FULL BOARD REVIEWS

of the

New York State Workers Compensation Board

August 22, 2010: The New York State Workers Compensation Board as of March 2010 will temporarily post a few of the 15-20 Full Board Decisions it issues each month. This page will offer a permanent but brief summary of those decisions with a link to another page in this website to the entirety of the decision issued by the Board. The Board has stated that it will issue decisions that should be of interest to the workers compensation community.

How they are chosen for review:  To date it appears that all the cases being published are MANDATORY: these are the decisions in which one commissioner disagrees (dissents) with his two colleagues (the majority) such that if the loosing party wishes to appeal, the Full Board MUST review the case. If there is a dissent but the losing party does not ask for a FBR, none is given. If there is no dissent, the decision to review is solely at the discretion of the Board.  A full discussion of FBRs and how they are chosen is detailed in Chapter 8 of my book Behind The Closed Doors.  As to the 4-5 decisions picked each month from the 10-20 done each month, until such time as the Board publishes all the Full Board Reviews which it issues, there can really be no other explanation for their selectivity. As these are maintained on the Board’s website for only a short period of time, InsideWorkersCompNY is posting them to its website where these decisions will be available anytime in the future. Any comments or suggestions should be sent to: TheInsider@InsideWorkersCompNY.com.

► Monday August 23, 2010 Postings ◄
City of Rochester (WCB #704110419 Filed Jul 8, 2010)

• ISSUE: The issue presented for Full Board Review is whether the claimant, who has not been classified with a permanent partial disability, retired for reasons unrelated to his established injuries.
• STATUS OF DECISION:In a mandatory review, the Full Board accepted the majority opinion, ruling against the claimant, after the Majority had originally reversed the law judge, who had ruled for the claimant.
• CONCLUSION: The majority found that the claimant was not classified with a permanent disability (and therefore was not entitled to any presumptions); that the claimant was able to work full time without restrictions up until the day he retired; and that the claimant retired solely in order to preserve his health care benefits. As a result, the majority reversed the WCLJ, found that the claimant retired for reasons unrelated to his compensable injuries, and rescinded the awards.[6025]

Constanzi Crane (WCB #50700468 Filed Jul 8, 2010 )

• ISSUES: The issue is whether the claimant’s right knee disability should be apportioned between her workers’ compensation injury and her preexisting right knee condition.
• STATUS OF DECISION: In a mandatory review, the Full Board accepted the majority opinion, ruling for the claimant, after the Majority had originally reversed the law judge, who had ruled against the claimant.
• CONCLUSION: The Full Board found that apportionment was not applicable as a matter of law, as the preexisting condition was not the result of a compensable injury, and the claimant was able to effectively perform her job duties at the time of the work-related accident despite the preexisting condition.[6024]

Igor Stiler MD (WCB #00449236 Filed Jul 8, 2010)

• ISSUE: The issue is whether the claimant knowingly made a false statement or misrepresentation of a material fact in order to obtain compensation benefits in violation of Workers’ Compensation Law (WCL) § 114-a.
• STATUS OF DECISION: In a mandatory review, the Full Board accepted the majority opinion, ruling for the claimant, after the Majority had originally affirmed the law judge, who ruled for the claimant.
• CONCLUSION: Based on all the reports and testimony given by the claimant which overwhelmingly showed that she informed everyone of her other accidents, the Full Board ruled that there is insufficient evidence that the claimant knowingly made a false statement or a misrepresentation of a material fact in violation of WCL § 114-a, and the Law Judge’s decision is support by the record.[6023]

Ionian Development (WCB #40503141 Filed July 8, 2010)

• ISSUE: The issue is whether an employer-employee relationship existed between the claimant and Ionian Development.
• STATUS OF DECISION:In a mandatory review, the Full Board accepted the majority opinion, ruling against the claimant, after the Majority had originally reversed the law judge, who had ruled for the claimant.
• CONCLUSION: The Full Board finds that claimant was a self-employed independent contractor, not an employee of Ionian. As a self-employed person, claimant was not obligated to obtain workers’ compensation insurance covering himself, and chose not to do so. Therefore, the Full Board finds that liability for this claim cannot be imposed on Ionian pursuant on WCL §56.[6022]

St. Francis Construction Corp. (WCB #30705539 Posted Jul 8, 2010)

• ISSUE: The issue is whether the claimant, who was laid off from the employer for unrelated reasons, sufficiently reattached himself to the labor market to be entitled to awards for causally related lost earnings.
• STATUS OF DECISION: In a mandatory review, the Full Board accepted the majority opinion, ruling against the claimant, after the Majority had originally reversed the law judge, who had ruled for the claimant.
• CONCLUSION: A preponderance of the evidence in the record supports a finding that the claimant did not make a sufficiently timely, diligent, and persistent job search within his restrictions to meet his burden of proving that he has reattached himself to the labor market.[6021]

WSF Industries (WCB #00749236 Filed July 8, 2010)

• ISSUE: The issue presented for is whether the claimant sustained work-related cataracts due to his exposure to light from a welder’s arc.
• STATUS OF DECISION: In a Mandatory review, the Full Board accepted enough of the Dissenting opinion to reverse the Law Judge’s original decision and send the case back for further consideration, thus giving claimant another opportunity to present their case.
• CONCLUSION: ACCORDINGLY, review of the WCLJ reserved decision filed on April 1, 2009, is HELD IN ABEYANCE, pending further development of the record with the opinion of the impartial specialist in the field of ophthalmology on the issue of whether the claimant’s former occupation accelerated the development of his cataracts or the original diagnosis was too speculative. The case is continued.[6020]

Jeffrey Ellis Carl Cabinet (WCB #708071390 Filed June 7, 2010)

• ISSUE: The issue is whether liability for the claimant’s left shoulder medical treatment and surgery should be apportioned between his workers’ compensation case (WCB #70807139) and a prior left shoulder condition.
• STATUS OF DECISION: In a mandatory review, the Full Board accepted the majority opinion, ruling for the claimant, after the Majority had originally affirmed the law judge, who ruled for the claimant.
• CONCLUSION: The key factors in other cases were that the prior injury was nonwork related and that the prior injury would have been amenable to a schedule loss of use had it been work related, either because of documented loss of range of motion findings or proof of other special considerations noted in the Board’s Medical Guidelines (such as a torn rotator cuff). If such factors are present, then the prior injury constitutes a disability in a compensation sense sufficient to warrant a finding of apportionment. However, pending a finding of maximum medical improvement, a finding of permanency, and a finding that the claimant’s left shoulder is not amenable to classification, the issue of apportionment of awards is premature. No further action is planned by the Board at this time.[6019]

Traditions in Caring, Inc. (WCB #G0046369 Filed June 7, 2010)

• ISSUE: The issues presented are whether (1) the claimant’s November 29, 2008, accident report should have been admitted into evidence and (2) if there is sufficient evidence of timely notice of the claimant’s injuries to her right shoulder and right hip, as required by Workers’ Compensation Law (WCL) § 18.
• STATUS OF DECISION: In a mandatory review, the Full Board accepted the majority opinion, ruling for the claimant, after the Majority had originally affirmed the law judge, who ruled for the claimant.
• CONCLUSION: The Board agreed with the WCLJ who heard the testimony of the claimant and the claims representative and found the claimant’s testimony more credible and found that she satisfied the notice requirement imposed by WCL § 18 with respect to her right shoulder and hip injuries by returning the accident report to the TPA on November 29, 2008.[6018]

ITT Industries, Inc. (WCB #79712417 Filed 05/06/10)

• ISSUE: The issues presented (1) right to cross examine, (2) degree of disability, (3) total vs partial. (4) voluntary withdrawal, and (5) ATF deposit
• STATUS OF DECISION: In a Mandatory review, the Full Board issued a mixed decision, by accepting four of the five Majority opinions, all five of which originally affirmed the Law Judge’s original decisions, all originally in the favor of the claimant.
• CONCLUSION: The WCLJ’s amended reserved decision filed April 7, 2009, is MODIFIED to return the case to the trial calendar for development of the record on the issue of the claimant’s labor market attachment whereas the other four issues in the WCLJ’s decision filed April 29, 2009, are AFFIRMED. The case is continued.
• EDITOR’s NOTE: It is interesting that the Board has required the payment of the deposit into the ATF while at the same sending the case back for review as to whether or not the claimant qualifies for any further awards due to the issue of voluntary withdrawal from the work place. If voluntary withdrawal is found, does this mean that (1) the carrier gets it payment back from the ATF or does this mean that (2) the Board can pump up the ATF by making a ruling which requires an ATF payment, knowing the ruling will be reversed but that the ATF can keep the payment?[6017]

OSG Kolmar Lab., Inc (WCB #30600152 Filed 05/06/10)

• ISSUE: The issue presented for Full Board Review is whether the claimant, who is now deceased, sustained a work-related binaural hearing loss.
• STATUS OF DECISION: In a mandatory review, the Full Board accepted the DISSENTING opinion, ruling for the claimant, after the Majority had originally reversed the law judge, who had ruled for the claimant.
• CONCLUSION: In finding for the claimant, the Full Board found the evidence clearly establishes that the claimant did not use hearing protection while working. As a result, the claimant had not been removed from the exposure to harmful noise for more than three consecutive months at the time of his death, and therefore the date of disablement is March 15, 2008, pursuant to WCL § 49-dd.[6016]

Protrans Services Inc (WCB #50803589 Filed 05/06/10)

• ISSUE: The issue is whether claimant’s disability should be apportioned between this claim and a prior injury.
• STATUS OF DECISION: In a mandatory review, the Full Board accepted the majority opinion, ruling for the claimant, after the Majority had originally affirmed the law judge, who ruled for the claimant.
• CONCLUSION: Accordingly, the WCLJ’s reserved decision filed on May 22, 2009, is modified to find that apportionment of claimant’s neck injury is not appropriate as a matter of law and that it is premature to consider apportionment of claimant’s right shoulder injury. The case is continued.[6015]

Rosner Construction (WCB #00754237 Filed 05/06/10)

• ISSUE: The issue is whether the decedent’s death due to mold constitutes a compensable accident or occupational disease under the Workers’ Compensation Law.
• STATUS OF DECISION: In a mandatory review, the Full Board accepted the DISSENTING opinion, ruling against the claimant, after the Majority had originally affirmed the law judge, who ruled for the claimant.
• CONCLUSION: The Board Panel finds that decedent’s infection was not the result of discrete, identifiable event or series of events, and cannot be considered an accidental injury nor was there evidence that those in similar employment are exposed to mold during the course of their work, and it is clear that the claim in this case pertains to an alleged environmental condition specific to the locations where the decedent worked. As a result, the Full Board finds that decedent’s death was not the result of an occupational disease, reversing the Law Judge and disallowing the claim.
• EDITOR’s NOTE: This case typifies those in which the Board defines this as a MODIFIED decision, even though the underlying decision to establish the claim has just been reversed. I assume that the Board reasons that since, in this case, one controverted issuing dealing with the medical testimony fee was affirmed, the entirety of the decision was only ‘modified’. I define it as REVERSED, a definition with which I assume the claimant and their attorney agree.[6014]

SAM Contracting (WCB #WCB#00801579 Filed 5/6/10 )

• ISSUE: The issue is whether the claimant sustained an accident arising out of and in the course of his employment.
• STATUS OF DECISION: In a mandatory review, the Full Board accepted the majority opinion, ruling against the claimant by reversing the law judge’s original decision which supported the claimant.
  
• CONCLUSION: The Full Board found that the claimant was not a credible witness, that the employer witness’ testimony sufficiently rebutted the claimant’s testimony, and that the contemporaneous medical evidence does not support a claim for work-related back injury on July 24, 2006. [6013]

Manhattan East Auto (WCB #00837141 Filed 03/23/10)

• ISSUE: The issue is whether the claimant sustained an accident arising out of an in the course of his employment on August 1, 2008.
• STATUS OF DECISION: In a mandatory review, the Full Board accepted the majority opinion, ruling for the claimant, by affirming the law judge’s original decision which supported the claimant.
• CONCLUSION: The Full Board found that the preponderance of the credible evidence in the record supports a finding that claimant sustained an accidental injury arising out of and in the course of his employment.[6012]

United Cerebral Palsy Assoc (WCB #60800474 filed March 23, 2010 )

• ISSUE:The issue is whether the claimant’s accident during her lunch break arose out of and in the course of her employment.
• STATUS OF DECISION: In a mandatory review, the Full Board accepted the majority opinion, ruling against the claimant, by affirming the law judge’s original decision which are ruled against the claimant.
  
• CONCLUSION: The Board decided, based on the facts that the claimant (1) was given a 30 minute paid lunch break, (2) was not reimbursed for mileage incurred during her lunch break, (3) the break was not at an unusual time of day, (4) was not “on call” during her lunch period, (5) could eat (or not) at any location of her choosing, and (5) was not required to perform any work related duties during her lunch period, that there were no special circumstances to make her lunch time injury compensable.[6011]

420 E. 86th St./Carlton Mgmt (WCB #00253104 March 23, 2010)

• ISSUE: The issue is whether the claimant has made an adequate search for work.
• STATUS OF DECISION: In a mandatory review, the Full Board accepted the DISSENTING opinion, ruling against the claimant by reversing the law judge’s original decision which supported the claimant.
• CONCLUSION: Accordingly, a preponderance of the evidence in the record supports a finding that the claimant has not demonstrated sufficient credible evidence of a continued attachment to the labor market, whereby awards should be suspended as of her testimony on December 2, 2008. The claimant may subsequently show a reattachment to the labor market by producing evidence consistent with the decision in Matter of American Axle.[6010]

► Monday May 10, 2010 Postings ◄

Intrepid USA Healthcare Services (WCB #G0024768,  filed 04/13/2010)

• ISSUES: (1) Whether the claimant sustained an accident arising out of and in the course of employment and (2) claimant’s late notice to the employer should be excused under WCL § 18.
• CONCLUSION: The law judge established claim as an accident arising in and out of the course of employment. A Board Panel reversed with one dissent to disallow the claim for late filing. In response of claimant’s request for review, the Full Board Review found ANCR but disallowed the claim due to late filing under WCL §18.[6006]

J Kings Food Service Professionals (WCB #40707678, filed 04/13/2010)

• ISSUES: Whether total left knee replacement surgery should be authorized.
• CONCLUSION: The Law Judge denied the surgery whereas a Board Panel, with one dissent, found a causal relationship and authorized surgery. In response to the carriers appeal for review, the Full Board Review Agreed with the Patent Board Panel majority, finding causal relationship and authorizing surgery.[6007]

Silipos, Inc. (WCB #80801128, filed 04/13/2010)

• ISSUES: Whether the claimant has voluntarily withdrawn from the labor market.
• CONCLUSION: The Law Judge’s determination that the claimant did not voluntary withdraw from the labor market was supported by a majority of the Board Panel. In response the carrier’s appeal for review, the Full Board Review agreed with the Board Panel majority, finding no voluntary withdrawal from the labor market.[6008]

VFG Provisions (WCB #40311021, filed 04-13-2010)

• ISSUES: Whether the claimant’s husband (decedent) suffered a causally related death.
• CONCLUSION: The Law Judge’s determination that the claimant’s death was causally related was supported by a majority of the Board Panel. In response to the carrier’s appeal for review, the Full Board Review supported the position of the dissenting Panel member of the Board Panel and disallowed the claim.
• ED. NOTES: There is an error in the MOD. Although the claimant’s husband died on February 21, 2003, there is reference to “the the decedent’s hospitalization for psychiatric problems in May of 2003“, three months later. One can only hope that all the other facts used in reversing the Law Judge’s decision are accurate. I wonder if it would be possible to challenge the decision arguing that the Board’s failure to obviously use correct information to make it’s decision warrants a new hearing, particularly in a death case in which the Board, by reversing the Law Judge, disallowed the claim.[6009]

► Monday March 29, 2010 Postings ◄
Bayport Fire Dept (WCB#F4070228, filed March 29, 2010): The Full Board AFFIRMED the Board Panel and Law Judge both of whom found that the medical evidence in the record fails to establish a causal relationship between claimant’s duties as a volunteer firefighter and his syncope, seizure disorder, or migraine headaches, sufficient to establish this claim.[6002]
Citywide Central Ins. Program (WCB#0074-9236, filed March 29, 2010): The Full Board AFFIRMED the Board Panel, with a dissent, which found that the carrier waived the WCL § 18 defense by not raising it on a timely basis such that further analysis of the exceptions to WCL § 18 were not required.[6001]
Trumansburg CSD (WCB #9060-0844, filed March 29, 2010): The Full Board AFFIRMED the Board Panel, with a dissent, upon review of the record and based upon a preponderance of the evidence, that the claimant has an occupational disease of the neck and right shoulder.[6003]
SUNY College of Tec (WCB#90500627, filed March 29, 2010): The Full Board AFFIRMED the Board Panel are the Stress (WCB section 2[7]), and Causal Relationship and also made decisions regarding the procedures by which these multiple medical complaints were combined and separated on the various claims that were placed by this injured worker.[6004]
American Axle (WCB # 8033659 Filed 02/04/10): The Full Board AFFIRMED the Board Panel, with a dissent, agreed with the Law Judge that his employment limitations due to his disability were a cause of his subsequent inability to obtain employment, thus there was no voluntary withdrawal from the labor market.[6005]

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

Mandatory Full Board Review

American Axle.

Case # 8030 3659 Date of Accident: 2/3/03 Employer: American Axle Date of Filing of Decision: 2/4/10 Claimant’s Attorney: Lipsitz, Green, Scime, Cambria

District Office: Buffalo Carrier: American Protection Ins. Co. Carrier ID No.: W036503 Carrier Case No.: 317 CP 143519 317 Panel: Robert E. Beloten

ISSUE: Voluntary Removal from the Labor Market/ Attachment

The Full Board at its meeting on January 26, 2010, considered the above captioned cases for mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed April 16, 2009.

In the MOD filed April 16, 2009, the majority of the Board Panel, upon review of the entire record, affirmed the Workers’ Compensation Law Judge’s (WCLJ) reserved decision filed September 10, 2008, finding that claimant was entitled to awards after December 23, 2007, when the plant where he worked closed, as the evidence demonstrated that his employment limitations due to his disability were a cause of his subsequent inability to obtain employment.

The dissenting member voted to reverse the decision of the WCLJ, indicating that the case should be remanded for further development of the record on the following issues: his labor market attachment, his efforts to find work within his restrictions after December 23, 2007, and whether the diminution of wages were caused by factors other than his disability.

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

ISSUE

The issue presented for Full Board Review is whether claimant remained attached to the labor market after the plant where he worked closed.

FACTS

The claimant, who is now 38 years old, began working as a machine operator for American Axle in April 1994 where he continued to work until he was laid off in December 2007, when the plant closed. He is a member of the United Auto Workers Union.

While working at American Axle, claimant had the two instant accidents. On February 2, 2003, he injured his back while pulling a 500-600 pound gondola whose wheels had become stuck (WCB # 8030 3669). His recurring back symptoms were related to sacroiliac joint pain and a disc herniation at L4/L5. Through February 16, 2005, he was awarded 18.8 weeks of lost time benefits due to his back disability.

On February 16, 2005, claimant sustained an injury to his neck when he slipped and hit his head on the floor (WCB # 8050 4343). He was diagnosed with additional disc herniations and again was treated conservatively. Various awards were made. On August 30, 2005, he returned to light duty, earning full wages.

Two years later, the claimant began to lose time from work again due to his neck disability and was awarded benefits from June 26, 2007 to September 4, 2007. He returned to work again with restrictions. Seven months later, on April 7, 2008, claimant filed form RFA-1, indicating that he was out of work and not receiving benefits. Thereupon both cases were reopened to travel together on the issue of further causally related lost time.

At the time of the reopening, the medical evidence showed that on February 27, 2008, claimant had treated with Dr. Capicotto for neck and low back pain. MRI studies of the cervical spine showed a disk herniation at C5/6 and a probable herniation at C4/5 and C6/7. He noted that claimant has a marked permanent disability, is seriously considering surgical intervention particularly in the cervical spine, has been laid off but is looking for work, and has work restrictions of a ten pound lifting limit, no repetitive bending, no working on machines that vibrate, and no climbing on ladders and no overhead work. In a report for a subsequent examination on April 9, 2008, Dr. Capicotto wrote that claimant has a moderate permanent disability for both injuries, is past maximum medical improvement, is laid off and not working, and would like to hold off on surgery as long as possible.

At the joint hearing held on July 1, 2008, the claimant testified that he stopped working for the employer as a machine operator on December 23, 2007, when the employer ceased its production operations and he was laid off. He has not held any job since being laid off. The employees were offered a “buyout,” and he had until July 18, 2008 to accept the offer ($140,000.00). After being laid off, he collected “holiday pay and stuff” and started collecting unemployment benefits of $405 a week gross on January 11, 2008. He did go “on strike” with his fellow UAW Union (Local 424) from February 25, 2008, to about May 25, 2008.

The claimant testified further that he was currently qualified for a special trade program (TRA and TAA) to help get his insurance and unemployment continued for up to a year and a half while he returns to school to become a respiratory therapist. He had received vocational assistance at a One Stop office, which was in the same location as the unemployment office.

Claimant testified that in order to continue receiving his unemployment benefits, he had to continue to look for work. He looks for work in the newspaper and either calls or “most of the time I just go to them and show up and ask” if there is any work. He filled out a VESID application two months earlier, but he had no idea how the process worked. He had a list of all of the employers he had contacted, but most were not hiring due to the economy, and he was unable to do some of the jobs because of his inability to lift and carry things. He prepared a resume approximately two or three months prior to the hearing, but he had not given it to any prospective employers.

