insideworkerscompny.com » 2010» April

NEWSWIRE

April 30, 2010: Weekly postings of news reports, press releases, legislative updates, and background stories of concern to those who participate in the State of New York Workers Compensation system: injured workers, carriers and employers, their attorneys, Board staff, and third party vendors. This page also posts ‘insider’ information about proposed changes in practice and procedures at the NYS Workers Compensation Board, information not available anywhere else. If you would like to be added to our weekly e-mail alert list or have any submissions or suggestions, they can be sent to me at TheInsider@InsideWorkersCompNY.com.

COURT DECISIONS

►More Reversals This week, WCB loses two!

►Another feature on the DECISIONS page: Pending hearings & decisions..click here

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

OUR NEWEST POLL RESULTS

►Vote in our new Poll:Questions on the Board’s Medical Procedures

ON OUR OTHER PAGES

►Commissioner Bios September updates

►A reader’s opinion of Appellate Court decisions

►Legal Fees on Medical Bill??

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

THIS WEEK’S NEWSWIRE

►Majestic/CRM considers options

►Appellate Judges Reveal Pet Peeves, Winning Strategies

►NYSIF Elects Chair and Vice Chair

PRIOR WEEKS’ NEWSWIRE

►Where are the FBR’s

►Senate Bill Adds COLA to WCB Awards

►Emergency Adoption of New Medical Fee Schedule

►What’s up, Doc? A 2nd WCB Doctor

►New Max. Weekly Benefit Rate Effective July 1, 2010

►Close Bars to Save on WC claims?!?

►Board has Educational Webinar

►The names of theTwo New Commissioners

►New Impairment /Wage Loss Guidelines Delayed

►WCB Buffalo Office Lease Political Controversy

►Friend or Foe? Pay or No!

►Two New Commissioners on the Way

►New Impairment/Wage Loss Guidelines Almost Done

►NY Woman Gets Fed’s ‘Goat’ for WC Fraud

►NY Woman Gets Fed’s ‘Goat’ for WC Fraud
NYSIF Discusses WC Insurance Rates

►NY’s Workers Comp System among the Nation’s Worst

►CRM Lays Off 15% of Staff

►Colorado’s Sale of its WC Insurance Fund is Cancelled

►Ohio Proposes: No WC benefits for Illegal Aliens

►WC Attorney Defeats Negligence Claim

►A Vaccine for Malignant Mesothelioma?

►Medical Guidelines Pilot

►The Board’s Regulatory Wish List

►Spine stimulation may not help after failed surgery

►Triangle Shirtwaist Group Names Award Recipients for 2010

►WCB’s Appearance Before Senate Finance Committee

►About Time: Legal Training for Commissioners

►Project 2015 Still Lives

►WAMO and the Dept. of Insurance

►Shortage of Doctors Upstate for Injured Workers

►Best Attorneys in 2009

►Fenster’s Path to His Appointment

►Two NYSIF Board Appointments

►WCB Signs New Lease for Harlem District Office

►WC Research Provides Insight into Curbing Health Care Costs

►Board Reduces Performance Standards For Carrier

►CMS Liens: No Statute of Limitations

►Paterson Announced New Exec Dir for the Workers Comp Bd

►Are Dist Mgrs Going the way of the Dist Admins?

►The Success of TENS units questioned

►NYS Sues CRM Civilly and Criminally

►‘Illegal Immigrant’ or ‘Undocumented Immigrant’?

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

►Ohio Senator wants illegal workers banned from workers comp

►Higher Unemployment = Higher Comp Claims

►Annsville man pleads not guilty to shooting investigator

►More WCB Staff Changes

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

►In Memoriam: Joseph Tauriello

►“Lazy” Judge on trial before Court of Appeals

►In Memorium:
Louis R. Salvo

►CA Insurance Commissioner Rejects WC Rate Increase

►Public WC Insurance Funds Better Run Than Private Ones

►CORRECTION

►Lobbyists Lose on ATF in Federal Court

►Typo not worth $1.6 Billion, this time!

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

►No New Commissioner under Consideration

►Oklahoma considers confiscating surplus workers comp funds

►New Commissioner being considered

►WC Law Suits v Fed Ex on Drivers

►Nebraska Waives Settlement Hearings

►WCB Exec. Dir. Pennisi Resigns

►NYS Issues Bonds for 2nd Injury Fund

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

►Link to our Archive Index

Where are the FBR’s

April 30, 2010: A few months ago, the Workers Compensation Board proudly announced that it would be publishing on its website selected Full Board Reviews and some regular Board Panel memorandum of decisions.

However, it did so only once.

So I would like to offer my services:

If the board would send me, even on paper, a variety of FBR’s, I will print whatever they send me.

Or is it possible that the two services (Lexis-Nexis and Westlaw) objected to the Board giving away for free what these two companies can charge for?

Senate Bill Adds COLA to WCB Awards

April 29, 2010: the New York State Labor Committee is expected to approve some time next month Senate Bill S1970B which provides for cost-of-living adjustments to death benefits and increasing certain wage percentages for calculation of benefits. Whether or not it gets approved on the floor is uncertain. The official summary of the bill reads:

An act to amend the workers’ compensation law, in relation to providing for cost-of-living adjustments to death benefits and increasing certain wage percentages for calculation of benefits AN ACT to amend the workers’ compensation law, in relation to providing for cost-of-living adjustments to death benefits and increasing certain wage percentages for calculation of benefits.

To read the specific details of this bill, go to http://open.nysenate.gov/legislation/bill/S1970.

Emergency Adoption of New Medical Fee Schedule

April 29, 2010: Although no formal announcement has been issued by the New York State Workers Compensation Board, There was a March 22, 2010 Notice of Emergency Adoption and accompanying documents relating to a new set Subchapter M. consisting of Parts 440 and 442 entitled “Pharmacy and Durable Medical Goods Fee Schedules and Appendices” will be published in the April 7, 2010, edition of the State Register.

What’s up, Doc? A 2nd WCB Doctor

April 26, 2010: The Board will welcome in the near term, Elain Sobol Berger, MD JD, as its new full-time Associate Medical Director. She will serve under Dr. Levin, the Board’s Interim Medical Director, who serves in a part-time capacity. Dr. Berger has been an integral part of the 2007 Reform Task Force, and her hands-on knowledge of that work will hopefully provide for continuity at the Board as that the recommendations get translated into guidelines and regulations. Dr Berger was a member of the task force which helped develop the medical treatment guidelines.

New Maximum Weekly Benefit Rate Effective July 1, 2010

April 19, 2010: On July 1, 2009, the statutory maximum benefit was raised to $600 per week, which resulted in a maximum payroll limitation of $900.

On July 1, 2010, and annually thereafter, the maximum workers compensation weekly benefit will increase to two-thirds of the statewide average weekly wage, as determined by the New York Department of Labor, in accordance with the provisions of the 2007 Workers Compensation Reform Act. This change in the maximum weekly benefit will result in a corresponding increase in the payroll limitation amount, which will now, in effect, be the average weekly wage as calculated by the Department of Labor.

Consequently, please be advised that, for policies with effective dates on and after July 1, 2010, the payroll limitation cap will be $1,109.75 per week. This information is also available from Subject No. 046-416 issued by the Workers Compensation Board on April 22.

Close Bars to Save on WC claims?!?

April 20, 2010: As reported by cbs6albany, the Saratoga City Council is considering a proposal to require that all bars close at 2AM rather than the 4AM allowed under New York State Law, in order to cut down on workers compensation claims.

According to John Franck who serves as the accounts commissioner for the city, between 2007 - 2009 Saratoga dealt with 80 workers comp claims in which 18 of those came between the hours of 2 a.m. - 4 a.m. He tells CBS 6 that the city will save on overtime and insurance premiums by just closing the bars two hours earlier.

However, there is nothing which explains what the City will save on workers comp claims since one has to assume that the employees of the bars work for private companies and any injured patrons would not be covered by workers compensation. The only explanation is that local law enforcement officers are being injured as a result of the bars staying open these extra two hours.

What does not make sense is that the Council plans that the new rule should not be in effect during the busy summer months (Memorial Day to Labor Day) so I guess that an injured city worker is less valuable during the summer than the winter.

Board has Educational Webinar

April 17, 2010: As an expression of the Board’s concern over the importance of its new programs, the Board on April 16 gave five days notice to members of the workers compensation community that the Board would be hosting an informational program to discuss issues related to inpatient rate reform which went into effect on December 1, 2009. The new system is based on All Patient Refined Diagnostic Related Groups (APR-DRG) and incorporates a new rate methodology for inpatient hospital care for patients covered by workers’ compensation and no-fault auto insurance beginning December 1, 2009.

In view of the fact that representatives from the Department of Health (which prepares the rate schedule), 3M Health Information Systems (the Department of Health’s contractor on APR-DRG), and the Hospital Association of New York State were to be participants in this program, it is surprising (or is it) that the Board did not give earlier notice to the community.

I would be interested in receiving any comments from those who participated which could be sent to my attention at TheInsider@InsideWorkersCompNY.com.

Judge bans WCB raids to pay unfunded injury claims

April 16, 2010: As reported by James Odata of the Albany/Times Union, Acting State Supreme Court Justice Kimberly A. O’Connor ruled Wednesday the NYS Workers Compensation Board can no longer raise its assessments on self-insurance groups to make up for the unfunded liabilities of a series of defaulted self-insurance trusts.

