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June 28, 2010: Every other Monday I pose a question that is of interest to everyone who participates in the New York State Workers’ Compensation system: attorneys, carriers, 3rd party vendors, injured workers, and, yes, even the staff of the NYS Workers Compensation Board and other state agencies. The following Monday, I publish an analysis of the results as well as a new poll. If you have any suggestions for a poll or would like to make a comment, contact me at TheInsider@InsideWorkersCompNY.com.

This Week’s Poll:
Group Self-Insured Trusts: Keep or Dump?

June 28, 2010: On June 18, 2010, the issue of self-insured Trusts came to the fore when the New York State Workers Compensation Board issued its report on group self-insurance Trusts (GSIT). In response the Self-Insurance Institute of America, Inc. (SIIA) denounced those findings.

As a member of the New York Workers’ Compensation Forum at LinkedIn, I’ve had the opportunity to review a number of comments regarding the Boards position on the subject and did not find one which supported it. Among the comments were:

What happens to the Trusts that are properly managed and funded? Should the properly managed Trust be punished for the acts of a few bad apples? Wait, someone already tried that by increasing the assessment charges to the properly managed Trusts. I don’t think that “solution” worked well.
I’m confident a Trust could be very successful if it’s managed by seasoned knowledgeable staff. Reserving, claim management, and loss control are basic key elements that will make or break a program. As we all know, a claim can go from zero reserves to 125K in a blink of an eye and that’s where programs get into trouble.
Their recommendations point out that they need increased regulatory oversight. They are recommending scrapping the whole system because they have insufficient resources for oversight.

I wrote:

Perhaps if the State of NY and all it enforcement agencies and bureaus actually did their jobs someone would have discovered the underfunding. But rather than admit their failure to enforce the thousands of pages of rules and regulations and laws they have promulgated, they as do all bureaucrats prefer to just either ban the activity because of a few miscreants or promote even more but unenforced rules and regulations.

And it is this last comment leads to this week’s poll. Please check off as many of the following statements with which you agree. The last set of questions is there only to learn if one’s position in the community reflects the answers.

Anyone interest in expounding on this subject is welcome to submit comments or an article, with or with attribution: your choice.

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The result of this poll will be published Tuesday July 6, 2010

Poll Results:
Questions on the Board’s Medical Procedures

March 22, 2010: Last week’s poll asked a series of questions concerning changes in the Board’s requirements for the issuance of medical reports and the impact that this is having on the availability of doctors, both treating and independent medical examiners (IME’s). The results, while not unexpected, are very discouraging and require immediate attention by the New York State Workers Compensation Board.

Finding doctors

78% of the respondents feel that it is far more difficult to find doctors, for both treating injured workers and for conducting independent medical examinations. Other than the one voter who felt it was not more difficult to find treating doctors, everyone else agreed with the proposition that “The Board’s list of IMEs is not up-to-date.” While those of us familiar with working with government bureaucracy understand the apparent contradiction here, it is hard to explain to injured workers, their families, and their employers, why theicase is being delayed because the Board is in the process of ‘improving’ medical treatment but not only has less doctors willing to participate in the system but that the Board does not even have a list of which doctors are participating and which have dropped out.

The new C-4 forms

Not a single respondent to this poll agreed with the proposition that “The new C-4 is more helpful.” In fact, of the other four choices listed below, most respondents picked three of the four:

The new C-4’s cause problems and solve none.
The new C-4’s creates problems.
The new C-4’s discourages medical providers.
The new C-4’s delay resolution of cases.

Only two respondents were in favor of keeping the new C-4 with one commenting:

The Board should keep the new forms and require them to be COMPLETE and ACCURATE. There should also be punishment for doctors who delegate completion and signature of the forms to billing clerks, as this results in false filings with often incorrect information. They nonchalantly testify that “the girls” have permission to sign on behalf of the doctors.

The balance of the respondents were split between seeking a new C-4 or returning to the original one. One comment appeared to be from a law judge who stated that, “The format and length of the new C-4s slows down my review of same during a hearing.” While an out-of-state respondent commented, “It should be pointed out that the C-4 is significantly more complicated than the mandated provider reports in other states, though I am not sure this fact matters to anyone in New York!”

And there was one respondent who wrote that:

A one page C-4 could easily be developed. The C-4 auth is useful, so this ‘experiment’ with the C-4 ‘family’ has not been a total failure.
There should also be a C-4 script for prescription drugs.

This last recommendation regarding prescription drugs is an excellent idea. First , the cost of prescription drugs has become an increasing portion of the medical expenses. Second and far more important, use of controlled substances and subsequent abuse as well as consequential medical problems are increasing. The use of a specific C-4 for this class of drugs may help the Board, law judges, and claimants attorneys asked whether or not these controlled substances are helping resolve problems or delaying the resolution of the medical injuries.

Payment of doctor bills

While not as many respondents participated in the question of doctor bills being paid, those who did were split with half agreeing with the proposition that doctor bills are being paid timely and half the proposition that may are being paid late. But there was almost unanimous agreement that the HP-1 form allegedly used to expedite payment of bills is totally useless. I have written about this subject before but can summarize my recommendation as follows:

The Board should set a fixed number of HP-1 that are filed against any particular carrier such that, when that limit is reached, a warning is sent to the carrier that they are failing to meet their obligations under the insurance laws of the State of New York to pay their bills and, should this not matter not be resolved within the next ‘x’ days, a formal complaint seeking removal of their authority to sell workers compensation insurance in New York State will be filed with the Department of Insurance. For self-insured’s, the Board has the authority on its own to revoke that self-insured’s authority once a threshold of HP-1 complaints is reached.

Whether or not anyone is willing to admit it, as altruistic and compassionate as a medical practitioners may be in dealing with injured workers, their altruism and compassion can only be practiced if they have a sufficient, reliable, and timely revenue stream with which to support their endeavors. And I am sure if I took the words ‘medical practitioners’ and replace it with the words ‘claimant attorney’ or ‘carrier attorney’, they would agree, too.

Summary

The Board’s good intentions have gone awry. Perhaps those making decisions on the C-4’s had no practical experience completing them or reviewing them in the real world. And perhaps they are spending too much time chasing down bad doctors and not enough time keeping up a list of good doctors. And perhaps they don’t understand telling the carrier to do something (pay a bill) doesn’t work unless they’re willing to punish them. Such is the message from the workers compensation community. Let’s see if the Board is listening.

Poll Results for:
Is Beloten’s Board better?

March 1, 2010: Last week I asked your opinion on the relationship of the New York State Workers Compensation Board after it has been under the leadership of Chairman Robert Beloten for nearly 8 months.

The results of the poll should be disappointing not only to the members of the workers compensation community but also to the Chairman who approached this job with the best of intentions. The consensus on the current Board is best summarized by the four following statistics:

62% feel nothing is happening with the rocket Docket.
96% feel the medical guidelines haven’t been fixed.
97% feel the Board has no interest in and ignores the interests of the community.
70% feel Chairman Beloten has no influence on the Board’s direction.

It could simply be that this is legacy of prior administrations or the feeling of the Oligarchic Cabal that Beloten, an appointee of Governor Paterson, is like Patterson: a short timer who as a lame-duck can be ignored.

Perhaps this is best summarized by one respondent who stated:

One wonders who is driving the agenda at the Board. The Board is on its 4th Chair in a little over 4 years (Wehner, Ferrara, Weiss and Beloten), but yet one thing has remained constant - the Board is operating in a vacuum with no regard for what its stakeholders care about and little or no regard for how the Board’s actions impact those persons. Its continuous disregard for the views of those who appear before it - claimants, employers, carriers and their respective legal representatives - makes one wonder who is driving the Board’s agenda.

In my poll last year I asked what were the most important subjects that needed work once Beloten took over as Chairman and they were the Rocket Docket and updating the Medical Guidelines.

As to the Medical Guidelines, 96% of the respondents said there has been no change. Considering all the self congratulatory commentary proffered by various parties when the legislative amendments regarding permanent partial disability were passed, one would think someone in authority would have thought to take a look at the 10-year-old guidelines used to determine the level of disability. Only 4% thought situation was better.

The Rocket Docket did not fare much better. 62% felt that there has been no change in the Rocket Docket with the balance of the votes split with 19% saying it had improved and 19% saying it had gotten worse.

The next poll question asked your opinion as to the receptiveness of the Board to comments and suggestions from outsiders. 97% responded that the Board is unreceptive with virtually the same number agreeing with the choice, “The Board’s agenda does not seem to include the community.”

Two comments seemed to represent the opinion of most of the people who participated in the poll.

The Board continues to be secretive, act unilaterally without regard to the law or due process, …
It is obvious for the last several months and given the roll out of MAP that Beloten, like almost all of those before him, gives lip service to the WC community.

Of course the main question dealt with the impact of Beloten on the Board. And while Commissioner Ferrara’s ascension to the chairmanship was known by everybody to be temporary, the appointment of Beloten was considered to be Governor Paterson’s plan to place his imprint on this state agency. Unfortunately 70% of the respondents felt Beloten’s appointment as chairman has made no difference with 11% stating it has had a negative impact and 19% stating he had a positive impact.

We all had high hopes for this chairman, being a judge on the inside himself, knowing how things operate.
It appears, however, that even with his experience as an “insider” Chairman with knowledge of the system, he has NO control over the WCB management.
Those who practice before the Board hoped for positive change with the appointment of a Chair (Beloten) who was familiar with the process and the with parties who regularly appear before the Board - they have been sadly and greatly disappointed.

The responses to the poll support an impression I had been receiving from my discussions with members the community which is that the Board is in disarray. The Chairman, despite his best efforts, appears not to have the support of the administration which unfortunately has enough problems of its own. Be that as it may, this leaves Chairman Beloten in the unfortunate position of being unable to give any direction, let alone control what goes on at the Board.

While Chairman Beloten has made some well thought out decisions regarding changes in personnel, these changes have not had the desired impact. That the staff are really incapable (but I know too many of them to know that in most cases it is unlikely) or they are pushing their individual agendas to build their resumes or doing the bidding of outside parties, I would prefer not to guess.

But unless Chairman Beloten decides to surround himself with people loyal to him, conditions will continue to deteriorate.

Some comments submitted by respondents to the poll follow but I would like to remind everyone that I have no idea who has submitted any the comments or who has voted in this poll. Therefore the results of this poll as well as all my earlier polls may not meet the scientific criteria such that the Board would consider these results meaningful. Unfortunately.

The Spitzer-Weiss era left a lot of unfinished business and the Chair has only had 8 months. I prefer the Chair to some political hack. At least he understands WC and cares about improvement. He does need a better communications dept and an experienced Chief of Staff type to assist with basic management. Is the Insider available?
I think MAP stinks. Number one, I don’t like new names for old ideas. Number two, I don’t lke acronyms. Finally, it’s going to mean more work (definitely more desk work and date entry)for judges — doing what conciliators used to do. We’ll be working out of grade — not above as some conciliators have done when they filled in for judges — but below grade, which is not a civil service no no. The rationale for MAP has been stated for at least 15 years. Clt attys shouldn’t mind — they’ll be getting fees w/o having to attend hearings. Carrier reps/attys, however, will have to scrounge for hearing time, with result that more otherwise MAP cases will be litigated. I understand — and agree with rationale — but MAP cases should have remained with conciliators and not shifted to judges. Since conciliation appears to be out, will all the conciliators now become judges? I know this was not the subject of the questionnaire, but it’s what’s on everyone’s mind now.
What has Beloten done? Signed a contract for reporters and implemented the MAP program. Some leadership. What a disappointment.

Thank you for your responses. Later this week I will publish some recommendations which should improve procedures, but more importantly bring back to the Board some of the humanity and humility so necessary in dealing with the injured workers and their families.

Poll Results: Should Nurses Have More Authority?

February 1, 2010: Last week I asked your opinion on pending legislation in Albany which would grant certified nurse practitioners additional authority and responsibilities with regard to the treatment of injured workers.

Specifically, Assembly Bill 3704 and Senate Bill 3908 authorizes, as a pilot program, certified nurse practitioners to provide care and treatment to injured workers pursuant to the provisions of the workers’ compensation law and establishes a nurse practitioner committee to regulate the practice of nurse practitioners under such law. Both of these bills have been presented to the labor committees in both chambers.

This poll was prompted by an e-mail from one of my readers who felt that the timing of the legislation was rather propitious in view of the January 7, 2010 Appellate Court decision in the Matter of Hassan v Ford Motor.

I asked your opinion as to the appropriateness of this legislation and here are the results:

70% approve the legislation
Excluding those who feel the legislation should not be approved, 55% feel the doctor should be required to sign any documentation while 44% felt it was not necessary.
As to who should set the limits of services to be allowed, 50% said it should be the State Legislature, 30% picked the committee, and 20% picked both. My assumption based on other comments from this 20% is that the Legislature should set some basic guidelines and the committee should deal with a specific procedures, perhaps by medical code.

There were two comments which I think best summarized the support for the legislation. I am not sure from whom the first comment comes but the second is obviously from an injured worker.

Workers Comp should go along with the rest of the medical world. When claimants visit the nuerosurgeon they are examined by a PA or NP first. When the go to an ER usually a PA or NP treats them and decides if they need to call in an MD. Not only is it good for claimants, who in the past could not rely on reports from such as constituting medical evidence to support an award, but it will also help carriers reduce the costs of treatment. Why force a claimant to see a doctor to do what an NP could have done. I do think MD supervision and review is required but the NP should be able to indicate who the supervising MD is, without going through the wasteful motion of making the MD sign the form too.

Before you read this relatively lengthy comment from an injured worker, I would like to remind everyone that injured workers very rarely have the opportunity to express an opinion before the Board, including oral arguments before the commissioners: they are asked fact-based questions. When I did §32’s, I asked “open ended” questions which was the first time many of these injured workers had the opportunity to express any kind of opinion. Perhaps if a bit more time were set-aside to allow such comments from injured workers, those who make decisions on how the process should run may actually learn how to make the system work better.

Injured Worker: I have a back case and am classified PPD on the case. I have had the situation arise where I woke up on a particular morning and discovered that my back injury had exacerbated and I was totally disabled and unable to work. I called my doctor’s office but could not get an appointment for a few days because his schedule was totally booked. I had no choice but to stay home from work and go in to see him on the day that I got the appointment for. After my condition improved I went back in to work. When I put in a claim for the lost time the Arbitrator, under Section 20, would only make an award for the days for which I had my doctor’s note. That was true even though I was classified PPD on the case. If some nurses are allowed to provide care and treatment to claimants I think that might have solved my problem because even though my doctor could not see me the first day that I telephoned for an appointment maybe if he had had a nurse practitioner in his office that person could have seen me. That way I would have had a report from the nurse practitioner and maybe I would have been awarded benefits for the days that I was out of work and totally disabled but unable to get a doctor’s note attesting to the fact. I think that by broadening the number of people that are able to care for and treat claimants would possibly stop the above situation from occuring as often as it does. I know that when I was a hearing representative the above scenario ofter happened and claimants were not awarded benefits for days of lost time simply because they could not see a medical professional on the day that they first called in for an appointment. Some WCLJs would make an award even when the claimant didn’t have medical (if the claimant was classified PPD) but there were many who would not. That is only one scenario where I feel that it would be beneficial to have nurse practitioners able to provide care and treatment to claimants.