As to his education, claimant testified that he attended approximately two years of college courses between 1990 and the present, but has not earned a degree. He testified that he is signed up for classes at Genesee Community College, and he is waiting to see if his application in the special trade program was approved.

Claimant testified that he continued to treat with Dr. Capicotto (an orthopedist) “every once in a while,” and he saw Dr. Cichocki (a chiropractor) on a symptomatic basis, although he had not needed any treatment for the past two months. He had permanent work restrictions for his neck, which had been in place since he returned to work. The restrictions included no lifting over fifteen pounds, no overhead work, no vibrating equipment, and no repetitive lifting. He had previously had restrictions for his back, but he “let those expire because [his] back wasn’t really bothering [him]” after he returned from his neck injury. His neck was better than it had been in a long time because he was not doing anything “besides yard work.” He still plays golf, but it is not easy.

At the conclusion of the hearing, a copy of the claimant’s job search notes was submitted into the record. It is noted of the eighteen entries listed (eleven from June 2008 and seven undated) the result for seventeen of the entries was that the employer was not hiring at that time. Only one entry, for a labor position with a construction company, indicated that the claimant was “not qualified to do heavy labor.” The types of jobs being sought were listed as “production,” “anything,” “labor,” “technician,” and “general.” Copies of the claimant’s resume (wherein he lists his injuries) and an additional handwritten list of job search activities in “production” or “anything” (five employers) were subsequently submitted by the claimant’s attorney on July 31, 2008.

On September 10, 2008, the WCLJ issued a reserved decision in both cases wherein he found that a finding as to permanency is premature; that claimant had remained attached to the labor market; that there was no compensable lost time from December 5, 2007, to January 11, 2008; and that there was no medical evidence for the period January 11, 2008, to February 27, 2008. However, he made awards of $400 a week for a temporary partial disability pursuant to Workers’ Compensation Law (WCL) § 25(1)(f) from February 27, 2008, to September 8, 2008, and continuing.

Following the filing of the reserved decision, the carrier had claimant examined by its consultant, Dr. Anthony Leone on October 2, 2008. In a report dated October 13, 2008, Dr. Leone wrote that overall claimant has a moderate permanent partial disability (2/3 attributable to the neck and 1/3 attributable to the lumbar spine); that his overall disability is materially and substantially greater due to the prior injuries to his back; and that claimant is attending Genesee Community College full time for retraining and education.

LEGAL ANALYSIS

As early as February 27, 2008, the medical reports show that claimant has a permanent partial disability. On April 9, 2008, Dr. Capicotto indicates that it is a moderate permanent disability, and Dr. Leone, the carrier’s consultant, agreed with this assessment on October 13, 2008.

Additionally, the record shows that the employer, effective December 23, 2007, ceased operations, and therefore could no longer provide this partially disabled claimant with a light duty job which would accommodate his severe work restrictions. Accordingly, claimant’s departure from his employment on December 23, 2007, could neither be deemed a voluntary retirement as claimant did not choose to leave his employment nor could it be deemed an involuntary retirement as his work-related disability was not the cause of his departure.

“[I]t is now settled that ‘[w]here a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions’ (cites omitted)” (Matter of Hare v Champion International, 50 AD3d 1254 [2008], lv dismissed, 11 NY3d 863 [2008]). Likewise, a claimant who is temporarily partially disabled must also demonstrate an attachment to the labor market to be entitled to continuing compensation benefits (see Matter of Bacci v Staten Island University Hospital, 32 AD3d 582 [2006]). A partially disabled person need only seek employment within his or her medical restrictions (Matter of Sanchez v Consolidated Edison Co. of N.Y., Inc., 40 AD3d 1153 [2007]) and for which he or she is qualified (see Matter of St. Francis Construction Co., 2009 NY Wrk. Comp. 30705539). Whether a claimant actually maintains an attachment to the labor market sufficient to justify continued compensation benefits is a factual determination for the Board to resolve (Matter of Rothe v United Medical Associates, 18 AD3d 1093 [2005]).

Subsequent to February 27, 2008, claimant testified as to collecting unemployment benefits, receiving vocational assistance at a One-Stop office, returning to school for training in respiratory therapy through a special trade program (TRA/TAA), applying with VESID, and making an independent search for jobs.
Unemployment Benefits

Claimant testified that he began receiving unemployment benefits of $405 a week on January 11, 2008.

In New York State, benefits through an unemployment insurance system provide financial support “to workers who have lost their jobs through no fault of their own” (Labor Law § 502). To be entitled to benefits, unemployed workers must file a claim and meet, among other qualifications, the following: “is able to work and available for work” (Labor Law § 527[1]; 590[1]). Benefits are paid “only to a claimant who is totally unemployed and who is unable to engage in his usual employment or in any other for which he is reasonably fitted by training and experience” (Labor Law § 591[1]). Conversely, “[n]o benefits shall be payable to any claimant who is not capable of work or who is not ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience” (Labor Law § 591[2]).

An unemployed claimant, in order to maintain his weekly eligibility to receive benefits, must participate in reemployment services, such as job search assistance services (Labor Law § 591[4]). If an unemployed claimant is receiving workers’ compensation benefits under WCL § 15(6), unemployment benefits “are limited to the difference between the amount of workers’ compensation benefits and one hundred percent of the claimant’s average weekly wage” (Labor Law § 591[5]).

While simply the application for or receipt of unemployment benefits is not determinative of an attachment to the labor market, documentary evidence of a claimant’s active participation in one of the New York State Department of Labor’s reemployment services is.
One-Stop Career Centers

The federal Workforce Investment Act of 1998 (Pub L 105-220, 29 USC § 2801, et seq.), established a nationwide network of One Stop Career Centers designed to provide multiple services, including job search and vocational retraining assistance, to all workers, including those with disabilities.

In New York State, the Department of Labor operates a One Stop Center in every county. These One-Stop Centers offer free services to people seeking employment, including training designed to provide marketable job skills, career counseling services designed to give workers the skills necessary to successfully search for a job, and matching workers with potential employers. Job seekers are guided to the New York’s Job Bank and may enter resumes online. Once a resume is in the One-Stop system, it is regularly matched to determine if suitable work is available, with job offers and responses recorded in the system. One-Stop Centers provide letters to workers’ compensation claimants who request them, verifying that they are registered in the Department of Labor’s system. Similar assistance is also available at the Department of Labor’s Division of Employment and Workforce Solutions (DEWS) locations.

In the instant case, claimant testified that he had received vocational assistance at a One Stop office. Documentary evidence that a claimant is actively participating in the services provided by a One Stop office in order to return to work within his or her restrictions is evidence of an attachment to the labor market. Active participation means (1) calling for an appointment; (2) attending an orientation session; (3) meeting with a One-Stop counselor to develop a resume; (4) registering a resume in the One-Stop system; (5) following up to determine whether there were any job matches; and (6) following up on all job referrals and matches.
TRA/TAA

The Trade Adjustment Assistance (TAA) is a federal program created under the Federal Trade Act of 1974 and 2002 (19 USC § 2102 et seq.) to assist workers who have lost their jobs due to increased imports or production shifts to a foreign country. New York State administers the Federal TAA program for the United States Department of Labor and coordinates the program through its One Stop Career Centers. New York has similar programs called the Manpower Training Act (Labor Law, Article 23-A) and the Worker Adjustment Act (Labor Law, Article 24).

The TAA program offers benefits such as rapid response assistance, re-employment services, job search allowances, moving assistance, training, or on-the-job training. Other benefits may include the Trade Readjustment Allowance (TRA) which is weekly income support for up to one hundred and four weeks, generally the same amount as unemployment insurance benefits, for workers who are in approved training and who have exhausted their unemployment benefits. A Health Coverage Tax Credit (HCTC) of 65 % is also available on certain health insurance premiums paid by approved workers.

Claimant testified that TAA and TRA assistance is available at the One Stop Office he visited. Through that program he has signed up for classes at Genesee Community College to become a respiratory therapist, another career path. He is waiting to hear about his acceptance.

Receiving income benefits or health coverage tax credits pursuant to TRA or HCTC is not evidence of an attachment to the labor market. However, documentary evidence of active participation in a retraining program through TAA to secure a job within a claimant’s disability restrictions is evidence of an attachment to the labor market. Also documentary evidence showing enrollment and attendance full time as a student in an accredited educational institution in order to pursue employment within his work restrictions is evidence of an attachment to the labor market (Matter of Dooley v NYS Bronx Children’s Psychiatric Hospital, 56 AD2d 680 [1977).
VESID

Claimant testified that at the One Stop office he filled out an application to work with VESID (Vocational and Educational Services for Individuals with Disabilities).

Education Law § 1004(2) places upon the New York State Education Department two of the following duties among others in providing vocational rehabilitation:

“2. To provide vocational rehabilitation services directly or through public or private instrumentalities for handicapped persons (excepting blind persons and, with respect to physical restoration services, those persons who are entitled to such services pursuant to the workmen’s compensation law and the volunteer firemen’s benefits law) whose vocational rehabilitation the department determines after full investigation may be satisfactorily achieved. In the course of its investigation of an individual applicant’s vocational rehabilitation potential the department may conduct an extended evaluation program including utilization of such vocational rehabilitation services as it deems necessary….

6. To cooperate in the operation of this article with the state agency or agencies administering the state’s public assistance program, workmen’s compensation program, the department of health, mental hygiene, the federal agencies charged with the administration of the federal social security act and the federal fair labor standards act or other appropriate federal legislation and with other public and private agencies providing services related to vocational rehabilitation, and with the state system of public employment offices in the state, making maximum feasible utilization of the job placement and employment counseling services and other services and facilities of such offices, and to issue such certifications as are required or indicated thereby.”

As a complement to the duties of the Department of Education’s VESID, WCL § 15(9) provides in part:

An employee, who as a result of injury is or may be expected to be totally or partially incapacitated for a remunerative occupation and who, under the direction of the state education department is being rendered fit to engage in a remunerative occupation, may receive additional compensation necessary for his rehabilitation, not more than thirty dollars per week of which may be expended for maintenance. Such expense and such of the administrative expenses of the state education department as are properly assignable to the expenses of rehabilitating employees entitled to compensation as a result of injuries under this chapter, shall be paid out of a special fund ….”

Such fund is the vocational rehabilitation fund which in part receives funding from employers and insurance carriers who must pay into the fund $2000 in every injury case resulting in death in which there are no persons entitled to compensation.

In addition to rehabilitation services through VESID, claimants may receive rehabilitation by participating in Board approved rehabilitation programs (WCL § 15[3][v]; WCL 13-j[1]; WCL § 35[1]).

While an employer or carrier may recommend rehabilitation services (WCL § 13-a[6]), participation in such services is not required in order to receive compensation benefits (Matter of Kalevas v J.H. Williams & Co., 27 AD2d 22 [1966], affd 20 NY2d 812 [1967]). However, documentary evidence of voluntary, active and continued participation in such services in order to return to work within the work restrictions demonstrates an attachment to the labor market (see Matter of Acme Bus Company, 2009 NY Wrk. Comp. 40704511).

In that the instant claimant has only filled out paperwork in regard to VESID services, no labor market attachment has been demonstrated in regard to VESID services at this point.
Independent Job Search

Claimants seeking to gain employment sometimes conduct independent job searches by asking friends for job leads, looking in the classified ads of periodicals such as newspapers, responding to jobs posted in storefronts and on bulletin boards, searching the internet, sending letters or resumes to prospective employers, inquiring in person at local businesses, and filling out applications. Such efforts are usually sporadic, lack documentation, and often do not result in a disabled worker finding work within his work restrictions.

While an independent job search is encouraged, absent documentation verifying a timely, diligent, and persistent outreach to potential employers for work within the medical restrictions, there is no credible evidence upon which to find an attachment to the labor market. At a minimum, if the independent job search is in person, documentary evidence should provide the day, month, and year of the contact; the name and address of the employer; the name and telephone number of the person with whom employment was discussed; the type of job sought; and the response of the potential employer. If the contact was written, copies of the resume submitted if any; the inquiry letter or e-mail communication; or the application completed is necessary along with the day, month, and year submitted, the nature of employment sought, name and address of the employer and the response of the potential employer.

In the present case, claimant made eighteen cold contact inquiries for employment at various companies, only to be told they were not hiring, he was not qualified, no jobs were available, or that no job was available to accommodate his disabilities. The documentary evidence verifying his independent search lacked appropriate dates and the necessary specificity to support a finding of a timely, diligent and persistent search for work within his restrictions and qualifications.

Nonetheless, while claimant’s evidence of an independent job search alone is not sufficient to support a finding of a good faith job search, claimant’s active and continued participation in any one of the following would be sufficient to show a good faith job search and/or attachment to the labor market: (1) one of New York State’s Department of Labor’s reemployment services, (2) the services offered by a One Stop Career Center, (3) a retraining program, (4) a rehabilitation program by VESID or other board approved rehabilitation program, (5) a job service commonly utilized to secure work within a specific industry, or (6) enrollment and full time attendance in an accredited educational institution to pursue employment within the work restrictions.

CONCLUSION

Based upon the above, the Full Board finds that on February 27, 2008, claimant had a permanent partial disability with severe work restrictions, that such work restrictions limited his ability to find gainful employment after his lay off, and that he remained attached to the labor market by actively participating in the employment services at the One Stop Career Center and pursuing TAA retraining for respiratory therapy through attendance at a college.

Accordingly, the Full Board votes to MODIFY the WCLJ’s reserved decision filed September 10, 2008, finding that claimant has a permanent partial disability and holding all awards subsequent to February 27, 2008, in abeyance pending submission of documentary evidence pertaining to the dates of his participation at the One Stop Career Center, acceptance into the TAA retraining program, and full time enrollment and attendance at college for a career in respiratory therapy after which awards should directed as appropriate.

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

Full Board Review

SUNY College of Tec.

Case # 90500627 Date of Accident: 10/11/07 Employer: SUNY College of Tec. Date of Filing of Decision: 2/25/10 Claimant’s Attorney: Walter Terry, III

District Office: Binghamton Carrier: State Insurance Fund Carrier ID No.: W204002 Carrier Case No.: 49710825-283 Panel: Robert E. Beloten

ISSUE: Stress (WCB section 2[7]), and Causal Relationship, Board Procedure

The Full Board, at its meeting held on January 26, 2010, considered the above captioned cases for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 4, 2008 in both cases.

ISSUE

The issues presented for Full Board Review are:

1. Whether the Board Panel abused its discretion by reviewing and modifying a Workers’ Compensation Law Judge (WCLJ) decision filed in WCB Case #90500627, when the carrier only filed an application for administrative review of the WCLJ decision filed in WCB Case #;
   
2. Whether the claimant sustained a consequential neck injury as a result of her work related accident on January 25, 2005 (WCB Case #90500627);
3. Whether the claim for a psychiatric condition (WCB Case #90606122) is barred on the basis that the claimant did not experience stress any greater than that experienced in a normal work environment;
   
4. Whether the disallowance of the psychiatric claim in WCB Case #90606122 was premature pending additional lay witness testimony.

By decision filed on June 20, 2007, in WCB Case #90606122, the WCLJ found that he was unable to establish a separate accident due to Workers’ Compensation Law (WCL) § 2(7) and notice issues, combined the case with WCB Case #90500627, and closed the case. By decision filed on June 21, 2007 in WCB Case #90500627, the WCLJ amended the case to include a consequential neck injury and psychological disorder, authorized treatment, and directed the parties to negotiate the issues of reimbursement and awards.

The entire Board Panel found that there was currently insufficient medical evidence to amend WCB Case #90500627 to include a consequential neck injury, whereby that site should be rescinded, without prejudice. In addition, the entire Board Panel found that WCL § 18 did not bar the psychiatric claim in WCB Case #90606122, as the employer had written notice of the February 17, 2005 incident on March 24, 2005, and there was no prejudice to the employer, as all the employees were still available for an investigation at the time of notice. However, the majority also found that the claim should nonetheless be disallowed, as the claimant did not experience stress greater than that experienced in a normal work environment (i.e., her supervisor treated her similar to all of his other subordinates).

The dissenting Board Panel member found that the claimant had presented sufficient credible evidence regarding the February 17, 2005, incident which the carrier had not rebutted. The dissenting Board Panel member drew an inference against the employer based upon the failure of the claimant’s supervisor to testify, found that the supervisor engaged in threatening behavior that was beyond the stress level found in the normal work environment, and found that WCL § 2(7) did not apply, as the confrontation with the claimant did not involve a personnel action. As a result, the dissenting Board Panel opined that the case should be established for a psychological injury.

In her application for Full Board Review, the claimant asserts that it was improper for the Board Panel to review and modify any of the findings made in WCB Case #90500627, as the carrier only expressly requested review of the WCLJ’s decision filed June 20, 2007, in WCB Case #90606122. The claimant contends that the carrier agreed to amend WCB Case #90500627 to include the consequential neck and psychological disorder at the hearing, and reinforced this agreement by its failure to specifically seek review of the decision filed in WCB Case #90500627. As a result, the claimant maintains that no review of the WCLJ’s decision in WCB Case #90500627 was warranted.

The claimant further asserts that the Board Panel erred in finding no evidence of a neck injury. The claimant maintains that, at a minimum, she should be allowed to produce additional evidence on this issue.

Finally, the claimant asserts that the majority improperly disallowed her psychiatric claim

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

FACTS

On February 2, 2005, the employer filed a form C-2 indicating that the claimant, a janitor, had hit her head on some stairs while placing a table under a stairwell on January 25, 2005. By form C-669 filed on February 8, 2005, the carrier accepted the claim for a head injury, but indicated that compensation payments had not begun due to a lack of medical evidence of a disability. This claim was indexed by the Board as WCB Case #90500627.

Dr. Chalfin subsequently filed a medical report for a January 27, 2005 examination, wherein she diagnosed a muscle spasm. The physician did not specify the site of the muscle spasm, indicate that the claimant was disabled, or set forth an opinion on causal relationship. Dr. Chalfin sent the claimant for X-rays of the cervical spine and a head CT scan on February 1, 2005. The head CT scan was normal, and the cervical spine X-rays showed only mild osteoarthritis at C5-C6 and C6-C7. Dr. Mele, the hospital radiologist who signed the diagnostic test reports, diagnosed cervicalgia and a headache, but did not indicate that the claimant was disabled, or set forth an opinion on causal relationship.

An office note from Dr. Chalfin’s treatment on February 4, 2005, indicated that the claimant’s pain persists; that she is having difficulty using her left arm; that she has muscle spasm in the trapezius (for which she received an injection); and that the claimant should be able to return to work on February 14, 2005.

By form C-669 filed on March 15, 2005, the carrier indicated that it had begun making voluntary payments of compensation for a head injury as of January 29, 2005, and requested reimbursement for wages paid by the employer from January 29, 2005, to February 4, 2005, in a separate form C-256.2. By form C-8/8.6 filed on March 21, 2005, the carrier indicated that payments of compensation had stopped because the claimant had returned to work at full pay on February 14, 2005.

By administrative decision filed on April 18, 2005, the case was established for a head injury, the claimant’s average weekly wage was set, the awards already paid by the carrier were memorialized (with reimbursement), and the case was closed.

On May 2, 2005, Dr. Chalfin filed another form C-4 wherein she diagnosed a muscle spasm. However, the physician once again did not specify the site of the muscle spasm, indicate that the claimant was disabled, or set forth an opinion on causal relationship. As a result, no action was taken by the Board in response to this form.

No further action was taken in the case until December 8, 2006, when the claimant’s newly retained attorney filed a form C-3 indicating that the claimant injured her head, neck, both shoulders, both arms, and back on January 25, 2005, when she stood up under a stairway and struck her head.

In a separate form C-3 filed by the claimant’s attorney on December 13, 2006, it was indicated that the claimant suffered from anxiety, depression, post-traumatic stress disorder, and “nervous breakdown” due to her supervisor’s attempted assault on February 17, 2005. The case was subsequently indexed by the Board as WCB Case #90606122 on December 26, 2006.

On January 9, 2007, the employer filed a form C-2 regarding the claimant’s new psychiatric claim, wherein the only information provided was the nature of the alleged illness (anxiety and depression due to an attempted assault), the date of the report (January 8, 2007), and that the claimant had not lost any time from work. The carrier subsequently filed a form C-7 on January 11, 2007, wherein it controverted the claim for a psychiatric condition arising from a February 17, 2005, incident on various grounds, including notice and accident arising out of employment.

On February 22, 2007, the Board received a progress note for treatment rendered by Dr. Lee on November 4, 2005, for multiple nodules on the claimant’s legs, arms, and back; upper back/left muscle spasms since January of 2005; and depression. Although no mention was made of the January 25, 2005 work accident, Dr. Lee indicated that the claimant has “a lot of anxiety and stress from work. According to the [claimant], she was assaulted [at] work.” Dr. Lee administered trigger point injections for the claimant’s muscle spasms, continued her Paxil prescription, and referred her to psychiatrists Dr. Gordon and Dr. Neander for her depression. There are no reports from either of these physicians in the record.

The first hearing in WCB Case #90606122 was held on February 22, 2007. At this hearing, the carrier raised the issues of WCL §§§ 2(7), 18 and 28 (see ECF Doc ID #124318236). The WCLJ found that prima facie medical evidence for depression and anxiety had been submitted, directed the carrier to produce a consultant’s report, directed that WCB Case #90500627 be reopened to travel, and continued WCB Case #90606122 for testimony from the claimant and four lay witnesses.

On March 5, 2007, the Board received an initial “Attending Psychologist’s Report” from Dr. Denburg, dated March 2, 2007. In this report, Dr. Denburg diagnosed the claimant with anxiety, fear, and major depression; recommended psychotherapy; indicated that the diagnoses were causally related to the history provided (i.e., physical and verbal threats/harassment by work supervisor); and noted the date of injury to be February 17, 2005.

