Department as well as the 1st, 2nd and 4th, The Court of Appeals and other jurisdictions throughout the State, and include the names of the prevailing parties. That list which shows who won how many cases, and which will be periodically updated click here for details as of December 24, 2009

NEW POSTINGS: Seven from December 17, 2009 from the 3rd Department, one from the Court of Appeals and the list of 22 cases scheduled for hearings at the 3rd Department for which decisions have yet been issued.

Hutchinson v Lansing Conduit
December 17, 2009 Appellate Division, Third Department
Hearing Loss

AFFIRMED the Board which ruled that Reliance National Insurance Company was responsible for coverage on the date of claimant’s disablement. Claimant asserted that he had sustained work-related hearing loss in both ears and filed the present workers’ compensation claim. An investigation revealed that Reliance had provided workers’ compensation insurance coverage to the employer from January to July 1996. The Board ultimately determined that the date of claimant’s disablement was March 13, 1996 and held that, if the claim is established, Reliance would be the responsible carrier. The Court ruled that “Under WCL §49-bb, which addresses work-related hearing problems, ‘the general rule is that the carrier on the risk on the date of disablement is responsible for the award’. There is no question that Reliance issued a workers’ compensation insurance policy to the employer for a period that included the date of disablement. It is claimed that this policy contained an exclusion limiting its applicability to claims arising out of contract work performed for a specific entity, which the claim here did not. Reliance did not produce a copy of the policy, however, even though it had been twice directed and once penalized for failing to do so by a Law Judge. Indeed, nothing in the record beyond the bare assertions of Reliance’s counsel supports the claim that the policy contains an applicable exclusion. As such, we perceive nothing irrational in the Board’s finding that the Reliance policy is applicable to this claim.” Prevailing party represented by: David W. Faber of counsel to Cherry Edson & Kelly (Carle Place) for Travelers Indemnity Company of America, respondent and Marc A. Grodsky of counsel to Jones, Jones & O’Connell ()New York City) for Utica Insurance Company and another, respondents.Click here to read the full decision of the Court….

Sattanino v Sanitary Dist
December 17, 2009 Appellate Division, Third Department
Apportionment: Awards

AFFIRMED the Board which, in reversing the Law Judge, ruled that apportionment did not apply to claimant’s workers’ compensation award.

In 2003, claimant injured both knees while performing his duties. The self-insured employer’s third-party administrator did not dispute the ensuing claim for benefits, but did raise issues regarding schedule loss of use (SLU) and apportionment. A Law Judge apportioned the bulk of claimant’s SLU in both knees to his preexisting arthritis. Upon review, the Board held that apportionment was unavailable under the circumstances of this case and set claimant’s schedule loss of use at 50% for his right leg and 32.5% for his left leg. The Court then wrote “In general, ‘apportionment is not appropriate where the claimant’s prior condition was not the result of a compensable injury and such claimant was fully employed and able to effectively perform his or her duties despite the noncompensable preexisting condition.’ Here, there is no indication that claimant’s preexisting arthritis constituted a compensable injury and the employer does not contend that claimant was unable to work full time prior to the 2003 injury. Furthermore, the employer’s contention that this case should fall within the narrow exception to the general rule, applicable where a prior nonwork-related injury would have resulted in a schedule loss of use award if that injury had occurred at work is unsupported by the record. Accordingly, the Board properly determined that apportionment is not applicable here and claimant’s schedule loss of use is supported by the testimony and medical report submitted by his physician.” Prevailing party represented by: Robert E. Grey of counsel to Grey & Grey (Farmingdale) for David Sattanino, respondent and Iris Steel of counsel to Andrew M. Cuomo, Attorney General for the Workers’ Compensation Board, respondent. Click here to read the full decision of the Court….

Dusharm v Green Is Contr.
December 17, 2009 Appellate Division, Third Department
§ 18 notice to employer

AFFIRMED the Board’s ruling, in reversing the Law Judge, that the claimant failed to give timely §18 notice of his injury to his employer. Claimant allegedly sustained a work-related back injury in April 2006, but did not seek medical treatment until May 2007 and did not apply for workers’ compensation benefits until August 2007. Following a hearing in which a Law Judge awarded claimant benefits, the Board reversed, concluding that claimant failed to provide his employer with timely notice pursuant to WCL §18.

Claimant admittedly did not file timely written notice. The Board has the discretion to excuse a claimant’s failure to give timely written notice even if one of three grounds is proven: notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced Here, the Board refused to excuse claimant’s lack of written notice. Claimant’s testimony indicated that his supervisor, whom he testified he notified within minutes after his accident, did not take him seriously and never filed an accident report. The Board considered the claim suspect based upon claimant’s delay in seeking medical treatment and filing his claim, his failure to initially mention the work injury to his medical providers, his previous 20-year history of back pain, his inconsistent statement to an independent medical examiner that he had never experienced difficulties with his back prior to the accident, and his failure to miss any time from work due to this accident for more than a year thereafter. These circumstances prejudiced the employer’s ability to investigate the claim. Prevailing party represented by: Susan B. Marris of counsel to Gregory J. Allen, State Insurance Fund for Green Island and another, respondents. Click here to read the full decision of the Court….

Renzi v Case Mgt. Concepts
December 17, 2009 Appellate Division, Third Department
§ 13-b Medical Bills: Who Pays
§ 23: Late or Interlocutory Appeal
Decision Inadequately/Poorly Written

REVERSED the Board’s ruling that medical treatment of claimant by a licensed massage therapist was compensable provided it was performed under the active and personal supervision of an authorized physician. In 2008, a licensed massage therapist began submitting requests for payment for massage therapy that had allegedly been prescribed by claimant’s treating physician. After the Fund objected contending that licensed massage therapists are not authorized providers under the WCL, the Law Judge held the claims for payment in abeyance, the claimant instructed to provide the Fund with copies of her treating physician’s prescriptions for this therapy, and the Fund instructed to then pay any disputed bills covered by the prescriptions, a decision affirmed by the Board.

Initially, we reject the Board’s contention that their decision here was interlocutory and, therefore, not appealable, as the decision directing that the Fund pay any disputed bill for this therapy rendered pursuant to a prescription “’reache[d] a potentially dispositive threshold legal issue’. Moreover, although the Board found in favor of the Fund in holding the payments in abeyance, as the Fund was directed to pay for the treatment upon the submission to it of a physician prescription, it may appeal as an aggrieved party as it was not granted the relief sought.”

The Court, turning to the merits of the case, i.e. authorized medical treatment under WCL §13-b, determined that it is undisputed that (1) the massage therapist was not authorized by the Board to render medical care to claimant, nor was there evidence supporting a finding that one of the statutory exceptions was applicable or that this therapist was either a duly trained physical therapist rendering physical therapy or a duly authorized occupational therapist rendering occupational therapy, regardless of whether the massage therapy was prescribed by an authorized physician, thus concluding that there was insufficient evidence to support the Board’s determination.

And, as is far too often the case with the many poor Board decisions that had been ruled upon this Fall, the Court wrote, “Parenthetically, we note that the Board has subsequently rendered a decision under similar facts that found that a carrier is not liable for payment for massage therapy provided by a duly licensed massage therapist where, as here, there was no evidence in the record that the therapy was rendered by a registered nurse or persons trained in laboratory or diagnostic techniques or that the care provider was a duly licensed physical therapist, notwithstanding supervision of the treatment by a physician (see Matter of Nassau BOCES,[WCB 2070 2864, August 12, 2009].” Prevailing party represented by: Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation Committee for appellant. Click here to read the full decision of the Court….

Mamaroneck Village Tile v WCB
December 17, 2009 Appellate Division, Third Department
§141-a Stop Work Orders

AFFIRMED the Board’s decisionwhich denied the application of Mamaroneck Village Tile Distributors, Inc. (MVTD) for redetermination review of a stop-work order issued pursuant to WCL §141-a.

In 2008 based on the filing of a C-3 form from a person claiming to have been injured while working for MVTD, Glenn Muller, a Board investigator, spoke to MVTD’s president, Jonathan Mammana, who stated that the company had no employees and therefore did not have workers’ comp insurance. Muller entered a rear work area, ultimately speaking to one man who reportedly indicated that he had worked for MVTD for two years. Based upon this information and other evidence seen that day, a stop-work order was issued that day against Mamaroneck.

Supported by an affidavit of Mammana, sworn to September 19, 2008 asserting that MVTD had no employees, MVTD made an application seeking review of that order. In an October 2008 hearing at which both Muller and Mammana testified, the Law Judge upheld the stop work order issued per WVL §141-a [4] . While the precise procedures for review of a stop-work order are not spelled out in detail in the statute, the Court wrote that “The procedures in this case after receiving the timely affidavit on behalf of MVTD included conducting a prompt hearing before a WCLJ at which both sides that the opportunity to produce evidence in support of their contentions procedures, . . . such that these procedures accorded ample due process protection to MVTD.” MVTD argued that the decision upholding the stop-work order and denying its application for redetermination was not supported by substantial evidence. Since there was no dispute that MVTD did not have workers’ compensation insurance, the dispositive issue narrowed to whether substantial evidence supported the determination that the company had employees. The court determined that the totality of the evidence, fully detailed in the Court’s decision, was sufficient to uphold the stop work order. Prevailing party represented by: Paul Groenwegen of counsel to Andrew M. Cuomo, Attorney General, for respondent. Click here to read the full decision of the Court….

O’Sullivan v DiNapoli
December 17, 2009 Appellate Division, Third Department
Causal Relationship: Was there?

AFFIRMED the denial of petitioner’s applications for accidental and performance of duty disability retirement benefits.

In October 1999, petitioner, a firefighter, suffered hearing damage and tinnitus after the air horn of a fire engine was inadvertently discharged close to his right ear. He returned to full duty within a month of the incident, continuing to work in that capacity. In May 2004, he experienced severe chest pains while driving a fire truck in response to an emergency. Diagnosed with atherosclerotic heart disease, he thereafter underwent quadruple bypass surgery.

In 2004, petitioner applied for accidental and performance of duty disability retirement benefits based on both incidents. The New York State and Local Police and Fire Retirement System denied the applications, finding that, while petitioner was permanently incapacitated from the performance of his duties, his disability was not a natural and proximate result of his duties as a firefighter. Petitioner sought a hearing and redetermination, at the conclusion of which the Hearing Officer upheld the denial of both applications .

First addressing petitioner’s heart condition, there was no dispute that petitioner successfully passed his preemployment physical and that he wa now permanently disabled from performing his duties as a firefighter due to his heart disease. Inasmuch as petitioner relied exclusively on the statutory heart presumption contained in Retirement and Social Security Law § 363-a (1), the only issue for the Court’s review was whether the Retirement System rebutted this presumption by competent medical evidence. The Court did not agree with the Petitioner, who presented no expert testimony of his own, but argued that the expert testimony of a board-certified cardiovascular disease specialist who examined petitioner on behalf of the Retirement System, was insufficient to overcome the statutory heart presumption. Brown’s testimony, coupled with petitioner’s medical records and the identified risk factors, was sufficient to rebut the statutory presumption.

Next addressing petitioner’s ear injury, Petitioner also challenged the denial of this application for retirement disability benefits. Since respondent conceded that such injury was the result of an accident within the meaning of Retirement and Social Security Law §363, the issue thus distills to whether substantial evidence supports the determination that petitioner’s hearing impairment does not render him permanently incapacitated from performing his duties as a firefighter. Although petitioner testified that his ear injury rendered him unable to discern certain tones, especially in noisy situations, and affected his ability to drive a fire engine, hear the fire radio and perform at the scene of a fire, he failed to provide any additional evidence supporting these assertions, and it is undisputed that he returned to work within a month following the October 1999 incident and thereafter continued to work on full duty as a firefighter until the May 2004 incident. Moreover, the Retirement System proffered the report of an otolaryngologist who concluded that petitioner is “able to communicate adequately to perform the duties of a [f]irefighter.” As the otolaryngologist’s report was “rational, articulate and founded upon a physical examination and review of prior medical [records],” it provided the requisite substantial evidence to support respondent’s determination. Prevailing party represented by: Zainab A. Chaudhry of counsel to Andrew M. Cuomo, Attorney General for respondent. Click here to read the full decision of the Court….

Feeney v DiNapoli
December 17, 2009 Appellate Division, Third Department
Causal Relationship: Was there?

AFFIRMED the denial of petitioner’s applications for accidental and performance of duty disability retirement benefits. Petitioner began working as a police officer in 1979, continuing with the same employer in different positions until 2005, when he filed for accidental and performance of duty disability retirement benefits. Both applications were denied. Substantial evidence supported the Comptroller’s determination that none of petitioner’s work-related injuries were the direct and proximate cause of his permanent disability. While respondents concede that petitioner was permanently disabled from resuming his duties as a police officer, petitioner bore the burden of demonstrating that he was incapacitated from the performance of duty as the natural and proximate result of an accident or disability sustained in service Petitioner presented his own testimony and medical records, none of which proved a causal link between his work-related injuries and his permanent disability. Respondent provided the testimony and report of a board-certified orthopedist opined that petitioner was permanently disabled due to his back condition, but that his disability was solely attributable to an off-duty injury and that petitioner’s knee injuries did not render him permanently disabled. The Court “will not substitute our judgment for that of the Comptroller, as the orthopedist’s factually-based opinion constitutes substantial evidence supporting the determination to deny petitioner’s applications because his disability was not proximately caused by injuries suffered while on duty.” Prevailing party represented by: Owen Demuth of counsel to Andrew M. Cuomo, Attorney General for respondents. Click here to read the full decision of the Court….

Gilpatric v State Commission on Judicial Conduct
December 15, 2009 Court of Appeals
Procedure: Due Process/Mailings

MODIFIED the determination of the State Commission on Judicial Conduct which sustained one charge of misconduct against petitioner, a City Court Judge, for his failure to render timely decisions and concluded that his conduct constituted a pattern of “persistent or deliberate neglect of his judicial duties”, concluding that this matter should be remitted to the Commission for a hearing before a referee.

In August 2008, the Commission filed a formal, written complaint against petitioner, alleging that from July 2004 to February 2008 petitioner delayed in rendering decisions in 43 cases and 4 motions. The allegations are undisputed. In several cases, the litigants or their attorneys wrote to petitioner or petitioner’s administrative judge inquiring about the delayed decisions in their respective cases.

The Court wrote, “A judge has an ethical obligation to ‘dispose of all judicial matters promptly, efficiently and fairly’ (22 NYCRR 100.3[B][7]).“The Court recognized that when a judge “has defied administrative directives or has attempted to subvert the system by, for instance, falsifying, concealing or persistently refusing to file records indicating delays, We now hold that lengthy, inexcusable delays may also be the subject of disciplinary action, particularly when a judge fails to perform judicial duties despite repeated administrative efforts to assist the judge and his or her conduct demonstrates an unwillingness or inability to discharge those duties.” The Court Of Appeals returned this case to that Commission because of certain procedural anomalies in this case but acknowledged the need for such sanctions. Click here to read the full decision of the Court….

PENDING CASES
December 17, 2009: The following list represents 22 cases, with their hearing dates, on which decisions from the Appellate Court 3rd Department are still pending.