The Judge ruled that the Board has been unconstitutionally taxing healthy self-insurance groups, leaving the state’s workplace insurance system stuck with a nearly half-billion-dollar bill for unfunded injury claims.

As soon as I can access the actual decision, I will make it available.

Another Supreme Court decision, this time from NY County, also involving underfunded liabilities, was issued by Justice Carol R. Edmead with the two parties in this case being RBG Management and CRM regarding “a certain Indemnification Agreement, [under which] plaintiffs each agreed to be jointly and severally liable for expenses and obligations concerning workers’ compensation liability while they remained a ‘Participating Employer.’ ” To read this case, click here ….

New Commissioners (Corrected)

April 15, 2010: I now have the correct name of the second nominee for Commissioner on the New York State Workers Compensation Board.

I previously reported that the first nominee is Sam Williams who is the director of the United Auto Workers CAP and is also Co-Chairman of the Western New York Chapter of the Working Family Party. As a very active leader in the labor movement, Williams was also co-chairman of the Western New York Area Labor Federation and has been a frequent contributor to the opinion pages of various Buffalo newspapers on labor related issues.

The correct name of the second nominee is Loren Lobban, not Warren Logan. Loren D Lobban has been a member of the NY Bar since 1976, practicing insurance and criminal law. He graduated from Northern Michigan University with a BA and got his JD at SUNY Buffalo. Like Williams, Lobban is involved in Democratic/WPF politic as an active contributor to Democratic candidates fr for national and statewide offices. As a matter of interest, Lobban has contributed to Brian Higgins for Congress ($5000 in 2006), the brother of current Commissioner Mark Higgins, but with enough left over for State Senate President Malcom Smith, among other state democratic office holders. His partner, H. Todd Bullard, served as a Monroe County legislator.

It is expected that these names will be sent to the New York State Labor Committee and then the Finance Committee for the next few weeks.

These two individuals will fill two of three vacancies on the Board. It is expected that Robert Beloten will remain as chairman, certainly through the end of his friend, Governor Paterson’s, term of office and that Francis levels will remain as Vice Chairman as long as the governor’s office, be it Patterson or Cuomo, need the assistance of her husband, Republican State Senator Thomas Libous, to pass legislation.

Impairment/Wage Loss Task Force Delayed

April 15, 2010: It appears that the Impairment/Wage Loss Task Force is having some internal differences of opinion making it likely that the proposed guidelines to be used to determine lost wages will not be done by the end of April but delayed to some time in late May. There should be a lot of pressure placed on the parties in the Task Force as two upcoming events should be based on the new methods of calculating degree of functional disability in return to work.

First, the New York Compensation Insurance Rating Board will be publishing its rates shortly and the opportunity will be lost for lower premiums based on projected savings from the new functional disability schedules and return to work programs.

Second, the new average weekly wage for injuries occurring on or after July 1, 2010 will be $1,109.75 as calculated by the New York State Department of Labor’s Research and Statistics Division, pursuant to Workers’ Compensation Law § 2(16).

[ED. NOTE: I have not seen any the documents being used to produce the guidelines or any the guidelines themselves, I do have concerns as to their applicability in the real world known as the “hearing part” where the law judges and on occasion commissioners are required to make decisions regarding the degree of disability and the dollar amount of compensation. I also do not know who are the members of the Task Force. But I’m reminded of an incident which I regularly recount regarding the fact that too many of the policymakers have no experience working in the trenches of workers compensation, too “important” to even visit a hearing. When I invited one such person to attend the hearing I was conducting on §32 settlements, the response was, “I’m too busy writing the new regulations for conducting §32 hearings to attend them.”

Having been on the number of boards over the years as well as having been CEO of a number of private-sector companies, I am well aware of the dichotomies that exist between theory, policy, and practice. And while the Task Force is responsible for setting the policy, once the parties can agree on their philosophy, there must be somebody with hands-on experience to make sure that the policies can in fact be “practiced”.

I therefore make the following recommendations.

A law judge or commissioner, if not both, should be included in the discussions of the task force to make sure that the proposed guidelines have a practical application in the hearing parts. However, I’m aware of the fact that no sitting law judge would want to put up with the backroom pressures which they would be subjected, and I don’t think that those commissioners who would be competent enough to participate would want to put up with the potential political heat.

However, I can think of four individuals with real-world experience with these issues and would make excellent additions to Task Force for this purpose. Please note that the people being mentioned had not been given any forewarning of their inclusion in this recommendation. They are, in no particular order, Robert Snashall, former Board Chairman; Mark Solomon, former deputy general counsel and senior law judge and now a Social Security judge; Carol McManus, former Commissioner and still active as a consultant in workers compensation field; and, if I may be so bold, me.

I’m sure that the Task Force can think of others who have “on the ground experience” and have reputations for fairness and objectivity despite whatever philosophies they may have.

The functional equivalency guidelines and the return to work programs are far too important to be tied up in political or bureaucratic infighting. More importantly, these new Guidelines will put New York State in the national forefront of the treatment and rehabilitation of injured workers and prove that, despite the economic uncertainties faced by our state, New York can still lead the nation.

WCB Buffalo Office Lease Political Controversy

April 14, 2010: Nearly 9 months after signing a new lease to move the Workers Compensation Board’s Buffalo office to space owned by companies owned by Carl Paladino, the State of New York has suddenly discovered that the landlord, Paladino, has made what they consider to be politically incorrect statements. As reported in this website in July 2009 the Board’s former landlord was going into bankruptcy and the State selected the building owned by Paladino which coincidentally contains a number of other state agencies.

But no matter how objectionable the landlord’s statements may be, most people agree that the lease is a legally binding document and, unless there is a morality clause in the contract, it is hard to see how those leases can be broken.

The following was reported by Tom Precious in the Buffalo News but the main question which nobody seems to ask is why was this space rented for an agency which serves injured workers when the office is accessible only by a small elevator going to the fourth floor and the closest parking the building is far enough away that valet parking must be provided by the landlord. And despite finger-pointing at the Pataki administration, is important to note, as reported in the Buffalo News, that although the Pataki administration signed many of the leases, additional leases were signed by the subsequent administrations. And before the administration or the state legislature get too aggressive on seeking the automatic termination of otherwise legal contracts with landlords whose statements and or behavior is “inappropriate”, someone should remind them of the articles in the New York City press about some of the pork that was handed out in Queens, Brooklyn, and the Bronx.

On April 14, 2010, The Buffalo News reported “that Paladino has more than two dozen contracts — about $85 million in value — with various state agencies that lease space in buildings owned by him or partnerships in which he is a member. The current contracts, dating back to 1999,. . . . include the State University of New York; the departments of Education andMotor Vehicles; and the Office of Children and Family Services.

“The Paladino camp countered this morning, saying the Paterson administration for more than a year — long before Paladino became a gubernatorial candidate — has been trying to kill his contracts with the state. ‘They have been looking for any reason to pull the leases from landlords to give them to their political cronies,’ said Michael Caputo, Paladino’s campaign manager. ‘Carl has been in disagreement with the Paterson administration for quite some time. This is actually just the next step in the process,’ Caputo said of the administration’s move since the e-mails surfaced this week.”

Friend or Foe? Pay or No!

April 14, 2010: The New York State Workers Compensation Board today issued Subject Nbr 046–413 regarding billing procedures for unpaid penalties.

To quote Subject Nbr., “In 2009, as part of the development of an updated billing process for these penalties, all parties with unpaid procedural penalties received a bill for past-due penalties dating back to 2003. These bills contained an offer of settlement for those who did not wish to research and appeal each individual penalty because the Board recognized that a small number of invalid penalties might be included in those bills. This process of resolving old penalties is currently being concluded.”

Yet last summer, the Board boasted that it had sent bills to nearly 10,000 employers who failed to have had workers compensation insurance. It was widely reported in the press that many of those getting bills were employers who had been out of business for 10 or 15 years, churches and other nonprofits that had long since gone out of business, and a wide variety of entities who probably did not need to have insurance. Some of these claims went back well beyond the time frame for which most companies keep business records, thus making them unable to prove whether they had insurance or even if they had employees. Yet the Board boasted how tough they were going to be on all these small business owners.

Now the Board acknowledges that it is waiving substantial portions of penalties that could have been and should have been collected against carriers who are still doing business in the State of New York.

Perhaps the Board’s policy is a reflection of state bureaucracy in general: chase and beat up on the small employers and taxpayers but be very nice to your friends who are the big businesses because they can fight back and even make contributions to the political leadership.

Perhaps the Board would be so kind as to publish some statistics on the 10,000 firms it was chasing to let us know how many of these 10,000 firms even responded, how much money was due, and how much was collected. And when the New York State Worker’s Compensation Board puts in a request in their next budget for another $50 million for upgraded computer systems, perhaps they should be told that if they bothered using their current systems properly, that they probably have collected several million dollars for these past due penalties.

Two New Commissioners on the Way

April 8, 2010: It has been learned that negotiations between the Patterson administration and the leadership of the New York State Senate have resulted in an agreement on the next two nominees to the New York State Worker’s Compensation Board. The two anticipated nominees are from the Buffalo region, one of whom has been previously mentioned in this website although I do not currently have information as to which of the individuals it is. And, finally, one of the two is a practicing attorney.