And of course there are some valid reasons for not approving the legislation, as evidenced by all the Board’s Subject Numbers dealing with physicians who are longer authorized to treat injured workers in the workers compensation system.

As you are aware, Doctors are already trying to get over on the system by allowing PA’s and Nurse practitioners to perform examinations and saying that they provided the services rendered. This should be considered as fraud on their part. All these doctors are doing is milking the system.

This poll, like some of the earlier polls I have done, was proposed by one of my readers. Your suggestions for future polls will ensure that they deal with issues that are important to you so please continue to submit suggestions. Again, thank you for your participation in this poll.

Poll Results: What were the key issues in 2009

January 11, 2010: Our poll asked your opinion as to what was the most important case or issue to have come up in 2009. Because this was an open-ended poll and, unlike all the others I have conducted, did not give specific options but only a text box, there was no “clear” winner.

Only one case was mentioned and that was the Matter of Browne v the New York City Transit Authority in a case which dealt with the level of prima facie medical evidence required, if any, to meet the presumptions under WCL §21. But none were of the significance of the Matter of Ramroop v Flexo-Craft Printing, Inc. (2008) or LaCroix v Syracuse Exec. Air Serv (2007).

But one issue that was raised in a lot of the responses is one that will probably be the most important court case in 2010: payments to the Aggregate Trust Fund (ATF). The importance of this issue is signified by a Full Board Review early in 2009 in which there was one lead case and 83 related, at which time the Board made payments to the ATF retroactive. Another issue considers the fairness of requiring carriers to make these deposits but excluding the New York State Insurance Fund and self-insured trusts.

The second issue that was frequently mentioned is the Board’s failure to define disability not just in medical terms but in terms of wage earning capacity, which is necessary to implement the new time limits for permanent partial disabilities. In fact, other than treatment guidelines for soft tissue injuries, it has been over two years since the amendments to the Worker’s Compensation Law which required that the 1996 Medical Guidelines be updated.

But there is one issue that has been brought to my attention more and morefrequently over the past year and that is “Board’s on-going mindset of treating lawyers [both claimant’s and defense bar] as adversaries.” The new policy of allowing/requiring law judges to issue fines for “inappropriate” appeals by attorneys, without issuing specific guidelines that would draw some lines in the sand for the attorneys and law judges, is one of many examples of the words “mindset”.

And, finally, to quote one of the many respondents on an issue that has been dear to my heart probably within a month of my joining the Board in 1996, summarized by me in last week’s commentary on the quality of the Board’s 2009 decisions, is the “constant and ongoing pattern of arbitrary, capricious and inconsistent board panel decisions.”

In summary, there appears to be one open legal issue from last year whose resolution is awaited anxiously by the workers compensation community: payments to the ATF.

But more importantly is the issue of cooperation by the Board with its constituency who are the injured workers and the employers of the State of New York. If the Board’s continuing decision to block my e-mails alerting its staff to the news, commentary, and criticisms I report is evidence of the Board’s continuing self-imposed closed mind, then the workers compensation community and the attorneys who represent them can only expect that the Board’s ability and/or willingness to serve them will continue to deteriorate even further.

Poll Results: What do we do
with Undocumented Workers?

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

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

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

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

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

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

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

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

SUMMARY

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

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

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

And

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

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

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

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

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

One participant wrote:

What makes child support or tax liens so special?

And a second participant wrote:

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

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

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

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

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

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

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

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

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

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

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

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

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

Poll Results: NYC’s Toxic WTC Tactics

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

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

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

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

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

This is the forte of the workers compensation system.

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

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

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

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

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

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

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

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

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

SUMMARY

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

RECOMMENDATIONS

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

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

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

Poll Results: Legal Fees on Medical Expenses

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

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

16% disagree.

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

32% disagreed.

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

11% disagree.

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

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

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

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

There were two other interesting statements:

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

And

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

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

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

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

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

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

Poll Results: Secret Project 2015

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

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

the Project should go forward?

the explanation given by the WCB?

there are too many hearing?

there are too few hearings?

less hearing help the claimants?

more hearing will help the claimants?

is there another agenda behind this Project?

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

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

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

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

Are there are too many hearing?

Do less hearing help the claimants?

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

Are there too few hearings?

Do more hearing will help the claimants?

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

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

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

to eliminate lawyers from the system

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

Legal fees and attorneys’ involvement in the system

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

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

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

To eliminate lawyers from the system

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

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

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

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

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

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

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

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

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NEWSWIRE

June 18, 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

►This Week The WCB wins 3½ and loses ½

►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

►Up-Dated List: WINNINGEST & TOUGHEST Attorneys

►3rd Department Changed Mind on ATF Decision

►2nd Injury Fund Deadline Approaches

►U.S. Supreme Court Overrules “honest Services” Law/span>

►New NYSIF Commissioner in process

PRIOR WEEKS’ NEWSWIRE

►Let’s Tax Everything

►SIIA Rejects New York Task Force Findings Regarding SIGs

►WCB Report on Group Self-insurance

►Board Releases New Manual to ‘Help’ Businesses Stay Compliant

►NYSIF Warns of Legal Package Hoax

►NYCIRB recommends a 7.7% premium increase

►Man Mauled After Smoking Pot Can Get Workers’ Comp

►Two new Commissioners nominated

►the Webinar

►Majestic/CRM considers options

►Appellate Judges Reveal Pet Peeves, Winning Strategies

►NYSIF Elects Chair and Vice Chair

►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

Up-Dated List: WINNINGEST & TOUGHEST Attorneys

June 26, 2010: As we approach the mid-year mark for 2010, it is time to up-date my list of the ‘WINNINGEST’ attorneys and the ‘TOUGHEST’ attorneys who have appeared in workers compensation cases at the New York State Appellate Court, 3rd Department. To date there have been 62 cases and 72 attorneys, with only 81% of these cases having had the Board’ s decisions affirmed by the Court. Reversals, Rescinds, and mixed decisions were each 6% of the total number of cases.

This list, which will be periodically updated, can be used to settle cocktail party arguments and to answer various trivia questions but, in reality, is no way reflective of the quality of the attorneys listed (or not listed) or their arguments. As for those whose arguments did not prevail, they are not listed: many take on cases which they know have a very small likelihood of winning and they certainly should be neither criticized or publicized for that. It was pointed out by one of my readers that a great deal of the credit also goes to the legal staffs of these attorneys. But I do not know who they are and they are not the ones with their names being etched into legal history due to the result of their arguments.

Excluding those who work in the offices of the Attorney General and Special Funds, the ‘Winningest” attorney so far this year are Susan Duffy, David Faber, and Gary Tyler, with Ms Duffy also taking the honors as the “Toughest” attorney along with James Buckley with two Reversals to their credit.

And for this year we do have two pro-se claimants who represented their cases before the Appellate Court: Phyllis Hulbert and Edip Kaja.

3rd Department Changed Mind on ATF Decision

June 17, 2010: The New York State Appellate Court, Third Department on Thursday June 17, 2010 granted a motion sought by the New York State Workers Compensation Board to vacate its January 15, 2009 decision. The motion itself can be read by linking here ….

In that case, William Held Jr., as Chair of Contractors Compensation Trust, et al., group self-insured trusts (hereinafter GSITs), commenced that earlier proceeding to annul certain assessments levied against them by respondent New York State Workers’ Compensation Board.

So, as that great philosopher Yogi Berra stated, “It ain’t over till it’s over!”

2nd Injury Fund Deadline Approaches

June 12, 2010: The NYS Workers Compensation Board has issued a notice to the effect that Workers’ Compensation Law (WCL) Section 15(8)(h)(2)(A), enacted as part of the 2007 reform legislation (L. 207, Ch. 6 § 76, effective March 13, 2007), directed the closing of the Special Disability Fund for all claims for reimbursement with a date of accident on or after July 1, 2007. (See Subject Number 046-194 dated June 26, 2007.)

As to claims with dates of accident or disablement before July 1, 2007, the statute further provides:

“No carrier or employer, or the state insurance fund, may file a claim for reimbursement from the special disability fund after July first, two thousand ten, and no written submissions or evidence in support of such a claim may be submitted after that date.”

The Board may continue to schedule and hold hearings to determine Section 15(8) liability after July 1, 2010. Workers’ Compensation Law Judges, while prohibited from directing or accepting any written submissions or evidence in support of a claim after that date, may permit appropriate cross-examination of medical witnesses consistent with the statute and applicable Board regulations. More details on this matter can be found on the Board’s website.

U.S. Supreme Court Overrules “honest Services” Law

June 24, 2010: Some of the commissioners and other political appointees at the New York State Workers Compensation Board can breathe a bit easier now that the United States Supreme Court in the Matter of Skilling v United States (No. 08–1394. Argued March 1, 2010) has issued an opinion limiting the use of federal fraud law which has used the “honest services” law to convict various executives for what is alleged to be mistakes and minor transgressions or perhaps not doing an honest day’s work, nor anywhere for that matter.

In this time of budget squeezes in the potential of large scale layoffs of public-sector employees it is absolutely essential that everyone feeding out of the public trough to an honest day’s work, something I found all to liken during my 12 years as a Commissioner at the Workers Compensation Board.

New NYSIF Commissioner in process

June 22, 2010: At the request of Governor Paterson, Steven P. Polivy is being considered as a Commissioner of the State Insurance Fund (NYSIF) , to be considered at a meeting of the Senate Standing Committee on Insurance, chaired by Senator Neil D. Breslin, in an off-the-floor meeting.

A Co-Office Managing Shareholder of the law firm Akerman Senterfittof New York C ity, Polivy’s practice focuses on economic development, real estate finance, and transactional real estate matters. He has represented various charitable organizations and private schools in connection with various tax-exempt financings, including the New York headquarters of the American Cancer Society. His practice includes representation of financial institutions that act as lenders, underwriters, and placement agents, or that serve the function of letter of credit issuers, liquidity providers, or trustees, with respect to tax-exempt and taxable debt for real estate, industrial and economic development projects, and municipal financing generally. He has also represented various Fortune 500 companies and many closely held industrial companies with respect to their obtaining of economic development benefits from governmental agencies on a state and local level.

After serving as an Assistant District Attorney for Kings County, New York, Mr. Polivy joined Baskin & Sears (a predecessor to Berger & Steingut), where he specialized in real estate and public finance. He received an A.B. from Vassar College and a J.D. from the Benjamin N. Cardozo School of Law of Yeshiva University. Mr. Polivy was admitted to the New York State Bar and the U.S. District Courts for the Southern and Eastern Districts of New York in 1981. He also serves as a Business Advisory Council Member of the TD Banknorth, N.A., and as a member of the Executive Committee of The Jewish Braille Institute, Board of Directors.

Let’s Tax Everything

June 16, 2010: First published by Jennifer Wilkins, this short anecdote goes to the heart of what is wrong with people in power in government and those in academia to whom they listen:

I asked my friend, Cornell economics professor Robert Frank, at a recent dinner party, what he thought of proposals to tax soda. I prepared myself to settle in, eyes glazed over, for some dense econ-speak about why it shouldn’t be done and why it wouldn’t work. Instead, I was surprised.

Without missing a beat and with a calm, matter of fact demeanor, Frank responded, “We have to tax something. It might as well be soda.”

SIIA Rejects New York Task Force Findings Regarding SIGs

June 16, 2010: The Self-Insurance Institute of America, Inc. (SIIA) today denounced the findings of a task force created by the New York state Legislature concluding that all group self-insured workers’ compensation funds (SIGs) operating in the state should be shut down by the end of the year and encourages the state to consider industry-backed alternative solutions.

“Clearly there were some New York SIGs that were operated in a negligent way, but we believe the task force recommendation is an overreaction,” said SIIA Chief Operating Officer Mike Ferguson. “The industry is prepared to work with the state to develop a new regulatory structure which would greatly reduce the possibility of future failures and also assist the state is addressing the financial deficit associated with the failures.”

Ferguson noted that “the report also acknowledges the benefit that groups have offered their members: particularly the emphasis on safety and loss prevention, aggressive return to work programs and rate stability. However, it seems the Task Force made its recommendations based solely on the actions by the SIGs that become insolvent, while failing to consider the benefits that groups offer to more than 4000 employers in New York State.”

Moreover, active New York SIGs have successfully complied with ever increasing regulatory standards. The report concludes that these efforts have resulted in these groups having an overall funding ratio of 109% and surplus of more than $64 million. Such results compare favorably to the traditional insurance industry.

As the task force report points out, SIG legislation passed in 2008 was designed to ensure that groups have increasing financial stability and accountability. That legislation was aimed at ensuring transparency among the groups’ key agents and to ensure proper group administration. SIIA supported this legislative initiate and now calls on the New York Legislature and governor to give the new laws a chance to work, by implementing the appropriate rules and regulations. There are currently 34 other states that permit group self insurance workers’ compensation funds and are able to successfully regulate such regulations.

[ED. NOTE: Monday I will have a poll on this subject as well as including comments from the New York Workers’ Compensation Forum in LinkedIn which deal with the issue “New York’s Self Insured Workers’ Compensation Trusts May Become a Thing of the Past”

WCB Report on Group Self-insurance

June 15, 2010: The New York State Worker’s Compensation Board has just issued a Report to Governor Paterson and the New York State Legislature title “Task Force on Group Self-Insurance”. In order to understand the reasons for these defaults and assess the long term viability of the group model, legislation signed by Governor Paterson on June 30, 2008 created a Task Force on Group Self-Insurance, Consisting of members of the staff of the Workers Compensation Board, Department Of Labor, Superintendent of Insurance, AFL-CIO, the state legislature and other interested parties.

Under current New York State Law, employers who wish to self-insure workers compensation can join together and form a group self-insured trust (GSIT). Workers’ Compensation Law (WCL) includes a provision which requires the Workers’ Compensation Board (WCB) to assess all self-insured employers for all expenses incurred by the WCB relative to self-insured business. It has been the WCB’s interpretation that this includes the WCB’s administrative and regulatory costs and for the costs of any unmet obligations incurred by an insolvent individual or group self-insurer and that these costs are assessed pursuant to WCL §50-5 (50-5 assessment).

Although prior to 2007 there had never been a group default in New York State, starting in 2007 several groups were closed including some of which have become an insolvent. The report states that “Due to a growing level of unfunded claims costs related to these insolvent groups, the 50-5 assessment for 2007/08 almost doubled. As additional groups defaulted, and as their projected level of unreserved claims has grown, this assessment has grown even higher.”

Among the recommendations were to speed up the collection of premiums and Legislation for Assumption of Workers’ Compensation Liability Insurance Policy (to allow for the purchase of a policy to transfer the tail of workers’ compensation claims and the risk of claims development to a carrier, absolving the self-insurance program from any further exposure).

Excerpts from the Recommendation can be found by clicking here. The entire 187-page report can be found at: http://www.wcb.state.ny.us/content/main/TheBoard/SelfInsuranceTaskForceReport.pdf

Board Releases New Manual to ‘Help’ Businesses Stay Compliant

June 17, 2010: The Board has created a new manual for businesses that bid on government contracts and also revised an existing document for all employers. Both publications explain to businesses how to remain compliant with workers’ compensation and disability requirements.