Nov 23, 2009 Begor v Holmes
Nov 23, 2009 Church v Arrow Electronics
Nov 20, 2009 Daquino v East Meadow School
Nov 19, 2009 Dilascio v Tilden Glen Head
Nov 19, 2009 Domenico v United Way
Nov 16, 2009 Epp v Cortland City DPW
Nov 19, 2009 Figueroa v Perfect Shoulder Co
Nov 16, 2009 Flores v Newstar Apparel
Oct 21, 2009 Friedman v New York City DOT
Nov 18, 2009 Hassan v Ford Motor Co
Nov 18, 2009 Hulbert v Cortland County
Oct 14, 2009 Jaquin v Community Covenant
Nov 18, 2009 Kane v Unger
Nov 24, 2009 Lew v Younger
Nov 20, 2009 Li v Southern Garden, Inc.
Nov 19, 2009 Malone v VRD Decorating
Dec 16, 2009 Moysello v David
Nov 18, 2009 Nothaft v Hawkeye Construction
Nov 24, 2009 Riley v Labor Ready
Nov 17, 2009 Sheeley v Sheeley Septic Svc
Dec 16, 2009 Wilcox v Niagara Mohawk Power
Dec 16, 2009 Wilson v General Mills

▼ Posted December 10, 2009 ▼

Smith v Consolidated Edison
December 10, 2009 Appellate Division, Third Department
Voluntary Withdrawal

REVERSED the Board’s ruling that claimant was entitled to an award of reduced earnings subsequent to September 15, 2007, thus determining that Board’s decision is not supported by substantial evidence. The claimant, exposed to dust following the terrorist attacks of September 11, 2001, was subsequently diagnosed with reactive airway disease and his claim for workers’ compensation benefits was established in 2004. But he sustained no compensable lost time and continued to work until he retired on February 1, 2007. After he was denied compensation by a WCLJ, he reentered the labor market, began working part time and again submitted a request for benefits this time for reduced benefits. The law judge, later confirmed by the Board, awarded benefits. In its reversal, the Court wrote, “Since claimant had voluntarily retired from his position with Consolidated Edison in February 2007, he was obligated, before obtaining a reduced earnings award, to demonstrate that he had attempted to obtain employment that took into account the restrictions caused by his disability. [In this case] claimant has failed to meet his burden of establishing that his reduced earnings are attributable to his disability, as opposed to age, existing economic conditions, or other factors that are not in any way related to his disability.” Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for appellants. Click here to read the full decision of the Court….

Mistofsky v Consolidated Edison
December 10, 2009 Appellate Division, Third Department
Disability: Degree of or R/E
Voluntary Withdrawal

AFFIRMED the Board’s ruling that claimant is entitled to an award of reduced earnings in a decision based in part by the failure of the employer to file an appeal of an earlier decision finding involuntary withdrawal. Claimant was terminated for misconduct in 1994 and then reinstated by an arbitrator. In June 1996 he testified he stopped working due to breathing problems as a result of exposure to asbestos during his 46 years of work with this one employer and began working for a different employer on a part-time basis at a reduced hourly wage. In July, a second arbitrator supported his termination for misconduct. In November 1996, he filed a claim for workers comp asserting that he contracted asbestosis while working for the employer.

In a March 2003 decision, a WCLJ established the claim for the occupational diseases of pulmonary asbestosis and asbestos-related pleural disease, classified claimant with a permanent partial disability, and set December 7, 1998 as the date of disablement. The WCLJ, finding that claimant did not voluntarily withdraw from the labor market, made reduced earnings awards. The Board specifically noted that the employer failed to produce evidence before the WCLJ controverting claimant’s testimony to the effect that the reason he stopped working for the employer in June 1996 was because of breathing difficulties. In August 2006, the WCLJ found that, per the prior March 19, 2003 decision, claimant was entitled to reduced earnings benefits subsequent to December 1998 as a result of his established occupational disease.

Contrary to the employer’s argument, the Court determined that an inquiry as to whether claimant’s withdrawal from the labor market in June 1996 was involuntary was not before them inasmuch as no appeal from the January 2004 decision was taken. Consequently, claimant’s involuntary retirement in June 1996 “gave rise to an inference that the subsequent reduction in earnings [as a messenger] was due to claimant’s permanent partial disability“. In order to defeat that inference, the employer was required to “demonstrate that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement.” The Court agreed with the “Board’s determination that the employer did not defeat the inference and, therefore, that claimant is entitled to reduced earnings is supported by substantial evidence.” Prevailing party represented by: Leonard B. Feld, Jericho, for appellants. Click here to read the full decision of the Court….

Gregorec v Brenners Furniture
December 10, 2009 Appellate Division, Third Department
§ 25-a: True Closing

REVERSED the Board’s decision that WCL § 25-a is inapplicable to claimant’s award of workers’ compensation benefits. Although claimant suffered a work-related back injury in February 2000, no compensation was awarded as claimant did not lose any time from work. Claimant continued to receive symptomatic chiropractic treatment from the date of the injury until November 2000, then had one treatment in 2003 and resumed periodic chiropractic treatments in February 2005. In September 2005, although the claimant’s chiropractor began filing the C-4 reports regarding possible permanent restriction or a total or partial loss of function, he did not offer a specific opinion on the permanency of claimant’s condition. In July 2007, the carrier raised the applicability of WCL §25-a, which prompted the Board to index the case for the first time and later determined WCL § 25-a was inapplicable.

While the Board determined that medical reports, submitted in September 2005 and thereafter, served to reopen claimant’s case prior to a lapse of seven years since the injury, the Court wrote that “The mere mention of permanency in a medical report, absent an opinion regarding the degree of permanency, is insufficient to act as a request to reopen a case ’such that these “medical reports did not display a clear intention by the reporter to reopen the case” Finally, the Court concluded, “Inasmuch as the Board’s determination was not supported by substantial evidence, it must be reversed. We further note that, in reaching its conclusion in this case, the Board failed to explain its departure from its determinations [issued in prior cases].” Prevailing party represented by: Paul L. Isaacson of counsel to Gregory J. Allen, State Insurance Fund (NYC) for appellants. Click here to read the full decision of the Court….

Carlucci v Omnibus Print
December 10, 2009 Appellate Division, Third Department
Disability: Degree of or R/E

RESCINDED the Board’s ruling that claimant had sustained a permanent moderate partial disability. Claimant sustained various respiratory, pulmonary and cardiac disorders in the course of his employment as a pressman. A WCLJ found that he had sustained a permanent partial disability whereupon the Board determined that claimant suffered from a permanent moderate partial disability, reducing his compensation award. Quoting the Court,

While the Board’s resolution of conflicting medical evidence in the record will be upheld if supported by substantial evidence, such a determination cannot be sustained if it relies upon an inaccurate legal standard or is based on incorrect factual assertions or a misreading of the record. In its decision, the Board quoted specific guidelines used to determine whether an individual has sustained a total disability of the low back (see State of New York Workers’ Compensation Board Medical Guidelines, at 27 [June 1996]). The Board then stated that it could ‘not rely upon the opinion of the claimant’s physician or the opinion of the impartial specialist [on the degree of claimant’s disability] . . . as there is no evidence in the record that these opinions conform to the Board’s medical guidelines on this issue.’ Claimant’s disability, however, does not involve his back and the quoted guidelines are accordingly irrelevant. The employer and its workers’ compensation carrier are correct in pointing out that, while the guidelines present useful criteria, the ultimate determination as to the degree of disability rests with the Board (see Matter of VanDermark v Frontier Ins. Co., 60 AD3d 1171, 1172 [2009]). That being said, the Board did not disregard the guidelines, but instead incorrectly relied upon inapplicable ones in reviewing the medical evidence. Under these circumstances, the matter must be remitted to the Board so that a proper assessment of the evidence may occur.

Prevailing party represented by: John F. Clennan (Ronkonkoma) of counsel to Goldsmith & Tortora (Commack) for appellant. Click here to read the full decision of the Court….

Bond v Suffolk Transp.
December 10, 2009 Appellate Division, Third Department
§ 21(1): Presumptions
Course of Employment: in and out of

AFFIRMED the Board’s ruling that claimant did not sustain an accidental injury in the course of her employment and denied her claim. Claimant, a school bus driver, was injured when she slipped and fell exiting a bus outside of her home and sought workers’ compensation benefits. A WCLJ determined that claimant’s injury had not been sustained in the course of her employment. For an accident to be compensable, it must have arisen out of and in the course of employment. The record here shows that claimant had a split work shift consisting of morning and afternoon bus runs, with several hours off duty in between. During what claimant referred to as her “break” period, she was permitted to drive the bus to her home, where her fall occurred. No evidence was produced to show that the employer retained any control or authority over claimant in the period between the bus runs or that her use of the bus had any relationship to her employment or benefit to her employer. Claimant then attempted to rely upon the presumption of compensability contained in WCL § 21(1) to establish such a relationship, but that statute does not wholly relieve her of the burden of demonstrating that the accident occurred in the course of, and arose out of, her employment, such that the Court agreed with the Board’s previously stated position. Prevailing party represented by: Marc A. Grodsky of counsel to Jones, Jones & O’Connor (NYC) for Suffolk Transportation Service and another, respondents. Click here to read the full decision of the Court….

▼ Posted December 3, 2009 ▼

Tipping v Orthopedic Surgeons
December 3, 2009 Appellate Division, Third Department
Causal Relationship: Medical (ANCR/ODNCR)

REVERSED the Board’s ruling that claimant did not sustain an occupational disease and denied her claim for workers’ compensation benefits, thus making “academic” her appeal from the second board decision which denied her request for full Board review. In April 2006, after years of working in a medical office spending almost 5 hours each day cradling the phone with her head while she performed other work-related duties, claimant sought medical attention for pain and spasms in her neck and upper back and began a regimen of physical therapy. In April 2000, a month after she stopped working, she was terminated and thereupon filed a claim for workers’ compensation benefits. A WCLJ granted her application finding that the condition was an occupational disease. The Board reversed and denied both the claim and the subsequent application for full Board review.

The medical experts on both sides stated that (1) claimant, in the period prior to her employment, had been asymptomatic, (2) her condition during that period of time had been dormant and nondisabling, and (3) her preexisting condition had been exacerbated by her employment. The Court wrote, “A preexisting condition, such as claimant’s, can constitute an occupational disease if it is ‘demonstrated that the condition was dormant and nondisabling and that a distinctive feature of the employment caused the disability by activating the condition.’ Given that the medical evidence before the Board established that claimant’s employment activities resulted in an exacerbation of her prior condition, its conclusion to the contrary was not supported by substantial evidence.” Prevailing party represented by: John F. Clennan, Ronkonkoma, for appellant. Click here to read the full decision of the Court….

Ridgeway v RGRTA Regional Tr. Serv
December 3, 2009 Appellate Division, Third Department
§114-a Fraud

AFFIRMED the Board which ruled that claimant did not violate WCL §114-a, thereby reversing the WCLJ’s decision. Claimant had filed a number of workers comp claims including one in October 2005, which was an automobile accident after her work shift ended for which she completed a “Personal Injury Form” for her employer stating that the accident occurred after her work shift began at 5:35 P.M., when in reality her shift had ended at that time. The employer sought to bar claimant from receiving further workers’ comp benefits pursuant to WCL §114-a, asserting that she intentionally misrepresented on the form that the accident was related to her work. A WCLJ agreed disqualifying the claimant from receiving further benefits related to an earlier as well as this current injury. The Board rescinded the findings, holding that the evidence was insufficient to show that claimant knowingly made material misrepresentations on the form, and the employer appealed. The Board’s determination as to whether a claimant ran afoul of WCL §114-a will not be disturbed if substantial evidence supports it. The Board found that the claimant made mistakes filling out the form which she acknowledged after the inaccuracies were brought to her attention. The Court agreed with the Board that the substantial evidence supported that determination the claimant did not knowingly make a false statement. The Court then added, “the Board is not bound by the credibility determinations of a Workers’ Compensation Law Judge, and nothing in the Board decisions pointed to by the employer [in their appeal] indicate that the Board adheres without question to those determinations.” Prevailing party represented by: James D. Hartt, Rochester, for Glenda F. Ridgeway, respondent and Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General (NYC) for the Board, respondent. Click here to read the full decision of the Court….

Jean-Louis v Hilton Hotels Corp
December 1, 2009 Appellate Division, First Department
§ 11 Election of Remedies

DISMISSED by the Supreme Court, New York County, a second cause of action wherein plaintiff alleges that defendants negligently trained, managed and/or supervised employees who confined her to an office for an hour and did not allow a union representative to be present while discussing her complaint that her supervisor inequitably distributed work based on her ethnicity and religious beliefs. This claim is barred by the exclusive remedy provisions of the Workers’ Compensation Law (see WCL § 11; § 29[6]. Even if the alleged conduct could be reasonably construed to be in furtherance of defendants’ interest, “[t]he complaint. . .did not contain requisite allegations that [defendants] had knowledge of, or acquiesced in, the tortious conduct of [their employees].” Prevailing party represented by:Diane Windholz of counsel to Jackson Lewis (New York) for respondents. Click here to read the full decision of the Court….

▼ Posted November 26, 2009 ▼

Shepler v City of Tonawanda
November 25, 2009 Appellate Division, Third Department
§ 15(8)(e) 2nd Injury Fund

AFFIRMED the Board’s decision to discharge the Special Disability Fund from liability under §15(8)(e). The decedent, claimant’s husband, as the result of undiagnosed arteriosclerotic cardiovascular disease, went into cardiac arrest while collecting garbage and died. After the WCB established the claimant’s ensuing workers’ comp claim, the employer and its TPA sought to obtain reimbursement from the Special Disability Fund. The Court agreed with the Board’s rejection in that the employer had not shown that decedent’s prior condition hindered or was likely to hinder his employability, writing the employer failed to show “(1) that the decedent had a preexisting permanent impairment that hindered or was likely to hinder his or her employment potential, (2) a compensable injury and (3) that either the injury or the death would not have occurred but for such preexisting permanent impairment.” Among other points, “the fact that decedent’s preexisting condition contributed to his death, without more, is insufficient to show that his employment potential was hindered by it.” An interesting point made by both the physician and the medical examiner who performed decedent’s autopsy was that at least 85% of individuals who suffer sudden cardiac arrest are at rest or engaged in minimal physical activity at the time. Moreover, there was no evidence that decedent’s undiagnosed condition had previously affected his work or recreational activities in any way. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds (Albany) for the Fund respondent. Click here to read the full decision of the Court….

Schmidt v Falls Dodge
November 25, 2009 Appellate Division, Third Department
Schedule Loss of Use issues

AFFIRMED the Board which ruled that claimant’s schedule loss of use (SLU) award is not subject to claimant’s awards in other workers’ compensation cases. In 2005, claimant filed three separate workers’ comp claims and was awarded benefits in each. After submitting a fourth claim for hearing loss in 2007, the WCLJ established the claim for the occupational disease of binaural hearing loss, awarding a 21.43% SLU, to be paid at $400 per week for 32.145 weeks. Although the WCLJ also established the date of disablement as September 27, 2005, and claimant’s earlier awards encompassed various time frames within the ensuing 32 weeks, the WCLJ determined that claimant’s SLU award was not subject to the temporary disability benefits he was already receiving. The Court wrote that, “Contrary to the assertion of the State Insurance Fund and the employer, the Court of Appeals’ decision in Matter of LaCroix v Syracuse Exec. Air Serv., Inc. (8 NY3d 348 [2007]), which dealt with the proper method of payment of a schedule loss of use award, did not overrule this Court’s holding in Matter of Miller v North Syracuse Cent. School Dist. (1 AD3d 691 [2003]). . . . Accordingly, here, the Board correctly concluded that the SLU award, intended to compensate claimant for his future loss of earnings as a result of his hearing loss, was not subject to his temporary disability awards, which were ‘intended to compensate him for his loss of income during . . . finite periods].’” Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, NYC for the WCB, respondent.Click here to read the full decision of the Court….

Magerko v Edwin B. Stimpson Co
November 25, 2009 Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s decision which, among other things, ruled that pro-se claimant voluntarily withdrew from the labor market. Claimant, with an established permanent partial disability due to a variety of ailments related to a 1990 work-related injury, was laid off in 2003 when his employer moved part of its operations out of state. Following hearings, a WCLJ found that claimant had not voluntarily withdrawn from the labor market following his layoff. Upon review, the Board disagreed and rescinded all awards from June 2003 onward. Inasmuch as claimant’s loss of employment was due to a layoff unrelated to his disability and the Board made no finding of involuntary retirement, the burden rests on claimant to demonstrate “by substantial evidence that his disability contributed to his continued unemployment“. The Court noted that testimony revealed the claimant collected unemployment insurance but made minimal efforts at seeking work and, although he stated he had physical constraints, he presented no evidence this information was supplied to potential employers. He began receiving Social Security disability benefits and moved to Florida in 2004, and he had made no subsequent effort to find a job. Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly, (Carle Place) for Edwin B. Stimpson Company, Inc. and another, respondents.Click here to read the full decision of the Court….