It is expected that the names will be placed before the Senate Labor and Finance committees within the next six weeks, although with the current state of affairs in Albany one can never be certain of anything until the gavel comes down on the Speaker’s podium. This leaves one vacancy on the current board which can be filled by Governor Paterson with two terms, Mona Bargnesi (Buffalo) and Candace Finnegan (Peekskill), expiring December 31, 2010 which would then be filled by the next governor.

New Impairment/Wage Loss Guidelines Almost Done

April 8, 2010: Two years after it was first constituted during the Spitzer administration, the Impairment/Wage Loss Task Force will be submitting its guidelines to the New York State Workers Compensation Board on April 25, 2010.

The Board will then have the opportunity to review these guidelines and can either propose changes or recommend its adoptation by the Board.

These guidelines will dramatically change the way that injured workers have been compensated for lost wages as well as establishing various methods of assisting injured workers in returning to the workplace, with their employer of record, a new employer, or in a different occupation/trade.

It has long been recognized that two people with identical injuries can be impacted in two dramatically different ways in terms of wage loss. For example, a law judge and a court reporter can both break several bones in their nondominant hand requiring not only the wearing of a cast for several weeks but also losing the use of their fingers on that hand for a few months. The law judge may be incapacitated from doing their work for a few days whereas a court reporter may be unable to return to work for several months, if ever. And yet from a medical/disability perspective, both could be determined to have a mild-to-moderate disability. Under the new guidelines, it is the wage loss and earnings impairment that will be measured such that, after the first week or so, the law judge’s compensation would be minimal if anything whereas the court reporter,s award could come close to the maximum compensation allowed and continue for several weeks if not longer.

Another key element of the new guidelines for long-term wage loss would be in part determined by the availability of other occupations or trades. As was explained to me by one party familiar with the discussions on the guidelines, those whose work involves physical labor would gain greater benefits under the new guidelines than they currently have while office workers and other professionals, whose return to work in the same capacity as prior to their injury is far less limited, would be getting less benefits.

As a personal note, I do remember that as new commissioners would join the Board, after a few months of reviewing decisions and attending hearings, most ask why it was that two people with the same injury would get the same amount of money even though one could not return to their former trade while the second, if kicked hard enough in rear end, could return to work even if with some discomfort.

These long-awaited guidelines offer the current Board the opportunity to usher into the system an entirely new concept which addresses and hopefully corrects the inequities found in the workers compensation system in the past. One can only hope that the Commissioners and other top executives at the Board act upon these new guidelines as soon as they are received in order to allay the ever growing suspicions that this current Board and its executives have no concern for the injured workers or their employers.

NY Woman Gets Fed’s ‘Goat’ for WC Fraud

April 6, 2010: In the plea announced Tuesday, U.S. Attorney Richard Hartunian for the Northern District of New York announced that an upstate woman pleaded guilty in U.S. District Court to making false statements to the U.S. Department of Labor, while admitting that she sold goats while collecting more than $60,000 in federal workers compensation. As a result of a guilty plea, she faces up to five years in prison and a fine up to $250,000.

For those who think that the penalties imposed by the New York State Workers Compensation Board under WCL §114-a or those imposed by New York State Supreme Court under WCL §114 should note the penalties in the above federal case and recognize, in comparison, how minimal are the penalties for cheating in New York State’s workers compensation system.

[ED. NOTE: She worked for the U.S. Postal Service which is the reason this was a federal case, a point noted in the press release issued by the U.S Attorney’s office but omitted by the AP and other entities reporting this story.]

NYSIF Discusses WC Insurance Rates

April 5, 2010: In a just released document, the New York State Insurance Fund (SIF) explains why its annual rates are lower than those of its competitors in the private sector.

SIF writes that “A simple explanation is that the amount charged for your type of business is derived from the most recent total amount paid on claims for similar types of businesses statewide. This determines the loss cost for your class of business. The New York Compensation Insurance Rating Board (NYCIRB) promulgates these loss costs, reflecting data from all insurance companies, which become official upon approval by the New York State Insurance Department. As part of workers’ comp. reform, all insurance companies, including NYSIF, apply their own Loss Cost Multiplier (LCM) to the official loss costs in arriving at a manual rate for any given classification.”

The document then goes on to explain why it is that SIF’s rates are lower.

[ED. NOTE: Not to be judgmental, but isn’t that the same thing that CRM did?]

NY’s Workers Comp System among the Nation’s Worst

April 2, 2010: New York State’s workers compensation system ranks as one of the worst in the 2010 State Report Cards for Workers’ Comp in a report issued by the Work Loss Data Institute (WLDI). This report is based on eight years of data from 2000 through 2007 and covers 43 states plus Puerto Rico, Palm, and the Virgin Islands.

Minnesota performed the best of all the states for 2007 and Nevada and Arizona came in a close second and third. All three states received a grade of “A+” based on an average of their 2007 scores in the five categories above. A summary of each grade for all states is shown on a map of the United States. The worst performers for the years 2000-2007 were: New York, Illinois, Kentucky, Oklahoma, and Wyoming.

The 2010 State Report Cards, based on data from OSHA Forms 300 and 200, provide five different outcome measures compared among the states for each year: (1) Incidence Rates, (2) Cases Missing Work, (3) Median Disability Durations, (4) Delayed Recovery Rate; and (5) Key Condition: Low Back Strain. An essential requirement for production of this report was the proprietary crosswalk program that has been developed by Work Loss Data Institute, which converts OSHA-reported data into an ICD9 code format.

The WLDI special report, entitled 2010 State Report Cards for Workers’ Comp provides complete detail on all cases for the 46 participating states and territories, based on all cases reported to OSHA for the years 2000-2007 as a 79-page report with narrative, plus over 50 spreadsheet files with complete detailed backup data that is referenced in the narrative. It is available in both electronic and hardcopy formats for $250 each. Note: The electronic format is recommended to facilitate links to the electronic spreadsheet files and the supporting data and can be ordered over the internet at www.worklossdata.com

CRM Lays Off 15% of Staff

March 31, 2010: CRM, which specializes in workers compensation insurance, announced that it has eliminated 30 jobs, 15% of its total workforce, the majority at its Poughkeepsie offices. CRM stated that although it will record a one-time charge of the $417,000 with the termination benefits, annual savings should be $2.6 million. Nonetheless, CRM reported on March 9 that its net loss for 2009 was $45,000,000. And CRM again confirmed that the Office of New York State Attorney General Cuomo is continuing its investigation into CRM’s alleged mishandling of various self-insured trusts which managed.

As reported on August 18, 2009 by Roberto Ceniceros of Businessinsurance, among others, the list of victims of the underfunding of self-insured trusts continues to grow. Ceniceros reported that a New York State Workers’ Compensation Board spokesman reported that nearly 2,000 companies insured under group trusts formerly operated by CRM Holdings Ltd. have been billed $133 million to cover unfunded workers compensation claims.

Yet despite all financial problems that CRM Holdings, Ltd (NASDAQ: CRMH) currently has, and despite the fact that its stock has dropped from $5.00 a share two years ago to $.33 a share on March 30, 2010, approximately 1,000,000 shares of stock have been purchased by Ivan (John) Mihaljevic, either directly or through Mihaljevic Capital Management LLC and Mihaljevic Capital Management LLC, according to the Schedule 13G filed March 26, 2010.

Colorado’s Sale of its WC Insurance Fund is Cancelled

March 30, 2010: After nearly a year of discussions, arguments, and lobbying, Colorado Governor Bill Ritter has canceled a proposal to sell Pinnacol Assurance, thus denying Colorado the opportunity to sell the state-chartered workers compensation insurance fund and raise between $200 million and $500 million to help balance a budget shortfall estimated at between $212 million and $1.3 billion.

Originally, the Democratic-led legislature considered tapping $500 million from Pinnacol’s roughly $2 billion in assets but, when that plan failed, the next plan was to convert the company into a private entity after a payment of $330 million to the state.

Fortunately for the employers and injured workers of Colorado, the financial stability of this workers compensation insurance fund remains intact, perhaps a signal to other states who would also consider withdrawing assets from their state-chartered workers compensation insurance funds

[ED. NOTE: I would be most appreciative if one of my readers could explain to me why it is that if the reserve funds of a workers compensation insurance fund are too low because of actuarial errors that the carrier and its management are subject to potential criminal and civil penalties whereas, if the reserve funds are too low because the money was “confiscated” by a political entity ,that is considered to be legitimate, i.e. CMR v Pinnacol.]

Ohio Proposes: No WC benefits for Illegal Aliens

March 16, 2010: Ohio Senator Bill Seitz introduced Senate Bill 238 to the Ohio General Assembly. If passed, this bill would amend Ohio’s Revised Code to prohibit illegal and unauthorized aliens from receiving compensation and benefits under Ohio’s Workers’ Compensation Law.

Currently, in Ohio, illegal and unauthorized aliens are afforded the same benefits under Workers’ Compensation Law that other workers are. In other words, illegal and unauthorized workers who are injured in the course of and arising out of their employment are allowed to file workers’ compensation claims and receive benefits and treatment for their injuries.

Senate Bill 238 adds to existing legislation two additional categories of individuals who would no longer be qualified as “employees”: illegal aliens or unauthorized aliens. The legislation would require injured workers to submit along with their claim documentation proving they were covered under the amended law. The law also would prevent Ohio courts from having jurisdiction over claims for damages suffered by an illegal alien or an unauthorized alien in the course of employment but does give courts jurisdiction over these claims if the employer employed the illegal alien or unauthorized alien knowing that the illegal alien or unauthorized alien was not authorized to work under the Immigration Reform and Control Act.