The Prove It to Move It 43-page long manual is directed toward employers applying for a government permit, license or contract. Since those businesses must prove they’re complying with New York workers’ compensation and disability benefits requirements, the manual explains the forms and processes necessary to move those applications toward completion. Sample forms are included. Prove It to Move It also explains to governments how to handle the forms, and the information they should see.

The revised 127-page Employers’ Handbook provides New York’s employers with general information regarding their rights and responsibilities under the state’s workers’ compensation and disability programs. The manual covers who needs insurance, the claim process, details on insurance, how to determine an independent contractor, handling penalties, and many common questions and scenarios.

Each manual is available on the Publications page of the Board’s web site, under Reference Guides. The manuals were created and edited by the Office of Regulatory Affairs and the Public Information Office.

[ED. NOTE: While municipalities and government agencies may have enough lawyers on staff were under contract to read a rather detailed and technical explanation in “Prove It to Move It”, I would be very surprised if any business owner a member of his executive staff in a company with less than a few hundred employees would have the time to read 127 pages of rather detailed information regarding the responsibilities and requirements. In fact I’m quite sure that you’re a small business owner get such a book, it would put her on a table of bookshelves someplace to get to later. It appears as if this book was written not to clarify the need for workers compensation but to allow the New York State Worker’s Compensation Board and other state entities to be able to say, just like the fine print warning you get when you upload new software, that they have given you your rights and it is your fault if you do not read them.

Furthermore, if an employer or his advisers are astute enough to know to ask for this handbook, I would give odds of 100-1 that they already know enough to get workers compensation insurance for which reason for them this book serves no purpose. So, unless the State plans to mail this book to every employer or alleged employer in the State of New York, I am at a loss to understand how the Board plans to distribute this document.]

NYSIF Warns of Legal Package Hoax

June 2, 2010: New York State Insurance Fund Chief Deputy Executive Director Francine James warned the New York legal community of a hoax involving NYSIF that has victimized several New York City law firms recently.

The scam involves a person who has called approximately two dozen law firms in the past 30 days, identifying himself only by first name, usually “Jimmy, ” and saying he is visiting from out-of-state, usually Maryland.

The caller claims to have found a package on the subway, a US Post Office flat rate envelope addressed to the law firm from the New York State Insurance Fund. The package appears to be of some weight, but is nothing more than multiple identical copies of a NYSIF certificate of insurance.

You should be aware that the package and its contents do not originate with NYSIF, and that the envelope and any correspondence contained therein do not have anything to do with official NYSIF busine

The caller offers to deliver the package personally to the law firm, whereupon the caller presents a taxi receipt. Victimized law firms have reimbursed the caller for the taxi fare, up to $80 round trip in some instances, and, on occasion, given him a reward for delivering the package.

NYSIF anti-fraud investigators advise that law firms contacted in such a manner ask the caller for a first and last name, suggest that the caller place the package in the mail, and do not reimburse the caller for any expenses until determining the contents of the package. This matter is under investigation by the New York County District Attorney’s Office and NYSIF’s Division of Confidential Investigations. If you are a victim of this scam, please call NYSIF’s fraud hotline at 1-877-WCNYSIF (926-9743)

NYCIRB recommends a 7.7% premium increase

May 14, 2010: The New York Compensation Insurance Rating Board has just announced its recommendation for an average increase in premium costs of 7.7%. And while they do attach to their letter a 52-page document explaining their justification for this increase, I cannot reprint any of that data lest I violate copyright law as this document which affects the entire workers compensation community in the State of New York and written by a state authorized agency has, on page 2, stated “All rights reserved. No portion of this filing may be reproduced by any means, or stored in a retrieval system for subsequent reproduction, without the written permission of the New York Compensation Insurance Rating Board.”

But since the copyright appears to refer to the report and not their cover letter I reprint the text of their cover letter:

Pursuant to Article 23 of the Insurance Law of the state of New York, and in accordance with the
authorization of the Board of Governors, we are filing for your approval, on behalf of the members and subscribers of the New York Compensation Insurance Rating Board, revised workers compensation loss costs to become effective October 1, 2010 on new and renewal business.

Included with this filing letter is an explanatory memorandum which contains the methodologies and actuarial exhibits underlying the development of the proposed loss cost change based upon the latest available statistical data. A schedule of classification loss costs and related rating values and their derivations will be submitted under a separate cover.

The proposed loss cost revision contemplates both increases and decreases for individual classifications, resulting in an average loss cost increase of 7.7%.

Please note that we are not including a revised New York State Assessment in this filing. Information necessary to calculate this policy charge is not yet available from the Workers’ Compensation Board. Once this information is received, we will forward the October 1, 2010 assessment percentage to you under a separate cover. We respectfully request your earliest possible review and approval of this filing.

Man Mauled After Smoking Pot Can Get Workers’ Comp

June 5, 2010: A Montana judge says it’s not a worker’s fault he got mauled by a grizzly bear at a tourist attraction, even if he smoked marijuana before trying to feed the animal.

Brock Hopkins acknowledged smoking pot before arriving to work at Great Bear Adventures on Nov. 2, 2007. When he entered the bear’s pen, he was attacked and had to be hospitalized.

The owner of the attraction near Glacier National Park says Hopkins was a volunteer and that his use of marijuana caused the accident. But Judge James Jeremiah Shea of the state Workers’ Compensation Court ruled last month that Hopkins is eligible for benefits. Shea found that Hopkins was paid, and therefore he’s an employee. The judge also concluded Hopkins’ use of marijuana was not the main cause of the attack.

State Bar Association Announces Opposition to “Managed Adjudication Path” Program

May 20, 2010: The New York State Bar Association announced its opposition to the Managed Adjudication Path (MAP) program currently being proposed by the New York State Workers’ Compensation Board, arguing that the initiative would severely limit due process rights traditionally afforded to workers, employers and insurance companies in workers’ compensation claims.

The issue of settling disputes outside the Law Judge Hearing Process has been closely monitored by the Workers’ Compensation Law Division of the State Bar’s Torts, Insurance and Compensation Law Section, chaired by Christopher Lemire, Esq. (Lemire Johnson LLC of Malta). Members of the section division expressed their concerns and opposition to representatives of the Workers’ Compensation Board at a recent section division meeting in Albany. A webinar describing the Managed Adjudication Path program hosted earlier this month by the Board erroneously suggested the division and the State Bar were in favor of the MAP program.

The implementation of the MAP program will divert an undetermined number of cases with disputed issues away from Law Judge Hearings to an informal process that allows decisions to be issued without notice to or appearance by the involved parties, without the benefit of legal counsel, and without any development of the record.

“The MAP program represents a major departure from the Board’s longstanding practice of resolving disputed issues through adjudicatory hearings. Simply put, it would erode the due process rights of injured workers and employers,” said State Bar Association President Michael E. Getnick (Getnick Livingston Atkinson & Priore, LLP of Utica and of counsel to Getnick & Getnick of New York City). “The rights of both injured workers and employers will be protected, and the timely resolution of disputed issues accomplished, only by affording both parties a prompt hearing before a Law Judge. The State Bar Association continues to urge the Board to remove this proposal and work toward what should be the common goal of achieving efficiency with justice.”

Various States Eye Surplus Work Comp Insurance Funds

May 15, 2010: Sean P. Carr writing in ambest.com reports that state-backed workers’ compensation insurers share the same challenges as their private-carrier counterparts: rising ratios, falling premiums, higher medical costs. Like some insurers, state funds also have an uneasy, and sometimes hostile, business relationship with a partner — in their case, state government itself.

The approximately 20 state funds operating in the United States take many forms. Generally, they are the insurer of “last resort,” the guaranteed issuer, and often compete in the private market as well. In a few states, they are monopoly writers. Some funds consider themselves fully independent, others are hanging on to tax breaks and other considerations and still others have moved toward going fully private.

The relative health of state funds makes their reserves “very tempting” for cash-strapped state governments, said Laurence Hubbard, president and CEO of the Montana State Fund. “As long as there’s a political affiliation, they could become a target,” said Hubbard, also the new president of the American Association of State Compensation Insurance Funds.

Carr then lists several states which have failed in their attempt to access these funds.

He also quotes Bruce Wood, associate general counsel and director of workers’ compensation for the American Insurance Association, who stated “Lawmakers can also be liberators of state funds”. In addition to “an interest in grabbing money from anywhere,” states are showing an interest in privatizing their way out of the insurance business.

For the complete text of this very illuminating article, click here.

Finally, Two New Workers Comp Commissioners

May 13, 2010: Senator George Onorato, Chairman of The New York State Senate Standing Committee on Labor, announced that at next Monday’s May 17, 2010 Committee meeting, they will be considering the nominations of Loren D. Lobban and Samuel G. Williams as Commissioners/Members of the Workers’ Compensation Board

As reported here on April 16, 2010::

Samuel G. 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.
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 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.

As often as not, if these two nominees are approve by the Labor Committee, the nominations will move either that day or the next day to the Finance Committee after whose approval then move to the Senate floor for a vote. Therefore, it is possible that Williams and Lobban will be confirmed by the end of the next week, assuming budget negotiations or some Senator getting their ‘nose out of joint’.

The Webinar

May 13, 2010: The Workers’ Compensation Board hosted an informational program on Wednesday, April 21, 2010 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 response to questions rasied by hospitals and carriers, the program provides a basic introduction to the new system. 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 answered from the audience. The webinar also covered issues related to reconciling previously paid bills from January to November 2009 when the DOH releases January 2009 rates.

Majestic/CRM considers options

May 6, 2010: Roberto Ceniceros reports in in the website Business insurance that CRM Holdings Ltd. is exploring “strategic alternatives” that could include a sale, merger or shedding operations, the troubled workers compensation management firm said Thursday.

“There can be no assurance that the exploration of strategic alternatives will result in any transaction, or that, if completed, any transaction will be on attractive terms,” the company said in announcing its first-quarter results. It stock traded at 36 cents share Thursday morning, down from 48 cents at the close Wednesday. Among other reasons, CRM said the decline in revenue occurred because its Majestic Insurance Co. unit could not retain or compete for certain rating-sensitive business because A.M. Best Co. Inc. downgraded its financial strength rating from A- to B++ last year.

Appellate Judges Reveal Pet Peeves, Winning Strategies

April22, 2010: Shannon Henson, in LAW360, lists the many do’s and don’ts discussed by a panel of Judges at the annual conference of the American Bar Association’s litigation section when arguing before an appellate court the most important of wihch is just common sense: “Don’t interrupt.”

“I’m allowed to interrupt you. You aren’t allowed to interrupt me,” said Judge Robert Smith of the New York Court of Appeals one subject of which was how attorneys can make a judge’s job easier, the importance of a well-crafted brief and their pet peeves. The judges agreed that attorneys should take pains to answer their questions during oral arguments, even hypothetical situations.

Judge Raggi said lawyers should welcome hypothetical situations because the process of talking through the various implications of a ruling is part of the court’s work. “We are inviting you to play a role in that process,” she said.

Judge Greenaway said an attorney should never pass up an opportunity to offer a last thought if a judge allows it at the end of the lawyer’s allocated time. “Be prepared to take advantage of that entreaty by a judge,” said Judge Greenway. He also said attorneys would be smart to answer the question a judge asked and not the question the lawyer thinks the judge should have asked.

Smith and the other judges stressed the importance of preparation, saying it is imperative for an attorney to know the facts of the case. “The worst thing to think is that the panel knows the case better than you,” Judge Raggi said. That said, attorneys would be wise to give the court an accurate and responsible reading of the underlying case law as well as the background of the case at hand.

Lawyers are not expected to give a neutral perspective of the case or the issues, Judge Smith said, but attorneys also should not misjudge how one-sided they should be. “Part of your job is to be partisan, but not too partisan,” he said.

NYSIF Elects Chair and Vice Chairs

May 5, 2010: The New York State Insurance Fund announced that during its January 20, 2010 monthly meeting, its Board of Commissioners reelected Robert H. Hurlbut as chairman of the Board and the elected H.Sidney Holmes, III as Vice Chairman.

Chairman Hurlbut received his initial appointment to the Board in 1989 by then Governor Mario Cuomo. He became vice-chairman in 1995 and was unanimously elected to succeed the late-NYSIF Chairman Terrnce Morris on May 17, 2006. Governor Paterson recognized chairman Hurlbut last December for 20 years of exemplary service to the Board with the proclamation setting is “dedicated leadership and compassion.”

Vice Chairman Holmes received his initial appointment to the board in June 2008 by Governor Paterson. A corporate partner of Winston and Strong LLP, he has served as a bond counselor, underwriters’ counsel and bank counsel in virtually every type of municipal bond financing throughout the United States and its territories. He also serves as a Commissioner of the Port Authority of NY & NJ, and a board member of the NYS urban league. the Greater Jamaica Development Corporation and the Brooklyn Navy Yard Development Corporation.

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.

Comments (0)

COURT DECISIONS

Two Guest Commentaries

►“Don’t Move the Buffalo Office”’

►An Attorney’s Review of Managed Adjudication Path (MAP)

THIS WEEK’S NEWSWIRE

►3rd Department Changed Mind on ATF Decision

►2nd Injury Fund Deadline Approaches

►U.S. Supreme Court Overrules “honest Services” Law/span>

►New NYSIF Commissioner in process

PRIOR WEEK’S 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

June 26, 2009 (Saturday): 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 was Affirmed in three of four decisions issued by the Third Department this week and Affirmed and Rebuked in a fourth. However, the most interesting decisions issued by the Third Department were two motions: one to vacate its earlier decision on §50(5) assessments and the second to allow reargument or, in the alternative, for permission to appeal to the Court of Appeals, of the Court’s April 1, 2010 decision which RESCINDED the Board’s decision and sent the case back for reconsideration the Board’s ruling that claimant’s applications to review were untimely. Equally important is that there are several more cases pending on the issue of payments to the Aggregate Trust Fund. The up-dated list of top attorneys for the first six months of 2010 is now posted.

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. As of today’s date, we have posted the nine cases made available from the Board.

The Two Top Attorneys for 2009
click here for details.

The Top Attorneys for 2010
click here the June 26, 2010 updated list.

Held v NYS WCB
June 17, 2010 NYS Appellate Division, 3rd Department, Motion Decision
§ 50(5) Assessments

ORDERED that the the motion is granted, without costs, and without prejudice to a motion to vacate the stay in the event
appellants-respondents do not file a record and brief on or before August 2, 2010. William Held Jr., as Chair of Contractors Compensation Trust, et al., group self-insured trusts
(hereinafter GSITs), commenced that earlier proceeding to annul certain assessments levied against them by respondent New York State Workers’ Compensation Board.