Benjamin v Sprint/Nextel
November 25, 2009 Appellate Division, Third Department
Disability: Further Causally Related

AFFIRMED the Board’s ruling that the pro-se claimant did not sustain a further causally related disability. In 2006, after a work accident, a claim for workers’ comp benefits was established for head and neck injuries. After extensive further proceedings, a WCLJ determined that claimant had not suffered a causally related back injury or psychiatric disability. Dealing first with claimant’s alleged back injury, the Court agreed with the Board that her treating physician’s opinion that a variety of back problems “could” have been caused by the accident but failed to specify what conditions actually caused the pain or how the accident gave rise did not support the claim of a back injury. The Court added, “As that opinion amounted to ‘mere surmise, or general expressions of possibility,’ the Board was free to reject it, even in the absence of contrary medical evidence.” With regard to claimant’s alleged psychiatric disability, the Court felt the Boards reasoning to be sufficient: a psychiatrist who conducted an independent medical examination of claimant concluded that she did not suffer from any psychiatric disability. Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly, (Carle Place) for Sprint/Nextel and another, respondents. Click here to read the full decision of the Court….

Maricle v Crouse Hinds
November 25, 2009 Appellate Division, Third Department
Causal Relationship: Exacerbated or New

AFFIRMED the Board which ruled that claimant had exacerbated a prior compensable injury and awarded workers’ compensation benefits. After first sustaining a work-related back injury in 2001, for which he intermittently missed time from work and received workers’ comp benefits, the claimant in 2007 again missed work and required medical treatment due to back pain, at which time the employer alleged that the pain was unrelated to the 2001 injury. Following hearings, a WCLJ determined that claimant had not suffered a new injury and awarded benefits. With back injuries, “there is the ever-present danger of recurrence and the question then arises as to whether the subsequent incident was a new accident, an aggravation or . . . an [incident associated with the primary injury.” The Court wrote, as it has in so many similar cases, that, “We will not interfere with the Board’s resolution of that issue if substantial evidence supports it, even if evidence in the record could justify a different conclusion.” Even though there was extensive and contradictory medical evidence, the Court stated that the Boards decision was sustainable. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, NYC for the Board. Click here to read the full decision of the Court….

Parrelli v Atlantic Constr
November 25, 2009 Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s ruling, which reversed the WCLJ, that there was no causal relationship between claimant’s asbestos-related pleural disease and his loss of earnings. Claimant won a workers’ compensation claim for a 1997 injury to his right hand, was ultimately found to have suffered a permanent partial disability, and received a lump-sum settlement. Not returning to workdue in part to his hand injury, he applied for disability retirement in 1998. Claimant filed the present claim in 2000, alleging that he suffered from a lung disease caused by his workplace exposure to asbestos. A WCLJ established the claim and, among other things, awarded claimant lost wages from September 2001 through December 2006. But the Board eliminated that award, determining that claimant retired for reasons unrelated to his lung condition and lost no wages as a result of it. Two key factors in this decision were the claimant’s acknowledgment that his retirement was due to physical elements other than his lung disease, due to which he never lost any time from work, and his admittance that, after retiring, he made no effort to find work within his medical limitations. Prevailing party represented by: David E. Baida of counsel to Gregory J. Allen, State Insurance Fund (NYC) for Atlantic Construction and another, respondents. Click here to read the full decision of the Court….

Bovis v Crab Meadow
November 17, 2009 Appellate Division, 2nd Judicial Department
§ 11 Election of Remedies

DENIED MOTIONS by two third-party defendant-appellants for motions for summary judgment in a suit brought by the employee in an action against, among others, the Crab Meadow defendants (who contracted with Picone, claimant’s actual employer), alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The Crab Meadow defendants commenced a third-party action seeking indemnification and contribution from Picone, and a judgment declaring that Sirius (Crab’s insurer) was obligated to defend and indemnify them in the main action. And Picone sought a cross motion for summary judgment dismissing the third-party complaint insofar as asserted against it, per WL §11. The Court agreed with the lower court that the third-party defendant Picone failed to establish that it did not enter into an indemnification agreement with the Crab Meadow defendants in 2002 prior to the injured plaintiff’s accident. Stating that an insurer’s obligation to defend is broader than its obligation to indemnify and arises whenever the allegations in a complaint against the insured fall within the scope of the risk undertaken by the insurer, the Court then added that Sirius failed to submit any evidence establishing that there was no possible basis upon which it may be obligated to indemnify the Crab Meadow defendants since there was no evidence that Picone and the Crab Meadow defendants did not enter into an indemnification agreement in 2002. Click here to read the full decision of the Court….

Lee v Astoria & Elliott Turbo
November 17, 2009 Court of Appeals
Jones Act (LHWCA)

The Court of Appeals, with two dissents, reversed the Appellate Division which in turn had reversed the Supreme Court in the interpretation of 33 USC § 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA), thus preempting New York State Labor Law §§ 240(1) and 241(6) claims, by holding that a barge containing an electricity generating turbine is a vessel. Plaintiff injured his back while performing work on a turbine on barge in a facility owned and operated by defendants(Astoria/Orion). That plaintiff was employed by Elliott, a firm hired in 2000 by Astoria/Orion to perform an overhaul of the turbines at the facility. In 2001, the plaintiff placed a claim and was awarded benefits under the LHWCA, which “provides workers’ compensation to land-based maritime employees” and also commenced this state court action against Astoria/Orion, asserting Labor Law §§ 200, 240(1) and 241(6) claims and common law negligence claims. Astoria/Orion subsequently filed a third-party complaint against Elliott seeking indemnification. Elliott moved for summary judgment and the barge owners cross-moved for summary judgment which the Supreme Court granted only to be then reversed by the Appellate Division which reinstated plaintiff’s Labor Law §§ 240(1) and 241(6) claims and granted summary judgment as to the Labor Law § 240(1) claim in plaintiff’s favor. The Majority and the Dissenting Justices have issued a five-page decision justifying their respective opinions. Click here to read the full decision of the Court….

▼ Posted November 19, 2009 ▼

Aminzadeh v Hyosung USA
November 19, 2009 Appellate Division, Third Department
Date of Disablement

AFFIRMED the Board’s decision which ruled that the date of claimant’s disablement for her carpal tunnel syndrome was June 8, 2007. Claimant’s first compensation claim was established for a cut to her left hand in 2005 and then for ensuing complications. While being treated for those conditions, there were indications that claimant also suffered from carpal tunnel syndrome (CTS) in her left wrist. A separate claim was filed for the CTS, and a Law Judge ultimately established it as an unrelated occupational disease with a June 2007 date of disablement. Upon review, the Board affirmed and the carrier (American Home Assurance Company) appealed. The Court reiterated its standard reasoning for supporting the board by writing that “but that “. . .the Board’s selection of a June 2007 date of disablement is supported by substantial evidence, notwithstanding that claimant had symptoms of, and was treated for, CTS earlier.” Prevailing arguments presented by: Michael V. DeSantis of counsel to DeSantis & DeSantis (Utica) for Shahnaz Aminzadeh, respondent and John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Hyosung USA, respondent.Click here to read the full decision of the Court….

Johnson v Unifirst Corp.
November 13, 2009 Appellate Division, Fourth Department
§ 11 Election of Remedies

REVERSED the Supreme Court’s denial of Derrick’s motion, by granting the motion for summary judgment and dismissing the third-party complaint. Plaintiff commenced this action seeking damages for injuries he sustained when, during the course of his employment as a welder for third-party defendant (Derrick), the uniform he was wearing caught fire. The uniform was rented by Derrick from defendant-third-party plaintiff, UniFirst Corporation (UniFirst), which commenced the third-party action against Derrick seeking contractual indemnification. The Appellate Court wrote that, “It is undisputed that plaintiff did not sustain a grave injury within the meaning of the statute, and Derrick established as a matter of law that its written contract with UniFirst containing the indemnification provision had expired and thus was not in effect at the time of plaintiff’s accident.” Pursuant to WCL §11, a third-party action for indemnification against an employer for injuries sustained by its employee in a work-related accident is barred unless the employee sustains a grave injury or the claim for indemnification is “based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the . . . person asserting the cause of action for the type of loss suffered. UniFirst may not rely upon the automatic renewal provision of the written contract because UniFirst did not comply with its statutory obligation to provide timely written notice to Derrick ‘calling [its] attention’ to that provision.” The Appellate Court also rejected UniFirst’s contention that General Obligations Law § 5-903 (2) did not apply. Prevailing party represented by: Mark P. Della Posta of Counsel to. Walsh, Roberts & Grace (Buffalo) for Third-party Defendant-appellant. Click here to read the full decision of the Court…

Miraglia v H & L Holding Corp.
November 17, 2009 Appellate Division, First Department
§ 11 Election of Remedies

“Plaintiff was injured while working on a construction project on property owned by defendant H & L Holding Corp. (306 AD2d 58 [2003]). Plaintiff commenced a personal injury action against H & L, which subsequently impleaded Lane, plaintiff’s employer. H & L was granted summary judgment on its claim for indemnification against Lane, and Lane assumed defense of the main action. After a jury trial, H & L was found liable for plaintiff’s injuries and plaintiff was awarded damages. The judgment, however, permitted plaintiff to recover the damages from H & L (the defendant in the main action) and Lane (the defendant in the third-party action). On defendant Lane’s appeal from the judgment, we modified the judgment to the extent of, inter alia, setting aside the award for future pain and suffering unless plaintiff stipulated to reduce the award (36 AD3d 456 [2007], lv denied 10 NY3d 703 [2008]). “Lane did not argue on that appeal that it was not liable to plaintiff but only to H & L. “Lane now argues that we misapprehended the facts and the law in deciding its appeal because we focused on whether it had waived any argument that plaintiff could not recover against it because of the exclusivity provision of Workers’ Compensation Law § 11. 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,third-party defendant (L&S) fail to raise this objection to the judgment on the 2007 appeal, but it assumed defense of the direct defendant (H&L) at trial.” The majority of the Court felt that “third-party defendant (L&S) [is not] persuasive in arguing — for the first time on appeal — that Supreme Court lacked personal jurisdiction over it because plaintiff never named it as a direct defendant. Supreme Court has always had the power to render an adjudication over third-party defendant which surely would not have assumed the defense of the direct defendant at trial if it believed the court lacked personal jurisdiction over it. Moreover, by first actively participating in the litigation as if it were a direct defendant, and then by failing to raise the issue on appeal, third-party defendant waived its right to rely on , in which the Court of Appeals held that a plaintiff may not recover directly from a third-party defendant over which it has no direct claim.” In a concurring opinion, Justice McGuire wrote “Thus, the order denying Lane’s motion to amend the original judgment should be affirmed on the ground that Lane waived that argument by not raising it on the appeal from the judgment.” Click here to read the full decision of the Court…

Cueto v Hamilton Plaza
November 10, 2009 Appellate Division, Second Department
§ 11 Election of Remedies

AFFIRMED order of the Supreme Court, Westchester which denied motion of the nonparty Special Trades Contracting and Construction Trust, c/o New York Compensation Managers Third-Party Administrator for Workers’ Compensation for Arkay Contracting (The Trust), pursuant to CPLR 3211(a)(7), to dismiss the second cause of action in the third-party complaint for common-law indemnification and contribution for failure to state a cause of action. In 2004, the plaintiff, Victor Cueto allegedly was injured when a portion of a ceiling fell on him at a construction project. After his WC claim against his employer, Arkay was settled, the plaintiff commenced an action to recover damages for personal injuries against various owners, managers, contractors, and subcontractors on the construction project. The defendant Reckson Construction commenced a third-party action against Arkay, inter alia, for common-law indemnification and contribution. The 2nd Department agreed that The Trust failed to sufficiently allege that Cueto had suffered a “grave injury” and that, therefore, WCL §11 barred Reckson’s claim for common-law indemnification and contribution. And the 2nd Department found sufficient evidence was presented that Cueto suffered a “grave injury,” and, consequently, that the Supreme Court properly denied Special Trades’ motion pursuant to CPLR 3211(a)(7) to dismiss the cause of action in the third-party complaint for common-law indemnification and contribution. Click here to read the full decision of the Court…

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POLLS: We Want Your Opinion

COURT DECISIONS

►This week, five decisions with ony two affirmances!

►Click here for PENDING COURT DECISIONS

►A NEW FEATURE on the DECISIONS page: Pending Legislation..click here

OUR PRIOR POLL

►§32 and child support liens

ON OUR OTHER PAGES

►Commissioner Bios September updates

►§32 & Child Support Lien

►Legal Fees on Medical Bill??

►Project 2015: The End of the WCB as We Know It?

THIS WEEK’S NEWSWIRE

►NYS Sues CRM Civilly and Criminally

►‘Illegal Immigrant’ or ‘Undocumented Immigrant’?

BEHIND THE CLOSED DOORS

Chapter 24: How to Become A Commissioner

This Week’s Poll Results: What do we do
with Undocumented Workers?

Aren’t you glad you had an education which stressed accuracy in choice of terms? An “undocumented” immigrant is a person who is in the US but is a citizen of another country and who, somehow, lost the papers which would demonstrate their current status. An “illegal” is a person whose status, after an inquiry, shows that there is nothing to support legal residency. Sotomayor’s deliberate use of incorrect terms to cloud or mischaracterize a status does not demonstrate incompetence, it demonstrates a violation of an oath to support the laws as they are.

To the question of whether the federal government should deport illegal immigrants and limiting their compensation, 41% were in favor, 18% were against deportation, and a 41% had no opinion.

SUMMARY

The U/W should not be given Workers Compensation, and any amount deemed what would have been paid were he/she a documented worker should be doubled and split between the WCB and the State. Further, the employer should be investigated to determine the amount they didn’t pay both the WCB and the State. Legitimate employers through their insurance and self-insured funds are being assessed staggering amounts while constantly facing increases in HICRA and covered lives to pay for these fly-by employers. They need to be taken to task and it should start with the WCB.

And

Other - illegal immigrants are dependent on illegal employers. the employers want illegals because they work cheaper and accept more hazardous work conditions. if we do not penalize the complicit employers–as a society we should accept the reality of the situation and bring back child labor; and give bail-out money to aid the triangle shirt waist factory. think of all the jobs that could be created. maybe we could just rename our country New China.

Thank you for your participation in this interesting issue. If you care to add to the discussion, click here to send me your comments.

This Week’s Poll Results:
The WCB, §32’s, Child Support Liens

One participant wrote:

What makes child support or tax liens so special?

And a second participant wrote:

The Board should seek to have the Legislature amend §33 to get rid of the lien for outstanding child support liens. Section 33 only creates problems within compensation cases and delays and prevents resolution of the cases. To paraphrase former Chairman Weiss, it just creates unnecessary friction within the system. [ED. NOTE: I do not believe that Weiss mean to get rid of any controversial laws just to ‘speed up’ the system.

But key to this issue was a comment from one participant who wrote:

Section 33 permits deduction for judicial orders of support for “alimony maintenance support or child support.” There is no basis for treating alimony differently from child support.

It is clear from a reading of the statute that the benefits are exempt from all claims of creditors and from levy or execution for recovery, or collection of a debt. However, it has been generally stated that claims for alimony and support are an exception to the exemptions granted by statute on the theory that an adjudication of alimony or support is not a debt within the meaning of the exemption statute. The whole theory and purpose of the Workers’ Compensation Law is to provide a substitute for the loss of wages and for the protection of the employee and his dependents from want and to prevent, if possible, the injured employee and his family from becoming objects of charity or dependent upon the State. (Matter of Wilkosz v Symington Gould Corp.,14 A.D.2d 408; Westchester Light. Co. v Westchester County Small Estates Corp., 278 NY 175; Matter of Bowne v Bowne Co., 221 NY 28; 22 NY Jur, Exemptions, § 57, p 260; 65 NY Jur, Workmen’s Compensation § 14, p 323-324.)