On April 5, 2007, the Board received various unsigned office notes from 2006 from an unknown physician (most likely the claimant’s new general practitioner, Dr. Peiris). The claimant was treated for various ailments, including neck, left arm, and back pain, for which she was given pain medication. The note from October 18, 2006 indicates that the claimant was “extremely depressed” and “somewhat weepy,” and that she has experienced several deaths of people close to her, including her former husband. No mention was made of the claimant’s January 25, 2005 accident or the alleged assault from February 17, 2005.

At the joint hearing held on April 16, 2007, WCB Case #90606122 was continued for testimony, with WCB Case #90500627 to travel.

On April 20, 2007, the Board received a copy of the report of the carrier’s consulting psychologist, Dr. Rourke. In this report, the consultant noted that the claimant had reported being physically and verbally assaulted by her supervisor, Jack D., on February 17, 2005. However, the actual incident described by the claimant did not involve any physical contact; the claimant reported that she was subjected to an angry outburst during a meeting, was given an assignment not in keeping with her seniority the following day, was verbally abused during a 20 minute confrontation that same day, and then was yelled at again the following day. The claimant indicated that she felt harassed and stressed, and that she eventually resigned in December of 2005. Dr. Rourke opined that the claimant had a causally related total disability.

On June 6, 2007, the Board received a copy of a letter from the claimant’s attorney to the carrier, wherein various barriers to the establishment of the psychiatric claim in WCB Case #90606122 were identified. In this letter, the attorney noted that the claimant had filed a criminal complaint against her supervisor, and that he had been “found guilty of second degree harassment.” No further details regarding the criminal action were provided.

At the joint hearing held on June 14, 2007, the carrier raised the issue of WCL § 18 notice regarding the psychiatric claim. The claimant then testified as follows: She worked as a janitor, and she was at the bottom of the seniority list. She was injured on January 25, 2005, when she hit her head while moving a table from underneath a stairwell. She was out of work from January 29, 2005 until February 14, 2005. Her supervisor, Jack D., was “furious” about her absence, and showed her “no sympathy.” He sent her to mop floors in another building on the day she returned. He talked down to her and told her that if she could not do the job, she should get a job at McDonald’s. Both she and the other employees were “very stressed out” by the manner in which he managed them. However, the supervisor had “never been horrible with [her] until [a staff meeting on February 16, 2005].”

At a staff meeting with the new maintenance manager on February 16, 2005, there was a discussion about using “ice melt” instead of rock salt. Jack D. told the person who raised the “ice melt” question that it was none of her business. When the claimant indicated that using rock salt was twice as much work, Jack D. told her not to tell him how to do his job. The next day, he called her into the break room. They were both sitting in chairs. “He started yelling and screaming and who the F do you think you are trying to make me look like a fool in front of my supervisor?” He told her that she was going to be sorry about this. However, she admitted that she did not feel threatened because she was a permanent employee. Another employee, Chet D., came into the break room to try to calm things down. Jack D. started to leave the break room and said ” . . . you just F’d with the wrong guy,” and this yelling lasted for “25, 30 minutes.” Then he shook his fist and said: “I’ll knock your F’n block off.” The claimant went home and then went to the doctor and received some Paxil, which she had already been taking.

She returned to work on February 18, 2005. However, she was unable to work and decided to leave around 10:00 a.m. Jack D. stopped her and apologized about the prior day, but she could not work because she “was a wreck.” The next day she received a card in the mail from Jack D. apologizing for the incident. The claimant returned to work the next Monday and she reported the incident to the union and the shop steward. She did not report the incident to Ms. M. until April 1, 2005, but the union representatives spoke with Ms. M. on February 23, 2005. Ms. M. gave her a memo with a choice to either transfer to the dormitory or take a leave of absence without pay. The claimant accepted a reassignment, but she had to take time off from work because she was “scared to death” of Jack D. He “came in after [her] there” and she had him arrested. She also filed an EEOC complaint, but the judge told her that it was not sexual discrimination because the supervisor treated everybody the same way. However, it was her understanding that the EEOC found an actual violation and told her that she could sue. The claimant was not offered her old job back because they changed the position. The claimant resigned on December 20, 2005.

At the hearing held on June 14, 2007, Barbara M., the employer’s Director of Administrative Service and Human Resources, testified as follows: The claimant returned to work on February 14, 2005. She was made aware of the February 17, 2005, incident by a memo submitted by the union on March 24, 2005. The incident was investigated by Jack D.’s supervisor, and a report submitted on March 30, 2005. She then met with the claimant and her union representatives. The claimant was unhappy about the investigation, and was given the option of being reassigned, which she accepted. The claimant’s prior job became available for “bid” in September and December, and the claimant was eligible to bid, but she refused and indicated that she was planning to resign. The claimant resigned by letter dated December 19, 2005. Prior to her resignation, the claimant had been out of work for some time due to a foot problem. The claimant subsequently filed an EEOC claim in July 2006, but the EEOC eventually dismissed the charges. The claimant never claimed that she sustained a workers’ compensation injury on February 17, 2005. “She was unhappy with what had occurred, but being unhappy with what has occurred does not translate to a Workers’ Compensation injury. She never claimed that she had been injured in the course of her employment.” The claimant knew how to report an injury because she had reported the head injury that had occurred three weeks earlier.

During the testimony, it was acknowledged that there were several additional lay witnesses outside the hearing room waiting to testify: Chet D. (a grade 5 cleaner), Tim S. (a grade 7 janitor), and Jack D. (the claimant’s supervisor). However, at the conclusion of the Barbara M.’s testimony, and following an off-the-record discussion, the WCLJ did not continue the case for additional testimony. Instead, the WCLJ “expanded” WCB Case #90500627 to include a “consequential neck injury and psychological disorder,§ authorized treatment, and directed the parties to negotiate reimbursement and awards. With respect to WCB Case #90606122, the WCLJ indicated that he was unable to establish the case as a separate case due to WCL § 2(7) and notice issues, and closed and combined the case with WCB Case #90500627. The carrier noted an exception, requesting that the psychiatric claim be disallowed, as the claimant failed to provide timely notice to the employer of a psychological condition. These findings were subsequently memorialized in the separate decisions filed on June 20, 2007 (WCB Case #90606122), and June 21, 2007 (WCB Case #90500627), and the carrier filed its application for administrative review on July 17, 2007.

LEGAL ANALYSIS

Review of Both Case Files

The detailed and intertwined facts set forth above clearly demonstrate that a review of both of the claimant’s files is warranted, despite the fact that the carrier only filed an application for administrative review in WCB Case #90606122.

Upon review of the records in both cases, and in particular the minutes of the June 14, 2007 hearing, it is readily apparent that there was no “agreement” by the carrier to amend WCB Case #90500627 to include any additional sites. As is evident by the hearing notices, the June 14, 2007 hearing was set solely for testimony on the psychological claim in WCB Case #90606122, with WCB Case #90500627 merely designated “to travel.” Thus, there were no issues from WCB Case #90500627 intended to be discussed at the June 14, 2007 hearing.

In addition, at the beginning of the June 14, 2007 hearing, the parties agreed that the two cases were entirely separate. However, following the partial testimony and an off-the-record discussion with the parties, the WCLJ combined the two cases into one, and established consequential neck and psychological injuries in WCB Case #90500627, after acknowledging that he could not establish the psychological claim in WCB Case #90606122 due to various “problems.” The carrier objected to the WCLJ’s findings, and specifically requested that the psychological claim made in WCB Case #90606122 be disallowed. Thus, while the carrier’s application for review only referenced WCB Case #90606122, and focused solely on the psychological condition claim, it was the WCLJ’s actions in inappropriately combining these two clearly separate cases that requires the Board to review both case files.

In addition, pursuant to WCL § 123, “[t]he power and jurisdiction of the board over each case shall be continuing, and it may, from time to time, make such modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just….” Thus, even if the WCLJ had not combined the two cases into WCB Case #90500627, the Board would still invoke its statutory authority to review the findings made in both cases in the interest of justice.

Consequential Neck Claim - WCB Case #90500627

Initially, it must be noted that the WCLJ expanded WCB Case #90500627 to include a consequential neck injury, not a direct neck injury. In addition, contrary to the claimant’s assertions, the Board Panel found no medical evidence of a consequential neck injury, which is not the same as finding no evidence of any neck injury. Furthermore, the Board Panel’s rescission of the consequential neck injury was made “without prejudice,” and did not constitute a disallowance of the neck injury or prevent the claimant from producing further evidence on the issue. As a result, the claimant has misinterpreted the Board Panel’s findings in her application for Full Board Review.

With respect to the merits of the Board Panel’s findings, a review of the record reveals that there is absolutely no medical report diagnosing the claimant with a consequential neck condition. The employer’s forms indicated only that the claimant reported a head injury, the carrier only accepted the claim for a head injury, and the case was only established for a head injury. The mechanism of the accident was minor, i.e., the claimant banged her head on a stair when she stood up after placing a table under a stairwell on January 25, 2005. The claimant lost minimal time from work and returned to work on February 14, 2005, without any medical restrictions. While Dr. Chalfin did send the claimant for X-rays of the cervical spine, such X-rays showed only minor (unrelated) arthritis and Dr. Chalfin did not file any reports indicating that the claimant had sustained a causally related direct or consequential neck injury when she hit her head on January 25, 2005. In addition, while the hospital radiologist who signed the diagnostic test reports diagnosed cervicalgia in addition to a headache, she did not indicate that the claimant was disabled, or set forth an opinion on causal relationship. It was not until the claimant’s attorney filed a form C-3 on December 8, 2006, almost two years post-accident, that the issue of a direct neck injury was raised.

As a result, the record contains no support for a consequential neck injury, while the record does contain evidence suggesting that the claimant may have sustained a direct neck injury on January 25, 2005. Accordingly, the WCLJ decision filed on June 21, 2007 in WCB Case #90500627 is modified to rescind the establishment of a consequential neck injury, without prejudice. Claimant may produce clarifying medical evidence on the issue of a direct neck injury.

Psychiatric Claim - WCB Case #90606122

Upon review of the record in both cases, it is readily apparent that the claimant’s psychiatric claim in WCB Case #90606122 is not related to the physical head injury sustained on January 25, 2005, in WCB Case #90500627. The claimant filed a separate claim for her psychiatric condition based upon an entirely separate set of events that allegedly occurred in February of 2005. As a result, it was inappropriate for the WCLJ to combine the claimant’s two cases, and the WCLJ decision filed on June 20, 2007 in WCB Case #90606122 should be modified to rescind the closing and combining of the case into WCB Case #90500627, and to restore the psychiatric claim to its original file.

With respect to the merits of the psychiatric claim, “[p]ursuant to Workers’ Compensation Law § 2(7), a psychic injury based upon work-related stress is not compensable if it is ‘a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer’ (see Matter of Grace v Bronx Mun. Hosp. Ctr., 272 AD2d 799, 800)” (Matter of Spencer v Time Warner Cable, 278 AD2d 622, 623 [2000], lv denied 96 NY2d 706 [2001]). “Moreover, it is well settled that a claim for work-related stress cannot be sustained absent a showing that the stress experienced by the affected claimant was greater than that which other similarly situated workers experienced in the normal work environment [citation omitted]” (id).

In the present case, the alleged incident between the claimant and her supervisor on February 17, 2005, did not involve a personnel decision, as no official disciplinary action, work evaluation, job transfer, demotion, or termination was involved. The incident involved a discussion of the claimant’s actions at a staff meeting the prior day. As a result, WCL § 2(7) does not apply to bar the claim, and the WCLJ decision filed on June 20, 2007 should be modified accordingly.

Turning next to the issue of whether the stress allegedly experienced by the claimant was greater than that which usually occurs in the normal work environment, it is initially noted that, despite the allegations made on the claimant’s form C-3 and the various representations made by the claimant to the medical professionals, it appears that the claimant was not physically assaulted by her supervisor at any time. The claimant conceded this point during her testimony, and the medical reports that actually describe the encounter with her supervisor do not mention any physical assault. In addition, there is no reference to the claimant’s supervisor spitting on her at any time, as was alleged in her application for Full Board review.

The claimant testified that her supervisor screamed at her for 25 to 30 minutes, shook his fist, and acted in an extremely threatening manner on February 17, 2005. These assertions, as supported by her testimony, rise to the level of making a prima facie case for unusual job stress. The fact that the claimant’s supervisor may have harassed all of his subordinates and managed through intimidation is not proof that the claimant was experiencing “normal” levels of stress. As correctly noted by the claimant in her application for Full Board review, the test is not whether her coworkers were receiving similar treatment; verbal threats and intimidation by a supervisor simply do not represent a normal working environment for similarly situated workers (janitors). While both the claimant’s supervisor, Jack D., and the coworker who allegedly witnessed part of the incident, Chet D., were present to provide testimony at the June 14, 2007 hearing, no such testimony was taken, and there is no explanation for this omission in the minutes of the June 14, 2007 hearing.

As a result, the Full Board finds that further development of the record is required before a determination can be made on the merits of the claimant’s stress claim. Both Jack D. and Chet D. should be produced for testimony, the employer should be directed to produce all documentation regarding the EEOC complaint and its internal investigation, and the claimant should be directed to produce the criminal complaint filed regarding her supervisor, as well as any evidence she has regarding the disposition of the criminal matter.

The Full Board also finds that the carrier preserved its WCL § 18 defense by raising the issue at the June 14, 2007 hearing, the first hearing at which all parties were present and the claimant testified. However, the WCLJ made no specific findings on this issue, noting only that there were notice “issues.” Thus, since the claim is one for psychiatric conditions that generally develop over time (anxiety, depression, post-traumatic stress disorder), the employer was clearly made aware of the alleged incident of February 17, 2005 by at least March 24, 2005, and it is yet unclear what the appropriate date of accident would be under these circumstances, further development of the record is also warranted on the issues of accident and notice.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on June 20, 2007, in WCB Case #90606122 is MODIFIED to rescind the closing and combining of the case into WCB Case #90500627; to find that WCL § 2(7) does not apply to bar the claim; to direct further development on the issues of accident and notice; and to direct further development of the record on the issue of whether the claimant experienced stress greater than that experienced in a normal work environment by similarly situated workers. The employer is directed to produce both Jack D. and Chet D. for testimony; the employer is directed to produce all documentation regarding the EEOC complaint and its internal investigation; and the claimant is directed to produce the criminal complaint filed regarding her supervisor, as well as any evidence she has regarding the disposition of the criminal matter.

In addition, the WCLJ decision filed on June 21, 2007, in WCB Case #90500627 is MODIFIED to rescind the establishment of a consequential neck injury, without prejudice; to rescind the establishment of a consequential psychological condition; to note that there is medical evidence suggesting that there may be a direct neck injury claim; and to acknowledge that the claimant is not precluded from producing clarifying medical evidence on the issue of a direct neck injury. The balance of the decision is AFFIRMED.

Both cases are continued.

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

Full Board Review

Bayport Fire Dept.

Case # F4070228 Date of Accident: 10/11/07 Employer: Bayport Fire Dept. Date of Filing of Decision: 2/25/10 Claimant’s Attorney: Dell, Little, Trovato & Vecere

District Office: Hauppauge Carrier: Fire District of New York Carrier ID No.: W085500 Carrier Case No.: FDMVF 0000002252 Panel: Robert E. Beloten

ISSUE: Causal Relationship

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

ISSUE

The issue presented for Full Board Review is whether the claimant sustained a compensable accidental injury during the course of his duties as a volunteer firefighter on October 11, 2007.

The Workers’ Compensation Law Judge (WCLJ) found that the evidence was insufficient to establish causally related syncope, seizure disorder, or migraine headaches, and disallowed the claim.

The Board Panel majority affirmed the WCLJ, finding that the testimony of Dr. Andrew Rogove, the claimant’s neurologist, with respect to causation was equivocal, and that the testimony of Dr. Steven Levine, the claimant’s family physician, was too speculative.

The dissenting Board Panel member found that, although the claimant had failed to meet his burden of establishing causal relationship at this time, he should not be precluded from providing additional medical evidence. As a result, the dissenting Board Panel member found that the claim should not be disallowed, and that the WCLJ decision should be modified to find only that there is currently insufficient medical evidence, whereby the claimant may come forward with additional medical evidence if it becomes available.

In his application for Full Board Review, the claimant asserts that he produced sufficient credible medical evidence that his migraine headaches are causally related to his firefighting activities on October 11, 2007. The claimant relies specifically upon the testimony of Dr. Rogove.

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

FACTS

On November 6, 2007, the claimant filed a form VF-3, asserting that he had sustained migraine headaches with neurological changes when responding to a fire call at 1:40 a.m. on October 11, 2007. Accompanying this form were hospital discharge instructions, dated October 16, 2007, wherein it was noted that the claimant had been treated for a headache with neurological changes.

By form VF-2 filed on December 21, 2007, the employer indicated that the claimant was en route to a fire alarm on October 11, 2007, when he experienced blurred vision, left side weakness, and a severe headache; that the claimant never exited the fire truck after arriving on the scene; and that he reported his symptoms on the return trip to the firehouse. Accompanying this document was a form C-7, wherein the carrier controverted the claim for “blurred vision, left side weakness & severe headaches.”

By decision filed on March 13, 2008, the WCLJ found that prima facie medical evidence had not been submitted and designated the case for no further action.

On June 6, 2008, the Board received a medical report from Dr. Levine for treatment rendered to the claimant on October 22, 2007, and January 16, 2008. This report indicated that, while driving a fire truck on October 11, 2007, the claimant became disoriented and experienced a severe headache which caused a loss of awareness. The claimant’s symptoms were reported as having started “when strobe lights reflected off a nearby building.” The physician diagnosed the claimant with causally related syncope, but opined that the claimant was able to work.

By decision filed on July 21, 2008, the WCLJ found that prima facie medical evidence had now been submitted, and continued the case for testimony.

On July 29, 2008, the Board received a medical report from Dr. Rogove for an examination that took place on July 21, 2008 (i.e., over nine months post-incident). In this report, Dr. Rogove indicated that the claimant’s symptoms on October 11, 2007, arose while driving a fire truck past a school “that had been strung with toilet paper; the bright lights reflecting off the toilet paper may have triggered the migraine and caused him to become disoriented.” However, Dr. Rogove later indicated that while it was possible that the conditions described by the claimant triggered his migraine, “there is no definitive test that can say it outright,” as migraines have various triggers.

The claimant was examined by the carrier’s consultant, Dr. Carl Friedman, on August 18, 2008. In his resulting report, Dr. Friedman noted the absence of any significant medical records, including any brain imaging or electroencephalograms, despite the fact that the claimant reported undergoing numerous tests. The history reported to Dr. Friedman involved disorientation and a loss of consciousness, with the claimant only remembering waking up in the emergency room four hours later. The claimant was presently asymptomatic. Upon examination, Dr. Friedman concluded that the claimant experienced a neurological episode on October 11, 2007; noted that neurological events may have numerous causes, including cardiac issues, seizures, or vascular disturbances; indicated that, although flashing lights can precipitate episodes of migraines or seizures, the cause of the claimant’s event cannot be determined given the lack of a definitive diagnosis; diagnosed syncope with unknown etiology; and found no current disability.

The claimant testified on August 27, 2008, as follows: On October 22, 2007 [sic - October 11, 2007], he was activated for an emergency medical call at approximately 1:00 a.m. as part of his volunteer firefighter duties. He drove down to the firehouse, boarded a truck, drove the truck out of the firehouse, and everything was fine for about a minute, when the only thing he recalled next was “very bright white lights reflecting off the high school building. I just recall the street - - the street and the white and red lights kind of flashing in bright and just melting into the street and sidewalk and school and street was all in one.” He did not recall what happened to the truck, but apparently the man in the front seat with him was able take control, stop the truck, and call an ambulance. The next thing he remembered was waking up in the hospital at 7:00 a.m. He had no headache prior to the event, but he had very bad headaches in the hospital. He was hospitalized for five days, during which time he underwent numerous tests (i.e., spinal taps, MRIs, cardiograms, EKGs) to see if he had a stroke or an epileptic seizure. The hospital eventually told him that he had a “massive migraine that was triggered by the reflection of the strobe lights on the side of the building in the dark of the night.” The school building had been covered in toilet paper by the football team, and the light had reflected off of the toilet paper. The school was an elementary school. He never had a prior similar episode or migraine headaches. At the conclusion of the claimant’s testimony, the lay witnesses were precluded for failing to appear, and the case was continued for medical testimony.

On September 15, 2008, the Board received 152 pages of medical records from Southside Hospital, where the claimant was treated from October 12, 2007 until October 16, 2007. No records from October 11, 2007 were provided. These records indicate that the claimant was initially treated for a headache, dizziness, nausea, and blurry vision; that a spinal tap and CT scan of the head were negative; and that he was discharged the previous evening. However, when driving to the airport at approximately 2:30-3:00 a.m. on October 12, 2007, his headache worsened, he vomited, and his dizziness became worse, so he went back to the hospital and was readmitted to the emergency room at 8:57 a.m. on October 12, 2007. He reported having chills and being feverish. He was primarily treated for a headache (with facial pain) and diagnosed with a possible migraine. He admitted having a recent chest cold/head cold with sinus congestion. The CT scan of the brain was normal; the MRI of the brain was normal; the MRA of the brain was normal; the carotid Doppler test was normal; the EKG was normal; the sinus X-rays were normal; and the chest X-rays were normal. The claimant underwent a surgical procedure (epidural blood patch), and was given multiple medications (including Claritin and Zyrtec). The records contain no reference to the events of October 11, 2007 (i.e., there is no mention of the claimant being exposed to bright lights reflecting off a building/toilet paper), and do not set forth any opinion regarding the cause of the claimant’s complaints.