Visic v O’Nero & Sons Constr
June 24, 2010 NYS Appellate Division, Third Department
Disability: Degree of
Decision Inadequately/Poorly Written

In part AFFIRMED the Board’s ruling that the pro-se claimant has a marked permanent partial disability rather than a total disability but ‘CORRECTED’ the Board for reopening an issue (AWW) not being controverted. Following two surgeries necessitated by a 2000 injury to his back, the claimant was classified in 2004 with a permanent partial disability.After the case was reopened in 2007 based on a C-27 from claimant’s doctor opining a total disability, a Law Judge determined that there was no total disability but a marked permanent as previously determined and the parties stipulated as to AWW. On review, the Board agreed with all Law Judge on the Degree of Disability but remitted the matter back to the Judge to reconsider average weekly wage.

The Board relied on the medical reports of physicians Edward Simmons, who performed claimant’s surgery in 2004, and Jerry Tracy whereas the claimants testifying physicians gave conflicting testimony and the doctor who supplied the C-27 did not base his opinion on the Board’s Medical Guidelines of June 1996. In summary, the Court, while knowledge and conflicting medical information found that the Board’s decision was adequately supported. However, in returning the case to the Judge to reconsider the AWW, the Court noted the parties reached a stipulation on the AWW. “Inasmuch as a timely appeal was not filed on that decision, and given the absence of circumstances justifying revisiting the issue, the decision is final and binding per WCL §23.” Prevailing party represented by: Thomas P. Etzel of counsel to Gregory J. Allen, State Insurance Fund for O’Nero & Sons Construction Company and another, respondents. Click here to read the full court decision of the NYS Appellate Division…

Perez v Licea
Moreno v Licea
June 24, 2010 NYS Appellate Division, Third Department
Employment: Who is
Procedure: Denial Full Board Review

AFFIRMED the Board’s rulings in these two related cases which (1) determined that an employer-employee relationship existed and (2) which denied claimants’ requests for reconsideration or full Board review. In 2006,Edelman, as the owner and sole officer of 2180 Realty Corporation, asked Luis Licea to perform maintenance work on his company’s building. Licea requested that Edgar Ruano Perez and Jorge Moreno, claimants and appellants in these two cases, assist him shortly after which all three sustained injuries in an explosion while work was being performed. After hearings were held to determine whether claimants were employees of Licea or 2180 Realty, a Law Judge ruled Licea the general employer liable for 75% and 2180 Realty special employer liable for 25%. After both claimants and Rochdale Insurance Company (2180 Realty’s workers’ comp carrier) sought review of that decision,the Board affirmed the Law Judge and denied both parties’ requests for full Board review or reconsideration.

The Board’s factual determination that a general employee of one employer is a special employee of another must be upheld if it is supported by substantial evidence. While no single factor is dispositive, “it has been held that the key to the determination is who controls and directs the manner, details and ultimate result of the employee’s work.” Licea testified that Edelman instructed him to employ additional workers such that the two claimants and Licea were doing so when the explosion occurred. Both Edelman and Licea testified as to their conversation regarding their relationships with the two claimants to investigators for the NYC Fire Department as well as adding additional information in their testimony before the Board, information the Board used to make it determination. In supporting the Board, the Court wrote, “To the extent that evidence in the record might support a different result, we note only that ‘the Board was entitled to resolve the conflicting evidence based upon its assessment of the witnesses’ credibility and the reasonable inferences drawn therefrom.’”

The Court addressed the denial for reconsideration or full Board review in a footnote: “Although claimant[s] and Rochdale have each appealed from the Board’s underlying decision, only claimants have appealed from the Board’s denial of request for full Board review or reconsideration; however, claimants’ appeals from that denial are deemed abandoned as they did not raise any issues with respect thereto in the brief on appeal.” Prevailing party represented in both cases by: Amy L. Fenno of counsel to O’Connor Redd (White Plains) for 2180 Realty Corporation, respondent and Kim Stuart Swidler, Uninsured Employers’ Fund, Albany, for Uninsured Employers’ Fund, respondent. Click here to read the full court decision in Perez v Licea… and Click here to read the full court decision in Moreno v Licea…

Grill v Fashion Inst. of Tech
June 24, 2010 NYS Appellate Division, Third Department
§ 15(8)(e) 2nd Injury Fund
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling (1) that because claimant did not have a ‘dust disease’, WCL §15(8)(ee) did not apply and (2) which denied the application of the employer and its third-party administrator for full Board review. After the claim was established for a compensable occupational disease (interstitial pulmonary fibrosis and lung disease) the question thereafter arose as to whether the condition constituted a dust disease entitling the employer to reimbursement from the Special Disability Fund (Fund) per WCL§15 [8] [ee]), the Board determined that it did not.

Whether a condition constitutes a dust disease within the ambit of WCL §15(8) (ee) depends “upon the pathological distinction between pneumoconiosis (diseases caused by the inhalation of dust particles which affect the parenchyma, or essential functioning aspects, of the lungs) and those diseases which affect the pleura, or lining, of the lungs. If a lung disorder arises from pneumoconiosis, it is properly viewed as a dust. Here, claimant’s treating pulmonologist determined that she suffered from pneumonitis arising from her exposure to aerosolized paint, but did not find that she had pneumoconiosis. As the Board was free to credit that opinion over the equivocal diagnosis of pneumoconiosis rendered by another physician, we are satisfied that substantial evidence supports its decision.”

In a footnote the Court ruled, “Inasmuch as the employer fails to raise any issue with respect to its separate appeal from the Board’s denial of its application for full Board review, we deem that appeal to have been abandoned.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division…

Stojanov v Eastman Kodak
June 17, 2010 NYS Appellate Division, 3rd Department, Motion Decision
§ 23: Late or Interlocutory Appeal

ORDERED that the motion for reargument or, in the alternative, for permission to appeal to the Court of Appeals is granted. In the original decision issued April 1, 2010, the Court rescinded and sent back for reconsideration the Board’s ruling that claimant’s applications for review were untimely per WCL because the applications were not received by the Board within 30 days. However, in explaining its rescission in April 2010, the Court noted that, “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’ (emphasis added). 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.” Click here to read the full court decision of the NYS Appellate Division…

PENDING CASES
June 17, 2010: The following list represents 15 cases, all of which have been heard. A KEY LEAD CASE argued June 2, 2010 deals with the ATF issue; all four cases were heard on oral argument.

May 27, 2010 Aides At Home v Workers’ Comp Board
June 2, 2010 Collins v Dukes Plumbing (ATF-Lead case)
June 2, 2010 Earle v Batavia Nursing Home (ATF)
May 24, 2010 Galanos v Nevada Utilities
May 27, 2010 Hilbrandt v Vil Of Red Hook
Apr 26, 2010 Parkhurst v United Rentals (THREE CASES)
May 24, 2010 Poulton v Martec Industries
June 2, 2010 Raynor v Landmark Chrysler (ATF)
May 26,2010 Smallwood v Mereda Realty
June 2, 2010 Thomas v Cold Spring Constr (ATF)
May 28, 2010 Wooding v Nestle Usa Inc

▼ Posted Monday June 21, 2010 ▼

Len v NYS
June 17, 2010 NYS Appellate Division, Third Department
§11: Jurisdiction

AFFIRMED an order of the Court of Claims which, among other things, granted defendants’ motion to dismiss the claim and/or for summary judgment dismissing the claim.

On December 7, 2006, decedent tragically fell to his death from one of the movable dams used by his employer New York State Canal Corporation, the chief lock operator for the Green Island Bridge in the City of Troy, Rensselaer County. The decedent’s estate commenced this action against the Corporation, defendant State of New York and defendant New York State Thruway Authority alleging both wrongful death and conscious pain and suffering.

Asserting, among other things, that these claims are barred by the exclusivity provision of WCL §11, defendants moved to dismiss the action and/or for summary judgment. Conceding only that his claims against the Corporation are barred, claimant otherwise opposed the motion and cross-moved to amend his claim as against the State and the Authority to allege Labor Law violations. The Court of Claims granted defendants’ motion, holding that the claims against the Authority, by virtue of its parent-subsidiary relationship with the Corporation, were barred by the exclusivity provision of WCL §11. Key to this decision was the Court’s determination as to whether the Authority should be deemed decedent’s employer for workers’ compensation purposes. Although the standard for finding an alter ego relationship is high, requiring “direct intervention by the parent in the management of the subsidiary to such an extent that ‘the subsidiary’s paraphernalia of incorporation, directors and officers’ are completely ignored”, here the Court found that the Corporation is but an arm of the Authority, justifying a finding that the Corporation is the Authority’s alter ego.The Court concluded that “this evidence of shared purpose, intermingling of finances and unity of management is sufficient, on this record, to uphold the Court of Claims’ finding that, for the purposes of canal operations, the Authority is indistinguishable from the Corporation and, as a result, is entitled to assert the exclusivity provisions of the WCL.”

With respect to his claims against the State and the claimant assertion that he should have been permitted to amend the complaint to include claims under Labor Law § 240 (1) and § 241 (6), the Court reviewed the specifics of the appeal and agreed that the Court of Claims properly found that claimant’s proposed claims under Labor Law § 240 (1) and § 241 (6) lack merit. The Appellate Court then added, “In light of this conclusion, we need not address the State’s proposed alternative ground of affirmance, namely that it is also entitled to assert the defense of workers’ compensation. Finally, we reject claimant’s alternative argument that the granting of the State’s summary judgment motion was premature (see CPLR 3212 [f]). Claimant ‘has failed to identify any evidence that might . . . [be] developed if additional discovery [is conducted] that would . . . serve[] to bar [the Court of Claims] order granting the State’s motion’.” Prevailing party represented by: Kathleen M. Treasure of counsel toAndrew M. Cuomo, Attorney General for respondents. Click here to read the full court decision of the NYS Appellate Division…

▼ Posted Friday June 17, 2010 ▼

Brown v NYC Dept Corrections
June 17, 2010 NYS Appellate Division, Third Department
Causal Relationship:Heart Condition

AFFIRMED the Board’s ruling that claimant did not sustain a causally related injury and denied his claim for workers’ compensation benefits. Claimant’s lightheadedness at work in 1999 was determined to be due to cardiomyopathy. Absent from work for several months, he applied a claim for workers’ comp, arguing that work-related stress led to hypertension which, in turn, triggered the cardiomyopathy, a claim the Board denied, finding that he had not established a causal link between job stress and his cardiac condition.

Claimant suggests that the manifestation of his condition at work gave rise to a presumption that it arose out of and in the course of his employment. But as he failed to raise this issue before the Board, the Court ruled that “it is accordingly unpreserved for our review.” Nonetheless the Court reviewed the medical evidence submitted by the claimant and the carrier noting that an impartial cardiologist who examined the claimant at the Board’s request found no causal link between claimant’s work and his cardiac distress. The Court, in referencing several medical reports supporting the Board’s decision, did note that the “medical proof provides substantial evidence to support the Board’s decision, notwithstanding the fact that other evidence in the record could support a contrary result.” Prevailing party represented by: John Sweeney of counsel to Michael A. Cardozo, Corporation Counsel, NYC for NYC Department of Correction, respondent. Click here to read the full court decision of the NYS Appellate Division…

Dupuis & Frito Lay v SFCC
June 17, 2010 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board’s ruling that the employer’s workers’ compensation carrier is entitled to reimbursement from the Special Disability Fund per WCL §15(8)(d). After the claimant’s claim for a work-related knee injury was established and he received workers comp benefits, the employer’s carrier sought reimbursement from the Fund asserting the claimant’s diabetes, among other pre-existing conditions, had contributed to his disability, an argument with which the Board agreed. In order to obtain reimbursement under WCL§15(8)(d), the carrier was obliged to show that claimant had (1) a preexisting permanent impairment that hindered his job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than what would have arisen from the work-related injury by itself. The Court, in referencing several medical reports supporting the board’s decision, did note that the “medical proof provides substantial evidence to support the Board’s decision, notwithstanding the fact that other evidence in the record could support a contrary result.” Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for Frito Lay and another, respondents. Click here to read the full court decision of the NYS Appellate Division…

▼ Posted Friday June 10, 2010 ▼

Kaja v Siller Bros
June 10, 2010, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

ISSUED A SPLIT DECISION on the Board’s ruling which denied pro-se claimant’s application for reconsideration and/or full Board review. Claimant, whose left thumb was severed in May 2003 and later reattached, had his case closed in August 2004 with an award for 75% schedule loss of use of his left thumb. In August 2004, the WCLJ, based upon a report from claimant’s orthopedist, found prima facie medical evidence of a consequential neck injury related to the 2003 incident and continued the case. However, following the submission of medical reports and a hearing in 2008, the Law Judge determined that claimant failed to establish a consequential neck injury. As to the additional claim for further causally related disability to claimant’s thumb, the Law Judge also denied relief, noting that an October 2004 independent medical report from the workers’ compensation carrier’s consultant, Joseph Fulco, had only found, at that time, left thumb disability “of a moderate partial rate.” After all the decisions were affirmed by a Board panel, claimant applied for reconsideration and/or full Board review which was denied.

As the claimant’s appeal dealt with the denial for reconsideration and/or full Board review and not the underlying decision, the Court limited its review to the denial, resulting in a “split” decision. The Court agreed with the Board regarding the neck, ruling no new evidence was presented justifying a modification of prior decision.