The protection of section 33 of the Workers’ Compensation Law, is not restricted only to the family that is intact but also to the beneficiary and his family whether they are living together as a family unit or separated. It appears quite clear that the Legislature did not intend to insulate the husband and father against his legal responsibilities and obligations to support his wife or child, only the family against creditors.

It is true that a Federal statute which mandates an act supersedes a State statute prescribing procedures to be followed by State or local statutes. (Hoye v. United States, 277 F. 2d 116 [C. A. 9th, 1960].) Also liens for Federal taxes and provisions for their collection are strictly Federal and strictly statutory. (Bank of Nevada v. United States, 251 F. 2d 820 [C. A. 9th, 1958], cert. den. 356 U.S. 938.) Further that State exemptions statutes such as subdivision 2 of section 166 of the New York State Insurance Law and section 33 of the Workmen’s Compensation Law are ineffective against Federal statutory liens for Federal taxes; and States may not interfere with power of Congress to levy and then to collect Federal taxes on income. (Fried v. New York Life Ins. Co., 241 F. 2d 504 [C. A. 2d, 1957], cert. den. 354 U.S. 922.)

Call it what you will, compensation or otherwise, the employer must still pay wages to his employee, albeit on a reduced scale, either directly as a self-insurer or indirectly through an agent, while that employee is incapacitated from employment for injuries sustained in his employer’s business.

The majority of participants to this poll agree with this concept.

Poll Results: NYC’s Toxic WTC Tactics

“The WTC claimant should not be treated any differently than any other worker claiming on-the-job injuries. There is no need to create a special class of claimants simply because of the emotional nature of the WTC collapse.”

This comment from one of the participants in the poll summarizes the vast majority (77%) of the votes and comments.

Another participant wrote, “These cases should be subject to the same standard of proof of causation as any other claim. The only reason they are treated differently is for political reasons.”

This is the forte of the workers compensation system.

And now to the poll questions and answers regarding the Post story.

Question #1: Who is better equipped to handle these claims: workers comp attorneys or personal injury attorneys?

QUESTION #2: Is the city being unfair to these injured workers?

SUMMARY

RECOMMENDATIONS

POLL: Legal Fees on Medical Expenses

84% agreed that fees should be paid in medical only cases/hearings.

16% disagree.

68% agreed that they should be paid on §32 set-asides.

32% disagreed.

89% agreed that, if fees are to be paid, carriers should pay them.

11% disagree.

Another respondent noted that the payment of a classification fee does not end the attorneys’ involvement with the claimant, and the attorney should be prepared for future litigation.

There were two other interesting statements:

This is a contingency fee system. Therefore, fees should be paid on all recoveries. Simply look at the negligence claims. The jury pays damages on past present and future loses–including lost wages medical needs of every type–and the attorney generally receives 1/3 of all damages. Why should the comp attorney be short-changed. The comp system already limits damages and does not pay for physical pain or emotional suffering.

And

The claimant’s attorney should be compensated for his/her efforts concerning all issues. If the issue only concerns medical services the attorney should still be paid. The attorney’s efforts in resolving these issues is as much of a service for claimants and the Board as their efforts concerning indemnity issues. The big question is how to award a fair fee with the limited funds of a Section 32 or of an ongoing claim. This way I believe that medical issues will be resolve more expeditously and the medical providers who do not have any standing will have some representation.

Therefore, in order to get the discussion rolling, I recommend the following:

In §32’s any money allocated for medical should be subject to a 5% fee paid by the carrier directly to the claimant’s attorney. And it should be for all expenses, be it in the general text of the agreement or a specific Medicare set-aside, whether the money is paid directly to the claimant or put into an escrow account.
In cases in which the claimant has been classified, the classification fee historically has meant that the attorney be available at no additional cost for future litigation. But there must be a limit as to how often the claimant’s attorney should be called upon to fight for medical treatment. I recommend that in all hearings and/or appeals necessitated by a medical-only controversy, in which the claimant’s attorney is successful, a fee of $75 per hearing and an additional $100 for an appeal should be awarded the claimant’s attorney, paid for by the carrier. These fees would not apply to the first hearing or appeal after the classification fee has been awarded.
For those claimants who have not yet been classified, I recommend that a fee of $75 be paid for each hearing and $100 for each appeal.

POLL ANALYSIS: Secret Project 2015

September 21, 2009: Just a little more than two weeks ago, the news broke about a here-to-fore top secret project being conducted at the Board and we asked you your opinions:

Our September 14, 2009 poll asked “Based on what you have read about this here-to-fore top secret project, do you believe:

the Project should go forward?

the explanation given by the WCB?

there are too many hearing?

there are too few hearings?

less hearing help the claimants?

more hearing will help the claimants?

is there another agenda behind this Project?

As to the question as to how Project 2015 will be help or hurt the system, this is the breakdown.

Are there are too many hearing?

Do less hearing help the claimants?

Not a single person voted for either of these two. To the two questions which asked the opposite:

Are there too few hearings?

Do more hearing will help the claimants?

28% stated that there are too few hearings and that more hearing help claimants.

The two sets of answers appear to go to the heart of the issue concerning Project 2015 and are better understood when reading the comments in OTHER:

no hearings-no attorney fees. with no attorneys the board can screw the parties all they want.

to eliminate lawyers from the system

There has been an underlying concern brought to my attention frequently over the past few months and commented upon in this poll:

Legal fees and attorneys’ involvement in the system

To eliminate lawyers from the system

After all, an uninformed claimant will not know their rights or alternatives.

No hearings-no attorney fees. with no attorneys the board can screw the parties all they want.

The essential question is, not what is the goal of the Board, but what is the goal of the Oligarchic Cabal who is trying to impose this Project 2015 onto the claimants and employers.

I think I can speak for the workers compensation community when I say,

“Dear Board, we await your explanation as to what is Project 2015 and its purported goals.”

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InsideWorkersCompNY is the creation of Michael T. Berns, a former Commissioner / Board Member of the New York State Workers Compensation Board, based on the insight developed during 12 years of service including participation in more than 40,000 decisions and 10,000 hearings.

Updated twice a week, this website will impart an understanding of the New York State WCB that will help the workers comp community better understand why the WCB does what it does and how to deal its many inconsistencies and bureaucratic obfuscations as well as giving the community and Board staff an anonymous bulletin board. Friday postings include that week’s court decisions, news articles, and commentary. Monday postings include polls. Among the pages in this website are:

COURT DECISIONS: a weekly update of workers comp related decisions from the New York’s Appellate Division, Court of Appeals, and other jurisdictions, a list of cases that have been argued but still await a ruling from the Court, and a list of the “winningest” attorneys for the year.

POLLS: I conduct polls to Monday’s a month and on alternate Mondays analyze the results of the opinions of my readers.

Click here to find out more about this new book.

NEWSWIRE: a weekly listing of key developments from the media as well as various state agencies.

COMMENTARY: my comments on key topics, work related injuries, major court decisions, new board policies, and answers to questions from my readers.

MY BOOK: “Behind the Closed Doors – an Insider’s look at how things really work at the New York State Worker’s Compensation Board, and how to fix them”

BIOS: The commissioners’ official and unofficial biographies.

Comments, suggestions, and criticisms, published anonymously, can be sent to me at: TheInsider@InsideWorkersCompNY.com.

Michael T. Berns, The Insider
Commissioner 1996-2008, New York State Workers Compensation Board

Monday, March 1, 2010 Postings
POLL RESULTS: The results of the survey on various questions regarding the Beloten Board were quite unfavorable for someone whose appointment was received with great expectations and whom is still well-like but apparently not in control.

Friday February 26, 2010 Postings
NEWSWIRE: The Triangle Shirtwaist Factory Fire Memorial (TSFFM) announced the four winners of the Clara Lemlich Public Service Award as well as details for its March 25, 2010 Awards Dinner.
DECISIONS: The workers compensation related case this week comes from the New York State Appellate Court, Second Division on a controversy over the credit or offset against death benefits.

Monday February 22, 2010 Postings
POLL: Now that Robert Beloten has been Chairman of the New York State Workers Compensation Board, it is time to see how good/fair/bad a job he has been doing. Results, to be compared to earlier polls,will be reported here Monday March 1, 2010.
Friday February 19, 2010 Postings
NEWSWIRE: The New York Times discusses Chief Justice Jonathan Lippman and his impact at the New York State Court of Appeals and what it may mean for injured workers. The Colorado legislature seems to feel that videotaping injured workers in order to prove claims of fraud is not fair and a recent medicals study discusses the failure of many back treatment’s for injured workers.
DECISIONS: The Board continues its winning way with another affirmance but the far more interesting case was a decision issued by the Supreme Court in Nassau County concerning the claim of causal relationship due to toxic exposure.
►Read this day’s E-mail alert◄

Friday February 12, 2010 Postings
NEWSWIRE: I summarize the nearly 2 hours of discussion and testimony which took place, Wednesday February 10, 2010 before the New York State Senate Budget Committee during which the New York State Worker’s Compensation Board was represented by chairman Robert Beloten, General Counsel Kenneth Munnelly, and Budget Director Mary Beth Wood. Other speakers included Stephen Zinone, President of New York State Court Reporters Association, and Peter Walsh and William Crosset, representing a special Workers Compensation Committee of the New York State Bar Association. Discussions included less hearings, verbatim reporters and the State keeping excess premium payments.
DECISIONS: The only workers compensation related case this week comes from the Supreme Court, New York County. A no-fault carrier and a workers comp carrier apparently both paid the same medical expenses and the question raised felt with the jurisdiction in which this dispute would be resolved: arbitration of the Workers Comp Board.

►Read this day’s E-mail alert◄

Monday February 8, 2010 Postings
COMMENTARY:The Board issues its MAP for eliminating hearings and, in response, I offer statistics showing that over 1/3 of proposed decisions change after oral argument and a reader add his 2¢.

Friday February 5, 2010 Postings
NEW POLL QUESTION:In a rather propitious set of timing, the same time that the Appellate Court, Third Department affirmed the Board in the Matter of Hassan v Ford Motor, the State Legislature is considering Legislation to give greater responsibilities to nurses caring for injured workers. Our poll this week asks your opinion as to the appropriateness of this or other potentially similar plans to expand Medicare available to injured workers.

Monday February 1, 2010 Postings
POLL RESULTS:Today the results are published of the poll on proposed legislation to give nurses more with responsibility and authority in treating patients, which include interesting comments in favor of the legislation including one from an injured worker as well as a pragmatic reason for not approving legislation.

Friday January 29, 2010 Postings
NEWSWIRE: A lot is happening internally at the Board with dramatic and negative ramifications for injured workers and employers.
DECISIONS: The Board gets two more affirmances from the Appellate Court, Third Department, on (1) SLU’s and apportionment and (2) coverage for an executive/owner. And a new list of the best attorneys for 2010 has started.NEW POLL QUESTION: In this poll asking about new legislation allowing nurses more authority and responsibility in treating injured workers, we have some rather strong opinions (quoted in my e-ail alert but not in the website - they will be published Monday but you still have time to add your opinion.)

Monday January 25, 2010 Postings
NEW POLL QUESTION:In a rather propitious set of timing, the same time that the Appellate Court, Third Department affirmed the Board in the Matter of Hassan v Ford Motor, the State Legislature is considering Legislation to give greater responsibilities to nurses caring for injured workers. Our poll this week asks your opinion as to the appropriateness of this or other potentially similar plans to expand Medicare available to injured workers.

Friday January 22, 2010 Postings
TOP ATTORNEYS FOR 2009: Today I announce the top two Appellate Court attorneys for 2009 as well as a number of attorneys who have won Honorable Mention.
NEWSWIRE: On this page you will find an unofficial background on the new Executive Director Jeffrey Fester as well as two appointments to the New York State Insurance Fund, a new lease for the Harlem district office, and information on a study by Johns Hopkins University as to how practice patterns of physicians have a profound impact on the ultimate cost of workers compensation claims.
DECISIONS: The Board gets five more affirmances from the Appellate Court, Third Department, on issues ranging from was a proper employer to injuries while commuting, §15(8)(d) and coverage for a sole employee.

Friday January 15, 2010 Postings
DECISIONS: The Board gets two more affirmances from the Appellate Court, Third Department, while the First Department tells an injured worker that allegedly being fired for placing a workers comp claim is not covered by the New York City Human Rights Law but by Workers Compensation Law §120. In one of the Court’s affirmances, they support a Board decision after the Board changed its mind and a full Board review on the matter of which carrier is responsible for the claim. And a pro se claimant loses again.

NEWSWIRE: There are two stories when dealing with Medicare set-aside in §32 waiver agreements and the other with the Board’s change of heart regarding procedures and penalties against nonperforming carriers.

Monday, January 11, 2010 Postings
POLL RESULTS:The results are in and other than a reference to one Appellate Court decision issued in 2009, the two issues of greatest concern are the ATF and disability, i.e. wage earning capacity. But most of the concerns addressed the Board’s attitude towards the practitioners, injured workers, and employers and how it would affect them in the coming year.

Friday January 8, 2010 Postings
DECISIONS: The year 2009 ended with the Board receiving two affirmances and SIF getting one but the Unemployment Insurance Appeal Board was reversed on a case that should be considered by the Board in the future when looking at the issue of independent contractor. And it was nice to see that one of the cases on which I spent a lot of time on as a Panel Member was affirmed by the Court.

NEWSWIRE: In a late Friday press release, Governor Paterson announced his appointment of Jeffrey Fenster as the new Executive Director of the Workers’ Compensation Board. Mr. Fenster will spend most of his time downstate working out of the Brooklyn District Office. Coincidentally late Friday the Board also issued an e-mail alert but it’s two paragraph communication short changed Mr. Fenster’s prior accomplishments which are detailed my e-mail alert and in the NEWSWIRE. There is also a brief story/rumor about the elimitation of District managers.

Monday January 4, 2010 Postings

DECISIONS: The year 2010 started with the New York State Appellate Court, Third Judicial Department, affirming the New York State Worker’s Compensation Board in all nine of the decisions issued today, although one issue in an affirmance was returned for reconsideration as the Court could not discern the Boards intention. Of the nine affirmances issued by the Appellate Court for the first week of this year, five represented rejections of appeals by claimants (one of whom was pro se) and three of appeals by carriers/employers and one by a carrier as to whether or not their coverage was in effect at the time of the accident.

COMMENTARY: I have prepared an analysis of the Board’s 103 decisions which were reviewed in 2009 by the Appellate Court in terms of which side (claimant or carrier) had the most claims, the most wins, what were the issues and who brought them to the Court, what was the quality of the Board’s performance - not too good, not with a 77% affirmance rate and reversals on 38% of the issued it reviewed. And much more.

Monday December 28, 2009 Postings
DECISIONS: In its one decision issued on Thursday, December 24, the Appellate Court put a lump of coal under the Board’s Christmas tree when it rescinded the Board’s interpretation of “true closing” with regards to WCL §25-a, the 11th time this year the Court has rescinded a Board decision. In fact, in the six decisions issued earlier this year by the Court on the definition of “true closing”, the Board has been affirmed three times and reversed three times. Perhaps the Board can do better by flipping a coin when making decisions on this issue although I don’t think any time would be saved, considering the penchant of some of the Commissioners to sign decisions without reading them. The six cases are listed, with their links, immediately under Thursday’s decision.

POLL: Don’t forget to vote in last week’s poll, the results of which will be published next Monday. This poll is open-ended because I am asking your opinion as to the most important issue or case that came up in 2009. As a reference, I include your answers to my poll earlier this year in which I asked you what you saw would be the most important issues that you would expect to see in 2009.