The legislation defines an illegal alien as an alien who is deportable if apprehended because of one of the following:

The alien entered the United States illegally without the proper authorization and documents.
The alien once entered the United States legally and has since violated the terms of the status under which the alien entered the United States, making that alien an “out of status” alien.
The alien once entered the United States legally but has overstayed the time limits of the original legal status.

Additional details can be found at www.employerlawreport.com or www.daytondailynews.com.

Legal Fees for WTC Settlements Unreasonable

March 26, 2010: In a press release issued today, I agreed with Federal Judge Alvin K. Hellerstein of United States District Court in Manhattan rejection of the proposed Ground Zero Settlement, particularly with regards to the legal fees which are excessive when compared to other jurisdictions.

I stated that the fees being sought in the settlements in the amount of 30% to 40% are excessive when compared to the fee structure that exists in the New York State workers compensation system. I ended my statement by suggesting 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.

The full text of my statement can be found on the COMMENTARY & REPORTS page under the heading “Legal Fees for WTC Settlements Unreasonable”.

▼ Posted Friday March 26, 2010 ▼

WC Attorney Defeats Negligence Claim

March 4, 2010: An injured worker’s action against her workers compensation attorney, Alan M Cass, to win in civil court after she did not win at the New York State Worker’s Compensation Board was rejected by the First Department of the New York State Appellate Term of the Supreme Court. The Court in granting Cass’ motion for summary judgment reversed the decision of the Civil Court of the City of New York, New York County, which denied that motion.

In bringing her complaint, Elaine Lupo contended that the defendant was negligent in the handling of her claim, for his failure to present evidence and cross-examine opposing witnesses. The defendant made a prima facie showing that his firm was not negligent and, further, that “their claimed negligence did not proximally cause plaintiffs alleged damages”. The Appellate Court wrote in its decision that the allegations “amount[ed] to nothing more than criticism of defense’s considered tactical strategy of how best to pursue plaintiffs claim . . .” In its decision the Court was quite clear that it would not second-guess Lupo’s attorney, that some of her claims were based purely on speculation.

This decision follows a line of cases in which the Courts have refused to second-guess the strategies of the attorneys representing injured workers, essentially taking the position that not every case and every issue raised by claimants will be affirmed by the Board, regardless of the efforts of their legal representatives.

Details of the Court’s opinion can be found on our DECISIONS page or by linking to the actual decision: Lupo v Cass 2010 NY Slip Op 50310(U).

[ED.NOTE: perhaps a sign referencing the language in this decision should be posted over the door of every hearing part.]

A Vaccine for Malignant Mesothelioma?

February 17, 2010: The American Journal of Respiratory and Critical Care Medicine has accepted for publication an article about tests that show inoculations prevent Malignant Mesothelioma.

A group of scientists working out of the Netherlands demonstrated that dendritic cell-based immunotherapy induced protective antitumor immunity with prolonged survival in mice. Then now they then embarked on a trial of 10 patients with malignant pleural mesothelioma who received vaccinations at two-week intervals after chemotherapy. This study demonstrated that autologous tumor lysate-pulsed dendritic cell-based therapy is feasible, well-tolerated, and capable of inducing immunological response to tumor cells in mesothelioma patients.

Because the study is in the early stages, no mention was made of the time frame for its availability to the public at large nor is there any indication of the impact this could have on the thousands of cases of pleural mesothelioma currently in the workers compensation system not just in New York but throughout the United States as well as the tens of thousands of cases being fought over in civil courts throughout the country.

A summary of the study, titled “Consolidative Dendritic Cell-Based Immunotherapy Elicits Cytotoxicity Against Malignant Mesothelioma”, can be found at http://ajrccm.atsjournals.org/cgi/content/abstract/200909-1465OCv1. More information on the actual trials can be found at www.clinicaltrials.gov NCT00280982.

Our Newest Poll Now Ready

March 15, 2010: As a result of changes in the Board’s requirements for the issuance of medical reports, more medical providers have decided to no longer treat injured workers. As previously noted in my website as well as other sites, the Board acknowledges a shortage of medical providers in the Rochester area. But the problems occasioned by the shortage in Rochester are being found throughout the state. There are complaints that so many doctors, including IME’s, are dropping out that the Board’s list of doctors in woefully out-of-date, claimants cannot get timely medical treatment, and their return to health and decisions on their case are unnecessarily delayed.

This poll is now up and running - you are welcome to give your opinion by participating in this poll:

Questions on the Board’s Medical Procedures

Thank you for your participation. Results will be published Monday March 22, 2010.

Medical Guidelines Pilot

March 4, 2010: The New York State Worker’s Compensation Board has again revised its medical treatment guidelines, as a part of its continuing effort to meet the deadlines of the 2007 statutory reforms.

The ‘content changes’ are discussed in the “Substantive changes in the Proposed Medical Treatment Guidelines January 19, 2010 revision” document. The reformatting changes “Formatting changes in the Revised Medical Treatment Guidelines” are designed to make guidelines easier to use and more consistent.

In 2009, the Board requested public comments to the Draft Guidelines. Based on those comments and exhaustive reviews of recent medical literature, the Board revised the Draft Guidelines in January 2010. The Board anticipates issuing proposed regulations to adopt the Revised Guidelines in the near future.

On Monday, November 30th, the Board started a Medical Treatment Guidelines Pilot with both Providers and Payers. The pilot program is designed to test the process for implementing the adopted Guidelines. Participants in this pilot will have a unique opportunity to provide feedback that will help shape the final procedures. The pilot will run until the proposed Guidelines are formally adopted by regulation and the delivery of the comprehensive training program has been completed. The Board encourages both providers and payers to participate in this pilot program. It is our hope that a successful pilot program will help accelerate delivery of quality medical services to injured workers, reduce disputes and cut system costs. If your organization is interested in participating or has questions regarding the pilot, please contact the Medical Director’s Office at 1-800-781-2362 or WCBMedicalDirectorsOffice@wcb.state.ny.us.

The Board’s Regulatory Wish List

MARCH 4, 2010: The January 2010 Regulatory Agenda was published in the January 6, 2010, edition of the State Register , allegedly to provide small businesses, local governments, and public and private interests in rural areas with the opportunity to participate in the rule making process, as provided for in State Administrative Procedures Act sections 202-b and 202-bb.

The Workers’ Compensation Board agenda included 20 different items ranging from medical issues to the management of self-insured trusts.

Also among these items are a plan to amend Parts 390 and 393 regarding the Aggregate Trust Fund to conform to the amendments to Workers’ Compensation Law §27, the decisions of the Board and the recent decision by the 2nd Circuit Court of Appeals. The Board also proposes to repeal and readopt Part 302 regarding the rules governing licensed representatives. The amendments will separate the provisions that apply to third-party administrators from those of licensed claimant representatives and address applications, duties, standards of conduct and licensure.

However, a careful review of some of the proposed changes would suggest that the Board is seeking to bypass the state legislature and institute changes to the Workers Compensation Law by changing the rules and regulations that define how the laws are managed by the Board

You can read the entire regulatory agenda by linking here.

Spine stimulation may not help after failed surgery

February 17, 2010: Reuters Health today summarized a study which showed that a commonly used treatment for patients who still suffer chronic back and leg pain after having back surgery is essentially no better than specialized pain treatment or standard medical treatment.

But the findings do not mean that the procedure — spinal cord stimulation — will not help some people, Dr. Ajay D. Wasan of Brigham and Women’s Hospital and Harvard Medical School in Boston notes in a written commentary published with the study in the journal Pain.V(olume 148, Issue 1, January 2010, Pages 3-4 )

Spinal cord stimulation, in which implanted electrodes send small electrical impulses into the spine, has been used since the 1960s for patients with so-called “failed back surgery syndrome,” Dr. Judith A. Turner of the University of Washington in Seattle and her colleagues note in their report. However, questions remain about the procedure’s risks and long-term effectiveness. Also, they point out, no studies done to date have included patients on workers’ compensation, who are known to fare worse with any type of pain treatment.

To investigate, Turner and her team studied a group of patients with a workers’ compensation claim who had persistent low back and leg pain following previous back surgery.

They compared the outcomes of 51 people who had at least a trial of spinal cord stimulation (27 went on to have the electrodes implanted permanently) with those of 39 people who underwent evaluation at a pain clinic, and 68 who received neither spinal cord stimulation nor specialized pain treatment. Fewer than 10 percent of the patients in any of the groups showed notable improvements in leg pain and function, or were able to step down from daily use of opioid painkillers, the researchers found. While the spinal cord stimulation group showed slightly better improvements in leg pain and function at six months, these patients used more opioids than patients in the other two groups. At 12 and 24 months, there were no differences among the three groups.

While the researchers did not compare the outcomes for people who only had a trial of spinal cord stimulation and those who went on to have electrodes implanted permanently, Wasan points out, results for these two groups were “distinctly different,” with 30 percent of people who underwent permanent implantation showing improvement in leg pain and function at two years.

The full report is available from sciencedirect.com for a small fee.

Triangle Shirtwaist Group
Names Award Recipients for 2010

February 16, 2010: The Triangle Shirtwaist Factory Fire Memorial (TSFFM) announced that four individuals have been named to receive a Clara Lemlich Public Service award for their work and efforts in calling attention to and participating in the reform of workers’ compensation and improvement of occupational safety in New York State.