However, regarding the thumb, the Court found that a new independent medical report of January 2009 from the carrier’s consultant opined that claimant has “a 100% schedule loss of use of the left thumb.” The Curt then wrote, “Here, given the circumstance that, among other things, the report by the impartial specialist describing a change in condition was generated at the request of the carrier and expeditiously presented to the Board, we cannot agree with the Board’s ruling that claimant’s application should be denied on the basis that ‘[n]o new evidence has been offered which could not have been produced earlier.’ Accordingly, we deem it appropriate to remit the matter to the Board for further proceedings related to that issue.” Prevailing party represented by: Since this was a split decision, no one had the prevailing argument but kudos to EDIP KAJA, the pro se appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Sulecki v City of New York
June 3, 2010 NYS Appellate Division, First Department
Course of Employment: Egress/Ingress

REVERSED the Order, Supreme Court, New York County (Karen S. Smith, J.), entered February 2, 2009, which denied the municipal defendants’ motion to amend their answer to assert the defenses of workers’ compensation and collateral estoppel. In its decision the Court wrote, “Plaintiff, an engineer employed by the New York City Department of Design and Construction, was injured after tripping on a sidewalk adjoining a City-owned building while on his way to a work-related meeting. The Workers’ Compensation Law provides the exclusive remedy where, as here, the employer and the landowner are essentially the same party and the plaintiff is injured while performing his job No exception should be made simply because plaintiff’s injury did not occur at the location of the work-related meeting. Accordingly, the motion for leave to amend the answer should have been granted and the complaint dismissed as against the municipal defendants.” Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼There were no decisions issued June 3, 2010▼
▼ Posted Friday May 28, 2010 ▼

Keles v Santos [Cleaning]
May 27, 2010 NYS Appellate Division, Third Department
Employment: Who is

AFFIRMED the Board’s ruling that claimant was not an employee of Augusto B. Santos and denied his claim for workers’ compensation benefits. Claimant, employed by Plymouth Beef Company, was allegedly injured at the facility prior to the start of his scheduled shift with Plymouth, thus seeking workers’ comp benefits. He claimed that his early presence at the facility was due to inspection work he performed for Santos, the proprietor of the business that cleaned the facility. A Law Judge, later affirmed by a Board Panel, disallowed the claim, finding that no employer-employee relationship existed between claimant and Santos. Although the claimant at one time worked for Santos, the relationship ended months before the injury. Nonetheless as part of his job at Plymouth, he was required to interact with employees of Santos. The Court wrote, “While claimant testified that he felt morally obliged to continue performing the safety inspections which he had done for Santos even though Santos no longer needed his services, that gratuitous work, absent other indicia suggesting an employer-employee relationship, and the fact that substantial evidence supports the Board’s determination we affirm the decision not to award workers’ compensation benefits.” Prevailing party represented by: Daniel Becker of counsel to Gregory J. Allen, State Insurance Fund for Augusto B. Santos and another, respondents and Patrick M. Conroy of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Plymouth Beef Company and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Turner v Jaquith Indus
May 27, 2010 NYS Appellate Division, Third Department
Disability: Further Causally Related

AFFIRMED the Board’s ruling that claimant had no further causally related disability. Claimant, a machine operator, began experiencing respiratory problems after being exposed to toxic fumes in the course of his employment in July 1997 resulting in losing three weeks of work and an established comp claim involving his lungs and airways. He returned to work in August 1997 but in the summer of 2006, he was again exposed to fumes causing breathing difficulty. Subsequent to a diagnosed of asthma and chronic obstructive pulmonary disease, he submitted a second claim for benefits. A Law Judge, later affrimed by a Board Panel, authorized awards for February 16, 2007 to June 8, 2007, but found no futher causally related disability beyond June 2007. While the claimant’s and carrier’s medical providers submitted opposong opinions, the Court, as its norml position on such controversies, wrote, “[I]t is within the Board’s discretion to determine witness credibility and resolve conflicting medical opinions. . . . inasmuch as the resolution of conflicting medical opinions is within the Board’s province and both of the latter opinions constitute substantial evidence supporting the Board’s determination, we decline to disturb it.”Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent and Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for PMA Insurance Group, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Clark v Suny Upstate Med. [SFCC]
May 27, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

AFFIRMED the Board’s ruling that the award of workers’ compensation benefits be paid by the Special Fund for Reopened Cases. Claimant injured her back while working for the employer in 1994, initially paid for compensable lost time which came to an end in March 1977 when a Law Judge authorized treatment and closed the case. Further work-related injuries in 2001 and 2003 also resulted in the payment of workers’ comp benefits, beginning in 2003. The 1994 claim was reopened in 2004, when a hearing was held to determine, among other things, whether apportionment between the various claims was appropriate at which time the. The Special Fund for Reopened Cases (Fund) was then placed on notice that it may be required to assume liability for the 1994 claim per WCL §25-a.

Although on the face of the record, both of the times limits under §25-a (three years and seven years) were satisfied in this case, the Fund argued that the employer’s workers’ compensation carrier voluntarily paid benefits it knew were attributable to the 1994 claim in the three years prior to reopening. The carrier received the November 2003 report of an orthopedic surgeon who examined claimant and opined that the 1994 accident was partially responsible for her ongoing disability. Although the carrier did subsequently pay benefits under both the 2001 and 2003 claims, it also raised the issue that the Fund may be liable for any portion attributable to the 1994 claim, and the Fund was notified of its potential liability (see WCL §25[1][f]). The Court then wrote, “As substantial evidence in the record thus supports a finding that the carrier did not voluntarily assume liability for payments attributable to the 1994 claim, the Board appropriately followed the spirit and purpose of WCL §25-a to shift liability of that stale claim to the Fund.” Prevailing party represented by: Susan B. Marris of counsel to Gregory J. Allen, State Insurance for SUNY Upstate Medical Center and another, respondents Click here to read the full court decision of the NYS Appellate Division, Third Department….

Monteleone v Town of N. Castle
May 27, 2010 NYS Appellate Division, Third Department
§ 25(4)[a] Reimbursement

AFFIRMED the Board’s ruling that the employer was entitled to reimbursement for wages paid to claimant during the period of disability. After suffering a 2005 inury, claimant ultimately negotiated a 25% schedule loss of use encompassing 78 weeks of compensation. As claimant had been paid full wages for 46 days due ot his injury, the agreement also called for the employer to be reimbursed $11,380 of the total $31,200 award per §25(4)[a]. After a Law Judge approved the stipulation, the claimant requested that the amount of the employer’s reimbursement be modified because approximately eight days of claimant’s vacation and sick leave accruals had allegedly been deducted during those 46 days. Although the Law Judge agreed with the claimant and reduced the amount of the employer’s reimbursement, a Board panel reversed and affirmed the original reimbursement of $11,380. Here the Court noted that “pursuant to a collective bargaining agreement governing claimant’s employment, the employer was required to pay claimant’s full wages, without deducting any of claimant’s leave accruals, for the initial six months of any lost time arising from a compensable injury. Inasmuch as the instant record does not support claimant’s assertion that the employer did otherwise, the Board properly concluded that reimbursement of $11,380 to the employer would not create a disproportionate result in its favor.”Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for Town of North Castle and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday May 21, 2010 ▼

Bran v Wimpish
May 20, 2010 NYS Appellate Division, Third Department
Employment: Who is
§14: Average Weekly Wage

AFFIRMED the Board’s ruling that claimant was an employee of Ralph Wimpish but REVERSED the Board’s ruling on the average weekly wage.

After sustaining injuries on February 12, 2008 when he fell from a ladder while working in the apartment owned by Ralph Wimpish, the injured workers claim was established after a Law Judge found an employer-employee relationship and set the claimant’s average weekly wage at $620, decisions affirmed by a Board Panel. The Appellate Court noted that, “Wimbish hired the claimant in the parking lot of a home improvement store, provided daily transportation between the store and the worksite and instructed the claimant on what work needed to be done. . . . Wimbish paid claimant in cash at the end of each workday and supplied him with equipment, including spackle, spackling tools and a ladder.” Citing prior case law, the Court added, “The existence of an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its finding must be upheld if supported by substantial evidence. . . . In our view, the record contains substantial evidence supporting the Board’s determination that an employer-employee relationship existed between claimant and Wimbish, notwithstanding evidence in the record that could support a contrary result.“

However, the Court did find merit in Wimbish’s contention that the Board’s calculation of claimant’s average weekly wage at $620 was improper and return this particular matter to the Board for further proceedings. Prevailing party represented by: John F. Clennan, Ronkonkoma, for appellant, on the issue of average weekly wage and Iris A Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent on the issue of employee/employer relationship. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Catapano v Jaw
May 20, 2010 NYS Appellate Division, Third Department
§ 29: MVA liens

RESCINDED and sent back for reconsideration the Board’s ruling that the Special Disability Fund’s consent to a third-party settlement was not required. Claimant suffered injuries in an accident at work, and this workers’ compensation claim was established in 1996. The employer’s workers’ compensation carrier then filed a notice of claim for reimbursement out of the Special Disability Fund and, in 2000, the Fund was found liable for reimbursement pursuant to Workers’ Compensation Law §15(8)(d). Shortly thereafter, claimant settled a personal injury action arising out of the accident, and the carrier (State Insurance Fund) gave its consent to the settlement, waived its lien on the proceeds, and took a credit against claimant’s net recovery (WCL §29[4],[5). The Fund’s consent to the settlement was not sought and, as a result, it refused to reimburse payments of deficiency compensation made by the carrier. The Board ultimately held that the Fund’s consent was not required, and the Fund appealed.

“While the Board is free to alter a course previously set out in its decisions, it must set forth its reasons for doing so, and the Board’s failure to do so renders its decision arbitrary and capricious. The Board had previously held that where the Fund has been found liable for reimbursement to the carrier under WCL §15 (8)(d), the carrier waives its right to that reimbursement if it does not obtain the Fund’s consent to a settlement (see Matter of Care Diagnostic Laboratory, 2006 WL 832793, *2, 2006 NY Wrk Comp LEXIS 2612, *4 [WCB No. 29317021, March 28, 2006]; see e.g. Matter of Brigotta Farmland, 2006 WL 1064007, *2-4, 2006 NY Wrk Comp LEXIS 3343, *5-10 [WCB No. 80213739, April 18, 2006]). Indeed, the carrier here readily admits that the cited precedent does not support the Board’s present holding, but nonetheless argues that the prior cases were wrongly decided. However, as that prior precedent was not addressed in any way in the Board’s decision, the Court remitted this matter back to the Board for further proceedings.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday May 14, 2010 ▼

Bush v Montgomery Ward
May 13, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

AFFIRMED the Board’s ruling that WCL § 25-a is inapplicable to claimant’s award of workers’ compensation benefits. Although claimant was injured at work in June 1978 and awarded compensation benefits, it appears that claimant did not receive awards for her injury after 1981; however, most of the records associated with her original claim were destroyed that year in a fire at the Binghamton office of the Board and the record contains no evidence indicating that the issue of permanency was resolved.

Accordingly, when claimant sought to reopen her claim in 2006, hearings held to determine the applicability of WCL §25-a lacked the benefit of documentation regarding the manner in which earlier proceedings were resolved. Claimant stated that her claim had never been closed and that she had worked in a light duty capacity since her injury. Medical reports submitted in April 1979 and April 2006 indicate that she was capable of performing only light duty work. Additionally, in 2008, her treating physician opined that claimant had suffered a 15% to 20% schedule loss of use of her right knee. Following the hearings, a Law Judge, affirmed by a Board panel, ruled that the claim was never truly closed and discharged the Special Fund for Reopened Cases from liability. The Court then ruled that “substantial evidence support[ed] the Board’s determination that, because further proceedings were contemplated to establish the extent of her disability, claimant’s case was not truly closed”. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Thomas v Crucible Materials
May 13, 2010 NYS Appellate Division, Third Department
§ 15(6) Reopening by claimant

AFFIRMED the Board’s ruling which denied claimant’s application to reopen his workers’ compensation claim. In 2002 claimant suffered injuries to his right shoulder, underwent surgery to repair a massive tear in his right rotator cuff, which was not successful. At a November 25, 2003 hearing, claimant agreed to accept his doctor’s opinion regarding schedule loss of use (SLU), was classified with a 70% schedule loss of use of his right arm, awarded benefits, and the case was closed.

In 2007, claimant resumed treatment for his injury, then successfully applied to reopen his claim based on recent medical reports indicating that his medical condition had worsened since the 2003 classification. The Law Judge found sufficient medical evidence of a change of condition, rescinded the 2003 SLU determination, reclassified claimant with a permanent total disability from 2003 onward, and modified claimant’s award accordingly. Upon appeal, a Board panel reversed, concluding that claimant failed to show that his condition changed to such an extent that a reopening of his prior classification was justified.

The Board’s decision as to whether to reopen a case per WCL §15(6) is a matter committed to the Board’s discretion and will not be disturbed on appeal absent an abuse of discretion. Furthermore, it is for the Board to resolve conflicting medical evidence and, in so doing, it “may selectively adopt or reject portions of a medical expert’s testimony“. The Court agreed with the Board that there was no “meaningful distinction between Smallman’s preclassification and postclassification medical narratives. . . . Despite the existence of other medical evidence in the record to support a contrary result, we find that the foregoing constitutes substantial evidence in support of the Board’s conclusion that claimant did not establish a sufficient change in his medical condition warranting a reopening of his 2003.” Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Crucible Materials Corporation and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Yarleque v Sally Lou
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s denial of claimant’s two requests for reconsideration or full Board review. Having worked for the employer for less than four months in 1996, claimant submitted in June 2000 two applications for benefits allegedly arising out of that employment — one for carpal tunnel syndrome and the second for back, neck and shoulder injuries. Although the carrier argued that both were time-barred pursuant to WCL §28, the Law Judge found the claims timely and established both. A Board panel reversed the Law Judge per §28. The claimant then requested and was denied full Board review on both cases, hence the appeal to the Appellate Court. The Court wrote,“In that regard, the grounds for seeking review or reconsideration are narrow; the movant must generally show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination”.

In this case, the Board in its underlying decision concluded that claimant’s CTS was an occupational disease for which the latest possible date of disablement was November 1, 1996, when claimant stopped working, thus making her claim untimely. As for the second claim,the Board found that her admission in the footnote of her brief confirms that she knew that those injuries were work-related no later than December 21, 1996 together with the evidence that claimant stopped working on November 1, 1996 because of her injuries, amply support the Board’s decision that both claims involved occupational diseases and were filed beyond the two-year period. Prevailing party represented by: Jeremy B. Davis of counsel to Gregory J. Allen, State Insurance Fund for Sally Lou, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Barone v Interstate Maintenance
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling which denied the employer’s request for reconsideration and/or full Board review. Although the main issue in this case was jurisdiction as the claimant, an employee of a New York firm, was injured in 1993 while making deliveries in New Jersey, the appeal is based on the Board’s denial of a review on the basis that the case was dormant for 10 years, until the employer and its president applied for reconsideration and/or full Board review of the Board’s 1996 decision finding subject matter jurisdiction. The Court wrote, “the employer failed to demonstrate the existence of any newly discovered evidence, a material change in condition or that the Board improperly failed to consider the issues raised before it. Furthermore, the employer failed to make its application ‘within a reasonable time after [it] . . . had knowledge of the facts constituting the grounds upon which such application [was] made’ (12 NYCRR 300.14 [b]). Accordingly, we cannot say that the Board abused its discretion in denying the employer’s request for reconsideration and/or full Board. . . .Finally, we note that the employer’s arguments regarding personal jurisdiction and allegedly improper conduct of Travelers were not raised before the Board in the application for reconsideration and/or full Board review and, thus, are unpreserved for our review.. 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….

▼ Posted Friday May 7, 2010 ▼

Carlineo v Snelling & Snelling
May 6, 2010 NYS Appellate Division, Third Department
Procedure: Due Process

AFFIRMED the Board’s ruling which returned a case for development of the record on the issue of general/special employment. Claimant was employed by Snelling, a temporary employment agency, and was injured in a car accident for the owner of the car (Michael Comstock) to whom he been assigned as a laborer, providing services to Fortuna Energy.

Hearings were conducted on the claim, but before Snelling completed its examination of Comstock, a Law Judge rendered a decision finding, among other things, that, at the time of the accident, claimant did not have a general/special employment relationship with Comstock or Fortuna and that Snelling’s carrier was responsible for the payment of this claim. Snelling appealed, requesting that the hearing be reopened so that additional evidence could be submitted as to claimant’s employment status at the time of the accident. Although a Board Panel affirmed the Law Judge, a Full Board Review resulted in the case being returned to the Panel which determined that Snelling’s counsel should have been permitted to complete his examination of Comstock, and the case was sent back to a law judge for this further examination.