NOTE: As a new year approaches, it will be interesting to see what Governor Paterson will do with the three Commissioner vacancies, vacancies that have been open most of 2009. The only term that was expiring this year was that of Scott Firestone who resigned for greener pastures elsewhere. One can only assume that Patterson will be using these three vacancies to get support from Democratic county chairman as he seeks nomination for his own four-year term as governor.

Friday December 18, 2009 Postings

DECISIONS: I have posted eight decisions, seven of which were issued by the Appellate Court, Third Department and one by the Court of Appeals. Of the eight decisions from the Third Department, the Board was a party in five with four affirmances and one reversal. Perhaps the two most interesting cases when combined together are the Matter of Renzi v Case Mgt. Concepts (3rd Dept.) and the Matter of Gilpatric v State Commission on Judicial Conduct. If it were not for, in my opinion, the need for the Gilpatrick-type sanctions (§147) to be brought against a few commissioners, perhaps there would be less decisions issued by the Board like that in the Matter of Renzi v Case Mgt. Concepts for which the third department again castigates Board for its sloppy work.

OTHER: It has been suggested that preference be given on the “winningest” attorney list to those whose prevailing argument resulted in a reversal or rescission of the Board decision. This recommendation is duly noted and will be taken into account.

The issue of deposits to the ATF is making its way through the Appellate Court and I expect that the Justices will be hearing arguments no later than February 2010.

NEWSWIRE: With Christmas approaching, the only new story deals with Attorney General Cuomo and the CRM matter.

Monday December 14, 2009 Postings

POLLS: The results of the Poll posted last week on “What do we do with undocumented/illegal workers?” is in. There appears to be quite a bit of unanimity in the answers, which come down quite hard on both illegal immigrants and their employers. And there is an explanation as to why I will now use the term “illegal immigrants” and not “undocumented workers”.

Also are comments from three respondents which add additional light on this very hot topic. Click here to read the results.

Friday December 11, 2009 Postings

NEWSWIRE: Fairly quiet in Albany other than AG Cuomo’s plans to take CRM, manager of several self-insured trusts, to court on both civil and criminal charges to which CRM has a response. Also new Supreme Court Justice Sotomayor issued some ‘politically correct‘ verbiage, which just happens to be the subject of our current POLL: What do we do with undocumented/illegal workers?

DECISIONS:The Board not only went 2 for 5 but was rebuked in two of the loosing cases. And the Court further clarifies the meaning of ‘true opening’ when it reversed the Board on a §25-a case.

Monday December 7, 2009 Postings

Not much happened in Albany last few days which means, among many open items, that there are still some slots open for commissioners although the activity of a few of current Board raises the whole question of, “Do we really need them?”

This coming Friday I will be updating the list on the “winningest” attorneys in preparation for announcing in January 1st, 2nd, and 3rd place for the highest number of victories at the Appellate Court in 2009.

The issue of undocumented workers has again made a big hit in the media based on the activity in some of the workers compensation blogs of which I am a member, based on a proposed new law, this time from Ohio State. Therefore today I have posted a NEW POLL asking your opinion as to how the NYS Board should deal with undocumented workers.

Friday December 4, 2009 Postings

Gobble gobble gobble!

That’s not the sound of Thanksgiving but the sound of one of Governor Paterson’s proposals to balance the budget by having some workers compensation insurance companies “voluntarily” donate their surplus funds to the State of New York. I guess our kids are not the only ones to believe in Santa Claus, or is it Robin Hood?

On the NEWSWIRE page, are articles on the issue of undocumented workers collecting workers comp in Ohio, the shooting of a private investigator checking on a claimant who had been collecting comp for years, and a report from the upstate law firm of Lewis and Lewis that comp claims are increasing along with unemployment.

On the DECISIONS page, there are two cases at the Appellate Court, Third Department of which the Workers Compensation Board was a party of interest with claimants going 2-0 and the Board 1-1. Both of these cases dealt with the right of the Board to pick among contradictory evidence, make its decision, and be affirmed (in most cases) by the Appellate Court. The Appellate Division, First Department again deals with the issue of jurisdiction under WCL §11 at this time also Including references to WCL §29 (6).

As there are no additional cases scheduled to be argued before the Appellate Court in the month of December, that leaves 29 cases pending the issuance of a decision, the oldest of which dates back to October 13, 2009.

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NEWSWIRE

Weekly postings of news reports, press releases, legislative updates, and background stories of concern to those who participate in the State of New York Workers Compensation system. If you would like to be added to our weekly e-mail alert list or have any submissions or suggestions, they can be sent to me at TheInsider@InsideWorkersCompNY.com.

The full index of all the NEWSWIRE articles that have been published since this website started are now indexed into eight categories within which each posting is indexed by date, the most recent at the top. For the list, ►click here….

COURT DECISIONS

►Board gets EIGHT affirmancesthis week

►ANOTHER NEW FEATURE on the DECISIONS page: Pending hearings & decisions..click here

►And there is the up-dated list of the ‘winningest’ attorneys so far this year.

OUR NEWEST POLL RESULTS

►What was the most important case or issue in 2009?

ON OUR OTHER PAGES

►Commissioner Bios September updates

►§32 & Child Support Lien

►Legal Fees on Medical Bill??

►Project 2015: The End of the WCB as We Know It?

THIS WEEK’S NEWSWIRE

►NYS Sues CRM Civilly and Criminally

►‘Illegal Immigrant’ or ‘Undocumented Immigrant’?

PRIOR WEEKS’ NEWSWIRE

►Carriers to ‘voluntarily’ give money to the State(?)

►Ohio Senator wants illegal workers banned from workers comp

►Higher Unemployment = Higher Comp Claims

►Annsville man pleads not guilty to shooting investigator

►More WCB Staff Changes

►WCB: Some Medicare wording in §32’s not acceptable

►In Memoriam: Joseph Tauriello

►“Lazy” Judge on trial before Court of Appeals

►In Memorium:
Louis R. Salvo

►CA Insurance Commissioner Rejects WC Rate Increase

►Public WC Insurance Funds Better Run Than Private Ones

►CORRECTION

►Lobbyists Lose on ATF in Federal Court

►Typo not worth $1.6 Billion, this time!

►NYSIF Introduces State-of-Art Medical Bill Inquiry System

►No New Commissioner under Consideration

►Oklahoma considers confiscating surplus workers comp funds

►New Commissioner being considered

►WC Law Suits v Fed Ex on Drivers

►Nebraska Waives Settlement Hearings

►WCB Exec. Dir. Pennisi Resigns

►NYS Issues Bonds for 2nd Injury Fund

►NYCIRB Analysis: COLA Increase in WCB Rates = Higher Rates

►Link to our Archive Index

Paterson Announced New Exec Dir for the Workers Comp Bd

January 8, 2010, 2009: Late today, Governor Paterson announced the appointment of Jeffrey R. Fenster as Executive Director of the Workers’ Compensation Board, replacing Joe Pennisi who resigned suddenly last fall.

Mr. Fenster served as a litigation associate with the New York law firm of Stroock & Stroock & Lavan, LLP. While at Stroock & Stroock & Lavan, LLP, Mr. Fenster represented institutional clients in complex commercial litigations, arbitrations, and federal and State government investigations. Prior to working at Stroock & Stroock & Lavan, LLP, Mr. Fenster worked at WR Capital Management LP, a hedge fund based in Stamford, CT. Mr. Fenster received his bachelors and Juris Doctorate from the University of Michigan.

As Executive Director of the Workers’ Compensation Board, Mr. Fenster’s salary will be $141,730. This appointment is not subject to Senate confirmation. Mr. Fenster will begin serving as Executive Director on January 11, 2009, working of the Brooklyn office.

Are Dist Mgrs Going the way of the Dist Admins?

January 7, 2010: according to the usually reliable rumor mill, wrong only once this past year, the Oligarchic Cabal at the New York State Workers Compensation Board is planning to do away with district managers.

Whether this is a cost-saving plan or just a further attempt to centralize power in the hands of the bureaucrats in Albany, the net effect will be that there will be no one with direct responsibility in the district offices. I cannot speak for all of the offices throughout the state but I’ve had the opportunity to work with two district managers and three district administrators in Brooklyn. Only the current district administrator, Joyce Perry, and the district manager, Tom Agostino, actually leave the sanctity of their offices and walk through the building reviewing the troops and letting everyone know that there is someone in charge. This compares quite favorably to some of their predecessors who were either never in the building or were locked in their offices, removing from the workforce the kind of managerial oversight necessary in any organization.

As an example of the potential boondoggle this will create is an incident that occurred the year before I left the board. At about five o’clock one afternoon, after the district manager and district administrator and senior law judge had left of the day, I and the person in the office next to me smelled a great deal of smoke, went to the lunchroom, and founded filled with acrid smoke. We phoned the fire department and then tried to reach someone in Albany. The next day, I was castigated for not having gone up the chain of command in Albany and that I should not call the fire department without authorization from Albany. I explained to them (1) the NY Fire Department insists we call them first and (2) since I and the other person were not supposed to be involved in the operational aspects of the Brooklyn office, we had no idea whom to call in Albany nor either of us wished to spend 10 minutes trolling through Rolodexes while a potential fire could have sealed off our access to the fire exits.

This oversight problem would belie the proposed advantages of centralized power in Albany and one major incident that got out of hand because there was no on-site supervision would certainly cost far more than the alleged savings of replacing district managers in the district offices with additional support staff in Albany.

The Success of TENS units questioned

December 31, 2009: ScienceDaily reports that a new guideline issued by the American Academy of Neurology finds that transcutaneous electric nerve stimulation (TENS), a widely used pain therapy involving a portable device, is not recommended to treat pain that has persisted for three months or chronic low-back pain because research shows it is not effective. longer. The guideline is published in the December 30, 2009, online issue of Neurology®, the medical journal of the American Academy of Neurology. The studies to date show that TENS does not help with chronic low-back pain but evidence showed that TENS can be effective in treating diabetic nerve pain.

NYS Sues CRM Civilly and Criminally

December 10, 2009: Andrew Cuomo, Attorney General the state of New York, has filed a lawsuit leg and fraud in seeking $405 , million in damages from CRM as well as a separate lawsuit next week charging the company with business fraud and security fraud, asserting that CRM engaged in deceptive and illegal practices to attract business, .He as reported by Steven Greenhouse in December 10, 2009 in the New York Times.

Andrew Cuomo, Attorney General the state of New York, has filed a lawsuit leg and fraud in seeking $405 , million in damages from CRM as well as a separate lawsuit next week charging the company with business fraud and security fraud, asserting that CRM engaged in deceptive and illegal practices to attract business, as reported by Steven Greenhouse in December 10, 2009 in the New York Times.

Both the New York State Workers’ Compensation Board and the attorney general’s office say that CRM deliberately underestimated the workers’ compensation liabilities of many companies to help drum up business, enabling CRM to charge artificially low premiums, ultimately leaving the companies with inadequate reserves to cover liabilities.

According to statement issued by CRM, “The Company is disappointed by the Attorney General’s decision to bring the lawsuit and dismayed that the Attorney General’s office chose to disclose the Notice before the indicated window for discussion had expired. The Company denies the Attorney General’s allegations and believes that its business and management practices in connection with the New York trusts were proper and that all material information was disclosed during its initial public offering. The Company believes that the Attorney General’s allegations are without merit, but is committed to resolving the Company’s legal issues in the best interests of its shareholders, employees, clients and other stakeholders.

“According to the Notice, the Attorney General intends to file civil claims against the Company, certain of its subsidiaries, and certain directors and officers to seek redress of allegedly unlawful practices, unless an acceptable settlement can be reached within five days. The Attorney General’s Notice follows over 19 months of investigation, during which time the Company has cooperated fully with the Attorney General’s office.”

Unfortunately, no mention is made of the enormous financial impact that the closing of CRM will have on the hundred plus firms were members of its many groups. The fact that the State of New York failed to audit CRM for over five years and still has not done similar audits on other trusts does not seem to weigh in the decision of the State of New York that the members must pay up five years worth of premiums shortfalls.

‘Illegal Immigrant’ or ‘Undocumented Immigrant’?

December 8, 2009: During Justice Sonia Sotomayor’s first appearance at the United States Supreme Court, Justice Sotomayer, in the words of New York Times writer Adam Liptak, “did introduce one new and politically charged term into the Supreme Court lexicon. Justice Sotomayor’s opinion in the case, Mohawk Industries v. Carpenter, No. 08-678, marked the first use of the term ‘undocumented immigrant,’ according to a legal database. The term ‘illegal immigrant’ has appeared in a dozen decisions.”

I guess in the future when they say “political correctness reigns supreme” going to have to capitalize ‘supreme.’

Carriers to ‘voluntarily’ give
money to the State(?)

December 2, 2009: A number of newspapers have been reporting on some of the changes to the budget being planned by Governor Paterson if the state legislature fails to present its own budget proposal. All the press releases had the same language:

Workers Compensation Surplus Recapture ($49 million) - Certain insurers have indicated their intention to remit excess funds under legislation enacted as part the 2009-10 budget.

As of last night I was unable to get any details from the State Legislature’s website (which apparently crashed from too many people seeking information). I was unable to get any details on who these insurers may be but I cannot imagine that any publicly owned insurance company would voluntarily give money to the State rather than distribute it as bonuses to its executive staff or, as a last resort, distribute it as additional dividends to its stockholders. Hopefully I will have more details in the near future.

Ohio Senator wants illegal workers
banned from workers comp

November 30, 2009: Ohio State Senator Bill Seitz of Cincinnati wants to prohibit the nation’s largest state run furn for workers insurance programs from providing benefits to illegal immigrants. The Senator said he was shocked to learn during a recent committee meeting that the Ohio Bureau of Workers’ Compensation doesn’t require injured workers to document their status before providing benefits. Ohio law enables “aliens and minors” to receive workers compensation benefits.

As in the New York State, Ohio does not draw a distinction between “legal” and “illegal” aliens.

While this is not a new story to those of us in workers compensation, it did generate an enormous amount of interest in a discussion group of which I am member at LinkedIn: WORKERS’ COMPENSATION FORUM.

The concensus of all the comments seems to be:

Undocumented workers should get basic workers comp coverage as this would otherwise give their employers an unfair advantage as well as being unfair from a humanitarian perspective.
The federal government has failed miserably to keep all illegal visitors, not just undocumented workers, out of this country.

This topic will be the subject of next week’s poll.

Higher Unemployment = Higher Comp Claims

November 22, 2009: In their recent press release, Lewis & Lewis P.C., the law firm that handles more workers’ compensation and personal injury cases than any other in Western New York, has found that despite the recession, people here in the last four months filed increased numbers of claims through the firm with the state Workers Compensation Board. Even though the Western New York unemployment rate is almost 9 percent, the Lewis & Lewis Jamestown office processed claims at record levels in July, August, September and October.

In a number of articles I have read over the years, the general consensus is that workers comp claims decrease when business is bad as workers are afraid of losing their jobs while claims increase when business is good because employers find it difficult to replace qualified employees. But, with unemployment rates in parts of the state approaching 10%,the fact that workers comp claims are increasing makes sense: not only are more people than ever before out of work, there are no jobs and unemployment benefits for most people will soon run out.

Annsville man pleads not guilty
to shooting investigator

December 2, 2009: A number of upstate newspapers reported yesterday that an Annsville man, accused of shooting a private investigator with a shotgun after mistaking him for a turkey earlier this year, pleaded not guilty to assault charges in Oneida County Court Wednesday morning.

William Wehnke had been collecting workers compensation for some time and private investigator Matthew Brady was sent to check up on him. Unfortunately Brady dressed himself in comouflage at the same time Wehnke was out hunting for wild turkey, mistook Brady for one, and shot him.