On October 10, 2008, the carrier’s consultant, Dr. Friedman, submitted an addendum to his initial report, wherein he noted that he had reviewed the hospital records, concluded that the claimant suffered a severe migraine headache due to vascular spasm, and opined that the events of October 11, 2007 (i.e., the flashing lights) played no role in his headache. Dr. Friedman was subsequently deposed on October 28, 2008, and testified in accordance with his reports.

Dr. Rogove was deposed on October 31, 2008, and testified as follows: He initially examined the claimant on October 11, 2007, during his first trip to the hospital emergency room. The claimant told him that he believed that the toilet paper and the bright lights triggered his symptoms; however, there is no mention of the toilet paper or the lights in his notes or the emergency room records. There was also no mention of the claimant’s firefighting duties. Upon examination, the only positive finding was a decreased sensation on the left (side of the face), which the claimant acknowledged was preexisting. The claimant reported a history of migraine headaches, which he would get approximately five times a year. Migraines have various triggers, and it is “impossible to tell what’s going to trigger one’s migraines,” although it was “possible” that the lights reflecting off the toilet paper caused the claimant’s symptoms. Spinal taps like the one performed on October 11, 2007, can cause headaches, although they are different from migraine headaches. He examined the claimant again on October 13, 2007, and found no new findings. He had no notes about the claimant having experienced worsening symptoms while on his way to the airport on October 12, 2007. His third and final examination was on July 21, 2008, at which time the claimant had no complaints.

Dr. Levine was deposed on April 14, 2009, and testified as follows: He first treated the claimant in connection with the October 11, 2007 incident on February 22, 2007 [sic - October 22, 2007]. The claimant indicated that, two weeks earlier, he had been taken to the hospital and admitted for “questionable seizures.” However, upon examination, Dr. Levine found no evidence of a seizure condition. On November 7, 2007, the claimant complained of headaches. He has never been able to diagnose a seizure disorder. Although he did not treat the claimant in the hospital, he did review the hospital records and speak the claimant’s neurologist. He believed there was a possibility that the claimant had a seizure prior to his admission to the hospital. No cause could be pinpointed by the testing, so he could only rely on the history provided. He felt that the flashing lights “potentially could precipitate a seizure disorder.” The claimant’s subsequent complaints of headaches are being treated by a neurologist; he cannot opine as to whether the continuing headaches are related to the original incident. Seizures can be caused by many different things and/or they can be idiopathic in nature. The claimant did not give him a history of migraine headaches.

At the hearing held on April 21, 2009, the claimant briefly testified again regarding the October 11, 2007 incident. He indicated that he had actually been released from the hospital following his initial treatment, but that he went back later the next day and readmitted himself. He denied ever going to the airport to pick someone up or drop someone off. However, he had planned on taking a trip that day, but drove himself to the hospital instead. He could not recall whether he had explained during his previous testimony that he was admitted to the emergency room, release, and then readmitted. He also could not recall what history he provided to his various physicians.

At the conclusion of the claimant’s testimony, the parties presented their summations. The WCLJ found that there was insufficient evidence to establish that the claimant had sustained any causally related syncope, seizure disorder, or migraine headache. As a result, the WCLJ disallowed the claim. This finding was subsequently memorialized in the decision filed on April 24, 2009.

LEGAL ANALYSIS

A claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence (see Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008]). In the present case, the claimant was hospitalized on two separate occasions, yet none of the hospital records mention the claimant’s alleged exposure to bright lights reflecting off of toilet paper as being the cause of his numerous complaints. In addition, the hospital records confirm that the claimant was discharged following his initial treatment for his unexplained symptoms on October 11, 2007, and that the claimant readmitted himself to the hospital the following day following severe headaches, nausea (with vomiting), and dizziness. Thus, there is no contemporaneous medical evidence providing any link between the claimant’s symptoms and his volunteer firefighting duties on October 11, 2007.

In addition, the causal relationship opinion provided by Dr. Levine was far too speculative to establish causal relationship. Initially, it is noted that Dr. Levine is a family physician, not a neurologist. Further, Dr. Levine did not see the claimant until two weeks after the first hospitalization; noted only that there was a possibility that the claimant had a seizure and that the flashing lights could have “potentially” precipitated such; conceded that he was never able to definitively diagnose a seizure disorder; acknowledged that seizures can be caused by many different things; and acknowledged that seizures can be idiopathic in nature. It is also noted that, although the claimant informed Dr. Rogove that he had a history of migraines (approximately five per year), the claimant failed to provide this relevant history to Dr. Levine, thus undermining the credibility of Dr. Levine’s opinion.

Moreover, the causal relationship opinion of Dr. Rogove was far too equivocal to establish causal relationship. Dr. Rogove testified that it was the claimant who told him that that he believed that the toilet paper and the bright lights triggered his symptoms; this is not the equivalent of the physician actually formulating his own opinion on causal relationship. Moreover, the physician failed to mention this alleged history in either his notes or the emergency room records. Further, upon examination of the claimant on October 11, 2007, the only positive finding was a preexisting decreased sensation on the left (side of the face). The claimant also reported a history of migraine headaches to Dr. Rogove, which the physician conceded have various triggers. While lights were identified as a possible trigger for migraines, Dr. Rogove acknowledged that it is actually “impossible” to determine a specific trigger with any confidence. Dr. Rogove was also apparently never made aware of the claimant having experienced worsening symptoms while on his way to the airport on October 12, 2007. Thus, Dr. Rogove’s testimony is insufficient to establish a rational link between the claimant’s firefighting duties on October 11, 2007 and his symptoms.

Finally, the credible reports and testimony of Dr. Friedman support the disallowance of the claim. Dr. Friedman reviewed all of the hospital records, concluded that the claimant suffered a severe migraine headache due to vascular spasm, and opined that the claimant’s alleged exposure to flashing lights reflecting off of toilet paper played no role in his headaches.

The Full Board finds that the medical evidence in the record fails to establish a causal relationship between claimant’s duties as a volunteer firefighter and his syncope, seizure disorder, or migraine headaches, sufficient to establish this claim.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on April 24, 2009, is AFFIRMED. The claim is disallowed. No further action is planned by the Board.

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

Full Board Review

Trumansburg CSD

Case # 90600844 Date of Accident: 10/11/07 Employer: Trumansburg CSD. Date of Filing of Decision: 2/25/10 Claimant’s Attorney: Peter D. Salton, Esq.

District Office: Binghamton Carrier: Trumansburg CSD Carrier ID No.: W873327 Carrier Case No.: 6-05-9 Panel: Robert E. Beloten

ISSUE: Occupational Disease

The Full Board, at its meeting held on January 26, 2010, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on July 17, 2009.

ISSUE

The issues presented for Full Board Review are whether the claimant sustained an occupational disease arising out of and in the course of his employment and whether the self-insured employer’s (SIE) request to cross-examine claimant’s treating physician should be granted.

In a decision filed on October 1, 2008, the Workers’ Compensation Law Judge (WCLJ) established the case for an occupational disease involving injuries to the neck and right shoulder, set the date of disablement as January 10, 2006, and made awards.

The Board Panel majority affirmed the WCLJ’s decision. The majority found that claimant sustained a compensable occupational disease and that the SIE was not entitled to cross-examine claimant’s treating physician.

The dissenting Board Panel member found that the claimant was not credible, particularly with regard to the numerous different histories he provided, and would have disallowed the claim.

In their application for Full Board Review the SIE contends that claimant is not credible, that any medical opinion finding a causal relationship based upon the history provided by the claimant was also unreliable, and therefore the claim should be disallowed. The SIE further argued that it should be allowed the opportunity to cross-examine the claimant’s treating physician, Dr. Grippo.

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

FACTS

In a C-4 report dated January 10, 2006, the claimant’s attending physician, Dr. Cole, diagnosed the claimant with causally related cervical strain and right cervical radiculopathy. Dr. Cole did not record a history of a work related accident.

By decision filed April 25, 2006, the Workers’ Compensation Law Judge found that there was prima facie medical evidence of a neck injury.

In a medical narrative report dated May 31, 2006, the carrier’s consultant, Dr. Levy, diagnosed the claimant with cervical strain, cervical degenerative disease, carpal tunnel syndrome status right carpal tunnel release and chronic right forearm tendonitis. Dr. Levy indicated that there was no known precipitating event and without any specific precipitating event or injury he could not address the issue of causal relationship.

By decision filed June 29, 2006, the Workers’ Compensation Law Judge placed the Town of Hector and Superior Disposal Service on notice on the issue of possible dual employment or concurrent employment.

By decision filed September 5, 2006, the Workers’ Compensation Law Judge directed the deposition of the claimant’s attending physician, Dr. Kung.

By reserved decision filed May 14, 2007, the Workers’ Compensation Law Judge found that Dr. Kung refused to attend a deposition and testify, the reports of Dr. Kung were stricken from the record, found that the report of Dr. Zeidman was not prima facie medical evidence and found that the claimant had insufficient medical evidence to proceed.

At the hearing held on August 29, 2006, the claimant testified that he worked in transporting for the Trumansburg schools. A transporter carries food from one kitchen to another. He transported food to the high school, the middle school and the elementary school. He worked five days a week. The boxes weigh 50 to 75 pounds. The claimant had an injury on January 10, 2006 while transporting some food from one kitchen to another. He felt a burning sensation in his right arm. The claimant went to the school nurse but she just sent him back to work. He went to the emergency room later that day. They told him he had pinched nerves. He went to a neurosurgeon in January 2006. The claimant also worked four hours a day in recycling for the Town of Hector until January 7, 2006. The claimant had also worked for Superior Disposal. The claimant indicated that he had pain in his back prior to January 10, 2006. He was feeling pain in October 2005. The claimant did not have the arm pain before January 10, 2006. The claimant has not returned to work since January 10, 2006. The claimant acknowledged that he had a back injury in 2002.

At the hearing held on August 29, 2006, Deborah B., the food service director testified that she did not receive notice that the claimant was injured at work. She denied that the school nurse reported that the claimant was injured. The only notification the employer received was a note from the claimant’s doctor. The claimant did call in sick and left a message on her answering machine. The claimant said he was having a medical problem.

In a C-4 report dated September 8, 2006, the claimant’s attending physician, Dr. Shallish, diagnosed the claimant with causally related cervicalgia and opined that the claimant was totally disabled. Dr. Shallish recorded that the claimant stated that while at work he developed a burning feeling in his right arm.

In a medical narrative report dated February 1, 2007, the claimant’s attending neurosurgeon, Dr. Zeidman, recorded that the claimant indicated that he has severe trouble with his neck and arms since October 2006 while lifting heavy objects at work. Dr. Zeidman diagnosed the claimant with cervical disc herniation without myelopathy and cervical spondylosis without myelopathy. Dr. Zeidman expressed no opinion on the issue of causal relationship.

In a medical narrative report dated October 18, 2007, Dr. Zeidman indicated that with regard to causality, the claimant indicated that his injury actually occurred in October 2005, that he first sought treatment in January 2006 and he first had imaging on January 26, 2006. Dr. Zeidman opined that the claimant has a temporary total disability.

The claimant’s attorney filed an RFA-1, dated July 2, 2008, requested a reopening and submitted new medical evidence from Dr. Grippo.

In a medical narrative report dated May 8, 2006, the claimant’s attending physician, Dr. Grippo, recorded that the claimant was performing his duties on January 10, 2006, moving cases of food into his station wagon and that the claimant felt a burning sensation in his right arm which radiated down from his shoulder and he started having neck pain and numbness in the right arm. Dr. Grippo diagnosed the claimant with cervical disc herniation and ongoing neck pain and numbness and tingling in both extremities. Dr. Grippo opined that the claimant’s alleged injury resulted from a work-related event. Dr. Grippo further opined that the claimant has a temporary total disability. In a medical narrative report dated May 22, 2008, Dr. Grippo diagnosed the claimant with a cervical disc herniation at C5-6 with general disc bulging and opined that the claimant has a temporary total disability.

In a medical narrative report dated September 17, 2008, Dr. Levy, opined that based upon the available information the claimant’s cervical condition is causally related to the event of record at Trumansburg school and “a lot to his concurrent jobs.”

At the hearing held on September 26, 2008, the carrier’s attorney requested the testimony of Dr. Grippo on the dual causation issue. The Workers’ Compensation Law Judge found that the claimant clearly testified to a precipitating event on January 10, 2006. The Workers’ Compensation Law Judge further found that the claimant has an occupational disease of the neck and right shoulder with a date of disablement on January 10, 2006.

At the hearing held on September 26, 2008, the claimant further testified that he has not done any work at the Trumansburg School after the injury. The claimant indicated that he was currently working one day a week for the Town of Hector.

The WCLJ found that the claimant has an occupational disease of the neck and right shoulder with a date of disablement of January 10, 2006, awarded compensation at the $65.52 tentative rate from May 8, 2008 to September 27, 2008, and directed the carrier to continue payments at the $65.52 tentative rate.

LEGAL ANALYSIS

The carrier asserts that the claimant’s history of injury lacks credibility and the claim should be disallowed. The carrier further asserts that there is no competent medical evidence because of the claimant’s constantly changing history of injury. The carrier also asserts that the carrier has been denied due process by the denial of the right to cross-examine the attending physician.

Workers’ Compensation Law § 2 (7) defines an injury as an accidental injury arising out of and in the course of employment. Workers’ Compensation Law § 2 (15) defines an occupational disease as a disease resulting from the nature of employment and contracted therein.

The finding of an accidental injury cannot be upheld when there was no element of suddenness, nothing catastrophic, not an incident which would be regarded as an accident by the common man (Matter of Steindel v Gordon Baking Co., 9 AD2d 798 [1959]). For there to be an accident, there must be sufficient time-definiteness (Matter of Cortese v Rochester Products Division, G.M.C., 91 AD2d 802 [1982]) and a suddenness in either the cause or result (Matter of Scuderi v Miss Ann Dresses, Inc., 24 AD2d 905 [1965]).

An accidental injury may accrue gradually over a reasonable definite period of time but a claimant must still establish an unusual environmental condition or event that was assignable to something extraordinary and caused an accidental injury (Matter of Knapp v Vestal Central School District, 247 AD2d 667 [1998]).

An occupational disease which is compensable is one which results from the nature of the employment, and by “nature” is meant conditions to which all employees of a class are subject, and which produce the disease as a natural incident of a particular occupation and attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of the hazards attending employment in general (Matter of Newton v County of Erie, 7 AD2d 29 [1958]; Matter of Lawton v Port of New York Authority, 276 AD 81 [1949]). An occupational disease is an ailment which is the result of a distinctive feature of the kind of work performed by the claimant and others similarly employed (Matter of Paider v Park East Movers, 19 NY2d 373 [1967]). To be an occupational disease, it must be specific to that specific industry, a ‘unique’ feature of working in that industry and not just a question of general exposure, so that there is no question that it did not come from some other cause.

The burden of establishing a causal relationship between employment and a disability rests with the claimant who must do so by competent medical evidence (Matter of Mitchell v New York City Transit Authority, 244 AD2d 723 [1997]). The medical opinion need not be expressed with absolute or reasonable certainty. It must, however, be an indication of sufficient probability as to the cause and the medical opinion must be supported by a rational basis (Matter of Van Patten v Quandt’s Wholesale Distributors, 198 AD2d 539 [1993]).

A party generally must be afforded an opportunity to produce for cross-examination an opposing medical witness whose report is on file pursuant to 12 NYCRR 300.10[c]. In Matter of Doherty v Colgate University, 3 AD3d 810 [2004], the Appellate Division found that: “The opportunity to cross-examine a physician whose report has been incorporated into the record is contingent upon the request having been made in a timely fashion, which, in this matter, it was not (see Matter of Floyd v Millard Fillmore Hosp., 299 AD2d 710 [2002]), and the employer failed to provide a reasonable explanation for this lapse (see Matter of Hughes v Steuben County Self-Ins. Plan, 248 AD2d 757 [1998]).”

In Matter of McKenzie v Revere Copper Products, 39 AD3d 1035 [2007], the Appellate Division held that the employer’s request to cross-examine the claimant’s attending chiropractor and physical therapist was untimely as it was made at the conclusion of the hearing.

A review of the record reveals that there is sufficient credible evidence in the record to support the decision of the Workers’ Compensation Law Judge. The claimant credibly testified to a precipitating disabling event that occurred on January 10, 2006. The Full Board finds that although the claimant testified to previously experiencing pain in his back and neck, the claimant was not disabled by this intermittent pain until the disabling incident at work on January 10, 2006. The claimant’s attending physicians and the carrier’s consultant have agreed that the claimant has a causally related condition.

Therefore the Full Board finds, upon review of the record and based upon a preponderance of the evidence, that the claimant has an occupational disease of the neck and right shoulder with a date of disablement of January 10, 2006, and that the evidence in the record supports the awards at the $65.52 tentative rate.

The Full Board further finds that the carrier is not entitled to cross-examination of Dr. Grippo on the issue of a “dual causation” basis for the claimant’s condition. The Full Board finds that the claimant clearly testified that his disablement began on January 10, 2006, while at work for the Trumansburg school district and there is nothing in Dr. Grippo’s report that he considered “dual causation” as a basis for his opinion on a work-related condition. Therefore, the carrier’s contentions on this basis are without merit and the carrier is not entitled to cross-examination of Dr. Grippo on that basis.

CONCLUSION

Accordingly, the WCLJ’s decision filed October 1, 2008, is AFFIRMED. No further action is planned by the Board at this time.

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

Full Board Review

Citywide Central Ins. Program

Case # 00749236 Date of Accident: 5/8/07 Employer: Citywide Central Ins. Program Date of Filing of Decision: 2/25/10 Claimant’s Attorney: Severance, Burko & Spalter

District Office: NY Carrier: Indemnity Insurance of N. America Carrier ID No.: W112502 Carrier Case No.: C375C719784-X Panel: Robert E. Beloten

ISSUE: WCL §18 failure to provide written notice

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

ISSUE

The issue presented for Full Board Review is whether the claim should be barred by of her injury within 30 days.

The Workers’ Compensation Law Judge (WCLJ) found that there was no prejudice to the employer due to the claimant’s late notice, excused the late notice, and established the case for a May 8, 2007 injury to the left knee.

The Board Panel majority reversed the WCLJ’s decision and found that WCL § 18 barred the claim.

The dissenting Board Panel member found that the late notice should be excused, as the claimant did not immediately realize the severity of her injury, and provided notice as soon as she did become aware of the severity.

In her application for Full Board Review, the claimant asserts that she was not initially aware of the seriousness of her injury, and that she provided notice to the employer as soon as she became aware, whereby her late notice should be excused. In the alternative, the claimant contends that the employer was not prejudiced by the late notice.

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

FACTS

By form C-7 filed on November 13, 2007, the carrier controverted the claim for a May 8, 2007, left knee injury on several grounds, but did not specifically raise WCL § 18. In the subsequently filed form C-2, the employer indicated that it first received notice of the alleged May 8, 2007, injury on September 12, 2007. The claimant underwent left knee surgery on September 17, 2007.

The claimant testified at the June 4, 2008, hearing as follows: She was working as a home attendant on May 8, 2007, taking care of an elderly Alzheimer patient. She was getting her patient ready for bed in the bathroom, when the patient pulled away from her, and she hit her left knee on a cabinet. She continued to work, but she did inform one of the family members present in the house of the accident later that night. She also applied alcohol to the knee that night, although it was not bleeding. She did not immediately seek treatment, as she did not initially believe that her injury was serious. However, her duties subsequently became harder when the patient got sick, and she had to climb up and down a lot of stairs all day. Her knee began to hurt, and by the end of July (i.e., July 29, 2007) she sought medical treatment with her family doctor, Dr. Kalavar, following an incident of severe pain while walking home. Her family physician took an X-ray and found matter in her knee (i.e., a “chip” under her cartilage). She did not mention the May 8, 2007 incident to her physician because she thought “something else [was] wrong with [her] knee.” Based on the X-ray findings, her doctor referred her to a knee specialist, Dr. Eli Bryk. During her (September 10, 2007) examination by Dr. Bryk, the physician asked her if she had hit her knee on anything recently, and that was when she realized just how serious the incident with the cabinet had been, as that was the only incident where she had hit her knee. She told the employer about the incident prior to her surgery, which was performed by Dr. Bryk (September 17, 2007). She denied having any prior or subsequent injuries to the left knee.

Upon the conclusion of the claimant’s testimony, the claimant’s attorney requested the preclusion of the employer’s lay witnesses based upon their failure to appear. The WCLJ responded “It does not matter because she said she did not give notice until September, the C-2 reflects that.” The WCLJ then went off-the-record. Upon returning to the record, the WCLJ continued the case for the claimant to sign a release for her medical records and directed the carrier to obtain an IME. At no time did the carrier raise the issue of WCL § 18.

The claimant was subsequently examined by the carrier’s consultant, Dr. Andrew Miller, on May 29, 2008. In his resulting report, Dr. Miller noted that the X-ray performed on August 2, 2007, revealed mild degenerative changes, suprapatellar effusion, and central fragments in the region of the tibial spines; opined that the claimant had sustained a causally related left knee injury; found that the claimant had reached maximum medical improvement; and failed to indicate whether the claimant had any disability.

At the hearing held on March 2, 2009, the claimant’s attorney rested on the record. The carrier’s attorney raised the issue of WCL § 18, asserting that the claim should be disallowed for late notice due to the prejudice to the employer. The WCLJ found that, although the claimant did provide late notice, her delay was reasonable, as she did not realize the seriousness of the incident until she saw the specialist in September. In addition, the WCLJ found that the claimant notified the employer as soon as she became aware of the severity of her condition, that the claimant was a credible witness, and that the late notice should be excused. As a result, the WCLJ established the case, authorized an orthopedic consultation, and directed the carrier to produce a form C-240. These findings were memorialized in the amended WCLJ decision filed on March 5, 2009.