In its appeal to the Appellate Division, Snellng argued that the Board panel erred by restricting the hearing on remand to Comstock’s testimony and contends that it should be provided with an opportunity to present additional evidence on the employment issue from other witnesses. The Court ruled that “As the decision being appealed rescinds the original decision and remands the matter to the Law Judge for a new ruling on all issues, it is interlocutory in nature and does not dispose of all substantive issues nor reach legal threshold issues that may be determinative of the claim. As such, this decision may not be the proper subject of an appeal and this appeal must be dismissed.” Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Renz v Home Depot
May 6, 2010 NYS Appellate Division, Third Department
Causal Relationship: Aggravation or New

AFFIRMED the Board’s ruling that claimant was precluded from pursuing her neck injury claim by stipulating to a schedule loss of use award to her arms. The Board found that the claimant injured her left shoulder and authorized surgery and benefits. Following a hearing at which claimant asserted consequential injuries to her right shoulder and neck, a Law Judge amended the case to include a right shoulder injury, authorized medical tests of claimant’s neck and upper extremities for diagnostic purposes, and directed the parties to submit deposition transcripts regarding the issue of whether claimant suffered a neck injury. at a March 2007 hearing before a different LJ and without the submission of depositions related to the neck injury, the parties stipulated that claimant suffered a 25% schedule loss of use of her left arm and a 20% schedule loss of use of her right arm. When the WCLJ asked if there were “[a]ny other body parts,” claimant’s counsel replied, “[n]o.” The parties’ agreement which awarded the claimant approximately $55,000 in total benefits and indicated that “[n]o further action [was] planned” in the case.

Then one month later, claimant moved to reopen the claim, seeking benefits related to her neck injury, right thumb and right ring finger. The case was referred back to the original WCLJ, before whom claimant conceded that she had agreed to forego her neck claim when she entered into the stipulation. Claimant asserted, however, that her neck condition had since deteriorated. The WCLJ noted that claimant’s neck had been symptomatic since the date of the accident and concluded, as relevant here, that the claim for the neck injury and any claims flowing from that injury were barred by the parties’ stipulation. Finding that claimant’s bilateral carpal tunnel syndrome was linked solely to her neck injury, the WCLJ determined that there was no prima facie medical evidence of carpal tunnel syndrome. The Board affirmed, concluding that claimant had not been “forthright” about her intention to pursue the neck claim at the time she entered into the stipulation, and stating that “no further claim regarding the neck may be made at this time.” The Court in its affirmance wrote, “In light of the medical guidelines, the procedural history of this case, evidence that claimant’s neck was symptomatic at the time of the stipulation and the negative response of claimant’s attorney when asked by the WCLJ whether there were ‘[a]ny other body parts,’ the Board did not act irrationally in concluding that the stipulation barred pursuit of the neck claim and denying claimant’s application to reopen the case.” Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman(Hauppauge) for Home Depot USA, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Wilson v General Mills
May 6, 2010 NYS Appellate Division, Third Department
Course of Employment: Assault

AFFIRMED the Board’s ruling that claimant’s injury arose out of and in the course of her employment due to an assault and awarded workers’ compensation benefits. Claimant filed for benefits after a coworker struck her in the face with a work tool. The Law Judge ruled. and the Board affirmed that the assault upon claimant stemmed from work-related differences finding a sufficient nexus between the assault and the employment. The Court agreed that the claimant’s testimony was supported by an affidavit that claimant filed with the Equal Employment Opportunity Commission in support of her discrimination complaint, upon which the employer and its carrier heavily rely, which could be read as suggesting that at least some of the assailant’s offensive comments and conduct stemmed from a promotion and pay raise that claimant received in 2005. 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….

▼ Posted Friday April 30, 2010 ▼

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….

▼ 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….

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

Updated twice a week, this website will impart an understanding of the New York State WCB that will help the workers comp community better understand why the WCB does what it does and how to deal its many inconsistencies and bureaucratic obfuscations as well as giving the community and Board staff an anonymous bulletin board. Friday postings include that week’s court decisions, news articles, and commentary. Monday postings include polls. Among the pages in this website are: COURT DECISIONS: a weekly update of workers comp related decisions from the New York’s Appellate Division, Court of Appeals, and other jurisdictions, a list of cases that have been argued but still await a ruling from the Court, and a list of the “winningest” attorneys for the year.

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

Click here to find out more about this new book.

NEWSWIRE: a weekly listing of key developments from the media as well as various state agencies. COMMENTARY: my comments on key topics, work related injuries, major court decisions, new board policies, and answers to questions from my readers. MY BOOK: “Behind the Closed Doors – an Insider’s look at how things really work at the New York State Worker’s Compensation Board, and how to fix them” BIOS: The commissioners’ official and unofficial biographies. Comments, suggestions, and criticisms, published anonymously, can be sent to me at: TheInsider@InsideWorkersCompNY.com.

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

Friday July 30, 2010 Postings
DECISIONS: the Board wins two affirmances from the Appellate Court but one raised some questions not yet asked.
NEWSWIRE: Unlike the Board, I officially welcome new Commission Loren Lobban. Also the bio of the newest nominee to the Board, a questionable Board ruling on Erie County’s new rules for injured workers, electronic transcript in the news, and Washington State has a ballot initiative on workers comp insurance.
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Tuesday July 23, 2010 Postings and those of July 16, 2010
DECISIONS: Last week, I posted two decisions from the Appellate Court, one a reversal and one an affirmance. This week, the Court has issued just one decision, again an affirmance, on a case that should never have gone to to the Court.
NEWSWIRE: A Federal Court in California, but written by a Fed. Judge from NYC, rejected employer contracts written to define some employees as independent contractors. And the NYS Legislature has passed similar legislation. Also, as I noted a few weeks ago, an aide to Tom Suozzi has been named by Governor Patterson to become NY’s newest WCB commissioner but her appointment seems to be held up at the Senate Labor Committee. Details in this week’s NEWSWIRE.

Tuesday July 6, 2010 Postings
POLL RESULTS: The POLL page has the results of your opinions and remarks on the travesty of the underfunded Group Self-Insured Trusts. Some interesting answers but somewhat expectable answers.
NEWSWIRE: Law suits are in the news today. AIG wins the right to sue its competitors but one WC carrier gets fined $262 million for improper practices.

Friday July 2, 2010 Postings
DECISIONS: The Appellate Court, 3rd Department, has finally issued the long awaited decisions on the matter of retroactive payments to the Aggregate Trust Fund (ATF). They have just issued two decisions each dealing with three cases for which the decisions issued were identical word for word except that in one decision the issue of the constitutionality of the Board’s decision was addressed, having been raised by two carriers. A brief summary of these can be found on the DECISIONS page as well as links to the two decisions.
NEWSWIRE: One ‘new’ Commissioner does not take the reins but another one ’surfaces’. SFCC data loss cost someone $60K. 24 years for a §114 case!! WCB Staff privacy, and more.

Sunday June 27, 2010 Postings
DECISIONS: Up-date list of the “WINNINGEST” and “TOUGHEST” attorneys so far in 2010 has now been published.
POLLING: Now that the NYS WCB has issued its “CYA” report on Group Self-Insured Trusts and that Self-Insurance Institute of American has issued a response, it is time to learn your opinion. This week’s poll asks your opinion on 20 issues.

Friday June 25, 2010 Postings
DECISIONS: The Board gets 3½ affirmances and ½ reversal while the Appellate Court, 3rd Department issues two very interesting motions, one to vacate its own 2009 ruling in a Self-Insured Trust matter and the other to rehear or allow to go to the Court of Appeals as §23 case.
NEWSWIRE: New Board Member at NYSIF in process/done. 2nd Injury Fund deadlines is very close. A U.S. Supreme Court case should allow Commissioners, among others, to breathe easier. And more.

Friday June 18, 2010 Postings
DECISIONS: While we await with great interest the Courts decisions regarding the cases dealing with payments to the Aggregate Trust Fund, the Court has published two more decisions yesterday, June 17, affirming the Board on causal relationship and the 2nd Injury Fund, ending both decisions with the explanation: “medical proof provides substantial evidence to support the Board’s decision, notwithstanding the fact that other evidence in the record could support a contrary result.“
NEWSWIRE: An economist says “Why not tax everything.” More importantly, as the result of the CRM debacle, NYS WCB has issued a report on how to fix the self-insured trusts it failed to supervise in the first place while the Self-Insurance Institute of America explains why the report is so wrong [it is!] and the Board issues a 127-page book to explain who needs workers comp coverage.

Friday June 11, 2010 Postings
DECISIONS: After issuing no decisions last week, this week the 3rd A.D. issued a “split” decision and the side winning the reversal of the Board’s position one one issue was a pro-se claimant. At the 1st A.D., a trip on the sidewalk was ruled “in the course of employment”.
NEWSWIRE: WC firms get scammed and proposed WC rates are 7.7% higher. And in Montana, a pot smoking employee who wanders into a bear cage and get mauled gets comp - maybe he was sharing his doobie with the WCLJ.

Friday June 4, 2010 Postings

DECISIONS: The Board’s winning streak continues as there were no Appellate Court decisions issued yesterday June 3, 2010.

Friday May 28, 2010 Postings ►To read this day’s E-mail alert◄
NEWSWIRE: Seems that the New York State Bar Association has now joined the chorus who is against the Managed Adjudication Path (MAP) . And several states look to surplus workers comp insurance funds to balance their state budgets.
DECISIONS: The Board gets four affirmances from the Appellate Court albeit on relatively simple issues which includes another pro se claimant failing to prevail.

Friday May 14, 2010 Postings ►To read this day’s E-mail alert◄
NEWSWIRE: Governor Paterson finally formally nominates two new WCB Commissioners.
DECISIONS: This week, the Board gets three more affirmances from the Appellate Court albeit on relatively simple issues.

Friday May 7, 2010 Postings ►To read this day’s E-mail alert◄
NEWSWIRE: NYSIF names it chairman and new vice chairman., CRM up of sale, and judges announce their pet peeves with attorneys who appear before theme. Similar to the list I have in my book.
DECISIONS: The Board gets three affirmances from the Appellate Court albeit on relatively simple issues which leaves one wondering why the court agreed to accept two of these cases.

Friday April 30, 2010 Postings ►To read this day’s E-mail alert◄
NEWSWIRE: Despite its promises to make its decision making more public, the Board has failed to keep its promise to publish Full Board Reviews. Will injured workers awards include COLA? Senate is trying. New Doc at the Board and a new Fee Schedules in place.
DECISIONS: Board has another bad week. Two cases whose decisions were rescinded by the Appellate Court in 2008 were back and the Board was reversed on both by the Appellate Court. The Board’s failure to recognize an ‘act of God’ may be the reason He’ wasn’t on their side again!

Friday April 23, 2010 Postings ►To read this day’s E-mail alert◄
NEWSWIRE: Maximum wage under the 2007 WCL Amendments announced this week. One community thinks that closing bars early will save on workers comp claims (?!?). Board hosts a WEBINAR but how many come actually show up?
DECISIONS: In Workers Compensation Board has apparently had a turn for the better this week in which the Board was affirmed in all three decisions issued which dealt with the issues of a little drink, a little smoke, and a little too late.

Friday April 16, 2010 Postings
► BULLETIN ◄: James Odato of the Albany Times/Union reports that a state judge has ruled that the Board’s taxing financially health self-insurance groups to cover the losses from the CRM debacle is unconstitutional. And there is another Supreme Court decision issued March 25, 2010 on the issue of joint and several liable for expenses and obligations.
NEWSWIRE: I list the names of the soon-to-be new commissioners as well as a report on the delay facing the Impairment/Wage Loss Task Force. The WCB’s Buffalo office lease, with the unpredictable candidate for Governor Carl Paladino, is getting a lot of heat due to his ‘immoral turpitude’, which considering the state of ethics in NY is saying a lot. and, finally, the Board appears to be showing favoritism in collecting penalties.
DECISIONS: the Board gets reversed by the Appellate Court twice this week bringing its recent record to 1-6.

Friday April 9, 2010 Postings
NEWSWIRE: Looks like there will probably be two new commissioners by the end of May. At long last, the Impairment/Wage Loss Task Force is getting ready to submit its guidelines to the Board in the next two weeks. SIF explains the methods by which it can offer lower rates (a la CRM?!) and a claimant’s goat gets the claimant in hot water.
DECISIONS: Having had its winning streak ended last week, the Board suffers another reversal one in which the Court affirmed the Law Judge’s decision while reversing the Board. The Board was affirmed on a §25-a case and the 2nd Department reversed the lower court on an issue regarding the definition of “grave injury” pursuant to WCL §11. Also the Court of Appeals rejected motions for leave to appeal in the matters of Malone v VRD Decorating (December 31, 2009: denial a full board review) and Rodriguez v Port Authority of New York and New Jersey (November 4, 2009:§161 WTC cases & notice).

Friday April 2, 2010 Postings
NEWSWIRE: Several stores this week but the top one is a national report card on workers compensation systems throughout the U.S.A. in which New York State comes in among the four worst. Undocumented workers and taking money for a state insurance fund also top this week’s news.
DECISIONS: The Board’s wining streak comes to and end with one reversal and two rescinds, including a narrow decision by the Court rescinding the Board’s interpretation of “mandatory versus discretionary” contributions to the Aggregate Trust Fund. It also faults the Board for ‘challenging’ the Court in the Board’s interpretation of §23 late notice and the Board’s misinterpretation of an Alford plea in a §114-a case.

MONDAY March 29, 2010 Postings
FULL BOARD REVIEWS: This website now posts those Full Board Reviews which the NYS Workers Compensation Board feel represents the best of its best, the four or five decisions out of the 15-20 it issues each month. Unlike the Board, this site will publish one page with a brief summary and then a direct link to the full decision which will be posted in this site indefinitely, not just a few week or months.
Friday March 26, 2010 Postings
DECISIONS: 29 Affirmances in a row with this week’s two more decisions from the NYS Appellate Court, Third Department. And the list of winningest attorneys for 2010 to date is now posted.
COMMENTARY & REPORTS: I not only agree with Federal Judge Hellerstein that the proposed legal fees on the Ground Zero Settlements are ‘unreasonable’, I also recommend he take a look at workers comp attorneys to manage these claims.

Monday March 22, 2010 Postings
NEW POLL: The results are in from our POLL asking your opinion of the Board’s new procedures and forms for medical providers, prompted by the Bord’s public acknowledgment of the lack of medical providers in the Rochester area. The results of most of the POLL are not unexpected but one respondent has one excellent suggestion about prescription drugs and controlled substances. We will soon find out if the Board is listening. <

Friday March 19, 2010 Postings
DECISIONS: Two more decisions from the NYS Appellate Court, Third Department on issues dealing with lunch breaks, AWW for commission salesman, and what is total industrial disability. And the list of winningest attorneys for 2010 to date is now posted.

Monday March 15, 2010 Postings
NEW POLL: This week’s POLL ask you your opinion of the Board’s new procedures and forms fro medical providers, prompted by the lack of medical providers in the Rochester area.
COMMENTARY & REPORTS: I propose a number of changes in the Board’s procedures, dealing with electronic transcription, §32’s, law judges and conciliators. Or course, this means that a few Commissioners will have to work for their $90,800 a year.