Those named to the Class of 2010 are: M. Patricia Smith, recently approved by the US Senate as Solicitor at the US Department of Labor and previously Commissioner of the NYS Department of Labor; Lillian Roberts, Executive Director of NYC’s District Council 37; Veronica Montgomery-Costa, President of DC 37; and Richard D. Winsten, Esq., a partner at Meyer, Suozzi, English and Klein.

Lee Clarke, a member of the Board of Directors of TSFFM and Director of Health and Safety at DC 37, in announcing the awards, observed, “Although history is supposed to be a great teacher, we too often are not familiar with its many heroes who slug it out day to day for working men and women. Clara Lemlich, a young Jewish immigrant, was among those who rose to the occasion and inspired many with her voice and her actions. The Lemlich Class of 2010 represents this ideal.“

In the early 1900’s, Lemlich participated in efforts to improve the working conditions of her co-workers in the garment industry. Despite a number of severe beatings by goons hired by factory owners, Lemlich continued her organizing efforts. On November 22, 1909, after hours of speeches from labor representatives mostly men, she mounted the stage at Cooper Union and addressed the workers in Yiddish. Her words inspired 20,000 workers to strike, one which lasted until February 10, 1910 and resulted in better wages and working conditions for members of the ILGWU.

“But,” noted Clarke, “the Triangle factory owners did not participate in the reforms of the 1909 labor action and it was the tragic fire of March 25, 1911 that woke up the entire nation. We need to be reminded of that. So, I am proud to honor these men and women and recognize their connection to, not only labor history, but to all who enjoy safer and better working conditions.“

The awards will be presented at TSFFM’s Eighth Annual Memorial dinner to be held at the NYC Fire Museum in lower Manhattan on March 25. Proceeds from the dinner and a journal are dedicated to a scholarship program for children of injured workers. Attendees are treated to cocktails, a four-star dinner, and entertainment with themes relating to the 1900’s, the Triangle era, and performed by an amateur theatre group. “In this way,” offered Jim McCarthy, President of TSFFM, “we fulfill TSFFM’s mission to commemorate the Triangle tragedy and remind the public of the need for vigilance in workplace safety. The Lemlich awards and our scholarship program are concrete testimonials to these ends.“

And their work continueth,
Broad and deep continueth,
Greater than their knowing!

For additional information contact James M. McCarthy (TSFFM) at 718-830-3200 or jmccarthy@nycomplawyers.com or www.trianglememorial.org.

Chief Justice Lippman’s Court of Appeals

February 17, 2010: The New York Times has today published a review of the first year of Chief Justice Jonathan Lippman’s stewardship of the New York Court of Appeals, having been appointed to that position by Governor Paterson in January 2009.

According to the author of the article, William Glaberson, “the parameters of the Lippman court are coming into focus. He has helped turn the Court of Appeals into a scrappier, more divided and more liberal panel, its rulings and court statistics show. the past year, the court has issued a series of sharply divided decisions that have been surprising from a judicial body with a clear 4-to-3 conservative majority. They have included decisions favoring criminal defendants and injured workers, expanding environmental challenges and extolling individual rights against the police.”

“The message he is sending is he doesn’t mind fighting for a much more progressive direction at the court,” Vincent M. Bonventre, a professor at Albany Law School who studies the court, said of Judge Lippman.

According to Bonventre, a professor at Albany Law School who studies the court, “The message he is sending is he doesn’t mind fighting for a much more progressive direction at the court.” As noted in my NEWSWIRE posting of February 13, 2009, Bonventre’s blog makes reference to Lippman’s one workers compensation case. “In Bellamy v. Columbia University, Lippman wrote for a 3 - 2 majority, refusing to dismiss a lawsuit brought by a worker who hurt himself slipping and falling in one of the University’s kitchens where he worked. He rejected the University’s position that it was necessarily immune from this negligence claim under the Workers’ Compensation Law.”

At that time I noted that it would be interesting to see if Bonventre’s analysis of Lippman appearing to be pro-plaintiff proves to be correct. It is.

According to Glaberson,

The Lippman court has also shifted ground on worker injury suits, saying that in the past the court too rigidly limited some of them. It has also signaled a new interest in arguments from criminal defendants, sharply increasing, at Judge Lippman’s urging, the number of appeals it is considering. Early in his tenure, he wrote a 6-to-1 decision in favor of an injured patient against two doctors, a ruling that the dissenter, Judge Smith, called a “gross injustice” to the doctors.

In early December, Judge Lippman went further, indicating that he planned some changes in injury cases. He “reluctantly” agreed with the dismissal of a damages suit against New York City by a public school teacher who was injured by a student , saying an earlier ruling limiting such suits should be changed.

A couple of weeks later, he got all seven votes in the case of an injured worker, declaring that the court in the past had too narrowly construed a law originally intended to help workers win suits against employers. Legal commentators have noted the change from Judge Kaye’s court, which had voted 7 to 0 the opposite way in at least one case involving an injured worker.

The protection of the law for injured workers, Judge Lippman wrote, had “been construed to be less wide than its text would indicate.” In the coded language of the courts, that was a hand grenade tossed at the old Court of Appeals, before the arrival of Chief Judge Lippman.

In 2009, there were 4 cases in which the Court of Appeals issued decisions regarding injured workers although the New York State Workers Compensation Board was not a party of interest in any of them. In one pro-injured worker decision, the Matter of Passante v Agway Consumer Products, the dissenting Justice wrote “Decisions like today’s can only make things worse.”

The New York Times article covers far more detail as well as adding graphs and charts regarding the increasing divisiveness of the Lippman Court. As to the impact on any workers compensation claims that make their way to the Court of Appeals, only the future can tell.

Board Publicity: Selective at Best

February 18, 2010: Since January 1 of this year, the New York State Workers Compensation Board has published 16 Subject Numbers listing 16 doctors and one medical company whose practice of workers compensation medicine has been limited or ended.

Over the last few years the Workers Compensation Board has been very aggressive in investigating fraud, malpractice, malfeasance, misfeasance, and several other patterns of behavior by medical providers which deny both the injured worker and the carrier/employer proper medical treatment that an appropriate cost. In the Board, by issuing all of these Subject Numbers is taken steps to make sure that the people in the State of New York as well as those in the workers compensation community are aware of Boards steps to improve the system.

The Board’s interest in promoting its activities is substantiated by nearly 100 medical providers whose names were listed in Subject Numbers published in 2009.

Unfortunately, it is only the activities of outside parties whose actions impact on the Board that the Board wishes to publicize and not the Board’s own plans for changes in procedures. Interesting to note the fine line that the Board has drawn between changes in some procedures which are done secretly and announced after-the-fact and those which, by law, require advance publication in the NYCRR to allow public comment.

CO Legislature: “Video Surveillance Unfair”

February 18, 2010: Colorado’s House Judiciary Committee has approved a bill that would prohibit employers or insurers from conducting surveillance, including videos, of employees who have filed a workers’ compensation claim, unless there is “a reasonable basis to suspect that the employee has committed fraud.” According to Business Insurance, companies who break the proposed law face a $1,000-a-day fine.

The Colorado movement to curb insurers comes at a time when carriers are cracking down on employees who take extended sick leave or file disability claims. SmartMoney reports that an insurance case manager called a Washington state woman who has breast cancer at 7 a.m. to ask probing questions about her health, such as “Did she feel well enough to exercise?” The magazine says that insurers are cutting back coverage where possible and “putting employee complaints under a microscope.”

But insurers also have an argument. Workers’ compensation payments, along with no-fault medical fraud costs are “spiraling out of control,” according to the New York Insurance Association. Among the NYIA’s concerns are lawyers who hire “runners” to set up fake accidents, and then send the “injured” for medical treatment at prearranged doctors and chiropractors who split inflated fees. Over the last three years, suspected fraud cases have jumped 33 percent in New York State.

Further details on the story written by Bnet reporter Ed Leefeldt can be found at: http://industry.bnet.com/financial-services/10007029/smile-youre-on-your-insurers-candid-camera/

WCB’s Appearance Before Senate Finance Committee

February 11, 2009: On Wednesday February 10, 2010, the New York State Senate Budget Committee met to discuss issues dealing with the New York State Workers Compensation Board and spent nearly 2 hours discussing three subjects:

The Board’s plans to eliminate hearing
The Board’s Plans to Eliminate Verbatim Reporters
The $100 million in the “excess fund”

Speaking on behalf of the New York State Worker’s Compensation Board was Chairman Robert Beloten assisted by General Counsel Kenneth Munnelly and Budget Director Mary Beth Wood.

Other speakers included Stephen Zinone, President of New York State Court Reporters Association, and Peter Walsh and William Crosset, representing a special Workers Compensation Committee of the New York State Bar Association.

ELIMINATING HEARINGS

After number of introductory remarks, Senator Honorato asked the Board could have more law judges but less hearings and what happens to Due Process under §25(2)(b). Munnelly noted that the Legislature in 1991 authorized a conciliation process and the Board has been aggressive in moving many cases to conciliation, He added that 80% of the proposed decisions made at conciliation are accepted, substantiating the Board’s position that many hearings are not needed. Chairman Beloten gave an example of a disputed medical bill, the resolution of which does not need an injured worker to take time off from work to attend the hearing. [ED. NOTE: His response ignores the fact that on many issues of this nature claimants are told by their attorneys that their attendance is not necessary.]