LEGAL ANALYSIS

WCL § 18 provides that written notice of an injury for which compensation is payable shall be given to the employer within 30 days after the accident causing such injury. However, the failure to give timely written notice under WCL § 18 may be excused by the Board if any one of the following conditions applies: (1) the claimant had a sufficient reason for the failure to provide timely written notice; (2) the employer had actual knowledge of the accident; or (3) the employer was not prejudiced by the lack of notice (see WCL § 18; Matter of Kenny v County of Nassau, 58 AD2d 696 [1977]; Matter of Orientale v Marcus Associates, Inc., 51 AD2d 831 [1976]; Matter of Carbone v Richmond Home Needs, 74 AD2d 668 [1980]). Furthermore, the defense provided by WCL § 18 will be waived in its entirety if the employer or carrier fails to raise the issue at the first hearing at which all parties in interest are present and at which the claimant testifies (see WCL § 18).

In the present case, there is no dispute that the claimant failed to give written notice of the May 8, 2007, injury to the employer within 30 days. The parties have thus far framed the issue in dispute as whether or not such late notice should be excused pursuant to one of the available exceptions to WCL § 18. However, an analysis of the exceptions is unwarranted, as the carrier waived its right to raise WCL § 18 as a defense in this case. The first hearing at which all the parties were present and the claimant testified occurred on June 4, 2008. While the WCLJ may have noted in passing that the employer’s C-2 indicated that notice was not provided until September, at no time during the hearing did the carrier raise the issue of WCL § 18. As a result, the carrier waived the WCL § 18 defense and further analysis of the exceptions to WCL § 18 is not required.

CONCLUSION

ACCORDINGLY, the WCLJ amended decision filed on March 5, 2009, is MODIFIED to find that the carrier waived the issue of untimely notice under WCL § 18, but is otherwise AFFIRMED. The case is continued.

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

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March 26, 2009: Weekly postings of court decisions regarding injured workers compensation issues from the New York State Court of Appeals, New York State Appellate Division (1st, 2nd, 3rd, and 4th Departments), and various lower courts as well as decisions from other states that will be of interest to participants in the State of New York Workers Compensation system. Following the list of cases posted for this week is a list of cases. in which the NYS Workers Compensation Board is a party of interest, for which arguments have either already been made at the New York State Appellate Division, 3rd Department and for which decisions have not yet been issued or for cases which have been scheduled but not yet heard. If you would like to be added to our e-mail alert list or have any submissions or suggestions, send them to: TheInsider@InsideWorkersCompNY.com.

FULL BOARD REVIEWS - Now being posted: The New York State Workers Compensation Board, on occasion, as of March 2010, will temporarily post a few of the 15-20 Full Board Decisions it issues each month. Our FRB page will offer a permanent but brief summary of those decisions with a link to another page in this website to the entirety of the decision issued by the Board.

The Two Top Attorneys for 2009 click here for details.

The Top Attorneys for 2010 click here the March 19, 2010 updated list.

NEW POSTINGS: Two decisions this week from the NYS Appellate Division, Second Department. And the list of 17 cases already heard at the 3rd Department for which decisions have yet been issued and 2 cases to be heard today.

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

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

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

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

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

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

PENDING CASES
March 25, 2010: The following list represents 19 cases, with their hearing dates. All but two of these cases have been heard (11 this week) with the other two scheduled for presentation before the Court tomorrow. As of today, although dates have been set for oral arguments before the Court (April 19-23 and 26-29) no specific cases have been named.

Mar 25, 2010 Barone v Interstate Corp.
Mar 26, 2010 Bush v Montgomery Ward
Mar 24, 2010 Carlineo v Snelling & Snelling
Mar 23, 2010 Hiser v Richmore Aviation Inc
Jan 14, 2010 Howard v Stature Electric
Mar 22, 2010 Lopez v 395 Brook Realty Corp
Mar 23, 2010 Maher v Nys Division of Budget
Mar 26, 2010 Mclean v Amsterdam Nursing Home
Feb 16, 2010 Rebeor V Mooses Lodge #1280
Mar 25, 2010 Renz v Home Depot Usa, Inc.
Feb 17, 2010 Stojanov V Eastman Kodak Co.
Mar 25, 2010 Thomas v Crucible Materials
Mar 22, 2010 Thompson v Wiltsie Constr.
Feb 16, 2010 Turdo V Dellicato Vineyards
Feb 10, 2010 Wadsworth v K-Mart
Mar 23, 2010 Whiteman v Richmor Aviation
Dec 16, 2009 Wilson v General Mills
Mar 24, 2010 Yarleque v Sally Lou Inc.
Mar 23, 2010 Zahm v National Fuel

▼ Posted Friday March 19, 2010 ▼

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

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

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

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

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

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

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

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

▼ Posted Friday March 12, 2010 ▼

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

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

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

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

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

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

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

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

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

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

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

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

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

▼ Posted Friday March 5, 2010 ▼

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

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

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

▼ Posted Friday February 26, 2010 ▼

Jamal v Gohel [& SIF]
February 16, 2010 NYS Appellate Division, Second Department
§ 29: lien against the recovery
Who decides the lien: Civil Court or WCB

REVERSED the Supreme Court’s order granting plaintiff’s motion to dismiss the NY State Insurance Fund’s (SIF) assertion that it had a claim for a credit or offset against death benefits. The plaintiff, widow of the decedent and on behalf of her four children, was awarded death benefits by the Worker’s Compensation Board against the decedent’s employer’s carrier SIF. She then commenced action against the driver ultimately winning a judgment in the Supreme Court, obtaining a decree from the Surrogate’s Court, inter alia, approving both the allocation of the entire amount of the proceeds of the jury award to the wrongful death cause of action and the discontinuance of the cause of action alleging conscious pain and suffering. Thereafter, SIF retroactively consented to the Surrogate’s decree, and waived its statutory right pursuant to Workers’ Compensation Law § 29(1) to a lien against the recovery. Subsequently, however, SIF asserted its right pursuant to Workers’ Compensation Law § 29(4) to claim a credit or offset against the death benefits that it was otherwise obligated to pay to the plaintiff and her children in an amount equal to the proceeds of the jury award. The Appellate Court ruled that the Supreme Court erred in entertaining the plaintiff’s motion as “Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board. . . . The issue of whether an employer or insurer has adequately reserved its right to claim a credit or an offset is a matter of fact for the Board. Accordingly, the instant issue is properly one for the Board’s determination.” Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday February 19, 2010 ▼

Magidson v Strategic Telemarketing
February 18, 2010 NYS Appellate Division, Third Department
§123: Late Appeal (7 years)

AFFIRMED the Board which ruled that the injured worker’s claim could not be reopened pursuant to Workers’ Compensation Law §123 or §25-a. In October 1993, claimant filed a claim for workers’ compensation benefits alleging that she was totally disabled as a result of her exposure to toxic chemicals at work.

Her disputed claim was first heard in May 1994 when neither claimant nor her attorney appeared nor submitted medical evidence such that the Law Judge closed the case for failure to prosecute. After the case was reopened, the claimant failed to appear at three more hearings (December 1995, March 1998, June 1998) although she was represented at one by an attorney. At that time the Law Judge ruled that “[f]ailure to prosecute 4th non appearance. All present issues are resolved. No further action is planned by the Board at this time.” The matter remained closed until January 2006, when the claimant filed an application to reopen the claim. At a hearing, attended this time by claimant and her attorney, the Law Judge disallowed the claim, finding that it could not be reopened because 14 years had passed since the date of the accident and no determination on the merits of the claim had been made.

The Appellate Court noted that while Workers Compensation Law §123 gives the Board discretion to open cases, “no claim for compensation . . . that has been otherwise disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits, shall be reopened after a lapse of seven years from the date of the accident or death.” And, contrary to the claimant’s assertion she had never been given proper notice, the Board’s determination that she had been given such notice was supported by substantial evidence. As to the claimant’s assertion that her claim should be reopened against the Special Fund for Reopened Cases per §25-a, the Court agreed with the Board that §25-a could not “reassert [stale claims] after seven years by claimants who had failed to make out a case in contested hearings or had failed even to attempt to assert their claims after due notice and an opportunity to be heard.” Prevailing party represented by: Edward Obertubbesing of counsel to Gregory J. Allen, State Insurance Fund, for State Insurance Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Barbaro v Eastman Kodak
January 28, 2010 NYS Supreme Court - Nassau County
Causal Relationship: Was there toxicity?

The Supreme Court Nassau County granted Kodak’s motion for summary judgment dismissing the complaint or recovery of damages as a result of exposure to chemicals at work. The plaintiff advanced claims sounding in negligence, breach of warranty, failure to warn and strict products liability. Kodak sought summary judgment dismissing the complaint on the grounds that the Developer Systems Cleaner did not cause the plaintiffs injuries and/or was time-bared, or in the alternative, a partial summary judgment dismissing the plaintiffs ‘ claims for dermal injuries, breach of warranty and failure to warn.

The plaintiff testified that he started experiencing breathing difficulties in the beginning of 2005. He saw a pulmonologist in November, 2005 and on his health questionnaire, he represented that he had smoked a pack of cigarettes a day for 25 years but stopped in 1987. When his symptoms worsened, a lung biopsy was performed on September 26, 2006 and he was diagnosed with a malignant carcinoma. Surgery in October 2006 revealed invasive moderately differentiated squamous cell carcinoma. The injured worker went out on disability that month and filed for workers compensation alleging that his medical condition was caused by exposure to sodium dichromate in the Developer Systems Cleaner. His claim was denied and he appealed to the Department of Labor. [It appears that this Supreme Court action was commenced after claimant’s workers compensation appeal was unsuccessful.]

In ruling against the plaintiff the Supreme Court ruled that, while via his affidavit, the injured worker raised issues of fact regarding agitation and spilling of the Developer Systems Cleaner, he gave is no reliable scientific evidence that that caused it to become airborne subjecting him to the risk of inhaling it. The plaintiff has not met his burden of establishing the existence of a material issue of fact. The plaintiff’s claim that he was not warned that he was being exposed to mists via his regular use of the product and had he been warned, he would have worn a respirator fails because, again, there is simply no admissible evidence that he was exposed to mist. In addition, as per the plaintiffs testimony at his examination-before-trial, he was well aware of the cancer causing risks posed by the chemicals and further warnings would have been cumulative. Click here to read the full court decision of the NYS Supreme Court - Nassau County….

▼ Posted Friday February 11, 2010 ▼

American Home Assur v NY Ctrl Mut
February 3, 2010 Supreme Court, New York County
Jurisdiction: Who decides which carrier pays bills

AFFIRMED In support of this proceeding to stay arbitration, American Home Assurance contends that the Workers’ Compensation Board is the proper forum to determine whether American Home, as the no-fault carrier, owes any money to New York Central Mutual Fire Insurance Company, the employer’s workers compensation carrier.

The claimant, injured in a motor vehicle accident, filed a successful claims for both no-fault benefits and workers compensation, for which the Workers Compensation Board ordered payments made to or on behalf of the claimant, totaling $24,684.55. Among other things, New York Central asserts that there were some duplicative payments made on claims, and that it paid approximately $45,000 to Cochran and/or to others on his behalf, which should have been paid by American Home, as the workers’ compensation carrier.

The primary issue presented here is whether the Workers’ Compensation Board or Arbitration Forums, Inc. is the proper forum to determine whether American Home owes any money to New York Central. American Home contends that, pursuant to the applicable rules and laws, including the WCL (§§11, 124, and 142) and the rules issued by the Workers’ Compensation Board, the proper and sole method for a party to request resolution of an issue involving a workers’ compensation claim is for the party to request a hearing before the Workers’ Compensation Board. In opposition, New York Central asserts that §5105 (b) is applicable to this controversy, and, pursuant to its terms: “[tlhe sole remedy of any insurer or compensation provider to recover” on a loss transfer claim “shall be the submission of the controversy to mandatory arbitration pursuant to the procedures promulgated or approved by [the Superintendent of Insurance].” New York Central further references 11 NYCRR § 65-3.12 (b), 11 NYCRR §65-4 et seq, and 11 NYCRR § 65- 4.11, citing several cases in support of its position.

The court in rejecting American homes arguments determined that Insurance Law §5105 is not analogous to those issues presented and concludes that the application for a permanent stay of arbitration is warranted and that the issues raised by New York Central in the Arbitration Application must be submitted to, and determined by, the Workers’ Compensation Board. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday February 5, 2010 ▼

Altobelli v Allinger Temporary Servs
February 4, 2010 NYS Appellate Division, Third Department
Apportionment: Awards

AFFIRMED the Board’s ruling that claimant’s workers’ compensation award be apportioned equally to two work-related incidents.

Despite a non-work-related back injury requiring surgery in 1989, claimant worked without disability or restrictions until October 2001 when he reinjured his back while working for Allinger Temporary Services, leading to a second surgery and an established workers’ compensation claim. Although he returned to work after that surgery, claimant sustained another back injury in May 2004 while employed by Calvary Design Team and had a second claim established. In July 2005, claimant underwent a third back surgery after experiencing pain at home in March of that year. After hearings were held regarding apportionment, a Law Judge concluded that awards should be apportioned 80% to the 2001 injury and 20% to the 2004 injury. Allinger appealed and a Board Panel apportioned an equal one-third basis to the 1989, 2001 and 2004 injuries. After a full Board review at claimant’s request, the Board rescinded its prior decision and apportioned the claims equally between the 2001 and 2004 work-related incidents. Allinger again appealed.

In its affirmance of the Board, the Court ruled that the decision on apportionment is a factual issue to be resolved by the Board which would be sustained as long as the Board’s decision detailed its reasoning, notwithstanding contrasting medical evidence. Also, the fact that the medical doctor found that apportionment in the “medical sense” was evenly split between the three injuries, the Board was correct in determining that apportionment in the “legal sense” was limited to the 2001 and 2004 work-related incidents, precluding the non-work-related 1989 injury as a matter of law because that injury did not render claimant disabled in the “compensation sense”. Prevailing party represented by: Jason D. Poselovich of counsel to Segar & Sciortino (Rochester) for Rob Altobelli, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Kot v Beth Ameth Home
February 4, 2010 NYS Appellate Division, Third Department
Causal Relationship: related or consequential

AFFIRMED the Board which ruled that claimant, in denying her claim for workers’ compensation benefits, did not sustain a causally related injury to her left hip.

Claimant, after sustaining injuries while attempting to lift a patient in April 2004, had her claim initially established for a lower back injury and subsequently amended to include awards for a ventral hernia and a consequential psychiatric condition. After undergoing left hip replacement surgery in 2006, a Law Judge concluded that this hip injury was also causally-related to the 2004 claim.

After the employer appealed that decision, and Board Panel determined that further development of record was necessary. Based partly on the opinion of the impartial specialist who examined the claimant, the Board Panel reversed the decision of the Law Judge. In its affirmance of the Board, the Court ruled that the decision on causality, related or consequential, is a factual issue to be resolved by the Board which would be sustained as long as the Board’ s decision detailed its reasoning, notwithstanding contrasting medical evidence. [In a footnote, the Court referenced a procedural error: “Although claimant’s assertions herein include challenges to certain conclusions of the impartial specialist, we note only that claimant waived her opportunity to cross-examine him.”] Prevailing party represented by: Irosha Ratnasekera of counsel to Charles J. Siegel (New York City) for Beth Ameth Home Attendant Service and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday January 29, 2010 ▼

Wilcox v Niagara Mohawk
January 28, 2010 NYS Appellate Division, Third Department
SLU Apportionment

AFFIRMED the Board’s ruling that apportionment did not apply to claimant’s workers’ compensation award. Claimant sustained a work-related injury to his right ankle in December 2004, 12 years after undergoing surgery on the same ankle for a condition that was wholly unrelated to his employment. Claimant’s treating physician opined that claimant suffered a 45% schedule loss of use (SLU) of his right foot and did not attribute any portion of the loss to the noncompensable 1992 injury. The employer’s medical examiner agreed that claimant had a 45% SLU but attributed 50% to claimant’s earlier injury. The Law Judge, affirmed by the Board, granted claimant a 45% SLU, rejecting the employer’s claim of apportionment. The Court noted that, although apportionment May be applicable in a schedule loss of use case if the medical evidence establishes that the claimant’s prior injury — had it been compensable — would have resulted in a schedule loss of use finding, the Board determined that medical records and reports relevant to claimant’s 1992 surgery were unavailable, and neither expert was provided with any objective documentation indicating to what extent, if any, claimant’s use of his right foot or range of motion had been impaired as a result of the prior injury. Consequently, although the medical examiner who evaluated claimant for the employer opined that claimant had a preexisting 22.5% loss of use, claimant’s treating physician testified that any opinion regarding a preexisting loss of use would be entirely speculative. Thus confronted with conflicting medical evidence, the Board was authorized to credit the opinion of one expert over that of another. Prevailing party represented by: Peter W. Hill (Oneonta) for Clyde F. Wilcox, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Shelley v Shelley Septic
January 28, 2010 NYS Appellate Division, Third Department
Coverage: Sole Executive Exclusion

AFFIRMED the Board which ruled that, per WCL §14(6), claimant was not concurrently employed by Thompson Sanitation Corporation when he was injured working at Sheeley Septic Service. A review of the controverted Board decision shows that the issue was not concurrent employment but executive exclusion under a corporation’ s workers compensation insurance policy, per WCL §54[6][d]. At the time of claimant’s injury, he and another individual, Paul Walsh, were Thompson’s sole owners and officers. Walsh testified that he elected to be excluded from Thompson’s workers’ compensation coverage in 1994 and, while he did not remember if claimant did so that year, claimant had done so when Thompson was initially formed. According to documentation submitted by the workers’ compensation carrier, and admitted upon claimant’s stipulation, the policy in effect when claimant was injured contained an exclusion election for him. The Court found that the Board could properly find from the evidence presented that he did make such an election, thus removing himself from the definition of an “employee” and placing his work for Thompson outside of the ambit of Workers’ Compensation Law §14(6). Prevailing party represented by: Patrick B. Guy of counsel to Gitto & Niefer (Binghamton) for Sheeley Septic Service and another, respondents. And Jill Singer of Counsel to Steven Licht, Special Funds Conservation Committee for State Insurance Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Moysello v David
January 21, 2010 NYS Appellate Division, Third Department
Employment: Taxi driver

AFFIRMED the Board which ruled that claimant was an employee of Charles David and David Enterprises, Inc. In January 2007, claimant was injured in a motor vehicle accident during the course of his employment as a taxicab driver for David’s Taxi. An investigation determined that the vehicle was registered to David Enterprises, Inc. and the was “true owner” of David Enterprises was Charles David. At the conclusion of the hearing, at which claimant was the only party to appear, a Law Judge concluded that claimant was employed by David and David Enterprises (D/DE) on the date of his accident– both of which were uninsured in violation of Workers’ Compensation Law § 50. D/DE filed an application for Board review, contending that claimant’s actual employer was a related entity, David Brothers, Inc., which purportedly had workers’ compensation coverage on the day in question, and that D/DE did not receive proper notice of the hearing. The Board affirmed, finding that D/DE met the presumptive definition of employer contained in WCL §2 (former [3]) and that jurisdiction had been properly obtained. The Court agreed pointing out that D/DE conceded David Enterprises was the registered owner of the vehicle and that there was sufficient indicia of control To support the Board’s finding that D/DE and that proper notice was served. Prevailing argument presented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Lew v Younger
January 21, 2010 NYS Appellate Division, Third Department
Employment: Who is

AFFIRMED the Board which ruled that an employer-employee relationship existed between claimant and Richard Younger. Claimant, a cleaner, in 2006 had his claim for workers’ compensation benefits after he was allegedly injured in the course of his employment for Richard Younger, a site manager who arranged for the upkeep of a number of buildings. In 2007, the Board reversed the Law Judge, determined that claimant was employed by Younger, established the claim and restored the case to the calendar. Younger and others sought and was denied review of the argument that claimant was either an independent contractor or in the employ of the owner of the building where he was injured. The Appellate Court listed in its decision some of the evidence with which it supported the Board’s determination that an employer employee relationship existed, notwithstanding evidence that could permit a different result. Prevailing argument presented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

DiLascio v Tilden Glen Head
January 21, 2010 NYS Appellate Division, Third Department
Coverage: sole executive exclusion

AFFIRMED the Board which ruled that the State Insurance Fund is not liable for the payment of workers’ compensation benefits to claimant. Claimant was the sole executive officer of an automobile repair business that maintained workers’ compensation insurance through the State Insurance Fund (hereinafter SIF). But in 1994 to 2001 elected to exclude himself from such coverage at which time without expressly notifying SIF that he intended to now be covered by the insurance policy, began including his salary in the chargeable payroll statements he submitted to SIF used to calculate premiums. A renewal policy covering the period from October 2005 to October 2006, however, was provided to the employer, which explicitly stated that claimant was not covered by the policy due to the election to have him excluded. In May 2006, during the time that this policy was active, claimant was injured while at work and he applied for workers’ compensation benefits. [SIF thereafter credited the employer’s account for the portion of the premiums applicable to the inclusion of claimant’s salary in the chargeable payroll paid from 2004 to 2006.] A Law Judge ruled that claimant, by paying the higher premiums based upon the inclusion of his salary in the chargeable payroll, believed that he was covered and SIF was estopped from denying coverage.The Court agreed with the Board’s decision to reverse agreeing that there was sufficient evidence that estoppel did not apply. Most importantly, the record reveals that the policy, in the year, expressly excluded the claimant from coverage, that he had actual knowledge that he was not covered by the policy and, therefore, could not have reasonably relied on SIF’s acceptance of higher premiums in believing that he was covered. Prevailing party represented by: Janis M. Riekstins of counsel to Gregory J. Allen, State Insurance for Tilden Glen Head, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Li v Southern Garden
January 21, 2010 NYS Appellate Division, Third Department
§ 15(8)Reimbursement Special Fund

AFFIRMED the Board which discharged the Special Disability Fund from liability under WCL §15(8) (d). After the injured worker claim was established for injuries sustained in a January 2000 accidents, the carrier filed a notice for reimbursement from the Fund based on a previous injury sustained by claimant.