Friday March 12, 2010 Postings
NEWSWIRE: The Appellate Court summarily dismisses a claim alleging legal malpractice against the workers comp attorney. A vaccination against malignant mesothelioma is under review and I need your help on my upcoming poll.
DECISIONS: The Board’s winning streak continues, with cases involving voluntary withdrawal from the labor market, the need for gastric bypass surgery, and consequential depressive disorder. Two additional cases of interest in which the Board was not a party of interest cover legal malpractice and the primary jurisdiction of workers compensation law in determining independent contractor versus employee.
Friday March 5, 2010 Postings
NEWSWIRE: The Board has issued new Medical Guidelines as well as its wish list of 20 items for regulatory reform which appears to be an attempt to by-pass the State Legislature’s authority to amend the Workers Compensation Laws.
DECISIONS: The Board’s winning streak continues for 2010 with its 22nd straight affirmance by the New York State Appellate Court, this time affirming the Board’s decision on the issue voluntary withdrawal from the labor market.

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

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

Monday February 22, 2010 Postings
POLL: Now that Robert Beloten has been Chairman of the New York State Workers Compensation Board, it is time to see how good/fair/bad a job he has been doing. Results, to be compared to earlier polls,will be reported here Monday March 1, 2010.

Friday February 19, 2010 Postings ►Read this day’s E-mail alert◄
NEWSWIRE: The New York Times discusses Chief Justice Jonathan Lippman and his impact at the New York State Court of Appeals and what it may mean for injured workers. The Colorado legislature seems to feel that videotaping injured workers in order to prove claims of fraud is not fair and a recent medicals study discusses the failure of many back treatment’s for injured workers.
DECISIONS: The Board continues its winning way with another affirmance but the far more interesting case was a decision issued by the Supreme Court in Nassau County concerning the claim of causal relationship due to toxic exposure.

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

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

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

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

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

Monday January 25, 2010 Postings
NEW POLL QUESTION:In a rather propitious set of timing, the same time that the Appellate Court, Third Department affirmed the Board in the Matter of Hassan v Ford Motor, the State Legislature is considering Legislation to give greater responsibilities to nurses caring for injured workers. Our poll this week asks your opinion as to the appropriateness of this or other potentially similar plans to expand Medicare available to injured workers.
Friday January 22, 2010 Postings
TOP ATTORNEYS FOR 2009: Today I announce the top two Appellate Court attorneys for 2009 as well as a number of attorneys who have won Honorable Mention.
NEWSWIRE: On this page you will find an unofficial background on the new Executive Director Jeffrey Fester as well as two appointments to the New York State Insurance Fund, a new lease for the Harlem district office, and information on a study by Johns Hopkins University as to how practice patterns of physicians have a profound impact on the ultimate cost of workers compensation claims.
DECISIONS: The Board gets five more affirmances from the Appellate Court, Third Department, on issues ranging from was a proper employer to injuries while commuting, §15(8)(d) and coverage for a sole employee.

Friday January 15, 2010 Postings
DECISIONS: The Board gets two more affirmances from the Appellate Court, Third Department, while the First Department tells an injured worker that allegedly being fired for placing a workers comp claim is not covered by the New York City Human Rights Law but by Workers Compensation Law §120. In one of the Court’s affirmances, they support a Board decision after the Board changed its mind and a full Board review on the matter of which carrier is responsible for the claim. And a pro se claimant loses again.
NEWSWIRE: There are two stories when dealing with Medicare set-aside in §32 waiver agreements and the other with the Board’s change of heart regarding procedures and penalties against nonperforming carriers.

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

Friday January 8, 2010 Postings
DECISIONS: The year 2009 ended with the Board receiving two affirmances and SIF getting one but the Unemployment Insurance Appeal Board was reversed on a case that should be considered by the Board in the future when looking at the issue of independent contractor. And it was nice to see that one of the cases on which I spent a lot of time on as a Panel Member was affirmed by the Court.
NEWSWIRE: In a late Friday press release, Governor Paterson announced his appointment of Jeffrey Fenster as the new Executive Director of the Workers’ Compensation Board. Mr. Fenster will spend most of his time downstate working out of the Brooklyn District Office. Coincidentally late Friday the Board also issued an e-mail alert but it’s two paragraph communication short changed Mr. Fenster’s prior accomplishments which are detailed my e-mail alert and in the NEWSWIRE. There is also a brief story/rumor about the elimination of District managers.

Monday January 4, 2010 Postings
DECISIONS: The year 2010 started with the New York State Appellate Court, Third Judicial Department, affirming the New York State Worker’s Compensation Board in all nine of the decisions issued today, although one issue in an affirmance was returned for reconsideration as the Court could not discern the Boards intention. Of the nine affirmances issued by the Appellate Court for the first week of this year, five represented rejections of appeals by claimants (one of whom was pro se) and three of appeals by carriers/employers and one by a carrier as to whether or not their coverage was in effect at the time of the accident.
COMMENTARY: I have prepared an analysis of the Board’s 103 decisions which were reviewed in 2009 by the Appellate Court in terms of which side (claimant or carrier) had the most claims, the most wins, what were the issues and who brought them to the Court, what was the quality of the Board’s performance - not too good, not with a 77% affirmance rate and reversals on 38% of the issued it reviewed. And much more.

Monday December 28, 2009 Postings DECISIONS: In its one decision issued on Thursday, December 24, the Appellate Court put a lump of coal under the Board’s Christmas tree when it rescinded the Board’s interpretation of “true closing” with regards to WCL §25-a, the 11th time this year the Court has rescinded a Board decision. In fact, in the six decisions issued earlier this year by the Court on the definition of “true closing”, the Board has been affirmed three times and reversed three times. Perhaps the Board can do better by flipping a coin when making decisions on this issue although I don’t think any time would be saved, considering the penchant of some of the Commissioners to sign decisions without reading them. The six cases are listed, with their links, immediately under Thursday’s decision. POLL: Don’t forget to vote in last week’s poll, the results of which will be published next Monday. This poll is open-ended because I am asking your opinion as to the most important issue or case that came up in 2009. As a reference, I include your answers to my poll earlier this year in which I asked you what you saw would be the most important issues that you would expect to see in 2009. NOTE: As a new year approaches, it will be interesting to see what Governor Paterson will do with the three Commissioner vacancies, vacancies that have been open most of 2009. The only term that was expiring this year was that of Scott Firestone who resigned for greener pastures elsewhere. One can only assume that Patterson will be using these three vacancies to get support from Democratic county chairman as he seeks nomination for his own four-year term as governor.

Friday December 18, 2009 Postings
DECISIONS: I have posted eight decisions, seven of which were issued by the Appellate Court, Third Department and one by the Court of Appeals. Of the eight decisions from the Third Department, the Board was a party in five with four affirmances and one reversal. Perhaps the two most interesting cases when combined together are the Matter of Renzi v Case Mgt. Concepts (3rd Dept.) and the Matter of Gilpatric v State Commission on Judicial Conduct. If it were not for, in my opinion, the need for the Gilpatrick-type sanctions (§147) to be brought against a few commissioners, perhaps there would be less decisions issued by the Board like that in the Matter of Renzi v Case Mgt. Concepts for which the third department again castigates Board for its sloppy work. OTHER: It has been suggested that preference be given on the “winningest” attorney list to those whose prevailing argument resulted in a reversal or rescission of the Board decision. This recommendation is duly noted and will be taken into account. The issue of deposits to the ATF is making its way through the Appellate Court and I expect that the Justices will be hearing arguments no later than February 2010. NEWSWIRE: With Christmas approaching, the only new story deals with Attorney General Cuomo and the CRM matter.

Monday December 14, 2009 Postings
POLLS: The results of the Poll posted last week on “What do we do with undocumented/illegal workers?” is in. There appears to be quite a bit of unanimity in the answers, which come down quite hard on both illegal immigrants and their employers. And there is an explanation as to why I will now use the term “illegal immigrants” and not “undocumented workers”. Also there are comments from three respondents which add additional light on this very hot topic. Click here to read the results.

Friday December 11, 2009 Postings
NEWSWIRE: Fairly quiet in Albany other than AG Cuomo’s plans to take CRM, manager of several self-insured trusts, to court on both civil and criminal charges to which CRM has a response. Also new Supreme Court Justice Sotomayor issued some ‘politically correct‘ verbiage, which just happens to be the subject of our current POLL: What do we do with undocumented/illegal workers?
DECISIONS:The Board not only went 2 for 5 but was rebuked in two of the loosing cases. And the Court further clarifies the meaning of ‘true opening’ when it reversed the Board on a §25-a case.

Monday December 7, 2009 Postings Not much happened in Albany last few days which means, among many open items, that there are still some slots open for commissioners although the activity of a few of current Board raises the whole question of, “Do we really need them?” This coming Friday I will be updating the list on the “winningest” attorneys in preparation for announcing in January 1st, 2nd, and 3rd place for the highest number of victories at the Appellate Court in 2009. The issue of undocumented workers has again made a big hit in the media based on the activity in some of the workers compensation blogs of which I am a member, based on a proposed new law, this time from Ohio State. Therefore today I have posted a NEW POLL asking your opinion as to how the NYS Board should deal with undocumented workers.

Friday December 4, 2009 Postings Gobble gobble gobble! That’s not the sound of Thanksgiving but the sound of one of Governor Paterson’s proposals to balance the budget by having some workers compensation insurance companies “voluntarily” donate their surplus funds to the State of New York. I guess our kids are not the only ones to believe in Santa Claus, or is it Robin Hood? NEWSWIRE: There are articles on the issue of undocumented workers collecting workers comp in Ohio, the shooting of a private investigator checking on a claimant who had been collecting comp for years, and a report from the upstate law firm of Lewis and Lewis that comp claims are increasing along with unemployment. DECISIONS: page, there are two cases at the Appellate Court, Third Department of which the Workers Compensation Board was a party of interest with claimants going 2-0 and the Board 1-1. Both of these cases dealt with the right of the Board to pick among contradictory evidence, make its decision, and be affirmed (in most cases) by the Appellate Court. The Appellate Division, First Department again deals with the issue of jurisdiction under WCL §11 at this time also Including references to WCL §29(6). As there are no additional cases scheduled to be argued before the Appellate Court in the month of December, that leaves 29 cases pending the issuance of a decision, the oldest of which dates back to October 13, 2009.

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COURT DECISIONS

Two Guest Commentaries

►“Don’t Move the Buffalo Office”’

►An Attorney’s Review of Managed Adjudication Path (MAP)

THIS WEEK’S NEWSWIRE

►Let’s Tax Everything

►SIIA Rejects New York Task Force Findings Regarding SIGs

►WCB Report on Group Self-insurance

►Board Releases New Manual to ‘Help’ Businesses Stay Compliant

PRIOR WEEK’S 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

June 22, 2009 (Tuesday): 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: While we await with great interest the Courts decisions regarding the cases dealing with payments to the Aggregate Trust Fund, the Court has published two more decisions yesterday, June 17, affirming the Board on causal relationship and the 2nd Injury Fund, ending both decisions with the explanation: “medical proof provides substantial evidence to support the Board’s decision, notwithstanding the fact that other evidence in the record could support a contrary result.” In addition, there is a non-WCB case regarding, once again, the issue of jurisdiction.

The Two Top Attorneys for 2009
click here for details.

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

Len v NYS
June 17, 2010 NYS Appellate Division, Third Department
§11: Jurisdiction

AFFIRMED an order of the Court of Claims which, among other things, granted defendants’ motion to dismiss the claim and/or for summary judgment dismissing the claim.

On December 7, 2006, decedent tragically fell to his death from one of the movable dams used by his employer New York State Canal Corporation, the chief lock operator for the Green Island Bridge in the City of Troy, Rensselaer County. The decedent’s estate commenced this action against the Corporation, defendant State of New York and defendant New York State Thruway Authority alleging both wrongful death and conscious pain and suffering.

Asserting, among other things, that these claims are barred by the exclusivity provision of WCL §11, defendants moved to dismiss the action and/or for summary judgment. Conceding only that his claims against the Corporation are barred, claimant otherwise opposed the motion and cross-moved to amend his claim as against the State and the Authority to allege Labor Law violations. The Court of Claims granted defendants’ motion, holding that the claims against the Authority, by virtue of its parent-subsidiary relationship with the Corporation, were barred by the exclusivity provision of WCL §11. Key to this decision was the Court’s determination as to whether the Authority should be deemed decedent’s employer for workers’ compensation purposes. Although the standard for finding an alter ego relationship is high, requiring “direct intervention by the parent in the management of the subsidiary to such an extent that ‘the subsidiary’s paraphernalia of incorporation, directors and officers’ are completely ignored”, here the Court found that the Corporation is but an arm of the Authority, justifying a finding that the Corporation is the Authority’s alter ego.The Court concluded that “this evidence of shared purpose, intermingling of finances and unity of management is sufficient, on this record, to uphold the Court of Claims’ finding that, for the purposes of canal operations, the Authority is indistinguishable from the Corporation and, as a result, is entitled to assert the exclusivity provisions of the WCL.”

With respect to his claims against the State and the claimant assertion that he should have been permitted to amend the complaint to include claims under Labor Law § 240 (1) and § 241 (6), the Court reviewed the specifics of the appeal and agreed that the Court of Claims properly found that claimant’s proposed claims under Labor Law § 240 (1) and § 241 (6) lack merit. The Appellate Court then added, “In light of this conclusion, we need not address the State’s proposed alternative ground of affirmance, namely that it is also entitled to assert the defense of workers’ compensation. Finally, we reject claimant’s alternative argument that the granting of the State’s summary judgment motion was premature (see CPLR 3212 [f]). Claimant ‘has failed to identify any evidence that might . . . [be] developed if additional discovery [is conducted] that would . . . serve[] to bar [the Court of Claims] order granting the State’s motion’.” Prevailing party represented by: Kathleen M. Treasure of counsel toAndrew M. Cuomo, Attorney General for respondents. Click here to read the full court decision of the NYS Appellate Division…

▼ Posted Friday June 17, 2010 ▼

Brown v NYC Dept Corrections
June 17, 2010 NYS Appellate Division, Third Department
Causal Relationship:Heart Condition

AFFIRMED the Board’s ruling that claimant did not sustain a causally related injury and denied his claim for workers’ compensation benefits. Claimant’s lightheadedness at work in 1999 was determined to be due to cardiomyopathy. Absent from work for several months, he applied a claim for workers’ comp, arguing that work-related stress led to hypertension which, in turn, triggered the cardiomyopathy, a claim the Board denied, finding that he had not established a causal link between job stress and his cardiac condition.