Senator Honorato asked for a further clarification of Project 2015. Mary Beth Wood explained that the idea was to reduce the number of hearings by using more conciliators but also stated that the plan was to give a “slight” $10,000 raise to the approximately 20 conciliators which then prompted a follow-up question as to why more conciliators and judges are needed if the Board plans to have less hearings. [ED. NOTE: only someone on the public payroll could consider a $10,000 raise to be “slight”.]

Senator Honorato then asked why was the Board planning on moving ahead with Project 2015 and the plan to reduce hearings without any legislative approval to which Chairman Beloten responded that these two changes were necessary to streamline the process as research has shown that injured workers who do not return to work for four months never return to the workplace so it was a goal of the Board to get cases settled in less than that time.

ELIMINATING VERBATIM REPORTERS

The Finance Committee then moved to the issue of digital recording, asking how was it that the Board could continue on this process when, after the October 2009 hearings, the Legislature in a letter signed by Senate Labor Committee Chairman Senator Honorato, stated its displeasure and disapproval of the project. Munnelly replied that they are not eliminating verbatim reporters and moving ahead with the project, but that they are simply doing a pilot program using both digital recording and verbatim reporters and plan to report to the Legislature when the pilot project is done. He then stated that “§142 (5) states that there is an obligation to keep records but does not state they must be verbatim.”

Senator Honora reminded Munnelly the Labor Committee’s strong objection to the refusal of the Board and the firms bidding on the project, who also testified at the October hearing, to give any costs. Munnelly responded that the bidders were afraid to disclose the proposed costs of their bids prior to the formal opening of those bids lest they be in violation of New York State law but, because the bids had just been opened, he would then give copies of those bids to the Senate Finance Committee.

In response to Senator Dianne Savino’s questions as to the cost, Chairman Beloten noted that it would be $35,000 for the pilot run for the four units, two upstate and two downstate. Beloten added that it is important to pursue this new process lest one day there are not sufficient reporters to attend hearings. Senator Savino reminded Chairman Beloten that he had testified in October 2009 there was no record of any hearing having been canceled for lack of reporters.

Senator Honorato then noted that the contracts that were just submitted by Munnelly showed that there was a contract, not for $35,000 for a one year pilot program, but for $917,000 for a three-year program. Munnelly responded that §8A of the contract allowed the Board to cancel at any time but the Board felt that having a three-year contract for all the hearing parts throughout the state was the best way to approach this program. Wood added that the $917,000 was not in the budget ‘per se’ but the contract had been approved by the State Controller and the cost was going to be $140,000 for the pilot program. It was then noted that, minutes earlier, Beloten stated that the cost was $35,000. [Apparently a misunderstanding: $35,000 for the entire project or was it the cost for each of the four pilot sites and not for the entire pilot program.]

EXCESS FUNDS

The next issue addressed dealt with an item one of the committee members referred to as “Excess Funds” which amounted to slightly over $100 million.

Wood explained that this money came as a result of higher than necessary assessment charge to the carriers. And, of course, the higher than necessary assessments were passed on to employers such that at the end of the year there was a surplus in the fund. Under Article 7 for the state budget, Governor Paterson took all but $20 million of that by sweeping it into the general fund with the Board keep that balance. When Wood was asked if that was fair to keep the over-assessment rather than return it to the employers in the State of New York who paid it, we would replied “It would be too difficult to figure out how to return the money and it was easier to keep it.” When the follow-up question asked if this was unfair, “an insult” to the employers of the State of New York, and what would keep the Insurance Rating Board from continuing to over assess the employers/carriers, she replied (1) the new assessment system would avoid these excess charges and (2) it was just too difficult to return the money to the people who paid it.

ADDITIONAL SPEAKERS

Next address to the Finance Committee was Stephen A Zinone, President of the New York State Court Reporters Association, who brought to the Finance Committee’s attention the same concerns raised to the State Senate Labor Committee in October 2009. One additional point raised by Zinone was that the very same concept of using electronic transcription was tried in a pilot project in 1995 and 1996 and was rejected by the Board. He noted that the Board has failed to explain why the new proposed project is any different from the earlier one.

Peter Walsh and William Crosset, representing a special Workers Compensation Committee of the New York State Bar Association, made reference to their appearances and comments at the October 6, 2009 hearings by the the Senate Labor Committee and made the observation that no matter what studies, reports, or communications there may be, the Board tends to look in one direction while the Bar and State Legislature look the other. They also noted that there is a total lack of communications from the Board on these projects until such time as the Board announced their implementation, that the only advance notice that the Bar or any of the other participants receive is from outside sources [this website, perhaps!] and not from the Board itself.

The entire hearing is available on video at http://www.nysenate.gov/event/2010/feb/10/joint-legislative-budget-hearing-workforce-issues. As a guide to finding specific appearances you will find that Chairman Beloten’s appearance started at 2:07, at 2:14 the issue of Project 2015 is raised, 2:18 starts a discussion of verbatim reporters, 2:23 Senator Savino asks why Chairman Beloten said the pilot project would cost $35,000 for one year but the contract is for $916,000 and three years, the issue of excess funds starts at 2:34, Stephen Zinone’s appearance start’s at 2:40 and Peter Walsh and William Crossest start their remarks at 3:58.

WCB Ignores State Senate Decision

February 3, 2010: State Senator George Onorato (D-Queens), Chairman of the New York State Senate Standing Committee on Labor, today took issue with the recent decision by the New York State Workers’ Compensation Board to move forward with a digital-audio recording pilot program in violation of state law. Under the plan, the Board is seeking to replace stenographers with recording equipment at some workers’ compensation hearings – a move the Senator contends is not authorized by law, will jeopardize the accuracy of transcripts, and will otherwise compromise workers’ compensation proceedings.

On October 6, 2009, the New York State Senate Standing Committee on Labor held hearings on this subject as referred to in this website in its October 8, 2009 postings.

In an apparent snub (as polite word as I can find), the Oligarchic Cabal at the Board decided to go ahead with this project, signing a contract shortly after Senator Onorato issued the Senate’s report stating that the consensus of the Labor Committee was that the Board should not proceed with this project on the grounds that (1) there were substantial technical problems with the project, (2) Chairman Beloten and other speakers promoting the Board’s position were unable to even guess at the proposed financial cost, and (3) there were a number of legal issues that had to be addressed before live court reporters could be taken out of the process.

The full text of Senator Honorato’s statement is available at the Senate website, using the following link . . .

[ED. NOTE: I guess this shows the attorneys and other members of the workers compensation community that they are not the only ones whose concerns and/or recommendations are being ignored by the Oligarchic Cabal running the Board who apparently feels omnipotent enough to “bite the hand that feeds it”: the New York State Senate. With budget hearings on a number of state agencies soon coming up, including the Workers Compensation Board, it will be interesting to see if the Senate has “teeth” and will be used them.]

NYSIF Distributes $173.3 Million in Dividends

February 2, 2010: The New York State Insurance Fund today announced the return of $173,323,008 in dividends for 2009 to approximately 34,025 policyholders in 98 NYSIF safety groups as a reward for exceptional record of workplace safety and sound business practices. The average 2009 dividend of 29.98% is the largest in recent years, surpassing the 28.20% in 2008 and 27.47% in 2007. All members of a safety group are eligible for the approved dividend with the percentage returned to the group applied to the individual policyholder’s earned premium. The dividends are in addition to very competitive up-front discounts applied earlier.

NYSIF Chief Deputy Executive Director Francine James said. “It clearly demonstrates the importance of a strong commitment to workplace safety and loss prevention. The dividend distribution underscores the strength of NYSIF’s safety group partners and the work they have done to ensure their groups are on sound financial footing.” NYSIF notes that past and present dividends are not a guarantee of future dividends.

About Time: Legal Training for Commissioners

February 3, 2010: At its regular monthly meeting in Albany, held on January 26, 2010, an announcement was made that effective next month the Commissioners and those members of the legal staff involved in drafting decisions of memorandum will be required to attend legal training.

The sessions will be similar to those offered for Continuing Legal Education (CLE) and may possibly count as CLE credits. My understanding is that these will be conducted Tuesday mornings prior to the beginning of the public meeting, this time having been chosen to avoid excuses from the few Commissioners notorious for finding excuses for not attending the Monday afternoon pre-board meetings at which the substantive discussions, such as they may be, are held covering decisions made prior to the pro forma discussions and votes seen at the public session.

CLE’s for commissioners or similar legal training is something I have been promoting for years, originally as a member of the Board and most recently in my book Behind The Closed Doors in Chapter 7 “The Monthly Board Meeting - Recommendations.”

Far too often in the past, even for those few commissioners who wanted to learn about the laws they were entrusted to enforce, there was no means to learn anything other than reading, as often as not, faulty decisions or by relatively brief conversations with writers. As a result, it could be months or even years before commissioners developed understanding of some of the issues with which they were faced which often meant that the pre-board discussions of cases set down for Full Board Review were monopolized by the few commissioners who were fortunate enough to have learned the law and one or two lawyer/Commissioners who felt admission to the bar automatically granted them extensive knowledge on the entirety of workers compensation law. Having attended CLE’s given by Board staff and some CLE’s outside the jurisdiction of the Board, I can only hope that the future presentations given to the Commissioners and legal staff will be as interesting and at least half as accurate as those given by Ronald Balter to the members of the Injured Workers Bar Association.