Wehnke was arraigned on a three-count grand jury indictment including charges of felony second-degree assault, misdemeanor fourth-degree criminal possession of a weapon, and unlawful manner of taking, a violation that alleges Wehnke was using an inappropriate type of ammunition for turkey hunting.

Oh, to be a fly on the wall on what may well be a WCL §114-a hearing before a law judge.

More WCB Staff Changes

November 19, 2009: Just as a chef occasionally changes on the ingredients to see if he can make food taste better, the Board has apparently made some executive staff changes.

Madeline Pantzer, the head of the Administrative Review Division’s office and the former Senior Law Judge in Albany, is now in charge of all the law judges, a position previously held by Elizabeth Lott who has moved over to operations. And Dave Wertheim, formally Elizabeth Lott’s assistant, has now become of the head of the Administrative Review Division (ARD).

Madeline Panzer made some very key changes in procedures at the ARD. Dave Wertheim was one of the most highly respected writers when he was in the office of appeals (now the ARD) and when he was with the Office of the General Counsel. One can expect that under his leadership, while there will always be occasional reversals, there will be far less and perhaps even no more “rescind and send back for further development.”

WCB: Some Medicare wording
in §32’s not acceptable

November 19, 2009: Under Subject No. 046-372 dated November 13, 2009, the Workers Comp Board has stated that it will not approve agreements which contain indemnification or hold harmless provisions in Section 32 agreements to protect a carrier or employer from liability for Medicare payments related to the established workers’ compensation claim.

The memo continues:

Workers’ Compensation Law (WCL) §32(b)(1) directs the Board to disapprove unfair agreements. As such, it is the Board’s position that a Section 32 agreement that contains hold harmless language that shifts liability to a claimant for Medicare payments for services provided before execution of the Section 32 agreement is unfair. Pursuant to WCL §23, insurers may seek administrative review and full Board review if a Section 32 agreement containing hold harmless language is disapproved by a workers’ compensation law judge.

[ED. NOTE: I am at a loss to understand why this memo is now being issued. It has been the informal policy of the commissioners for years now to reject any agreements that had hold harmless language this point was made quite clear to all the attorneys who appeared at the hearings. In addition to that, in my last few years of the Board as well is in my book, Behind the Closed Doors, I recommended that neither Medicare offsets nor any other Medicare language be included in the §32 agreements.

These agreements are drafted under the laws of the State of New York and, in my opinion, should deal strictly with the laws of the State of New York. The inclusion of language relating to Medicare not only adds anywhere from one paragraph to as many as three pages to a §32 agreement but as often as not includes incorrect citations or provisions from the Title 42, Chapter IV, Part 411 of the Medicare law. In addition because there are a variety of sections which may or may not apply to the settlement, when I was at the Board and, my sense is it still continues, there are few in the decision-making capacity who understand which sections of part 411 applied to which cases.

So rather than disapproving agreements which contains hold harmless language, the Board should reject any agreements which contain any Medicare language.]

In Memoriam: Joseph Tauriello

November 18, 2009: Former State Sen. Joseph A. Tauriello, a major figure in local and state Democratic politics for more than 40 years, died November 17 at Elderwood Senior Care in Cheektowaga after a long illness. He was 75.

A West Side native and former Buffalo firefighter, Tauriello served on the old Erie County Board of Supervisors, advanced to become a leading Democratic member of the State Senate, and capped his career with a gubernatorial appointment to the state Workers Compensation Board.

“Lazy” Judge on trial before Court of Appeals

November 18, 2009: In an interesting case which should have ramifications at the Workers Comp Board, the Court Of Appeals heard arguments as to whether or not Kingston City Court Judge James Kilpatrick should suffer penalties or be disciplined for delays in issuing decisions.

According to the article written by Tim O’Brien and the Albany Times Union, “the state Office of Judicial Conduct admonished of Patrick over his failure to stay within required legal deadlines for handling cases while he was a part-time judge in Kingston. The position later became full time. Gilpatric had previously received a letter cautioning him that he needed to abide by the deadlines.”

Certainly, the Board does not need a decision from the Court Of Appeals to force the one or two commissioners who don’t do their work to meet the “obligation and duty owed to the litigants”, a point made in the above case by Court of Appeals Judge Victoria Graffeo.

Over the past few years they been occasions when such admonitions were directed by Chairman Weiss to one particular Commissioner and Vice Chairman Sweet to two other commissioners (one long since gone) whose work queues would normally collect up to 200 cases, but sometimes as many as 300. Since there are between 15 and 20 cases added each day to the work queue, you can calculate how long claimants are having their cases delayed due to the misconduct of certain commissioners. And signing cases, let’s forget about reading them, is basically the only job function left the commissioners these days. So if a commissioner is going to sign a misspelled, legally unsustainable decision, why take three weeks to do so? Why can’t they rubber stamp it within a day or two of getting it?

In my book, Behind the Closed Doors, I make reference to WCL §147 which allows removal of a Commissioner with cause. It seems that whenever several commissioners are replaced at the Board and one of them was a “slow” signer, one of the new commissioners fills that slot.

Now that Chairman Weiss is no longer the Board, the question is, “who has the ‘juice’ to discipline commissioners who do not work.”

In Memoriam: Louis R. Salvo

November 11, 2009: Louis R.. Salvo, 73, of Tottenville, a former NYS Workers Compensation Administrative Law Judge, died November 9, 2009 in the Monmouth Medical Center, Long Branch, N. J. A senior counsel with Weiss, Wexler and Warnow in Manhattan, Mr. Salvo had previously served as a Workers Compensation law judge from 1973 to 1981. He has also served as trial counsel for major insurance companies both in the field of workers compensation and liability defense as well as having lectured in all aspects of Workers Compensation Law. Mr. Salvo and his wife, the former Kathy Adams, celebrated their 50th wedding anniversary this past July, with a party thrown by their four children.

CA Insurance Commissioner
Rejects WC Rate Increase

November 10, 2009: As reported by staff reporter Chris Rizo from Legal Newsline, California’s State Insurance Commissioner Steve Poizner, citing his state’s weak economy, on Monday rejected an industry request that he back a proposed a 22.8 percent increase in benchmark workers’ compensation premiums.

Poizner, who is seeking the 2010 Republican gubernatorial nomination, rejected the request presented by the Workers Compensation Insurance Bureau and justified his decision by stating:

“One in eight Californians is unemployed. Countless others are also suffering and have either given up looking because they cannot find work or have taken part time jobs while they seek full time work. Any increase in costs for employers will only make our already dire economic situation worse.”

California’s unemployment topped 12% in September. Poizner said the WCIRB request lacked evidence that warranted an increase.

Could this portend the decision in New York for future requests for approval of rate increases from the NYCIRB? Afterall, Poizner is not the only one who has announced that he is running for governor.

Public WC Insurance Funds
Better Run Than Private Ones

November 9, 2009: In this issue of the Business Examiner, Breanne Coats & Hilary Reeves report on a number of issues. One is a study released last month by a Connecticut-based research and consulting firm has concluded that states with public or public-private workers’ compensation plans actually fare better financially in some aspects than states whose workforce coverage is left to the more competitive, expectation-rich free market.

“Workers’ Compensation State Funds now control a quarter of the insured workers’ compensation market, despite the fact that they only write in 25 states,” said Mark Jablonowski, analyst at Conning Research & Consulting. “In comparison to the industry as a whole, state funds’ loss ratios are higher, but they compensate with lower expenses and increased investment income. Overall, operating results are on par with the rest of the workers’ compensation industry.”

The study looked at the combined experience of workers’ compensation programs in 25 states: Arizona, California, Colorado, Hawaii, Idaho, Kentucky, Louisiana, Maine, Maryland, Minnesota, Missouri, Montana, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Washington, West Virginia and Wyoming. Four of these states – including Washington – have state-operated monopoly funds that are most employers’ only option for buying coverage. The remaining 21 states have organizations that compete with private insurers.

Robert Malooly, assistant director for insurance services at the state Department of Labor and Industries, said Washington’s system is virtually free of the constraints of a private company: “Unlike a private company, our state fund system doesn’t have to make a profit, run marketing campaigns to get new customers, pay taxes, pay brokerage fees and commissions, and so on,” he said. “The program provides some of the best benefits in the country to injured workers and their families at rates that are lower than over half the other states for state fund employers.”

►CORRECTION◄

November 5, 2009: Steve Licht informed me that he did not have any meetings or dinners with the NYSWCB or Joe Pennisi. To the extent my information was not accurate I apologize.

Lobbyists Lose on ATF in Federal Court

November 4, 2009: This week I have listed on the DECISIONS page a decision issued eight months ago at the New York Southern District Court in The Matter of Liberty Mutual Insurance Company et al v. Hurlbut et al in which the District Court dismissed the claim brought by certain workers= compensation insurers against the state workers compensation board challenging the constitutionality of ATF amendments to the New York State Workers Compensation Law.

The amendments modified insurers’ ability to settle claims by empowering an aggregate trust fund (ATF) to settle claims following the required deposit by the insurer of the present value of the claim. The ATF under the amendments was not required to obtain an insurer’s approval before entering into a settlement, and was not required to refund to insurers deposit amounts in excess of settlements.

The District Court dismissed defendants motion for lack of subject matter jurisdiction also noting that in this case the plaintiffs had an adequate opportunity for judicial review of their claims of the state level.

Thus it seems that while lobbyists may have input on the Board, justice prevails and, at least in this case, they go home with their mission defeated by the Courts.

Typo not worth $1.6 Billion, this time!

November 5, 2009: What most people would consider to be a minor typing mistake could have cost Verizon an estimated $1.6 billion.

After Bell Atlantic became Verizon, its ERISA plan was redrafted during which time the phrase “transition factor multiplier” was moved in a sentence without the first instance of that phrase being deleted from that same sentence. To have left it in would have meant that benefits were subject to a double multiplication factor. The judge in the case ruled “The phrase calling Verizon a second multiplication was a drafting error. No evidence exists to suggest that any plan participant relied upon the error. In fact, the course of dealing between defendants and the plan participants shows that benefits were consistently calculated by multiplying the transition factor once. To enforce the erroneous plan provision now would result in an enormous windfall to the class participants.”

And, while some could argue that such an error could be expected in a document will as Verizon’s ERISA plan, it certainly can not be argued in typing errors in your are acceptable in the Worker’s Compensation Board’s decisions. In one case, I saw the average weekly wage for a bus driver determined to be $46,000 a week.

The devil is in the details but fortunately in this case common sense ruled although the plaintiff is considering an appeal.

[ED.NOTE: Yes, there are typos in my postings but these postings tend to be very time sensitive. I do not have the luxury of editing and rewriting for an extra day or so nor are there many people up and sufficiently alert at the time of night I finish these postings to act as my editor.]

NYSIF Introduces State-of-Art
Medical Bill Inquiry System

October 21, 2009: The New York State Insurance Fundannounced a state-of-the-art online medical bill inquiry service with the expansion of its electronic Explanation of Benefits (EOB) for doctors treating workers’ compensation injuries covered by NYSIF. The new EOB service gives providers a more detailed explanation of medical bill payments made by NYSIF, alerts them to bills that have not been received, or reasons why a bill hasn’t been paid.

NYSIF introduced its online EOB for workers’ compensation medical providers in 2007, an Oracle based system built in-house by NYSIF system developers. The Fund followed soon thereafter with giving providers the option to submit medical bills electronically to NYSIF. According to NYSIF medical claims team, some of the more common reasons for non-payment of workers’ compensation medical bills submitted to NYSIF include pending claim status, claim disallowance, claim settlement, invalid jurisdiction, lack of proper medical records, and duplicate billing of paid procedures. All of this information is now accessible to medical providers and their staffs 24/7/365 days a year, spelled out clearly in one location for all medical bills submitted on every claim.

Medical bill inquiries made online at nysif.com provide users with NYSIF’s claim number, the claimant’s name, date of injury, complete contact information for the NYSIF case manager and office assigned to the case, the NYSIF assigned bill number, bill date, date received and bill status for every claim on record. As an insurance carrier, NYSIF assigns its own claim number to workers’ compensation claims. The New York Workers’ Compensation Board assigns a different number to the claim. NYSIF lists both numbers in the summary to avoid potential confusion for administrative personnel not familiar with the state workers’ compensation system. The summary includes billing codes, total charges and amounts paid, along with a reason why only partial payment may have been made for certain billed procedures.

No New Commissioner under Consideration

October 29, 2009: Contrary to my earlier report that Cumminosa Balbutio is being considered as a new Commissioner, I’ve been informed by reliable sources that this was not the name of a commissioner but the name of a secret project under which specific guidelines were given the Governor’s office with qualifications sought by the Oligarchic Cabal and that the name Cumminosa Balbutio was a Latin pseudonym for the qualifications of the person(s) which they are seeking.

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Updated twice a week, this website will impart an understanding of the New York State WCB that will help the workers comp community better understand why the WCB does what it does and how to deal its many inconsistencies and bureaucratic obfuscations as well as giving the community and Board staff an anonymous bulletin board. Friday postings include that week’s court decisions, news articles, and commentary. Monday postings include polls. Among the pages in this website are:

COURT DECISIONS: a weekly update of workers comp related decisions from the New York’s Appellate Courts, Court of Appeals, and other jurisdictions, a list of cases that have been argued but still await a ruling from the Court, and a list of the “winningest” attorneys for the year.

POLLS: I conduct polls to Monday’s a month and on alternate Mondays analyze the results of the opinions of my readers.

Click here to find out more about this new book.

NEWSWIRE: a weekly listing of key developments from the media as well as various state agencies.

COMMENTARY: my comments on key topics, major court decisions, new board policies, and answers to questions from my readers.

MY BOOK: “Behind the Closed Doors – an Insider’s look at how things really work at the New York State Worker’s Compensation Board, and how to fix them”

BIOS: The commissioners’ official and unofficial biographies.

Comments, suggestions, and criticisms, published anonymously, can be sent to me at: TheInsider@InsideWorkersCompNY.com.

Michael T. Berns, The Insider
Commissioner 1996-2008, New York State Workers Compensation Board

Monday December 7, 2009 Postings

Friday December 4, 2009 Postings

Gobble gobble gobble!

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POLLS: We Want Your Opinion

COURT DECISIONS

►This week,Three decisions but one reversal!

►Click here for PENDING COURT DECISIONS

►A NEW FEATURE on the DECISIONS page: Pending Legislation..click here

OUR PRIOR POLL

►§32 and child support liens

ON OUR OTHER PAGES

►Commissioner Bios September updates

►§32 & Child Support Lien

►Legal Fees on Medical Bill??

►Project 2015: The End of the WCB as We Know It?

THIS WEEK’S NEWSWIRE

►Carriers to ‘voluntarily’ give money to the State(?)

►Ohio Senator wants illegal workers banned from workers comp

►Higher Unemployment = Higher Comp Claims

►Annsville man pleads not guilty to shooting investigator

BEHIND THE CLOSED DOORS

Chapter 24: How to Become A Commissioner

This Week’s Poll: What do we do
with Undocumented Workers?

December 7, 2009: In my Newswire of Friday, December 4, 2009 I made reference to recent press releases by Ohio State Senator Bill Seitz seeking to deny workers compensation to undocumented workers.

In one of the discussion groups at LinkedIn, the Senator’s comments have been the subject of very lengthy discussion which prompts me now to ask your opinion on the subject.

Suggestions on the LinkedIn website range anywhere from treating them the same as documented workers as to putting them on a plane the day after they file their claim. Most states, however, including New York, have laws that protect undocumented workers from discrimination in filing their claims although some states have stricter conditions than others for the injured worker to continue to collect compensation beyond some minimal period.

I have propose the following:

Employers of undocumented workers should be required to pay a penalty similar to the one under WCL §14a when minors are illegally employed. But, that extra money should go not to the undocumented worker but to the Workers Comp Board. And if the corporate entity is unable to pay the fine, then the owners or the officers of record should be held personally financially responsible.
At such time as the injured worker is deemed able to return to work or for some other reason no longer qualifies for continuing awards, they should be deported. If there is need for additional medical treatment, the carrier can offer a proposed settlement similar to the method used in estimating Medicare offsets.