In April 2005, the Board approved a settlement agreement between claimant and the carrier pursuant to WCL §32. In light of the carrier’s reimbursement claim, the Fund was also a party to the agreement. The agreement noted that the issue of permanency was outstanding and that the parties had decided to settle the claim rather than litigate the issue. The Committee gave provisional consent to the settlement, “subject to the carrier’s successful claim under [Workers’ Compensation Law § ] 15 (8) (d), less any statutory retention period remaining at the time of the approval of this agreement.” The agreement expressly provided that the Committee’s consent “is not to be construed as a concession of liability under . . . [s]ection 15 (8) (d).” Thereafter, the Law Judge granted the carrier’s reimbursement claim but was then reversed after a Board’s review. First the court accepted the board’s discretion to accept the Funds appeal which is one day late but not the carriers which was two months late. Court agreed Board’s reasoning denying reimbursement because the work-related injury did not result in a permanent disability, even though evidence in the record might support a contrary result. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Davis v Ready Labor
January 21, 2010 NYS Appellate Division, Third Department
Course of Employment: driving to work

AFFIRMED the Board which ruled that the death of claimant’s decedent did not arise out of and in the course of her employment. Decedent was employed by Labor Ready, an employment agency that provides temporary employees to its clients. On March 16, 2004, decedent was driven, along with two other employees, to a work assignment at Dunkirk Ice Cream by McKinley Barnes, a Labor Ready employee who was not working that day but had agreed to drive decedent and the two other employees to the work site. Barnes returned to Dunkirk when decedent and the other Labor Ready employees had finished their eight-hour shifts and, during the 26-mile return trip, an automobile accident occurred that resulted in decedent’s death. Claimant’s application for his comp death benefits was granted by a law judge but the Board reversed and disallowed the claim.

Claimant argued that because Labor Ready assumed the responsibility for transporting its employees to and from their temporary job assignments, this accident should have been deemed to have occurred within the scope of decedent’s employment per WCL §10 [1]). Although there are exceptions to the general rule that travel to and from a work site is not considered to be within the scope of employment and injuries occurring during that period, the Court agreed with the Board that this case was not such an exception. It was noted that the employer did encourage car pooling with employees were assigned to the same job location but the vehicles used for transport were not owned by Labor Ready and it had no contract nor did it pay any driver to transport its employees to the work site. In addition the driver of the car was not working for the employer that day was not pay for the service by the employer but by the individual employees who did not get paid for travel time. The Court agreed with the Board that Labor Ready did not have exclusive control of the conveyance, which combined with the Board’s review of other evidence, supported its decision to disallow the claim. Finally the court stated that the Board did not abuse its discretion by refusing to consider her rebuttal because she failed to include the required cover sheet and affidavit of interested parties. Prevailing party represented by: Karen Darling of counsel to Hamberger & Weiss (Buffalo) for Labor Ready and another, respondents. Click here to read the full court.decision of the NYS Appellate Division, Third Department….

COMMENTARY & REPORTS

ON OUR OTHER PAGES

► Board gets its 28th & 29th Affirmance in a row

►Commissioner Bios September updates

WINNING ATTORNEYS

►See who has won the most cases at the 3rd Dept through March 19

PRIOR COMMENTARY

►The Insider’s Recommendations to Improve Board Procedures

►Eliminating Oral Arguments: A MAP or a PIG?

►A Reader’s Opinion of the Appellate Court, Third Department

►The Quality of WC Board Decisions Reviewed in 2009 by the Courts

►Answers to Your E-Mails

►Legals Fees On Medical Expenses?

►Project 2015: The end of the WCB Board

►The New Medical Guidelines(?!)

►The Appellate Court’s Split Decision

►Comp Board Blocks “The Insider” as Spam!

►Part III: More Comments on “bench briefs” - unedited

►Part II: Reader Comments on “bench briefs

►Reader Comments on “bench briefs”

►Should the Board present “bench briefs” [pro and con opinions] to panels??

►Who’s Left to Sign Decisions?

►The Legacy of Zach Weiss

►Judicial Economy vs Judicial Integrity

►A Guest Commentary on Board Doctors

►Mirror Mirror on the Wall! Who’s the Fairest Doctor of them all?

►Who wins the most appeals: Claimants or Carriers

►LEGAL FEES: What’s fair, history, Can Bd set fees, etc?

►Legal Reasoning vs Intuition

►How do get paid on medical bills with the HP-1J

►Who actually decides the decisions?

►Rebuttals: a waste of time?

To suggest a subject for a report or a commentary that you’d like to see on on this page dealing with New York Workers Compensation issues, injured workers, court decisions, or any other subject, if you have one you would like to submit, by name or anonymously, send an email to TheInsider@InsideWorkersCompNY.com.

Judge Hellerstein correct: Legal Fees
for WTC Settlements Unreasonable

March 26, 2010: Federal Judge Alvin K. Hellerstein of United States District Court in Manhattan rejection of the proposed Ground Zero Settlement was correct, particularly with regards to the legal fees which are excessive when compared to other jurisdictions.

Based on my 12 years service as a Commissioner with the New York State Workers Compensation Board overseeing nearly 15,000 settlements as well as hundreds of cases in which the issue was legal fees, the filing and settlement of claims for these 10,000 workers involves legal work, and therefore a fee structure, more in line with the 10% to 15% in the workers compensation system than the 30% to 40% in civil litigation.

The similarities between these Ground Zero claims and those in workers compensation are many. The money necessary to make payment of the settlements has already been set aside and, unlike some civil litigation, the attorneys here do not have to worry about collecting their fees. There is no question that these claims are causally related in terms of injuries and illnesses. And there are minimal difficulties in establishing the identity of the injured workers.

The only issues being controverted deal with the specific injuries and illnesses of the workers, the impact of this medical condition on their future earnings capacity, and the amount of medical treatment that may be necessary in the future.

In the New York State Worker’s compensation system, final settlements known as §32 waiver agreements range from $5,000 to $150,000, similar in amounts to those proposed under the Ground Zero Settlement. If there were no prior fees paid, the §32 fees awarded were usually 10%-15%, occasionally not including medical expenses.

At this time, the original Ground Zero settlement projects legal fees of 30% to 40% which on a $600,000,000 settlement comes out to approximately $200,000,000. Based on the workers compensation settlements I approved in one four-year period, the average fee was 11.4% on an average settlement of a $46,300,. Were this more appropriate fee schedule used by Judge Hellerstein, each worker would receive an additional $13,000 while the attorneys would still receive $68,400,000.

In those cases in which the medical portion of the settlement was substantial, that amount was usually excluded before the fees were calculated. The concept behind not paying fees on medical expenses is based on the premise that medical expense reimbursements in the settlements are to pay for the entirety of the injured workers’ proposed future medical expenses. To deduct 15% for the legal fee is in effect requiring the injured worker to make a 15% copayment for his medical treatment. That a 30% or 40% “copayment” could be considered in these Ground Zero cases is at best an “injustice” and may in fact be the reason that the total fund is so high: in order for the injured worker in a civil case to get $100,000 to cover his projected future medical costs of $100,000, the settlement would have to be for a gross of $166,666 to allow for the 40% legal fee.

Putting aside the issue of the legal fee on medical expenses, the workers compensation system in New York and probably in the other 49 states is structured such that the handling of claims with the appropriate forms, procedures, and hearings are fairly consistent, thus minimizing the need of the workers compensation attorneys to reinvent the wheel every time that they have a new case, thus lowering their administrative costs as compared to a civil litigator.

Processing of the claims for these 10,000 workers would appear to also be consistent from one case to the next such that the 10% to 15% fee which has enabled attorneys in the New York State workers compensation system, who have successfully practiced for many decades, should be more than enough for attorneys involved in the Ground Zero settlement.

In fact I would even suggest that Judge Hellerstein consider hiring the services of those law firms specializing in the handling of workers compensation for injured workers. These attorneys are accustomed to handling large numbers of cases at a time but still have the ability to provide the injured workers and their families with the care and attention necessary to not only do financial justice to their clients but also to make them feel like human beings.

These workers who rushed to the aid of their fellow citizens without thinking about the future repercussions deserve to be treated with proper dignity. The issue is not one of a settlement of 10,000 cases but the settlement of a claim by 10,000 different individuals.

The Insider’s Recommendations
to Improve Board Procedures

March 15, 2010: The New York State Workers Compensation Board has been preparing a number of basic changes in operations and procedures which involve judges, conciliators, and court reporters, with justifications ranging from the budgetary requirements, to expediting the process, to finding more efficient ways of getting cases done faster.

In reality there are far simpler solutions for which the annual cost could well be under $30,000 a year. Of course this may well entail a solution which for some may be a totally unacceptable:

• Use electronic transcription only for hearings on §32 waiver settlements
• Have the Commissioners do all the §32 hearings

COURT REPORTERS

Let’s put aside for the moment the fact that the Board justifies its need for electronic transcription because of the shortage of court reporters while failing to cite one example of a hearing adjourned for the lack of a reporter. A legitimate review of this issue would ask the following question:

1. How many hearings were transcribed by reporters and for how many of these were the minutes actually needed?
2. Is there any category of hearing for which minutes are never needed, or often needed?

While I cannot answer that question for hearings conducted by law judges and conciliators, I can answer it with some numbers from 2002 when the Commissioners conducted the hearing for §32 waiver agreements. In 2002, I participated in approximately 1,100 §32’s, including about 30 or 40 of these which I heard twice as they were adjourned for a second hearing. But it was a rare month when after the hearing was completed that one of the attorneys asked for a copy of the transcript, almost always for cases adjourned because of some substantive legal issue.

At that time there were about 10,000-12,000 hearings held a year by the Commissioners. I know that many Commissioners approved virtually every agreement they heard so that I am sure that there were probably not more than 100 §32 hearings a year which required minutes.

As a result there were a lot of court reporters taking a lot of time taking minutes that were never used. Perhaps the trial of electronic transcription proposed by Chairman Beloten should be done at the §32 hearings.

Having participated in oral arguments as a Commissioner as well as §32’s and having sat in on a number of hearings conducted by the law judges, I can attest to the fact that some of the problems with crosstalk that exist in regular hearings do not exist at §32 hearings. The Commissioners are not under the time constraints as are the law judges. Thus the results of electronic transcription at these hearings, in such a simpler atmosphere, would prove their validity, or disprove it.

§32 BY COMMISSIONERS

Of course, for the above recommendations to take place, the §32’s would have to be given back to the Commissioners. Actually there was no legitimate reason for these to have been taken from the Commissioners in the first place. Originally every §32 agreement was heard before a Commissioner. Then, it was decided that waiver agreements which would have previously qualify as Lump Sum Settlements could be done administratively. Then additional categories were added to the list of cases that could be done administratively such that a goal of 70% administrative versus 30% hearing was set. The reason the §32 cases were taken from the Commissioners was the specious excuse that it would be best if all the claimants had a formal hearing and there were too many §32’s for the Commissioners to do. Actually one reason for the change was that a few commissioners did not want to have to attend hearings.

In the beginning years (1997-2000), the Commissioners were able to take care of 10,000 to 12,000 cases a year even though this meant that all the Commissioners had to actually work and attend hearings; some even had to travel. And I am referring not just to Commissioners flying from Buffalo to New York but to some Commissioners for whom a 40 mile drive from their home to the district office had suddenly become too much of a burden.

In view of the fact that there are now virtually no oral arguments, common sense would indicate that the Commissioners have more than enough time to do the §32’s. Back in 2002-2003, each Commissioner attended 5.29 hearings per month; now they do one every 2-3 months, a 90% drop in the number of hearings they attend, with no additional work or responsibilities. And much of the prior travel would be eliminated because, unlike when I was the only Commissioner in New York City, there are now more in New York City.

These hearings, once they have been transferred back to the Commissioners, should be done in person and not over video. I was told that the travel costs were about $110,000 a year in 2007, mostly because two Commissioners (Henry from Buffalo and Zink from Rochester) were assigned to hearing points in Harlem and Queens. In addition, if electronic transcription were done only for §32 hearings, the savings would more than make up for the additional travel costs incurred by having the Commissioners make in-person appearances when conducting these hearings.

LAW JUDGES

If one calculates that the average §32 hearing takes 12 minutes and there are 12,000 hearings a year, that comes out to a workload of the minimum of two law judges doing nothing but waiver agreements. (12,000 hearings ÷ 5 cases per hour = 2,400 hours of hearings but since most law judges prepare for their hearings by reading the agreements in advance and, at least in NYC, 40% of the hearings are conducted with translators, I calculate a minimum of 3600 hours of hearings.)

So, while it may be necessary to hire additional judges and/or conciliators, at least two new judge hires can be saved by using existing staff: the Commissioners.

CONCLUSIONS

The Board justifies:

• its replacement of live reporters by electronic transcription to save money and make up for the shortage of reporters, both problems which can be resolved by using electronic transcription for an easily identifiable category of cases in which my statistics show minutes are very rarely needed. If the Board has other statistics, common sense would dictate they be made available in order to determine the validity of the Board’s arguments.
• eliminating certain categories of hearings and hiring more conciliators and the law judges to help expedite the resolution of controverted cases because the current staff now has too many cases. Yet the Board has burdened its law judges with approximately 12,000 hearings on a category of cases that were more than adequately administered by the now underutilized Commissioners. Equally important is the attention given to the claimants who could be heard by and speak to someone in authority without having an invisible egg timer staring at the law judge. This change will make these injured workers, for what may be their last time before the Board, feel that they’re treated like a human being.

There may be some who feel that these recommendations are far too simplistic and that I do not have access to sufficient information to make an informed judgment. I shall let my record and my book speak to that argument. It’s time that those making decisions for the Board start listening to more than just the select few who make up the Oligarchic Cabal. Otherwise the Board will continue its march in a direction totally opposite that needed to serve the community for which it was established nearly 100 years ago: injured workers and their employers.

Eliminating Oral Arguments: A MAP or a PIG?

February 8, 2010: The Workers Compensation Board’s plans to eliminate oral arguments appears to follow the Board’s normal policy for making change in procedure: they either ignore the facts or do not bother to look at them.

And, yes I have had the opportunity to review a great many documents on this subject including the very coherent presentation in the Board’s recent “Across-the-Board” dated February 3, 2010 entitled “Board Creating a New MAP for Claims”, for which MAP stands for “Managed Adjudication Path”.

And I have an excellent commentary supporting the new program by a member of the staff, which follows my commentary.

But to paraphrase an old quote, no matter how much lipstick you put on this is “PIG” (pragmatically impractical game-plan), I do not believe that a statistical analysis of Board’s records supports MAP.

As I have previously noted, while the Board believes in the mantra “Justice delayed is Justice Denied”, I must remind them that “Justice Uneven is Justice Unequal.”

Until such time as the Board is able to issue consistent decisions, it cannot continue to deny claimants and employers the opportunity to set the record straight at hearings. Equally important is that, while a good number the Law Judges would be fair in imposing Workers Compensation Law §114a-3 penalties against those who abuse the hearing process, there are also a good number of judges who will abuse this penalty such that a decision to appeal many more likely be determined by guessing before which law judge a case may be heard than it would be by the merits of the issue.

My records show that hearings change the results in 35% of decisions as compared to 6% done by simply reading the file.

I have reviewed the statistics from my own database of cases I heard on oral argument, in this case for the seven months of the calendar year 2008 when I was at the Board. Among the 55 fields I have for each record (workers compensation claim), I have the following four fields:

• Recommendation of the Administrative Review Division/Office of Appeals (ARD)
• My opinion
• Whether the recommendation and my opinion agree
• The final Board Panel decision.

A quick analysis of the relationship between these four fields shows the following:

• I agreed with the ARD’s recommendations 76% of the time and disagreed with 24% of the time.
• 15% of the time that I did agree with the ARD, the decision was changed by the Panel after all oral argument.
• 90% of the time when I did not agree with the ARD, the Panel agree with my changes.

In response to those who would argue that I was an “overly contentious”, “argumentative” commissioner, I now give you the numbers to the Board Panels:

• 65% of the time the recommendation of the ARD was accepted.
• 16% of the time the decision changed pursuant to my recommendation.
• But 19% of the time, even though I agreed with the recommendation of the ARD, the Board Panel’s final decision disagreed with that recommendation. So, after hearing the arguments and listening to my colleagues on the Panel, I agreed with them that my initial of the acceptance of the ARD’s decision was in error.
  

I also have an additional database of decisions made on paper alone: those decisions were changed approximately 6% of the time. (This 6% excludes another 10% rejected for typos, grammatical errors, and/or general incoherence.)

In summary, my record shows that the initial recommendations, which are subject to review and a formal hearing, are changed six times as often as those recommendations based simply on a review of written documents. This record strongly suggests that oral arguments/hearings before the Commissioners, and by extrapolation, before the Law Judges, have a place in the process.

I am sure that if I were to run these number for the prior 11 years I served on the Board, these numbers would not change substantially.

Bottom line is that at least on the Panels on which I served on hearings resulted in changes to 35% of the cases. What numbers does the Board have? Or, as my accountant once said about one of my partners, “What I like about him is he has already made up his mind so he doesn’t need to look at the facts.” Can we not expect better from the Workers Compensation Board?

A Reader’s Comments

[ED. NOTE: This commentary is in response to my NEWSWIRE article published on Friday.

Project 2015 Still Lives” (1/28/10 Newswire). Conciliation and Administrative Decisions have been around for 20 years. In my opinion, people are overreacting to Informal Resolution, which is simply Conciliation by another name with less paperwork. Hearings are not going out the window and cases that need hearings will get hearings. If I’m dead wrong, we’ll know by next month.

One misleading statement in that item is that hearings have been cut in half over the past 10 years while the number of judges has increased. Please recall that conciliators were de facto part-time judges 10 years ago. When NYC split up in 2001, the Board had 33 judges and 12 conciliators, the equivalent of 37-39 judges. Today, NYC has only 30 judges and 6 conciliators who due to union pressure act as judges only in emergencies. The board’s judge ranks are realistically down by 20% in NYC. (I can’t vouch for upstate).

Please also recall that 10 years ago the Board had tremendous backlogs of cases waiting for hearing dates for months on end. Manhattan alone had 10,000 hearing unsets in 2001. Obviously, the Board was shorthanded at the time. If you are willing to stipulate that tremendous backlogs like that are acceptable, then we can make do with less. Personally, I prefer staffing adequate to meet our mission. As you express very eloquently, the injured workers deserve the best; not a 6 month or more wait for a hearing.

Please also recall that 10 years ago the calendars were full of questionable hearings. The Board had C-7 cases without prima facie medical evidence and without claimants showing up. The Board had a bureaucratic mindset that cases had to regularly come on hearing even if there was no new issue. Those 1 minute hearings got the Board through the long calendars but didn’t really serve a purpose other than busywork for the Board and generating fees for services for the lawyers. There may be fewer hearings now but the average difficulty level is much higher.

Furthermore, judges work hard while may are not on calendar. 10 years ago doctors testified in court. Today, medical testimony is largely by deposition and the judge has to either write a reserved decision or prepare for a bench decision. The extensive reading required happens off calendar. Fewer hearings does not mean less work. Similarly, some Commissioners decided a few years ago that Section 32 hearings were an undue burden. Judges assumed that responsibility. Again, judges have to read the agreements off-calendar to be adequately prepared for calendar. Those of us who work with the judges think they are more productive, not less. Finally there are all those Administrative and Conciliation decisions to review, much more than 10 years ago.

Those who imply that judges are less productive than 10 years ago are mistaken and should try walking a mile in their shoes.
[ED. NOTE: The engaged Commissioners would agree with you, particularly on the section sign 32’s which were taken away from the Commissioners because one Commissioner in particular felt all those hearings interrupted vacations out of state.]

A Reader’s Opinion of the Appellate Court, Third Department

January 26, 2009: On January 4, 2010, I posted my commentary on the quality of decisions issued by the Workers Compensation Board that had been reviewed during 2009 by the New York State courts. In response of that commentary, I received a rather opinionated comment from a practitioner which I returned below after which I am also posting the response I sent to the practitioner, who did authorize many publishers is now. Any additional comments or suggestions are welcome.

My Reader’s Opinion

There is no question the Board operates in a lawless manner. The more fundamental question is why? The answer is right in front of our collective noses–the Appellate Division refuses to make this State Agency explain its decisions, or to be consistent. So the Board does what it wants, mostly with impunity.

There are 4 appellate divisions in the State but only the Third Department hears cases coming from the Board. It may be not be well known, but the Third Department hears all of the State’s agencies appeals. If I recall correctly there are about 150 agencies–of which the Workers comp Board is but one!!!! The list goes on and on: Alcohol Beverage Control, Education, Motor Vehicles, Environmental Conservation, State Retirement and Social Security, etc.

It is literally impossible for the few appellate division judges in the Third Department to have a complete grasp of the legal nuances involving every agency. And unless the facts are compelling, the court will almost always find some fact upon which to conclude the Board’s decision was based on substantial evidence. The most absurd situation is when the Board makes a decision, then the losing party appeals. Before the appellate division rules, and without any new evidence, the Board has on occasion issued an ‘amended decision’ reversing itself. In many instances the appellate division has affirmed the amended decision. This is one reason why the public has no confidence in the Board, nor in the Appellate Division decisions. Have you ever reviewed the appellate briefs? Every appellate lawyer will tell you frequently the court simply disregards the ‘tough’ issues with a dismissive ‘the court has considered the other arguments and finds them to be without merit.’ It is frustrating.