Project 2015 Still Lives

January 28, 2010: In the NEWSWIRE of October 8, 2009, I detailed some information from internal e-mails at the Worker’s Compensation Board which explained the process by which they planned to eliminate hearings while resolving controverted cases.

It seems the Board is continuing to push aggressively in this direction as copies of those same e-mails, which I did not publish, now make their way around the State has various parties fight with the Board on this issue.

One of the justifications given by the Board is that there is a shortage of law judges and that they just do not have the personnel to handle these hearings. But it seems that the number of hearings in the last 10 years has been cut in half even though the number of law judges has increased, even despite some of the current vacancies.

In addition to eliminating hearings, Chairman Beloten has suggested the invocation of Workers Compensation Law §150 (c) which would allow him to pick, from among board staff, people to act in the capacity of law judges or conciliators. But why do that if you are eliminating hearings?

There is apparently a great deal of controversy among the parties involved in this discussion concerned with the Boards intention to increase the authority given to conciliators to “make decisions” rather than to conciliate and allowing examiners to make decisions on the quality of medical evidence and levels of disability. It appears that the Board has decided that the interests of justice for injured workers are best served by a prompt resolution of the cases even if the decisions reached are made by unqualified people who are held to production quotas as if they’re punching out toasters and not dealing with real live people.

WAMO and the Dept. of Insurance

January 28, 2010: It seems that the January 28, 2010 meeting between staff from the Department of Insurance and the New York State Worker’s Compensation Board’s WAMO dealt not with §32 waiver agreements per se but with the money in the Second Injury Fund that could be used to settle these claims.

Apparently the plan is under consideration to have qualified financial institutions, be they insurance companies, banks, investment firms, or those financial wizards who pop-up whenever there is money to be made raise the funds to settle claims and then get repaid from the annual assessments to the Second Injury Funds. Formal details are not forthcoming at this time nor do I expect that there will be any unless publication in this website causes/prompts participating parties to shine a little light on this project.

If in fact this is what the discussion centered around, in view of the recent debacle at the federal level with the sale of assets and transfer of risks between financial institutions by the federal government, all behind closed doors, this brings concern that similar machinations and ultimately, the transfer rest of all the risk to the public could be the result of these “behind the door discussions.”

Shortage of Doctors Upstate for Injured Workers

January 26, 2010: Workers Compensation Board Chairman Robert Beloten announced changes in procedures medical reporting requirements due to the fact that there is a shortage of authorized providers in the Rochester area.

[ED. NOTE: the Board explained this shortage by stating “In the past two years a number of physicians have voluntarily surrendered their authorizations to treat workers’ compensation claimants.” Physicians do not voluntarily surrender their authorization unless it is the lesser of two evils, that second evil usually the threat of legal sanctions being taken at the request of the Board and /or the New York State Medical Licensing Board. Does this mean that the only physicians willing to practice in the Rochester area were those who could survive financially only by performing and/or billing in a manner which was not legal? The shortage of qualified physicians is the real issue with which the Board should be dealing.]

In Subject No. 046-398, due to the temporary shortage of authorized physicians in the counties of Monroe, Livingston, Steuben, Allegheny, Wyoming and Ontario, the Board has listed the specific forms that must be filed and the procedures to be followed in the list of prescribed medical report forms the CMS-1500 (or HCFA-1500) form with detailed narrative reports or office notes. Authorized physicians, podiatrists, chiropractors and psychologists in the Provider Shortage Area may submit a CMS-1500 with a detailed narrative report or office notes in lieu of one of the prescribed C-4 forms. If a CMS-1500 is submitted without the detailed narrative report or office notes, it is not a prescribed form. A narrative report or office notes are considered detailed when they contain the necessary information in sufficient detail so the insurance carrier can properly process the submission. More details are available by linking to the Board site here …

Best Attorneys for 2009

January 21, 2010: Today I formally announce the Insider’s top Appleatte Court attorneys for 2009:

John Clennan and David W. Faber

as well as a number of attorneys who have won Honorable Mention. Details can be found by clicking here.

Fenster’s Path to His Appointment

January 21, 2010: I have received a number of communications indicating that Fenster got his resume submitted for this position with the help of an old college buddy from the University of Michigan, Debra Feinberg, and their mutual friend, Stephen Levin. Levin, who ran successfully for City Council from Brooklyn this past November was former Chief of Staff to Assemblyman Vito Lopez, who happens to be the chairman of the Brooklyn Democratic Party. Feinberg, who was a legislative aide to Assemblyman Lopez, was the campaign manager for Levin.

Lopez’s need to place somebody in a job came up at the same time there was a vacancy at the Workers Comp Board for a “short-timer” as everybody understands that come the first month or two of Governor Andrew Cuomo’s administration, this job will be filled with someone with real experience.

Although I do not know Fester and assume that he is coming to the Board with good intentions, his statements as quoted in the New York Times to the effect that “My feeling was I was an attempt at getting fresh blood in here. The same sort of retread in the executive director’s position was not the way they wanted to go.”, exhibits either a great deal of ignorance of the qualifications of his two predecessors or a great deal of hubris.

To paraphrase an old quote, “you can lead a horse to water but can’t make him drink”, the Governor’s office may be able to force him onto the Board, but the Board doesn’t have to pay any attention to him, something easily accomplished since the Board in the last three years has been centralizing all the administrative responsibility and authority in Albany and Fester is going to work out of Brooklyn. Perhaps that is why, according to the New York Times, “Mr. Fenster, at least initially, will have narrower responsibilities than did previous executive directors. The board furnished a list of 10 duties assigned by the chairman, mainly membership on various committees and things like deciding appeals from denials of Freedom of Information requests and assisting with leases for hearing sites.”

Two NYSIF Board Appointments

January 21, 2010: Governor Paterson submitted the names of Robert H. Hurlbut and Eileen A. Frank as commissioners on the Board of the New York State Insurance Fund. They will be appearing before the Senate Standing Committee on Insurance Monday, January 25, 2010.

Hurlbut, the first appointed to the Board as a Commissioner 1989, is currently acting as its chairman. In 1994, Mr. Hurlbut formed and became president of the Hurlbut Trust, which offers financial and consulting services for healthcare facilities and rental properties. He also has served as a director of a number of educational organizations.

Frank, President of J.P. West Inc. since February 2000, is a 23 year veteran in the Insurance industry. Frank is a licensed Property Casualty broker, Life-Health agen, and an NASD Series 7 registered securities representative. She is also an active contributor to the Democratic Party including the recent campaigns of Barak Obama and Hillary Clinton.

WCB Signs New Lease for Harlem District Office

January 20, 2010: New York State renewed two large office leases for a total of 71,751 square feet in Harlem, taking advantage of a weak market to renegotiate and extend the terms. The state’s Workers’ Compensation Board renewed 45,205 square feet on the fourth and fifth floors of 215 West 125th Street and the state’s Department of Labor took 26,546 square feet on the fourth floor of the same building, Arthur Stern, CEO of building owner Cogswell Realty, said. The six-story, 170,841-square-foot building near Adam Clayton Powell Boulevard was built in 1971, according to data from PropertyShark.com. The landlord provided a rent reduction in exchange for re-signing the leases — initially set to expire in a year and a half — for another 10 years, a source close to the deal said.

WC Research Provides Insight into Curbing Health Care Costs

January 11, 2010: Analyzing physicians’ practice patterns may hold valuable clues about how to curb the nation’s rising health care costs, according to a study by researchers at the Johns Hopkins University School of Medicine.

According to a Johns Hopkins study published in the January edition of the Journal of Occupational and Environmental Medicine, the practice patterns of physicians participating in a workers’ compensation system had a profound impact on the ultimate cost of claims. After analyzing five years of claim data from the Louisiana Workers’ Compensation Corp. from 1998 to 2002, the researchers found that a small group of physicians, only 3.7 percent, accounted for more than 72 percent of the workers’ compensation costs. These were termed cost-intensive providers, or CIPs.

“Across the board, we’ve found that most physicians practice prudently,” says Edward J. Bernacki, M.D., M.P.H., director of the Johns Hopkins University School of Medicine’s Division of Occupational Medicine and principal investigator of the study. “But there are physicians who engage in cost-intensive practices. As we continue to debate the nation’s healt and if you are in the health care system, it makes sense to analyze how practice patterns drive costs before instituting sweeping reform.”

While some of differences between physician groups were related to injury severity, the analysis controlled for International Classification of Disease group, claim duration and other potential surrogates for severity. The analysis concluded that CIP status had a significant cost impact that is independent of severity.

Further details on this study can be found at the following link: http://www.hopkinsmedicine.org/Press_releases/2010/01_11a_10.html

Board Reduces Performance Standards For Carriers

January 12, 2010: The Workers Compensation Board’s reduced performance standards it expects from carriers now goes into effect, to an 85% rate for this year rather than the prior standard of 90%.

Specifically, the Board had originally established a 2010 performance standard of 90 percent for timely filing of Proof of Coverage (POC). Those workers’ compensation carriers meeting or exceeding this rate in any quarter of 2010 would have their POC penalties waived for that quarter.

Given that carriers have begun to implement process changes related to POC and in a further spirit of cooperation, the Board will reduce the carrier performance standard to 85 percent for 2010. Moreover, the Board will also delete two rewrite/reissue IAIABC transaction codes (00-50-01 and 00-50-80) from the performance standard as the Board recognizes these represent replacement filings which should be on file with the Board. In the second half of 2010, the Board will determine the standard for 2011, which will be announced via a subject number

CMS Liens: No Statute of Limitations

January 10, 2010: As reported by John Gelman in his website, CMS (Centers of Medicare and Medicaid Services) has expressed an opinion that there is no specific time limit in its ability to seek recovery.