Today’s poll asks you to select those comments with which you agree as to the treatment of undocumented workers (U/W) as compared to documented workers (D/W).

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The result of this poll will be published Monday December 14, 2009

This Week’s Poll Results:
The WCB, §32’s, Child Support Liens

One participant wrote:

What makes child support or tax liens so special?

And a second participant wrote:

The Board should seek to have the Legislature amend §33 to get rid of the lien for outstanding child support liens. Section 33 only creates problems within compensation cases and delays and prevents resolution of the cases. To paraphrase former Chairman Weiss, it just creates unnecessary friction within the system. [ED. NOTE: I do not believe that Weiss mean to get rid of any controversial laws just to ‘speed up’ the system.

But key to this issue was a comment from one participant who wrote:

Section 33 permits deduction for judicial orders of support for “alimony maintenance support or child support.” There is no basis for treating alimony differently from child support.

It is clear from a reading of the statute that the benefits are exempt from all claims of creditors and from levy or execution for recovery, or collection of a debt. However, it has been generally stated that claims for alimony and support are an exception to the exemptions granted by statute on the theory that an adjudication of alimony or support is not a debt within the meaning of the exemption statute. The whole theory and purpose of the Workers’ Compensation Law is to provide a substitute for the loss of wages and for the protection of the employee and his dependents from want and to prevent, if possible, the injured employee and his family from becoming objects of charity or dependent upon the State. (Matter of Wilkosz v Symington Gould Corp.,14 A.D.2d 408; Westchester Light. Co. v Westchester County Small Estates Corp., 278 NY 175; Matter of Bowne v Bowne Co., 221 NY 28; 22 NY Jur, Exemptions, § 57, p 260; 65 NY Jur, Workmen’s Compensation § 14, p 323-324.)

The protection of section 33 of the Workers’ Compensation Law, is not restricted only to the family that is intact but also to the beneficiary and his family whether they are living together as a family unit or separated. It appears quite clear that the Legislature did not intend to insulate the husband and father against his legal responsibilities and obligations to support his wife or child, only the family against creditors.

It is true that a Federal statute which mandates an act supersedes a State statute prescribing procedures to be followed by State or local statutes. (Hoye v. United States, 277 F. 2d 116 [C. A. 9th, 1960].) Also liens for Federal taxes and provisions for their collection are strictly Federal and strictly statutory. (Bank of Nevada v. United States, 251 F. 2d 820 [C. A. 9th, 1958], cert. den. 356 U.S. 938.) Further that State exemptions statutes such as subdivision 2 of section 166 of the New York State Insurance Law and section 33 of the Workmen’s Compensation Law are ineffective against Federal statutory liens for Federal taxes; and States may not interfere with power of Congress to levy and then to collect Federal taxes on income. (Fried v. New York Life Ins. Co., 241 F. 2d 504 [C. A. 2d, 1957], cert. den. 354 U.S. 922.)

Call it what you will, compensation or otherwise, the employer must still pay wages to his employee, albeit on a reduced scale, either directly as a self-insurer or indirectly through an agent, while that employee is incapacitated from employment for injuries sustained in his employer’s business.

The majority of participants to this poll agree with this concept.

Poll Results: NYC’s Toxic WTC Tactics

“The WTC claimant should not be treated any differently than any other worker claiming on-the-job injuries. There is no need to create a special class of claimants simply because of the emotional nature of the WTC collapse.”

This comment from one of the participants in the poll summarizes the vast majority (77%) of the votes and comments.

Another participant wrote, “These cases should be subject to the same standard of proof of causation as any other claim. The only reason they are treated differently is for political reasons.”

This is the forte of the workers compensation system.

And now to the poll questions and answers regarding the Post story.

Question #1: Who is better equipped to handle these claims: workers comp attorneys or personal injury attorneys?

QUESTION #2: Is the city being unfair to these injured workers?

SUMMARY

RECOMMENDATIONS

POLL: Legal Fees on Medical Expenses

84% agreed that fees should be paid in medical only cases/hearings.

16% disagree.

68% agreed that they should be paid on §32 set-asides.

32% disagreed.

89% agreed that, if fees are to be paid, carriers should pay them.

11% disagree.

Another respondent noted that the payment of a classification fee does not end the attorneys’ involvement with the claimant, and the attorney should be prepared for future litigation.

There were two other interesting statements:

This is a contingency fee system. Therefore, fees should be paid on all recoveries. Simply look at the negligence claims. The jury pays damages on past present and future loses–including lost wages medical needs of every type–and the attorney generally receives 1/3 of all damages. Why should the comp attorney be short-changed. The comp system already limits damages and does not pay for physical pain or emotional suffering.

And

The claimant’s attorney should be compensated for his/her efforts concerning all issues. If the issue only concerns medical services the attorney should still be paid. The attorney’s efforts in resolving these issues is as much of a service for claimants and the Board as their efforts concerning indemnity issues. The big question is how to award a fair fee with the limited funds of a Section 32 or of an ongoing claim. This way I believe that medical issues will be resolve more expeditously and the medical providers who do not have any standing will have some representation.

Therefore, in order to get the discussion rolling, I recommend the following:

In §32’s any money allocated for medical should be subject to a 5% fee paid by the carrier directly to the claimant’s attorney. And it should be for all expenses, be it in the general text of the agreement or a specific Medicare set-aside, whether the money is paid directly to the claimant or put into an escrow account.
In cases in which the claimant has been classified, the classification fee historically has meant that the attorney be available at no additional cost for future litigation. But there must be a limit as to how often the claimant’s attorney should be called upon to fight for medical treatment. I recommend that in all hearings and/or appeals necessitated by a medical-only controversy, in which the claimant’s attorney is successful, a fee of $75 per hearing and an additional $100 for an appeal should be awarded the claimant’s attorney, paid for by the carrier. These fees would not apply to the first hearing or appeal after the classification fee has been awarded.
For those claimants who have not yet been classified, I recommend that a fee of $75 be paid for each hearing and $100 for each appeal.

POLL ANALYSIS: Secret Project 2015

September 21, 2009: Just a little more than two weeks ago, the news broke about a here-to-fore top secret project being conducted at the Board and we asked you your opinions:

Our September 14, 2009 poll asked “Based on what you have read about this here-to-fore top secret project, do you believe:

the Project should go forward?

the explanation given by the WCB?

there are too many hearing?

there are too few hearings?

less hearing help the claimants?

more hearing will help the claimants?

is there another agenda behind this Project?

As to the question as to how Project 2015 will be help or hurt the system, this is the breakdown.

Are there are too many hearing?

Do less hearing help the claimants?

Not a single person voted for either of these two. To the two questions which asked the opposite:

Are there too few hearings?

Do more hearing will help the claimants?

28% stated that there are too few hearings and that more hearing help claimants.

The two sets of answers appear to go to the heart of the issue concerning Project 2015 and are better understood when reading the comments in OTHER:

no hearings-no attorney fees. with no attorneys the board can screw the parties all they want.

to eliminate lawyers from the system

There has been an underlying concern brought to my attention frequently over the past few months and commented upon in this poll:

Legal fees and attorneys’ involvement in the system

To eliminate lawyers from the system

After all, an uninformed claimant will not know their rights or alternatives.

No hearings-no attorney fees. with no attorneys the board can screw the parties all they want.

The essential question is, not what is the goal of the Board, but what is the goal of the Oligarchic Cabal who is trying to impose this Project 2015 onto the claimants and employers.

I think I can speak for the workers compensation community when I say,

“Dear Board, we await your explanation as to what is Project 2015 and its purported goals.”

Comments (0)

COURT DECISIONS

ON OUR OTHER PAGES

►Pending Legislation

OUR NEW POLL

►Does Medicare language belong in §32’s

COMMENTARY

►Commentary on §32 and child support liens

THIS WEEK’S NEWSWIRE

Click here for the NEWSWIRE index

►Click here for the NEWSWIRE page

►Carriers to ‘voluntarily’ give money to the State(?)

►Ohio Senator wants illegal workers banned from workers comp

►Higher Unemployment = Higher Comp Claims

►Annsville man pleads not guilty to shooting investigator

NEW POSTINGS: Six from November 25 from the 3rd Department, one each from the 2nd and Court of Appeals and the list of cases scheduled for hearings at the 3rd Department for which decisions have yet been issued.

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Tipping v Orthopedic Surgeons #7385/54…..5600…Causal Relationship: Medical (ANCR/ODNCR)

Tipping v Orthopedic Surgeons
December 3, 2009 Appellate Division, Third Department
Causal Relationship: Medical (ANCR/ODNCR)

REVERSED the Board’s ruling that claimant did not sustain an occupational disease and denied her claim for workers’ compensation benefits, thus making “academic” her appeal from the second board decision which denied her request for full Board review. In April 2006, after years of working in a medical office spending almost 5 hours each day cradling the phone with her head while she performed other work-related duties, claimant sought medical attention for pain and spasms in her neck and upper back and began a regimen of physical therapy. In April 2000, a month after she stopped working, she was terminated and thereupon filed a claim for workers’ compensation benefits. A WCLJ granted her application finding that the condition was an occupational disease. The Board reversed and denied both the claim and the subsequent application for full Board review.

The medical experts on both sides stated that (1) claimant, in the period prior to her employment, had been asymptomatic, (2) her condition during that period of time had been dormant and nondisabling, and (3) her preexisting condition had been exacerbated by her employment. The Court wrote, “A preexisting condition, such as claimant’s, can constitute an occupational disease if it is ‘demonstrated that the condition was dormant and nondisabling and that a distinctive feature of the employment caused the disability by activating the condition.’ Given that the medical evidence before the Board established that claimant’s employment activities resulted in an exacerbation of her prior condition, its conclusion to the contrary was not supported by substantial evidence.” Prevailing party represented by: John F. Clennan, Ronkonkoma, for appellant. Click here to read the full decision of the Court….

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Ridgeway v Rgrta Regional Tr. Serv #7384/54…..3800…§114-a Fraud

Ridgeway v RGRTA Regional Tr. Serv
December 3, 2009 Appellate Division, Third Department
§114-a Fraud

AFFIRMED the Board which ruled that claimant did not violate WCL §114-a, thereby reversing the WCLJ’s decision. Claimant had filed a number of workers comp claims including one in October 2005, which was an automobile accident after her work shift ended for which she completed a “Personal Injury Form” for her employer stating that the accident occurred after her work shift began at 5:35 P.M., when in reality her shift had ended at that time. The employer sought to bar claimant from receiving further workers’ comp benefits pursuant to WCL §114-a, asserting that she intentionally misrepresented on the form that the accident was related to her work. A WCLJ agreed disqualifying the claimant from receiving further benefits related to an earlier as well as this current injury. The Board rescinded the findings, holding that the evidence was insufficient to show that claimant knowingly made material misrepresentations on the form, and the employer appealed. The Board’s determination as to whether a claimant ran afoul of WCL §114-a will not be disturbed if substantial evidence supports it. The Board found that the claimant made mistakes filling out the form which she acknowledged after the inaccuracies were brought to her attention. The Court agreed with the Board that the substantial evidence supported that determination the claimant did not knowingly make a false statement. The Court then added, “the Board is not bound by the credibility determinations of a Workers’ Compensation Law Judge, and nothing in the Board decisions pointed to by the employer [in their appeal] indicate that the Board adheres without question to those determinations.” Prevailing party represented by: James D. Hartt, Rochester, for Glenda F. Ridgeway, respondent and Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General (NYC) for the Board, respondent. Click here to read the full decision of the Court….

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Jean-Louis v Hilton Hotels Corp #7383/54…..1210…§ 11 Election of Remedies

Jean-Louis v Hilton Hotels Corp
December 1, 2009 Appellate Division, First Department
§ 11 Election of Remedies

DISMISSED by the Supreme Court, New York County, a second cause of action wherein plaintiff alleges that defendants negligently trained, managed and/or supervised employees who confined her to an office for an hour and did not allow a union representative to be present while discussing her complaint that her supervisor inequitably distributed work based on her ethnicity and religious beliefs. This claim is barred by the exclusive remedy provisions of the Workers’ Compensation Law (see WCL § 11; § 29[6]. Even if the alleged conduct could be reasonably construed to be in furtherance of defendants’ interest, “[t]he complaint. . .did not contain requisite allegations that [defendants] had knowledge of, or acquiesced in, the tortious conduct of [their employees].” Prevailing party represented by:Diane Windholz of counsel to Jackson Lewis (New York) for respondents. Click here to read the full decision of the Court….

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◄█►◄█►◄█►PENDING CASES #7999/51◄█►◄█►◄█►

PENDING CASES
PENDING CASES December 3, 2009: The following list represents cases, with their hearing date, on which decisions from the Appellate Court 3rd Department are still pending.

Nov 23, 2009 Begor v Holmes
Nov 17, 2009 Bond v New York Bus Operators
Oct 13, 2009 Carlucci v Omnibus Painting Co
Nov 23, 2009 Church v Arrow Electronics
Nov 20, 2009 Daquino v East Meadow School
Nov 19, 2009 Dilascio v Tilden Glen Head
Nov 19, 2009 Domenico v United Way
Oct 16, 2009 Dusharm v Green Island Contr
Nov 16, 2009 Epp v Cortland City DPW
Nov 19, 2009 Figueroa v Perfect Shoulder Co
Nov 16, 2009 Flores v Newstar Apparel
Oct 21, 2009 Friedman v New York City DOT
Oct 23, 2009 Gregorec v Brenners Furniture
Nov 18, 2009 Hassan v Ford Motor Co
Nov 18, 2009 Hulbert v Cortland County
Nov 17, 2009 Hutchinson v Lansing Conduit
Oct 14, 2009 Jaquin v Community Covenant
Nov 18, 2009 Kane v Unger
Nov 24, 2009 Lew v Younger
Nov 20, 2009 Li v Southern Garden, Inc.
Nov 19, 2009 Malone v VRD Decorating
Oct 14, 2009 Mamaroneck Village Tile v WCB
Oct 21, 2009 Mistofsky v Con Edison Company
Nov 18, 2009 Nothaft v Hawkeye Construction
Nov 24, 2009 Renzi v Case Mgt. Concepts
Nov 24, 2009 Riley v Labor Ready
Oct 16, 2009 Sattanino v Sanitary Dist
Nov 17, 2009 Sheeley v Sheeley Septic Svc
Oct 19, 2009 Smith v Consolidated Edison

▼ Posted November 26, 2009 ▼

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Shepler v City of Tonawanda #7382/53…..1900…§ 15(8)(e) 2nd Injury Fund

Shepler v City of Tonawanda
November 25, 2009 Appellate Division, Third Department
§ 15(8)(e) 2nd Injury Fund

AFFIRMED the Board’s decision to discharge the Special Disability Fund from liability under §15(8)(e). The decedent, claimant’s husband, as the result of undiagnosed arteriosclerotic cardiovascular disease, went into cardiac arrest while collecting garbage and died. After the WCB established the claimant’s ensuing workers’ comp claim, the employer and its TPA sought to obtain reimbursement from the Special Disability Fund. The Court agreed with the Board’s rejection in that the employer had not shown that decedent’s prior condition hindered or was likely to hinder his employability, writing the employer failed to show “(1) that the decedent had a preexisting permanent impairment that hindered or was likely to hinder his or her employment potential, (2) a compensable injury and (3) that either the injury or the death would not have occurred but for such preexisting permanent impairment.” Among other points, “the fact that decedent’s preexisting condition contributed to his death, without more, is insufficient to show that his employment potential was hindered by it.” An interesting point made by both the physician and the medical examiner who performed decedent’s autopsy was that at least 85% of individuals who suffer sudden cardiac arrest are at rest or engaged in minimal physical activity at the time. Moreover, there was no evidence that decedent’s undiagnosed condition had previously affected his work or recreational activities in any way. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds (Albany) for the Fund respondent. Click here to read the full decision of the Court….