You know many of the Board’s Commissioners do not read the decisions they ’sign’ their name to–all that is needed today is a mouse click. What makes anyone think the Appellate Division is any different? Especially when in addition to a full load of civil and criminal cases they have 150 agencies to oversee.

My Response

There are a number of points in your e-mail I would like to address.

(1) While it is true that the Third Department hears from 150 state agencies, its decisions are almost exclusively limited to the Workers Compensation Board, Department of Labor Unemployment Insurance, Retirement Pensions, and the Department Of Corrections. Also when I posting decisions from the Third Department, I also check all the decisions issued by the First, Second, and Fourth Departments as well as the Court Of Appeals and various supreme and civil courts throughout the state. It is my observation that the First and Second Departments handle a far wider range of issues than does the Third Department. So I cannot agree with you on that particular point.

(2) As I noted in my book, Behind the Closed Doors, I have served with 26 commissioners. I would say that 1/3 of these read virtually every decision before they signed it, another 3rd would look at some and not others although their reviews were rather cursory, and the balance as you noted mouse-click their way through their work queues. Of course, all the writers in the legal department had to be active because they actually had to put words to paper but, for about 20% of them, their legal reasoning and attention to detail was an embarrassment. The bottom line is that you are correct: the decisions should have been better written, more coherent, and consistent.

(3) As for sending copies of my e-mail alerts or commentary from my website to the judges, that would be perfectly fine with me; you have the right to disseminate (crediting were blaming me for the content) my opinion and certainly if someone wishes to give them the advantage of the “pearls of wisdom” I periodically produce in my website, there’s nothing wrong with that. In fact I did try to acquire a list of their law clerks to send them my e-mail alerts; unfortunately I could not get that information.

The Quality of WC Board Decisions Reviewed in 2009 by the Courts

January 4, 2009: Now that this website has had the opportunity of posting one full calendar year’s worth of court decisions dealing with workers compensation-related issues, it is appropriate to do an analysis of those decisions issued by the Court of Appeals and Appellate Court as they impact on the New York State Workers Compensation Board, injured workers, and employers.

There were a total of 103 appeals in which the Workers Compensation Board was a party of interest covering 124 issues. A quick summary shows that the Appellate Court accepted the Board’s decision in only 80 (77%) of the appeals submitted to it for review, reversing 11 (11%) and sending 11 (11%) back for reconsideration, with two appeals receiving a split decision, affirmance on one issue reversal on the second. This compares to the affirmance rates of 92% in 2007 and 96% in 2006.

In doing this review, I assigned these appeals to 53 different issues in four different categories. It was only in 33 of these issues (62%) that the Board’s decisions were affirmed; on the other 20 issues (38%) the Board’s decisions met with mixed results: affirmances, reversals, and rescission. In eight cases the Appellate Court questioned the thinking process by which the Board made its decisions.

85 of these appeals involved issues raised by claimants (47 appeals) and issues raised by employers/carriers (38 appeals). Of the 47 appeals submitted by claimants, they lost 41. In the other six appeals, claimants were awarded with two reversals and four rescissions. Of the 38 appeals by employers/carriers, they lost 31 but the other seven appeals were favored with three reversals and four rescissions. Therefore one can conclude that the Court treats both sides equally.

All of the ten appeals argued by pro se claimants lost by having the original Workers Compensation Board decision affirmed by the Appellate Court.

The other 18 appeals of the 103 heard in 2009 involved disputes between carriers, employers, the State Insurance Fund, and Special Funds. In these appeals, the Board did not do well having had its decisions affirmed by the Appellate Court in only seven (41%) of the appeals with six reversals and three rescissions. There were two appeals each with two issues; in both appeals, the Court supported the Board on one issue and rejected the Board’s conclusion on the second. It appears that the issue with which the Board has the most difficulty understanding deals with the various sections of Workers Compensation Law §25 a, having its position affirmed in only three of seven appeals.

I have separated these 53 issues into the following four categories:

Was there an accident and/or does it qualify as a workers comp claim?

The 26 appeals in this category represented 21% of the appeals heard by the Appellate Court which affirmed the Board in 21 appeals (81%). Interestingly, in the other five appeals in which the Court did not support the Board’s decision, the Court rather than reversing any of them returned all five for reconsideration.

Seven of these appeals involve the issue of the timeliness of the filing of the claim, all of which were filed by claimants. The Appellate Court agreed with the Board in six of these appeals that the claim was time-barred; in the seventh appeal, the decision was returned to the Board with comments to the effect that the Board’s ruling against the claimant did not make sense.

In the seven appeals in which the Appellate Court affirmed the Board on issues involving “course of employment”, five of the losing appeals were brought by claimants and the other two losing appeals brought by carriers. The fact that the Appellate Court gives the Board discretion to choose between relatively equal sets of contradictory indicia certainly favors the Board being affirmed in these types of cases.

Who pays the bills?

The 35 appeals in this category, representing 28% of the 103 appeals heard by the Appellate Court, had the lowest affirmance rate: 69%. And even if the five appeals dealing with the definition of Workers Compensation Law §25 a are excluded, the affirmance rate is still only 74%, scattered randomly among the 19 issues in this category.

Probably the most important issue that has yet to make its way to the New York State Appellate Court deals with the issue of payments to the Aggregate Trust Fund. While I understand that there is at least one case set for argument in March or April of this year, the only case of which I am aware that has been made in any court is the Matter of Liberty Mutual Insurance Company et al v. Hurlbut et al for which a decision was issued on March 9, 2009 by the Federal Court in the New York Southern District. In this decision, the Court ruled that, “Federal abstention was proper where the claims implicated important state interests and the insurers were afforded adequate opportunity to raise their federal constitutional claims in state court proceedings.”

How much should be paid and for how long?

The 41 appeals in this category represented 33% of the 103 appeals heard by the Appellate Court which affirmed the Board in 34 (83%) of these 41 appeals.

The most common issue dealt with voluntary withdrawal from the labor market in which the Board’s decisions were affirmed in 12 of 14 appeals. Interestingly, both the claimant and carrier each had seven appeals in which both were unsuccessful in six of their appeals asking the Appellate Court to reject the original Board decision. In the other two appeals, the carrier received a reversal and the claimant a rescission.

The second most common issue dealt with medical disputes over causal relationship in which the Board was affirmed in six out of eight appeals. In the seven appeals brought to the Appellate Court by claimants, claimants were successful in only one case resulting in a reversal of the Board’s decision. The only appeal brought to the Appellate Court by a carrier was successful, also resulting in a reversal.

The third most common reason for the appeal in this category were five unsuccessful attempts to have the Board’s findings on fraud pursuant to §114-a overturned, two appeals by claimants and three by carriers.

Were the laws and proper procedures followed?

The answer to this question is an 86% affirmance rate on the 22 appeals in this category.

However, there were at least eight appeals in which the Appellate Court, in returning the case to the Board for additional review, did so because the Board drafted a decision which contradicted prior decisions, misread the issues on appeal, or failed to review all the records in the file.

However “poor “decision-making was not limited to just the Board. There were seven appeals which were denied as the issue under appeal had not been previously raised (six of these appeals by claimant attorneys) and another six appeals for which the Appellate Court supported the Boards denial of a Full Board Review (again, five by claimant attorneys).

Summary

As noted earlier the Board’s affirmance record in 2009 compares unfavorably with prior years which perhaps explains why the Board had its decisions rejected in 20 (28%) of the 53 different issues the Board reviewed which made been their way to the Appellate Court.

One could argue that the reason for the low affirmance rate is because of the Board’s willingness to be more aggressive in its interpretation of Workers Compensation Law. But if this were the case, then one would presume there would be only a few issues which made up the bulk of these reversals. But the record shows that in 38% of the issues presented to the Appellate Court for review, the Board did not always do justice to the appellant. Could the answer be a combination of the Board’s insistence on speed versus quality and the writers and ultimately the Commissioners making decisions they think is fair rather than what is legal or perhaps not knowing what is legal.

The bottom-line is that there are certain issues in which the Board has failed to get its collective minds together in order to develop a better understanding of those issues and, in turn, issue more consistent and coherent decisions. For it is this lack of consistency which causes both claimants and their employers to view the Board’s claim of fairness with skepticism. And more importantly, the skepticism results in far more cases being controverted and unnecessarily clogging the Board calendar and appeals unit as well as the Appellate Court: “Why not appeal? We may win a case because nobody is really looking.”

It is this lack of consistency and lack of transparency that should be the key issue addressed by the Chairman, the Office of General Counsel, and the Commissioners as we enter the new year.

Answers to Your E-Mails

November 2, 2009:
QUESTION #1:

nyc is doing the right thing by contesting claims without merit at the start of WTC cases carriers were not geting exams and many thousands or claims without merit were established now if a carrier or nyc wants to get an exam they are simply doing what they should have been doing all along. Don’t you believe that if a or self insured such as NYC is prevented from getting an IME or using an investigator at least some phony claims will be established? I would like a response from you.

There is no question that New York City has the responsibility to ‘review’ claims with which it is presented, be it against the WTC fund or a general workers compensation claim. You will note that I put the word ‘review’ within quotation marks as that is what this city supposed to do: to investigate the validity of the claim and not spend money seeking ways to deny every claim.

On September 11, 2009, the Workers Compensation Board released a full report, World Trade Center Cases in the New York Workers’ Compensation System, on claims made to date. In Table 1 page 18, the WCB reports 11,627 cases were filed, of which are 5,220 cases had no follow-up leaving a total of 6,407 cases to be reviewed. Of these, 461 were denied, resulting in a denial rate of 7%. New York City’s denial rate exceeds the 93%+ approval rate of the WCB which is particularly disturbing when you consider that many of the uniformed services (fire, police, and sanitation) are not covered under workers compensation law. Although fraud cases get a lot of coverage, particularly if they involve the New York State Insurance Fund, I’m sure there are well under ½% of all claims.

That New York City has a right to have investigators and/or IME’s review these claims is correct but not the use investigative techniques long since disavowed under workers compensation law precedents.

QUESTION #2:In response to my commentary supporting the payment of legal fees on medical benefits, I was sent the following question by e-mail:

My reading of the Shea case, which the board apparently now agrees with, is that whenever money moves to a claimant an atty fee lien may attach. I would be interested to review the case or cases where you challenged the board’s prior interpretation re atty fees on medical expenses. You may not remember, but you were on the original Shea panel which denied any atty fee.

The reader in this case is absolutely correct in that the original decision, in which I participated, ruled against payment of legal fees. Since the original decision, the Delacorte decision, and the revised decision are available on LEXIS-NEXIS and Westlaw, I shall not quote any language in the decision but explain why I originally denied the fee.

Very often in cases like this which deal with “black-and-white” legal issues, the commissioners depend on the Board’s legal staff of writers, of whom all are attorneys, to research case law. From the time I first joined the Board until the time of my departure, we were told consistently by the Office of the General Counsel and our writers that there was some legal issues that could never be challenged.

I am the first to admit that I’ve challenged the Office of the General Counsel and the writers on many occasions, whenever I saw a little bit of light at the end of the tunnel but I’m also realistic enough when presented with such blanket pronouncements to spend my energy elsewhere. For years the same two groups told the commissioners that attorneys had no right to challenge our determination on the amount of legal fee to be paid in a §32 settlement. Then one day we received a memo which effectively said “Oops, we made a mistake. Legal fees can be challenged.” Shea v Icelandair is another example in which I mistakenly relied upon legal obstinacy of the Office of General Counsel and writers.

Had I been on the Board after this decision, I would’ve addressed the staff attorneys as I did after the Court decision in Horton v Akzo Nobel Salt (see my book Behind the Closed Doors, page 8): “How can we trust your judgment and advice if you contradict each other or don’t understand why you do what you do?”

QUESTION #3: On occasion I get requests for an analysis on specific legal or medical issue in terms of what can be expected in the future from the Board. Because of the individual nature of these requests, my responses will be by e-mail and not in this website. If you have any such requests, send me an email addressed to TheInsider@InsideWorkersCompNY.com.

§32 Settlements & Child Support Liens

October 29, 2009: Several years ago, one of the commissioners raised an issue when faced with an upcoming §32 agreement in which there was a substantial amount of unpaid child support. There was a question as to whether or not any of the settlement award above that necessary to pay the outstanding lien could be set aside to guarantee future payment of child support. A review of WCL §33 and applicable case law made it quite clear that the only child support that could be withheld from the settlement was the amount for which there was an existing lien.

At a pre-board meeting in Albany the subject was discussed at length at which time it was determined that the Board did not have the authority to offer any other interpretation of law. And while we discussed the practical application of methods to set aside some funds from the settlement to ensure future payment of child support liens, the consensus felt this was a legislative rather than an administrative matter. In view of the decision issued today by the 3rd Department in the matter of Ashley v Worsell, perhaps it is time for the Legislature to act.

(For the record, I led the argument against using workers comp law to escrow funds from §32 settlements, arguing that this had to be done by the Legislature. As a commissioner, however, I and my fellow colleagues were prevented from expressing our opinion on this subject outside of that room. Now that I am not a Commissioner I can again raise the subject, but this time to the world at large.)

Devising a formula for the withholding of sums from the proposed settlement is relatively simple.

Since allocation rates are used in many cases dealing with Medicare, it should not be difficult to set an allocation rate on most cases in which the claimant has an outstanding lien against them for nonpayment of court-ordered child support. In most cases, child support liens range from 5% to 20% of compensation payments. Since we already know the gross amount of the settlement, less any medical set-aside (this is only for those put into escrow accounts) we can divide that by the allocation rate to determine how far into the future the settlement has been calculated to extend. And we simply multiply those number of weeks times a weekly lien to get a fixed amount to be deducted from the settlement and turned over to the state agency responsible for ensuring payment of child support liens.

• $50,000 settlement less $4,000 escrowed medical set aside = $46,000 net
• $200/week allocation rates = 230 weeks advance payment
• at $30/week current child support lien for 230 weeks = a total of $6,900 additional deduction for the child support escrow account.

There are two additional issues must be considered the legislation.

First, the child support escrow account should be modified if the child is approaching the age at which child support payments would stop. For example, if the child would reach that age in 200 weeks, then only $6000 should be put into the child support escrow account. There also has to be a means by which, if there is any other reason for the child no longer being the legal recipient of child support, then those payments stop and any excess amounts be returned to the claimant.

Second, if the amount of money being put into the child support escrow account will not be sufficient to ensure payments to the child until they reach the age at which they no longer qualify and the claimant/parent has not been paying child support directly but has been having that sum of money deducted from the escrow account, the claimant/parent may be lost to the system in any of a dozen ways and may also no longer feel any connection to the child if they have not had to pay child support for four or five years due to the escrow account.

Not to attach these settlement funds is to give an additional inducement to irresponsible parents who see taking a lump sum as a way of avoiding child support payments. This legislation not only could but should also apply to any disability or other similar payments including those awarded in any civil or administrative court action.

Next Monday’s poll will be on this subject. Then on November 9, 2009 when the results of the poll is published, this commentary in the poll results will be sent to the appropriate members of the state legislature asking them to consider changes in legislation necessary to ensure that those individuals who receive money as a result of civil court or administrative decisions do then ignore their financial responsibilities to the children that have brought into this world.

FEES ON MEDICAL EXPENSES

September 28, 2009: My reading of a case in Michigan (Matter of Petersen v. Magna Corporation, SC Docket Nos. 136542 and 136543) in which their top court found, in a 4-3 decision, that claimant attorneys should receive fees on received medical expenses brings to mind two different types of cases I have seen on this issue:

• §32’s: Assuming we all agree that a 15% or 10% fee is appropriate, should that fee also be on the amount allocated to the Medicare set-aside?
• Fights over medical treatment only, on which fees are not historically awarded.

WCL and precedent are that legal fees are to be based only on compensation awarded. But I have had, during my 12 years on the Board, a number of instances in which medical expenses and fees became relevant.

FEES FOR ONGOING CASES

On occasion, when a claimant has been awarded ongoing comp or it has stopped, there are no controversies regarding the compensation. But the need for a particular type of treatment or the frequency therein become the cause of controversy between the claimant and the carrier, the claimant’s attorney is called into the controversy to fight for the claimant’s rights. Be it in the form of letters, phone calls, formal hearings, or appeals, the claimant’s attorney incurs expenses and expended time on behalf of the claimant but, historically, is awarded no fee, except the occasional $75 appearance fee.

I remember a case in which a claimant’s spouse, an RN, provided that claimant, who had been classified for a permanent total disability (100% bedridden), with his medical care and then billed the carrier for her services at the rate for which an 3rd party RN would have charged for that 24/7 treatment. Without going into the details, this case involved an staggering amount of work, in part because the wife did not file her claim for the medical charges from several years so not only was the sum of money at dispute quite large, so were all the pages of backup. But since the claimant had already been classified PTD at the maximum rate, none of the work the attorney was doing would have an economic benefit for the claimant but only to the medical provider to insure proper treatment for the claimant. When the file came to me as a member of the panel hearing the appeal, the file must have been a foot thick. I am sure that the claimant attorney spend at least 50 hours or more working on this case. Yet, if he won, there would have been no fee.

On the other hand, the carrier attorney does get paid of defending against that same claim

This fee structure obviously puts the claimant at a serious disadvantage.

§32 FEES ON MEDICAL SET-ASIDES

Several years ago, I had a §32 settlement for about $800,000 of which $650,000 ( I am guesstimating at the numbers) was specifically noted in the agreement as a Medicare set-aside to be deposited into an escrow account. The claimant’s attorney sought a fee on the $800,000 but I calculated it on the $150,000 of comp. For to do otherwise, would have netted the claimant, after the $65,000 10% fee on the set-aside, $585,000 to pay for what was expected to be $650,000 in future medical expenses.

On the other hand, many §32’s for permanent partial disability (PPD) are settled for 5½ years as compared to the 5 years of similar settlement under §15-5b Lump Sums; The extra ½ for the §32 is assumed to be for any possible future medical expenses. But since many of these PPD claimants taking §32’s are similar to those taking the §15-5b settlement in that they have not had medical treatment in years and, unless that ½ year is put to an escrow account, the claimant has effectively received extra cash to use for ‘income’.

But since only about 35% or so of the §32 cases I saw were PPD’s, one could not so easily determine how much of the settlement was in lieu of future comp and how much in lieu of future medical. The carrier certainly was not going to give such a breakdown and the claimant’s attorney was interested in maximum dollars regardless of whatever ‘ghost’ allocation was done between medical and compensation.

Thus in most of these §32’s, without the formal escrowed set-aside, it made sense to most of the commissioners to accept a fee based on the gross amount of the settlement. In fact, if the set-aside was not more than 5%-10% or the gross settlement, most of us approved the fee as requested.

It was only on those occasions when he Medicare Set-aside was 20% or more that the fee was based on the ‘net’ compensation moving to the claimant.

Be that as it may, the Medicare Set-aside is subject to negotiations and the claimant attorney does work to get the amount he and the claimant feel is most appropriate. So perhaps some sort of renumeration is appropriate.

PROPOSAL

I propose the following:

§32s: The fee be set on the net, if there is a formal set-aside into an escrow account. Thus the claimant, if he really feels that that extra money is for medical expenses and should not be subject to a fee, should be wiling to deposit it into the escrow account. But if the claimant feels it is really just extra compensation, let them pay a fee on it.

Open cases: There should be a sliding fee schedule, the higher the medical expenses being disputed , the higher the fee to be paid the claimant’s attorney should they win, a fee to be paid bu the carrier over and above the medical expenses and not to be deducted from the claimant’s compensation. This would not be for those cases in which the issue of controversy is solely the degree of disability which may incur additional medical treatment.

The following fee structure, based on total medical expenses being controverted, is made up out of ‘thin air’ and is included here solely for the purpose of starting a discussion.

• under $1,000______No fee
• $1,000 - $4,999____5%
  
• $5,000 - $9,999____4%
• $10,000 - $24,999__3%
• $25,000 - $49,999__2%
• $50,000 and up ____1%

SUMMARY

Paying compensation to the injured worker is only part of the process necessary to allow the injured worker to return to the workplace as a productive member of society. Insuring prompt and appropriate medical care is just as important, as $400 a week in tax-free compensation but waiting eight months for surgery can well result in a PTD rather than temporary partial disability or a small SLU.

Ladies and Gentlemen, the floor is yours.

Matter of D’Errico [AD3d, August 20, 2009]
Case Analysis

September 11, 2009: The following is a guest commentary on this issue followed by my own brief comment.

Mental stress injuries related to the work place continue to challenge the WCB and the Courts and produce decisions of questionable jurisprudence. Matter of D’Errico reflects this phenomenon.

The element central to the Board’s and court’s analysis is the class of employees or threshold for compensability of a causally related mental stress claim. Unaddressed in both the Board’s and court’s opinion, however, is whether the facts of the claim ought to be analyzed as an occupational injury.

In Wolfe v. Sibley [ N.Y. 2d, 505 (1978)] the court held compensable a mental stress accident where the claimant discovered the body of her supervisor in his office. Here, the competent producing cause was a single event. In subsequent decisions, the courts attempted to fashion a threshold rule to evaluate other mental stress injuries which threshold, in effect, also established a norm for the required stress exposure:

• In Loh Lin [75 A.D. 2d, 702 (1980)], the court held that claimant’s job aggravation was the aggravation normally expected in the usual give and take of employment.
• In Wood [27 A.D. 2d (1980), the court held that the issue of mental stress must be examined on the facts from the common sense perspective of the average person.
• In Kaliski [151 A.D. 2d, 687 (1989)], the threshold norm was refined to require that the stress experienced by the claimant must be greater than the “usual irritations and differences to which all workers are occasionally subject.