Barbara Wright, speaking on behalf of CMS, indicated that the widely accepted six year statute of limitations does not apply to CMS litigation to recover payments from carriers or employers who should have been paying the medical expenses rather than CMS.

This website has previously commented on the difficulties that the Workers Compensation Board has in allowing Medicare language to be inserted into §32 waiver agreements in that no one at the Board really understands the entirety of Title 42-Public Health, Chapter IV-Centers for Medicare and Medicaid Services, Department Of Health And Human Services, Part 411-Exclusions from Medicare and Limitations on Medicare Payment. The Board recently sent out a Subject Number which indicated it would not allow any language in the waiver agreement which would protect the carriers from liability on potential Medicare claims. This statement by Barbara Wright further complicates the Board’s acceptance of language in a contract, a contract that is the Board’s responsibility to approve but yet does not understand much of the language inserted at the request of another jurisdiction.

Paterson Announced New Exec Dir for the Workers Comp Bd

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

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

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

Are Dist Mgrs Going the way of the Dist Admins?

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

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

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

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

The Success of TENS units questioned

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

NYS Sues CRM Civilly and Criminally

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

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

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

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

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

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

‘Illegal Immigrant’ or ‘Undocumented Immigrant’?

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

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

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

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

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

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

Ohio Senator wants illegal workers
banned from workers comp

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

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

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

The concensus of all the comments seems to be:

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

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

Higher Unemployment = Higher Comp Claims

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

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

Annsville man pleads not guilty
to shooting investigator

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

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

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

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

More WCB Staff Changes

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

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

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

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

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

The memo continues:

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

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

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

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

In Memoriam: Joseph Tauriello

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

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

“Lazy” Judge on trial before Court of Appeals

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

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

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

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

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

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

In Memoriam: Louis R. Salvo

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

CA Insurance Commissioner
Rejects WC Rate Increase

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

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

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

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

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

Public WC Insurance Funds
Better Run Than Private Ones

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

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

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

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

►CORRECTION◄

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

Lobbyists Lose on ATF in Federal Court

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

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

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

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

Typo not worth $1.6 Billion, this time!

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

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

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

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

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

NYSIF Introduces State-of-Art
Medical Bill Inquiry System

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

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

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

No New Commissioner under Consideration

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

Comments (0)

COURT DECISIONS

ON OUR OTHER PAGES

►Pending Legislation

RESULTS OF OUR NEWEST POLL

►What do you think of the Board’s new medical forms & procedures?

THIS WEEK’S NEWSWIRE

►Where are the FBR’s

►Senate Bill Adds COLA to WCB Awards

►Emergency Adoption of New Medical Fee Schedule

►What’s up, Doc? A 2nd WCB Doctor

COMMENTARY

►Judge Hellerstein correct: Legal Fees for WTC Settlements Unreasonable

►The INSIDER’s recommendations for the Board

►Stats on How Hearings Change Proposed Decisions or Why Hearing are necessary

►Commentary on the Quality of WC Board Decisions Reviewed by the Courts

April 30, 2009 (Friday): Weekly postings of court decisions regarding injured workers compensation issues from the New York State Court of Appeals, New York State Appellate Division (1st, 2nd, 3rd, and 4th Departments), and various lower courts as well as decisions from other states that will be of interest to participants in the State of New York Workers Compensation system. Following the list of cases posted for this week is a list of cases. in which the NYS Workers Compensation Board is a party of interest, for which arguments have either already been made at the New York State Appellate Division, 3rd Department and for which decisions have not yet been issued or for cases which have been scheduled but not yet heard. If you would like to be added to our e-mail alert list or have any submissions or suggestions, send them to: TheInsider@InsideWorkersCompNY.com.

THIS WEEK’S POSTINGS: The Board continues its losing streak with two more reversals albeit on the same issue with the same incident when the Board misinterprets “an act of God” in determining the validity of a WCL §29(4) lien.

FULL BOARD REVIEWS - Now being posted: The New York State Workers Compensation Board announced in March 2010 that it would each month post a few of the 15-20 Full Board Decisions it issues each month. Our FRB page will offer a permanent but brief summary of those decisions with a link to another page in this website to the entirety of the decision issued by the Board. Unfortunately, like many of its proposals, the Board has failed to post anything new since the January 2010 Full Board meeting.

The Two Top Attorneys for 2009
click here for details.

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

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

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

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

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

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

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

PENDING CASES
April 30, 2010: The following list represents 16 cases, all of which have been heard, including one argued on December 16, 2009. As of today, no dates have been set for oral arguments after April 28th.

Mar 25, 2010 Barone v Interstate Corp.
Apr 26, 2010 Bran v Wimbish
Mar 26, 2010 Bush v Montgomery Ward
Mar 24, 2010 Carlineo v Snelling & Snelling
Apr 28, 2010 Catapano v Jaw Inc.
Apr 27, 2010 Clark v Suny Upstate Medical
Apr 19, 2010 Dupuis v Frito Lay
Apr 23, 2010 Kaja v Siller Brothers, Inc.
Apr 26, 2010 Keles v Santos
Apr 26, 2010 Monteleone v Tn of North Castle
Apr 26, 2010 Parkhurst v United Rentals (three cases)
Mar 25, 2010 Renz v Home Depot Usa, Inc.
Mar 25, 2010 Thomas v Crucible Materials
Apr 20, 2010 Turner v Jaquith Industries
Dec 16, 2009 Wilson v General Mills
Mar 24, 2010 Yarleque v Sally Lou Inc.

▼ Posted Friday April 23, 2010 ▼

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

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

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

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

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

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

▼ Posted Friday April 16, 2010 ▼

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

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

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

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

▼ Posted Friday April 9, 2010 ▼

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

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

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

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

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

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

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

▼ Posted Friday April 2, 2010 ▼

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

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

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

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

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

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

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

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

▼ Posted Friday March 26, 2010 ▼

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….

▼ 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….

Comments (0)

▼ 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….

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….

▼ 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….

Comments (0)

COURT DECISIONS

ON OUR OTHER PAGES

►Pending Legislation

RESULTS OF OUR NEWEST POLL

►What do you think of the Board’s new medical forms & procedures?

COMMENTARY

►Judge Hellerstein correct: Legal Fees for WTC Settlements Unreasonable

►The INSIDER’s recommendations for the Board

►Stats on How Hearings Change Proposed Decisions or Why Hearing are necessary

►Commentary on the Quality of WC Board Decisions Reviewed by the Courts

THIS WEEK’S NEWSWIRE

►New Max. Weekly Benefit Rate Effective July 1, 2010

►Close Bars to Save on WC claims?!?

►Board has Educational Webinar

► on Legal Fees for WTC Settlements Unreasonable

April 22, 2009 (Friday): Weekly postings of court decisions regarding injured workers compensation issues from the New York State Court of Appeals, New York State Appellate Division (1st, 2nd, 3rd, and 4th Departments), and various lower courts as well as decisions from other states that will be of interest to participants in the State of New York Workers Compensation system. Following the list of cases posted for this week is a list of cases. in which the NYS Workers Compensation Board is a party of interest, for which arguments have either already been made at the New York State Appellate Division, 3rd Department and for which decisions have not yet been issued or for cases which have been scheduled but not yet heard. If you would like to be added to our e-mail alert list or have any submissions or suggestions, send them to: TheInsider@InsideWorkersCompNY.com.

THIS WEEK’S POSTINGS: In Workers Compensation Board has apparently had a turn for the better this week in which the Board was affirmed in all three decisions from the Appellate Court, which dealt with the issues of a little drink, a little smoke, and a little too late.

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.

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

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

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

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

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

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

PENDING CASES
April 23, 2010: The following list represents 18 cases, 12 of which have been heard, including one argued on December 16, 2009. As of today, no dates have been set for oral arguments after April 28th.

Mar 25, 2010 Barone v Interstate Corp.
Apr 26, 2010 Bran v Wimbish
Mar 26, 2010 Bush v Montgomery Ward
Mar 24, 2010 Carlineo v Snelling & Snelling
Apr 28, 2010 Catapano v Jaw Inc.
Apr 27, 2010 Clark v Suny Upstate Medical
Apr 19, 2010 Dupuis v Frito Lay
Mar 23, 2010 Hiser v Richmore Aviation Inc
Apr 23, 2010 Kaja v Siller Brothers, Inc.
Apr 26, 2010 Keles v Santos
Apr 26, 2010 Monteleone v Tn of North Castle
Apr 26, 2010 Parkhurst v United Rentals (three cases)
Mar 25, 2010 Renz v Home Depot Usa, Inc.
Mar 25, 2010 Thomas v Crucible Materials
Apr 20, 2010 Turner v Jaquith Industries
Mar 23, 2010 Whiteman v Richmor Aviationx
Dec 16, 2009 Wilson v General Mills
Mar 24, 2010 Yarleque v Sally Lou Inc.

▼ Posted Friday April 16, 2010 ▼

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

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

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

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

▼ Posted Friday April 9, 2010 ▼

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

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

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

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

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

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

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

▼ Posted Friday April 2, 2010 ▼

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

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

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

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

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

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

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

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

▼ Posted Friday March 26, 2010 ▼

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….

▼ 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….