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Schmidt v Falls Dodge #7381/53…..6650…Schedule Loss of Use issues

Schmidt v Falls Dodge
November 25, 2009 Appellate Division, Third Department
Schedule Loss of Use issues

AFFIRMED the Board which ruled that claimant’s schedule loss of use (SLU) award is not subject to claimant’s awards in other workers’ compensation cases. In 2005, claimant filed three separate workers’ comp claims and was awarded benefits in each. After submitting a fourth claim for hearing loss in 2007, the WCLJ established the claim for the occupational disease of binaural hearing loss, awarding a 21.43% SLU, to be paid at $400 per week for 32.145 weeks. Although the WCLJ also established the date of disablement as September 27, 2005, and claimant’s earlier awards encompassed various time frames within the ensuing 32 weeks, the WCLJ determined that claimant’s SLU award was not subject to the temporary disability benefits he was already receiving. The Court wrote that, “Contrary to the assertion of the State Insurance Fund and the employer, the Court of Appeals’ decision in Matter of LaCroix v Syracuse Exec. Air Serv., Inc. (8 NY3d 348 [2007]), which dealt with the proper method of payment of a schedule loss of use award, did not overrule this Court’s holding in Matter of Miller v North Syracuse Cent. School Dist. (1 AD3d 691 [2003]). . . . Accordingly, here, the Board correctly concluded that the SLU award, intended to compensate claimant for his future loss of earnings as a result of his hearing loss, was not subject to his temporary disability awards, which were ‘intended to compensate him for his loss of income during . . . finite periods].’” Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, NYC for the WCB, respondent.Click here to read the full decision of the Court….

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Magerko v Edwin B. Stimpson Co #7380/53…..9100…Voluntary Withdrawal

Magerko v Edwin B. Stimpson Co
November 25, 2009 Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s decision which, among other things, ruled that pro-se claimant voluntarily withdrew from the labor market. Claimant, with an established permanent partial disability due to a variety of ailments related to a 1990 work-related injury, was laid off in 2003 when his employer moved part of its operations out of state. Following hearings, a WCLJ found that claimant had not voluntarily withdrawn from the labor market following his layoff. Upon review, the Board disagreed and rescinded all awards from June 2003 onward. Inasmuch as claimant’s loss of employment was due to a layoff unrelated to his disability and the Board made no finding of involuntary retirement, the burden rests on claimant to demonstrate “by substantial evidence that his disability contributed to his continued unemployment“. The Court noted that testimony revealed the claimant collected unemployment insurance but made minimal efforts at seeking work and, although he stated he had physical constraints, he presented no evidence this information was supplied to potential employers. He began receiving Social Security disability benefits and moved to Florida in 2004, and he had made no subsequent effort to find a job. Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly, (Carle Place) for Edwin B. Stimpson Company, Inc. and another, respondents.Click here to read the full decision of the Court….

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Benjamin v Sprint/Nextel #7379/53…..6600…Disability: Further Causally Related

Benjamin v Sprint/Nextel
November 25, 2009 Appellate Division, Third Department
Disability: Further Causally Related

AFFIRMED the Board’s ruling that the pro-se claimant did not sustain a further causally related disability. In 2006, after a work accident, a claim for workers’ comp benefits was established for head and neck injuries. After extensive further proceedings, a WCLJ determined that claimant had not suffered a causally related back injury or psychiatric disability. Dealing first with claimant’s alleged back injury, the Court agreed with the Board that her treating physician’s opinion that a variety of back problems “could” have been caused by the accident but failed to specify what conditions actually caused the pain or how the accident gave rise did not support the claim of a back injury. The Court added, “As that opinion amounted to ‘mere surmise, or general expressions of possibility,’ the Board was free to reject it, even in the absence of contrary medical evidence.” With regard to claimant’s alleged psychiatric disability, the Court felt the Boards reasoning to be sufficient: a psychiatrist who conducted an independent medical examination of claimant concluded that she did not suffer from any psychiatric disability. Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly, (Carle Place) for Sprint/Nextel and another, respondents. Click here to read the full decision of the Court….

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Maricle v Crouse Hinds #7378/53…..5500…Causal Relationship: Exacerbated or New

Maricle v Crouse Hinds
November 25, 2009 Appellate Division, Third Department
Causal Relationship: Exacerbated or New

AFFIRMED the Board which ruled that claimant had exacerbated a prior compensable injury and awarded workers’ compensation benefits. After first sustaining a work-related back injury in 2001, for which he intermittently missed time from work and received workers’ comp benefits, the claimant in 2007 again missed work and required medical treatment due to back pain, at which time the employer alleged that the pain was unrelated to the 2001 injury. Following hearings, a WCLJ determined that claimant had not suffered a new injury and awarded benefits. With back injuries, “there is the ever-present danger of recurrence and the question then arises as to whether the subsequent incident was a new accident, an aggravation or . . . an [incident associated with the primary injury.” The Court wrote, as it has in so many similar cases, that, “We will not interfere with the Board’s resolution of that issue if substantial evidence supports it, even if evidence in the record could justify a different conclusion.” Even though there was extensive and contradictory medical evidence, the Court stated that the Boards decision was sustainable. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, NYC for the Board. Click here to read the full decision of the Court….

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Parrelli v Atlantic Constr #7377/53…..9100…Voluntary Withdrawal

Parrelli v Atlantic Constr
November 25, 2009 Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s ruling, which reversed the WCLJ, that there was no causal relationship between claimant’s asbestos-related pleural disease and his loss of earnings. Claimant won a workers’ compensation claim for a 1997 injury to his right hand, was ultimately found to have suffered a permanent partial disability, and received a lump-sum settlement. Not returning to workdue in part to his hand injury, he applied for disability retirement in 1998. Claimant filed the present claim in 2000, alleging that he suffered from a lung disease caused by his workplace exposure to asbestos. A WCLJ established the claim and, among other things, awarded claimant lost wages from September 2001 through December 2006. But the Board eliminated that award, determining that claimant retired for reasons unrelated to his lung condition and lost no wages as a result of it. Two key factors in this decision were the claimant’s acknowledgment that his retirement was due to physical elements other than his lung disease, due to which he never lost any time from work, and his admittance that, after retiring, he made no effort to find work within his medical limitations. Prevailing party represented by: David E. Baida of counsel to Gregory J. Allen, State Insurance Fund (NYC) for Atlantic Construction and another, respondents. Click here to read the full decision of the Court….

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Bovis v Crab Meadow #7376/53…..1210…§ 11 Election of Remedies

Bovis v Crab Meadow
November 17, 2009 Appellate Division, 2nd Judicial Department
§ 11 Election of Remedies

DENIED MOTIONS by two third-party defendant-appellants for motions for summary judgment in a suit brought by the employee in an action against, among others, the Crab Meadow defendants (who contracted with Picone, claimant’s actual employer), alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The Crab Meadow defendants commenced a third-party action seeking indemnification and contribution from Picone, and a judgment declaring that Sirius (Crab’s insurer) was obligated to defend and indemnify them in the main action. And Picone sought a cross motion for summary judgment dismissing the third-party complaint insofar as asserted against it, per WL §11. The Court agreed with the lower court that the third-party defendant Picone failed to establish that it did not enter into an indemnification agreement with the Crab Meadow defendants in 2002 prior to the injured plaintiff’s accident. Stating that an insurer’s obligation to defend is broader than its obligation to indemnify and arises whenever the allegations in a complaint against the insured fall within the scope of the risk undertaken by the insurer, the Court then added that Sirius failed to submit any evidence establishing that there was no possible basis upon which it may be obligated to indemnify the Crab Meadow defendants since there was no evidence that Picone and the Crab Meadow defendants did not enter into an indemnification agreement in 2002. Click here to read the full decision of the Court….

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Lee v Astoria & Elliott Turbo#7375/53…..9600…Jones Act (LHWCA)

Lee v Astoria & Elliott Turbo
November 17, 2009 Court of Appeals
Jones Act (LHWCA)

The Court of Appeals, with two dissents, reversed the Appellate Division which in turn had reversed the Supreme Court in the interpretation of 33 USC § 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA), thus preempting New York State Labor Law §§ 240(1) and 241(6) claims, by holding that a barge containing an electricity generating turbine is a vessel. Plaintiff injured his back while performing work on a turbine on barge in a facility owned and operated by defendants(Astoria/Orion). That plaintiff was employed by Elliott, a firm hired in 2000 by Astoria/Orion to perform an overhaul of the turbines at the facility. In 2001, the plaintiff placed a claim and was awarded benefits under the LHWCA, which “provides workers’ compensation to land-based maritime employees” and also commenced this state court action against Astoria/Orion, asserting Labor Law §§ 200, 240(1) and 241(6) claims and common law negligence claims. Astoria/Orion subsequently filed a third-party complaint against Elliott seeking indemnification. Elliott moved for summary judgment and the barge owners cross-moved for summary judgment which the Supreme Court granted only to be then reversed by the Appellate Division which reinstated plaintiff’s Labor Law §§ 240(1) and 241(6) claims and granted summary judgment as to the Labor Law § 240(1) claim in plaintiff’s favor. The Majority and the Dissenting Justices have issued a five-page decision justifying their respective opinions. Click here to read the full decision of the Court….

▼ Posted November 19, 2009 ▼

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Aminzadeh v Hyosung USA #7374/52…..3300.. Date of Disablement

Aminzadeh v Hyosung USA
November 19, 2009 Appellate Division, Third Department
Date of Disablement

AFFIRMED the Board’s decision which ruled that the date of claimant’s disablement for her carpal tunnel syndrome was June 8, 2007. Claimant’s first compensation claim was established for a cut to her left hand in 2005 and then for ensuing complications. While being treated for those conditions, there were indications that claimant also suffered from carpal tunnel syndrome (CTS) in her left wrist. A separate claim was filed for the CTS, and a Law Judge ultimately established it as an unrelated occupational disease with a June 2007 date of disablement. Upon review, the Board affirmed and the carrier (American Home Assurance Company) appealed. The Court reiterated its standard reasoning for supporting the board by writing that “but that “. . .the Board’s selection of a June 2007 date of disablement is supported by substantial evidence, notwithstanding that claimant had symptoms of, and was treated for, CTS earlier.” Prevailing arguments presented by: Michael V. DeSantis of counsel to DeSantis & DeSantis (Utica) for Shahnaz Aminzadeh, respondent and John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Hyosung USA, respondent.Click here to read the full decision of the Court….
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Johnson v Unifirst Corp. #7373/50…..1210…§ 11 Election of Remedies

Johnson v Unifirst Corp.
November 13, 2009 Appellate Division, Fourth Department
§ 11 Election of Remedies

REVERSED the Supreme Court’s denial of Derrick’s motion, by granting the motion for summary judgment and dismissing the third-party complaint. Plaintiff commenced this action seeking damages for injuries he sustained when, during the course of his employment as a welder for third-party defendant (Derrick), the uniform he was wearing caught fire. The uniform was rented by Derrick from defendant-third-party plaintiff, UniFirst Corporation (UniFirst), which commenced the third-party action against Derrick seeking contractual indemnification. The Appellate Court wrote that, “It is undisputed that plaintiff did not sustain a grave injury within the meaning of the statute, and Derrick established as a matter of law that its written contract with UniFirst containing the indemnification provision had expired and thus was not in effect at the time of plaintiff’s accident.” Pursuant to WCL §11, a third-party action for indemnification against an employer for injuries sustained by its employee in a work-related accident is barred unless the employee sustains a grave injury or the claim for indemnification is “based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the . . . person asserting the cause of action for the type of loss suffered. UniFirst may not rely upon the automatic renewal provision of the written contract because UniFirst did not comply with its statutory obligation to provide timely written notice to Derrick ‘calling [its] attention’ to that provision.” The Appellate Court also rejected UniFirst’s contention that General Obligations Law § 5-903 (2) did not apply. Prevailing party represented by: Mark P. Della Posta of Counsel to. Walsh, Roberts & Grace (Buffalo) for Third-party Defendant-appellant. Click here to read the full decision of the Court…

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Miraglia v H & L Holding Corp. #7372/52…..1210…§ 11 Election of Remedies

Miraglia v H & L Holding Corp.
November 17, 2009 Appellate Division, First Department
§ 11 Election of Remedies

“Plaintiff was injured while working on a construction project on property owned by defendant H & L Holding Corp. (306 AD2d 58 [2003]). Plaintiff commenced a personal injury action against H & L, which subsequently impleaded Lane, plaintiff’s employer. H & L was granted summary judgment on its claim for indemnification against Lane, and Lane assumed defense of the main action. After a jury trial, H & L was found liable for plaintiff’s injuries and plaintiff was awarded damages. The judgment, however, permitted plaintiff to recover the damages from H & L (the defendant in the main action) and Lane (the defendant in the third-party action). On defendant Lane’s appeal from the judgment, we modified the judgment to the extent of, inter alia, setting aside the award for future pain and suffering unless plaintiff stipulated to reduce the award (36 AD3d 456 [2007], lv denied 10 NY3d 703 [2008]). “Lane did not argue on that appeal that it was not liable to plaintiff but only to H & L. “Lane now argues that we misapprehended the facts and the law in deciding its appeal because we focused on whether it had waived any argument that plaintiff could not recover against it because of the exclusivity provision of Workers’ Compensation Law § 11. 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,third-party defendant (L&S) fail to raise this objection to the judgment on the 2007 appeal, but it assumed defense of the direct defendant (H&L) at trial.” The majority of the Court felt that “third-party defendant (L&S) [is not] persuasive in arguing — for the first time on appeal — that Supreme Court lacked personal jurisdiction over it because plaintiff never named it as a direct defendant. Supreme Court has always had the power to render an adjudication over third-party defendant which surely would not have assumed the defense of the direct defendant at trial if it believed the court lacked personal jurisdiction over it. Moreover, by first actively participating in the litigation as if it were a direct defendant, and then by failing to raise the issue on appeal, third-party defendant waived its right to rely on , in which the Court of Appeals held that a plaintiff may not recover directly from a third-party defendant over which it has no direct claim.” In a concurring opinion, Justice McGuire wrote “Thus, the order denying Lane’s motion to amend the original judgment should be affirmed on the ground that Lane waived that argument by not raising it on the appeal from the judgment.” Click here to read the full decision of the Court…

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Cueto v Hamilton Plaza #7371/52…..1210…§ 11 Election of Remedies

Cueto v Hamilton Plaza
November 10, 2009 Appellate Division, Second Department
§ 11 Election of Remedies

AFFIRMED order of the Supreme Court, Westchester which denied motion of the nonparty Special Trades Contracting and Construction Trust, c/o New York Compensation Managers Third-Party Administrator for Workers’ Compensation for Arkay Contracting (The Trust), pursuant to CPLR 3211(a)(7), to dismiss the second cause of action in the third-party complaint for common-law indemnification and contribution for failure to state a cause of action. In 2004, the plaintiff, Victor Cueto allegedly was injured when a portion of a ceiling fell on him at a construction project. After his WC claim against his employer, Arkay was settled, the plaintiff commenced an action to recover damages for personal injuries against various owners, managers, contractors, and subcontractors on the construction project. The defendant Reckson Construction commenced a third-party action against Arkay, inter alia, for common-law indemnification and contribution. The 2nd Department agreed that The Trust failed to sufficiently allege that Cueto had suffered a “grave injury” and that, therefore, WCL §11 barred Reckson’s claim for common-law indemnification and contribution. And the 2nd Department found sufficient evidence was presented that Cueto suffered a “grave injury,” and, consequently, that the Supreme Court properly denied Special Trades’ motion pursuant to CPLR 3211(a)(7) to dismiss the cause of action in the third-party complaint for common-law indemnification and contribution. Click here to read the full decision of the Court…

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