Subsequent decisions have employed other criteria to establish the threshold class of workers:

• Pecora [13 AD3d, 917 (2004) held that there must be a showing that the affected claimant experienced stress greater than that which other similarly situated workers experienced in the normal work environment.
• Pinto [19 AD3d, 948 (2005)] the threshold required a showing greater than that experienced by the claimant’s peers. Unless all parties engage in demonstrating by evidence and proof of the threshold norm to support or deny the claim, the trier of fact is without a basis to evaluate the threshold norm.

In the case at bar [D’Errico], the WCLJ held the threshold norm to be “all municipal maintenance workers employed by New York City.” A Board Panel reversed the WCLJ stating that the threshold norm to be used “without evidence or proof” is the stress experienced by “other employees in the ordinary course of employment at a correctional facility.” The Appellate Division upheld this threshold.

The danger in these rules is that “ unsupported by proof or evidence “ they become self-sustaining without life, a ‟zombie” rule. Nor was this oversight neglected by the dissent which stated the threshold was employed in a “wholly conclusory fashion without any stated rationale, discussion of pertinent evidence in the record, or explanation of the reason for rejection of the classification applied by the Workers’ Compensation Law Judge.” The dissent also noted “that the record includes no evidence that non-penal correctional facility employees, such as administrators, clerks of cooks, were exposed to traumatic experiences comparable to those he alleged.” The threshold rule in mental stress claims can be said to be arbitrary as it is absent evidence upon which to base a legal decision or conclusion. In this way, the Appellate Division may avoid a challenge that its determination in upholding the Board is arbitrary, since it is based upon prior holdings; however arbitrary the rule may be. In its application, the rule creates unpredictable results which, by definition, are capricious.

Moreover, in light of the absence of rigorous legal analysis, the same rule can be deemed an abuse of discretion as the threshold rule is subject to no discernable legal scrutiny. These analyses are also supported by two observations in the mental stress cases herein cited: the several claims involving correctional facilities, each with a different class threshold [“peers”; “all employees in a correctional facility”; “similarly situated workers”]; and the fact that such claims arise in correctional facilities cogently suggests a more wide spread worker safety or exposure issue.

Neither the Board nor the courts have looked to the jurisprudence concerning analysis of mental stress injuries as occupational in nature. These include ( NYS Workers’ Compensation Handbook, Sec 302[1], 2008) “physical hazards as well as exposure to diseases and toxins. Repetitive stress injuries and degenerative back disorders are commonly established as occupational diseases.” The court has “clearly held that a case may be analyzed as either an accident or occupational disease as long as the disability developed over a reasonably definite period of time.” [ Handbook, ibid.]The occupational injury analysis avoids the “zombie” rule by focusing the evaluation on the lay and medical evidence to determine whether the mental stress experienced is, in fact, the competent producing cause. Such analysis also avoids the class threshold permitting the trier of fact to assess the “personal” nature of the injury without the enormous burden of determining whether any class [viz., peers, average person, all workers, similarly situated, etc.] may be found to experience mental stress.

In addition, the occupational analysis affords the trier of fact an additional factor to consider: the length of time in which the stress was experienced.

Some supporters of the threshold norm or class argue that, where the employer affords training to defend against mental stress, such should also be considered. Under this criterion, repetitive motion injuries held as occupational would be open to proof or evidence that the claimant had received training in the safe use of the machinery that caused an extremity injury and deny the claim. Or, that the claimant alleging carpal tunnel syndrome belonged to a class of workers that does not experience repetitive motion. The point is that it’s not the class of employees but the individual’s experience that must be regarded.

Is the claimant with a history of poor driving in a class suspect for accidents? Assuming, arguendo, that the class threshold were empirically demonstrated [viz., by research studies or reasonable evidence] it is not relevant to the experience of the individual. The claimant has neither a duty to develop nor can it be said that he enjoys some greater tolerance to mental stress than co-workers.

This is true even where prevention or safety training is evident because such relies upon yet another set of norms to be considered relevant. Absent proof or evidence, the D’Errico rule requires, at a minimum, that the trier of fact have some knowledge of the work experiences of employees in correctional facilities in order to assess the claim. Clearly, this is not possible. This same experience would be necessary for the trier of fact to assess hateful conduct to which the claimant was exposed (e.g. sexual or gender, racial or ethnic). Should the class be employees at Sing Sing, Attica, or Riker’s Island? Again, the length of time to which the claimant was exposed becomes a crucial issue in the fact pattern.

D’Errico and its antecedents present infirmities of legal reasoning and jurisprudence not consistent with the purpose [Wolfe, supra] of the statute or case law. Employing a threshold of a class of workers fails to consider the fact pattern and further suffers from establishing classes of questionable criteria, application, and relevance and are not demonstrable.

What, in fact, is the experience “norm” for any class and what must the trier of fact rely upon for that evaluation? Ultimately, it is the medical and lay evidence.

My review of the above

Had I been on the Board Panel, I would have affirmed the law judge. Would a staff worker in the warden’s office who visited the area of incarceration every three or four weeks also be considered part of the same class as officers who deal with these conditions every day? I think not. Or I would hope not.

Also, the writer raises a point about which I have raised my concern on more than one occasion at the board. He call it the ‘zombie’ rule. I call it the ‘domino tree effect’. Pile up some dominoes with each successive layer moved to one side every so slightly. After 20, 30, or so dominoes, the one on top is no longer over the one on the bottom, possiblye covers only 5% of the bottom one and the pile falls over. Too many legal arguments are like that. The Board, because it is easier to move the line, say for a ‘class, slightly in size rather than rethink what was the purpose of the class in the first place, generates automatic ‘zombie’ decisions.

Under Chairman Weiss, at pre-board, such issues would be discussed to make sure that the legal zombie/domino rule did not blind us to (1) common sense and (2) the real goal of workers compensation. But these discussions were only once a month, for well under an hour, usually only on one issue.

But I do not feel, unlike the writer, that having an attorney on every panel would solve the problem. I have served on panels with attorneys who were too intellectually lazy to think about the bottom domino. Rather it was the ‘ignorant’ non-attorneys who felt that the proposed decision missed the point.

But until the Commissioners, all of them, are willing to spend some intellectual capital discussing threshold issues, more bad controversial decisions like D’Errico will be made.

Comments are welcome.

Project 2015: The end of the WCB Board

September 4, 2009: In a report published today by Mike Whiteley, the Eastern Bureau Chief of WorkComp Central, the Secret Cabal at the NYS Workers Compensation Board, actually a secret work group headed by Executive Director Joseph Pennisi, is making plans to eliminate all hearing, apparently by 2015 if not sooner, based on the Canadian WC system.

When former Chairman Zachary Weiss stated at the pubic monthly meeting of the Workers Compensation Board, “There comes a time when due process must come to an end”, I thought he was kind of joking. He was not.

When Weiss, who had a background as a criminal prosecutor, was on the special committee established by Governor Spitzer, we had lunch and he spoke to me about, among other subjects, eliminating hearings. He said that hearings (trials) at the WCB were taking too long, seeming to go on endlessly.

I argued, apparently unsuccessfully, that I saw a major difference between WC and the criminal justice and civil court systems. In these court systems, the basic issue deals with an event that occurred on a specific date or dates in the past. The decision being sought deals with how to resolve that question.

Workers Compensation is quite different, for it deals with establishing not only ANCR (Accident, notice, and causal relationship), but the awarding of compensation as the claimant’s degree of disability and ability to return to pre-injury wage levels changes over time. In addition, questions arise as to medical treatment and surgery that change over time. For a similar case in civil court, projections are made on wage loss and medical expenses (and pain and suffering) and a one-time amount is determined. If the actual lost wages and/or medical treatment is in excess of or less than that settlement, no adjustment is made.

But in the WC system, the concept is to pay what is necessary to make the injured worker as ‘whole’ as possible.

This can not be done in a hearing six weeks or even six months after the date of injury. In fact, in order to qualify for an SLU, there must be a one year waiting period, that is unless the Oligarchic Cabal can arrange for the claimant to achieve ‘maximum medical improvement’ within some fixed period of time.

So the concept of having all hearings done in a short and fixed period time has no meaning in WC.

As to the concept of hearings themselves, perhaps no one has considered the history of the U.S. as compared to that of Canada. In this country, we believe in trial/hearings even in administrative justice so that both sides can not only have the chance to present their side of the story but to face their accuser/opponent: we give far more power to our citizens.

The Board, under its current program of requiring that most medical testimony be done by deposition, implicitly acknowledges the rights of parties to cross-examine their adversaries’ witnesses. Why should this right not also apply to the claimants and employers’ witnesses? Or perhaps the Board will develop a criteria under which all these cross examination will also be done by deposition.

The fact that this new process will add substantially to the time it takes a claimant’s attorney to handle claims without any commensurate increase in their fees is irrelevant, or is it? [ED. NOTE: I am assuming that this is in the new process but because this is a secret project, no one really knows.]

And, of course, the carriers’ attorney will thus have an additional source of revenue, for the billing attached to the time to set up the depositions and the travel to the locations to actually do them.

As a commissioner who participated in about 40,000 decision on paper and about 4,000 hearings, I have rather strong opinions on this subject. Yes, the Memorandum of Decisions (MoDs) done by the commissioners were done on paper and only a small percentage of these cases went to an oral argument. (And the Oligarchic Cabal has been very aggressive in eliminating oral arguments which too many of the insouciant commissioners are only happy to go along with. This way they only have to fly up from their Florida homes for the monthly meeting and not a mid-month hearing.)

Yes, for the last umpteen years, MODs have been done on paper with only few going to a formal hearing. But these MoDs are not fact finding decisions. The facts are already be in the file, used by the law judge in making the decision. The Commissioners, just like the judges at the Appellate Court review already established facts and determine if (1) the facts add up to the conclusion reached at the lower lever and (2) the law is being properly interpreted in the case.

“He said/she said” issues are not resolved by reading an accident report. Not only does not one write an accident report that covers all the facts that occurred at the time but two witness may have seen the accident from different perspectives and only by close examination, at a hearing, can the correct one, if there is one, be found.

Sometimes, the engaged commissioners when reading an MoD would ask for an oral argument because the issues in front of us were deemed to be too complex to be dealt with on the basis of one appeal and one rebuttal. It is only at a hearing that such differences can be resolved and, sometimes, when the opposing parties are at the table a compromise can be reached that could never have occurred with a law judge reading documents.

So why is this being proposed?

I do not think it is to speed up the system as much as it is to invest even more power in the hands of the Albany bureaucrats.

I know from my own experience as a commissioner that too many MoD’s were given to me that did not reflect the true facts in the case or the current law but appeared to be written for some other purpose. And in view of the fact that a number of commissioners never read the MODs before signing them and one panel was made up of three insouciants, the bureaucracy could determine who won and who lost. When the case was before a law judge, the law judge, in an open forum, i.e. his decision could be appealed to the Commissioners, would make his decision in the light of day. If the bureaucracy were to make decisions out of the light of day, one would find as I did with my own database that certain commissioners and law judges had certain prejudices on certain issues and for certain claimants - their voting patterns were well off the standard deviation of the stats for the other commissioners on the same matters.

But if decisions are made in secret, then several goals are accomplished.

The Oligarchic Cabal does not have to put up with the ‘people’, be they the attorneys or, more importantly, the claimants. I can tell you that it amazed me as a commissioners how far some commissioners went to avoid having to deal with claimants. And there would be no need to hear lawyers argue a case (or harangue the law judges as one commissioner would complain).

Hearings would get done faster and the cost of running district offices would be reduced, although the Oligarchic Cabal in Albany would have to/be able to hire more staff to do the work, and there would be less complaints because there would be far less light on the proceedings.

I have proposed that one could write a computer program into which both sides would put all the pertinent facts. The computer would then match that information up with the tens of thousands of similar cases and come up with an answer based on all those prior decisions. There would probably be a 99% accuracy rate. I was told I was stupid and the idea ridiculous.

But, lo and behold, the idea has risen again, only this time the board staff will make those determinations based on documentary submission by the aggrieved parties, based on these individuals’ interpretation of the facts and their own prejudices, but behind closed doors

This secret 2015 project goes against all the attempts at fairness I have seen fought for, for years by board staff, the bar for both sides, the unions, and employers.

It will only be stopped if you, the community which is the constituency of the WCB, make your voices heard. At this time the New York State Workers Alliance is leading the fight on this issue. Others must join.

Stay tuned for developments as the Oligarchic Cabal gives us a good reason to think about the true meaning of Labor Day.

September 4, 2009

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Matter of Cassata v General Motors Powertrain

2010 NY Slip Op 02448

Decided on March 25, 2010

New York State Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Posted as a service of www.InsideWorkersCompNY.Com Michael T. Berns, Publisher

Decided and Entered: March 25, 2010

 

507083
In the Matter of the Claim of

KAREN CASSATA, Claimant,
v
GENERAL MOTORS POWERTRAIN etal., Appellants, and SPECIAL DISABILITY FUND,Respondent. WORKERS’ COMPENSATION BOARD, Respondent.

Calendar Date: January 14, 2010
Before: Peters, J.P., Spain, Lahtinen, Stein and Garry, JJ.

 

Gielowski, Federice & Caligiuri, L.L.P., Buffalo (Joseph A. Caligiuri of counsel), for appellants.

Steven M. Licht, Special Funds Conservation Committee, Albany (Jennie Choy of counsel), for Special Disability Fund, respondent.

 

MEMORANDUM AND ORDER

Spain, J.

 

Appeal from a decision of the Workers’ Compensation Board, filed August 6, 2008, which ruled that the self-insured employer was not entitled to reimbursement by the Special Funds Conservation Committee.

Claimant sustained injury to her neck in the course of her employment on September 14, 1998 and her case was indexed and her claim for workers’ compensation benefits was filed on November 22, 2000. At a May 2005 hearing, the Special Funds Conservation Committee pointed out that the self-insured employer had never filed with the Workers’ Compensation Board a claim for reimbursement from the Special Funds (form C-250) as required by Workers’ Compensation Law § 15 (8) (f), and the Board confirmed that no such form could be located in its file for claimant. In a decision dated May 11, 2005, a Workers’ Compensation Law Judge classified claimant as permanently partially disabled, and directed the employer to locate any evidence of a timely filed form C-250. On February 5, 2007, the employer filed with the Board a form C-250 bearing the date “November 30, 2000,” which it argued had been timely filed, but must have been misplaced by the Board. The Special Funds argued that no form C-250 was filed until that untimely 2007 filing.

The record contains a 2001 Special Funds pretrial conference worksheet, signed by representatives of the Special Funds and the employer, in which the box was checked that “[Workers’ Compensation Law § ] 15.8 applies” and, in the box for “C-250 received date,” the date “11/30/00″ is handwritten. The employer argued that this pretrial worksheet proved that the form C-250 was filed in 2000, prompting that pretrial conference in January 2001. The Special Funds argued, however, that this document did not establish the employer’s timely filing of a form C-250 with the Board and that, while it had agreed in 2001 (later withdrawn) to the applicability of Workers’ Compensation Law § 15 (8), it had not waived the timely filing requirement. The Workers’ Compensation Law Judge found that the form C-250, filed in 2007, was untimely and, thus, the employer is not entitled to reimbursement from the Special Funds, which it discharged. The Board affirmed. Claimant now appeals.

As an incentive to hire permanently disabled workers, an employer or its workers’ compensation carrier may be reimbursed from the Special Funds under Workers’ Compensation Law § 15 (8), the “Second Injury Law,” for all awards of compensation and medical expenses for an employee’s permanent disability or death, after it pays such benefits for a specified number of weeks, provided that certain criteria are satisfied, including that the employee had a preexisting permanent physical impairment and sustains a new compensable injury (see Workers’ Compensation Law § 15 [8]; see also Matter of Li v Southern Garden, Inc., 69 AD3d 1175, 1177 [2010]). “A prerequisite to reimbursement, however, is the filing of a timely claim with the Board” (Matter of Guarascio v Spargo Wire Co., 32 AD3d 1148, 1149 [2006] [emphasis added]) on a form prescribed by the Board’s chair, here, form C-250 (see 12 NYCR 300.5 [e]; see also Matter of Hernandez v Taco Bell, Inc., 52 AD3d 891, 892 [2008]).

Under Workers’ Compensation Law § 15 (8) (f), an employer must file form C-250 “prior to the final determination that the resulting disability is permanent, but in no case more than [104] weeks after the date of disability or death or [52] weeks after the date that a claim for compensation is filed with the chair, whichever is later” (see Matter of Guarascio v Spargo Wire Co., 32 AD3d at 1149). Thus, the very latest conceivable date that the employer could have filed a form C-250 with the Board was November 22, 2002, i.e., 104 weeks after claimant first lost time at work due to the 1998 accident. Under settled law, the issue of whether and when a form C-250 was filed with the Board is a factual one that the Board is entitled to resolve, and its decision will be upheld if supported by substantial evidence (see Matter of Tagliavento v Borg-Warner Auto, 252 AD2d 753, 753-754 [1998]; Matter of Allen v Bausch & Lomb, 130 AD2d 802, 803 [1987]; Matter of Kearsch v Town of Hempstead, 98 AD2d 893, 894 [1983]; Matter of Logiudice v Dic Underhill & Palmieri, 72 AD2d 657, 658 [1979]).

It is undisputed that the Board’s file did not contain a form C-250 in 2005, when a finding of permanency was made. No documentation exists in the record to establish that the form C-250 bearing a 2000 date was sent to the Board until 2007, and the Board concluded that the employer “failed to produce any evidence of timely filing of its C-250 with the Board.” The pretrial conference worksheet did not establish receipt by the Board, and a handwritten note on it (”timely?”) supports the conclusion that the timeliness of filing with the Board was unresolved. [*3]The Special Funds did not waive its right to assert this defense, and the fact that it was on notice or was not prejudiced does not excuse the employer’s failure to timely file with the Board (see Matter of Hernandez v Taco Bell, Inc., 52 AD3d at 892-893). As the Board’s decision that the form C-250 was not timely filed, implicitly rejecting the employer’s contention that it had been timely filed but misplaced, is based upon substantial evidence, it will be affirmed, notwithstanding that the evidence would also have supported the contrary conclusion of timely filing (see Matter of Kearsch v Town of Hempstead, 98 AD2d at 894).

Peters, J.P., Lahtinen, Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Matter of D’Avilar v New York Univ. School of Medicine

2010 NY Slip Op 02453

Decided on March 25, 2010

New York State Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Posted as a service of www.InsideWorkersCompNY.Com Michael T. Berns, Publisher

Decided and Entered: March 25, 2010
507465
In the Matter of the Claim of

DENISE D’AVILAR, Appellant,
v
NEW YORK UNIVERSITY SCHOOL OF MEDICINE et al., Respondents. WORKERS’ COMPENSATION BOARD, Respondent.

Calendar Date: February 11, 2010
Before: Mercure, J.P., Lahtinen, Malone Jr., McCarthy and
Garry, JJ.

Grey & Grey, L.L.P., Farmingdale (Kevin M. Plante of counsel), for appellant.
Foley, Smit, O’Boyle & Weisman, Hauppauge Theresa E. Wolinski of counsel), for New York University School of Medicine and another, respondents.

MEMORANDUM AND ORDER
McCarthy, J.

Appeal from a decision of the Workers’ Compensation Board, filed September 25, 2008, which, among other things, ruled that claimant did not sustain causally related consequential injuries.

In August 2005, claimant sustained a work-related injury to her right knee which required that she undergo reconstructive surgery and physical therapy. The incident resulted in an established workers’ compensation claim. On July 28, 2006, claimant had completed physical therapy at the Hospital for Special Surgery when she slipped — injuring her left knee and back — while purchasing coffee in that facility’s cafeteria. Following hearings, a Workers’ Compensation Law Judge determined that these injuries were consequential to claimant’s compensable injury and amended the claim. Upon review, the Workers’ Compensation Board reversed, concluding that claimant’s latter injuries were not compensable because they occurred while she was engaged in a personal errand. Claimant appeals.

“Whether an activity constitutes a purely personal pursuit is a factual issue for the Board, and its resolution of that issue will not be disturbed unless it is unsupported by record evidence” (Matter of Pagano v Anheuser Busch, 301 AD2d 977, 978 [2003] [citation omitted]). Moreover, although injuries sustained in the course of traveling to or from treatment for a causally related injury may warrant a workers’ compensation award, “[c]ompensability is usually denied when an added factor weakens the connection between the initial and consequential injuries” (Matter of Font v New York City Bd. of Educ., 170 AD2d 928, 929 [1991]). Here, claimant testified that she had finished therapy and gone into the cafeteria to get something to drink. The coffee she received was cold so she returned it to the cashier. As the cashier was showing claimant where she could refill her cup with hot coffee, claimant slipped on a section of the floor that was wet. Such testimony is consistent with information that claimant provided to her treating physician, whose notes regarding the event indicate that “[claimant] fell down after finishing physical therapy in [the] hospital because [the] floor of the hospital cafeteria was wet.”

Under such circumstances, the Board could rationally conclude that the work-related aspects of claimant’s trip had ended and that the causal connection between claimant’s employment and her off-duty injuries was severed by her pursuit of a personal errand (see Matter of Gabriele v Educational Bus Transp., Inc., 17 AD3d 910, 911 [2005]; Matter of Schuyler v City of Newburgh Fire Dept., 292 AD2d 702, 703 [2002]). Accordingly, as the Board’s determination is supported by substantial evidence, it must be affirmed (see Matter of Goss v Hornblower & Weeks, 69 AD2d 972, 972 [1979]).

Mercure, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.