Claimant suggests that the manifestation of his condition at work gave rise to a presumption that it arose out of and in the course of his employment. But as he failed to raise this issue before the Board, the Court ruled that “it is accordingly unpreserved for our review.” Nonetheless the Court reviewed the medical evidence submitted by the claimant and the carrier noting that an impartial cardiologist who examined the claimant at the Board’s request found no causal link between claimant’s work and his cardiac distress. The Court, in referencing several medical reports supporting the Board’s decision, did note that the “medical proof provides substantial evidence to support the Board’s decision, notwithstanding the fact that other evidence in the record could support a contrary result.” Prevailing party represented by: John Sweeney of counsel to Michael A. Cardozo, Corporation Counsel, NYC for NYC Department of Correction, respondent. Click here to read the full court decision of the NYS Appellate Division…

Dupuis & Frito Lay v SFCC
June 17, 2010 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board’s ruling that the employer’s workers’ compensation carrier is entitled to reimbursement from the Special Disability Fund per WCL §15(8)(d). After the claimant’s claim for a work-related knee injury was established and he received workers comp benefits, the employer’s carrier sought reimbursement from the Fund asserting the claimant’s diabetes, among other pre-existing conditions, had contributed to his disability, an argument with which the Board agreed. In order to obtain reimbursement under WCL§15(8)(d), the carrier was obliged to show that claimant had (1) a preexisting permanent impairment that hindered his job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than what would have arisen from the work-related injury by itself. The Court, in referencing several medical reports supporting the board’s decision, did note that the “medical proof provides substantial evidence to support the Board’s decision, notwithstanding the fact that other evidence in the record could support a contrary result.” Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for Frito Lay and another, respondents. Click here to read the full court decision of the NYS Appellate Division…

May 27, 2010 Aides At Home v Workers’ Comp Board
June 2, 2010 Collins v Dukes Plumbing (ATF-Lead case)
June 2, 2010 Earle v Batavia Nursing Home (ATF)
May 24, 2010 Galanos v Nevada Utilities
May 27, 2010 Grill v Fashion Institute
May 27, 2010 Hilbrandt v Vil Of Red Hook
June 2, 2010 Moreno v Licea
Apr 26, 2010 Parkhurst v United Rentals (THREE CASES)
June 2, 2010 Perez v Licea
May 24, 2010 Poulton v Martec Industries
June 2, 2010 Raynor v Landmark Chrysler (ATF)
May 26,2010 Smallwood v Mereda Realty
June 2, 2010 Thomas v Cold Spring Constr (ATF)
May 28, 2010 Visic v O’nero & Sons Constr
May 28, 2010 Wooding v Nestle Usa Inc

▼ Posted Friday June 10, 2010 ▼

Kaja v Siller Bros
June 10, 2010, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

ISSUED A SPLIT DECISION on the Board’s ruling which denied pro-se claimant’s application for reconsideration and/or full Board review. Claimant, whose left thumb was severed in May 2003 and later reattached, had his case closed in August 2004 with an award for 75% schedule loss of use of his left thumb. In August 2004, the WCLJ, based upon a report from claimant’s orthopedist, found prima facie medical evidence of a consequential neck injury related to the 2003 incident and continued the case. However, following the submission of medical reports and a hearing in 2008, the Law Judge determined that claimant failed to establish a consequential neck injury. As to the additional claim for further causally related disability to claimant’s thumb, the Law Judge also denied relief, noting that an October 2004 independent medical report from the workers’ compensation carrier’s consultant, Joseph Fulco, had only found, at that time, left thumb disability “of a moderate partial rate.” After all the decisions were affirmed by a Board panel, claimant applied for reconsideration and/or full Board review which was denied.

As the claimant’s appeal dealt with the denial for reconsideration and/or full Board review and not the underlying decision, the Court limited its review to the denial, resulting in a “split” decision. The Court agreed with the Board regarding the neck, ruling no new evidence was presented justifying a modification of prior decision.

However, regarding the thumb, the Court found that a new independent medical report of January 2009 from the carrier’s consultant opined that claimant has “a 100% schedule loss of use of the left thumb.” The Curt then wrote, “Here, given the circumstance that, among other things, the report by the impartial specialist describing a change in condition was generated at the request of the carrier and expeditiously presented to the Board, we cannot agree with the Board’s ruling that claimant’s application should be denied on the basis that ‘[n]o new evidence has been offered which could not have been produced earlier.’ Accordingly, we deem it appropriate to remit the matter to the Board for further proceedings related to that issue.” Prevailing party represented by: Since this was a split decision, no one had the prevailing argument but kudos to EDIP KAJA, the pro se appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Sulecki v City of New York
June 3, 2010 NYS Appellate Division, First Department
Course of Employment: Egress/Ingress

REVERSED the Order, Supreme Court, New York County (Karen S. Smith, J.), entered February 2, 2009, which denied the municipal defendants’ motion to amend their answer to assert the defenses of workers’ compensation and collateral estoppel. In its decision the Court wrote, “Plaintiff, an engineer employed by the New York City Department of Design and Construction, was injured after tripping on a sidewalk adjoining a City-owned building while on his way to a work-related meeting. The Workers’ Compensation Law provides the exclusive remedy where, as here, the employer and the landowner are essentially the same party and the plaintiff is injured while performing his job No exception should be made simply because plaintiff’s injury did not occur at the location of the work-related meeting. Accordingly, the motion for leave to amend the answer should have been granted and the complaint dismissed as against the municipal defendants.” Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼There were no decisions issued June 3, 2010▼
▼ Posted Friday May 28, 2010 ▼

Keles v Santos [Cleaning]
May 27, 2010 NYS Appellate Division, Third Department
Employment: Who is

AFFIRMED the Board’s ruling that claimant was not an employee of Augusto B. Santos and denied his claim for workers’ compensation benefits. Claimant, employed by Plymouth Beef Company, was allegedly injured at the facility prior to the start of his scheduled shift with Plymouth, thus seeking workers’ comp benefits. He claimed that his early presence at the facility was due to inspection work he performed for Santos, the proprietor of the business that cleaned the facility. A Law Judge, later affirmed by a Board Panel, disallowed the claim, finding that no employer-employee relationship existed between claimant and Santos. Although the claimant at one time worked for Santos, the relationship ended months before the injury. Nonetheless as part of his job at Plymouth, he was required to interact with employees of Santos. The Court wrote, “While claimant testified that he felt morally obliged to continue performing the safety inspections which he had done for Santos even though Santos no longer needed his services, that gratuitous work, absent other indicia suggesting an employer-employee relationship, and the fact that substantial evidence supports the Board’s determination we affirm the decision not to award workers’ compensation benefits.” Prevailing party represented by: Daniel Becker of counsel to Gregory J. Allen, State Insurance Fund for Augusto B. Santos and another, respondents and Patrick M. Conroy of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Plymouth Beef Company and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Turner v Jaquith Indus
May 27, 2010 NYS Appellate Division, Third Department
Disability: Further Causally Related

AFFIRMED the Board’s ruling that claimant had no further causally related disability. Claimant, a machine operator, began experiencing respiratory problems after being exposed to toxic fumes in the course of his employment in July 1997 resulting in losing three weeks of work and an established comp claim involving his lungs and airways. He returned to work in August 1997 but in the summer of 2006, he was again exposed to fumes causing breathing difficulty. Subsequent to a diagnosed of asthma and chronic obstructive pulmonary disease, he submitted a second claim for benefits. A Law Judge, later affrimed by a Board Panel, authorized awards for February 16, 2007 to June 8, 2007, but found no futher causally related disability beyond June 2007. While the claimant’s and carrier’s medical providers submitted opposong opinions, the Court, as its norml position on such controversies, wrote, “[I]t is within the Board’s discretion to determine witness credibility and resolve conflicting medical opinions. . . . inasmuch as the resolution of conflicting medical opinions is within the Board’s province and both of the latter opinions constitute substantial evidence supporting the Board’s determination, we decline to disturb it.”Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent and Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for PMA Insurance Group, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Clark v Suny Upstate Med. [SFCC]
May 27, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

AFFIRMED the Board’s ruling that the award of workers’ compensation benefits be paid by the Special Fund for Reopened Cases. Claimant injured her back while working for the employer in 1994, initially paid for compensable lost time which came to an end in March 1977 when a Law Judge authorized treatment and closed the case. Further work-related injuries in 2001 and 2003 also resulted in the payment of workers’ comp benefits, beginning in 2003. The 1994 claim was reopened in 2004, when a hearing was held to determine, among other things, whether apportionment between the various claims was appropriate at which time the. The Special Fund for Reopened Cases (Fund) was then placed on notice that it may be required to assume liability for the 1994 claim per WCL §25-a.

Although on the face of the record, both of the times limits under §25-a (three years and seven years) were satisfied in this case, the Fund argued that the employer’s workers’ compensation carrier voluntarily paid benefits it knew were attributable to the 1994 claim in the three years prior to reopening. The carrier received the November 2003 report of an orthopedic surgeon who examined claimant and opined that the 1994 accident was partially responsible for her ongoing disability. Although the carrier did subsequently pay benefits under both the 2001 and 2003 claims, it also raised the issue that the Fund may be liable for any portion attributable to the 1994 claim, and the Fund was notified of its potential liability (see WCL §25[1][f]). The Court then wrote, “As substantial evidence in the record thus supports a finding that the carrier did not voluntarily assume liability for payments attributable to the 1994 claim, the Board appropriately followed the spirit and purpose of WCL §25-a to shift liability of that stale claim to the Fund.” Prevailing party represented by: Susan B. Marris of counsel to Gregory J. Allen, State Insurance for SUNY Upstate Medical Center and another, respondents Click here to read the full court decision of the NYS Appellate Division, Third Department….

Monteleone v Town of N. Castle
May 27, 2010 NYS Appellate Division, Third Department
§ 25(4)[a] Reimbursement

AFFIRMED the Board’s ruling that the employer was entitled to reimbursement for wages paid to claimant during the period of disability. After suffering a 2005 inury, claimant ultimately negotiated a 25% schedule loss of use encompassing 78 weeks of compensation. As claimant had been paid full wages for 46 days due ot his injury, the agreement also called for the employer to be reimbursed $11,380 of the total $31,200 award per §25(4)[a]. After a Law Judge approved the stipulation, the claimant requested that the amount of the employer’s reimbursement be modified because approximately eight days of claimant’s vacation and sick leave accruals had allegedly been deducted during those 46 days. Although the Law Judge agreed with the claimant and reduced the amount of the employer’s reimbursement, a Board panel reversed and affirmed the original reimbursement of $11,380. Here the Court noted that “pursuant to a collective bargaining agreement governing claimant’s employment, the employer was required to pay claimant’s full wages, without deducting any of claimant’s leave accruals, for the initial six months of any lost time arising from a compensable injury. Inasmuch as the instant record does not support claimant’s assertion that the employer did otherwise, the Board properly concluded that reimbursement of $11,380 to the employer would not create a disproportionate result in its favor.”Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for Town of North Castle and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday May 21, 2010 ▼

Bran v Wimpish
May 20, 2010 NYS Appellate Division, Third Department
Employment: Who is
§14: Average Weekly Wage

AFFIRMED the Board’s ruling that claimant was an employee of Ralph Wimpish but REVERSED the Board’s ruling on the average weekly wage.

After sustaining injuries on February 12, 2008 when he fell from a ladder while working in the apartment owned by Ralph Wimpish, the injured workers claim was established after a Law Judge found an employer-employee relationship and set the claimant’s average weekly wage at $620, decisions affirmed by a Board Panel. The Appellate Court noted that, “Wimbish hired the claimant in the parking lot of a home improvement store, provided daily transportation between the store and the worksite and instructed the claimant on what work needed to be done. . . . Wimbish paid claimant in cash at the end of each workday and supplied him with equipment, including spackle, spackling tools and a ladder.” Citing prior case law, the Court added, “The existence of an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its finding must be upheld if supported by substantial evidence. . . . In our view, the record contains substantial evidence supporting the Board’s determination that an employer-employee relationship existed between claimant and Wimbish, notwithstanding evidence in the record that could support a contrary result.“

However, the Court did find merit in Wimbish’s contention that the Board’s calculation of claimant’s average weekly wage at $620 was improper and return this particular matter to the Board for further proceedings. Prevailing party represented by: John F. Clennan, Ronkonkoma, for appellant, on the issue of average weekly wage and Iris A Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent on the issue of employee/employer relationship. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Catapano v Jaw
May 20, 2010 NYS Appellate Division, Third Department
§ 29: MVA liens

RESCINDED and sent back for reconsideration the Board’s ruling that the Special Disability Fund’s consent to a third-party settlement was not required. Claimant suffered injuries in an accident at work, and this workers’ compensation claim was established in 1996. The employer’s workers’ compensation carrier then filed a notice of claim for reimbursement out of the Special Disability Fund and, in 2000, the Fund was found liable for reimbursement pursuant to Workers’ Compensation Law §15(8)(d). Shortly thereafter, claimant settled a personal injury action arising out of the accident, and the carrier (State Insurance Fund) gave its consent to the settlement, waived its lien on the proceeds, and took a credit against claimant’s net recovery (WCL §29[4],[5). The Fund’s consent to the settlement was not sought and, as a result, it refused to reimburse payments of deficiency compensation made by the carrier. The Board ultimately held that the Fund’s consent was not required, and the Fund appealed.

“While the Board is free to alter a course previously set out in its decisions, it must set forth its reasons for doing so, and the Board’s failure to do so renders its decision arbitrary and capricious. The Board had previously held that where the Fund has been found liable for reimbursement to the carrier under WCL §15 (8)(d), the carrier waives its right to that reimbursement if it does not obtain the Fund’s consent to a settlement (see Matter of Care Diagnostic Laboratory, 2006 WL 832793, *2, 2006 NY Wrk Comp LEXIS 2612, *4 [WCB No. 29317021, March 28, 2006]; see e.g. Matter of Brigotta Farmland, 2006 WL 1064007, *2-4, 2006 NY Wrk Comp LEXIS 3343, *5-10 [WCB No. 80213739, April 18, 2006]). Indeed, the carrier here readily admits that the cited precedent does not support the Board’s present holding, but nonetheless argues that the prior cases were wrongly decided. However, as that prior precedent was not addressed in any way in the Board’s decision, the Court remitted this matter back to the Board for further proceedings.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday May 14, 2010 ▼

Bush v Montgomery Ward
May 13, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

AFFIRMED the Board’s ruling that WCL § 25-a is inapplicable to claimant’s award of workers’ compensation benefits. Although claimant was injured at work in June 1978 and awarded compensation benefits, it appears that claimant did not receive awards for her injury after 1981; however, most of the records associated with her original claim were destroyed that year in a fire at the Binghamton office of the Board and the record contains no evidence indicating that the issue of permanency was resolved.

Accordingly, when claimant sought to reopen her claim in 2006, hearings held to determine the applicability of WCL §25-a lacked the benefit of documentation regarding the manner in which earlier proceedings were resolved. Claimant stated that her claim had never been closed and that she had worked in a light duty capacity since her injury. Medical reports submitted in April 1979 and April 2006 indicate that she was capable of performing only light duty work. Additionally, in 2008, her treating physician opined that claimant had suffered a 15% to 20% schedule loss of use of her right knee. Following the hearings, a Law Judge, affirmed by a Board panel, ruled that the claim was never truly closed and discharged the Special Fund for Reopened Cases from liability. The Court then ruled that “substantial evidence support[ed] the Board’s determination that, because further proceedings were contemplated to establish the extent of her disability, claimant’s case was not truly closed”. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Thomas v Crucible Materials
May 13, 2010 NYS Appellate Division, Third Department
§ 15(6) Reopening by claimant

AFFIRMED the Board’s ruling which denied claimant’s application to reopen his workers’ compensation claim. In 2002 claimant suffered injuries to his right shoulder, underwent surgery to repair a massive tear in his right rotator cuff, which was not successful. At a November 25, 2003 hearing, claimant agreed to accept his doctor’s opinion regarding schedule loss of use (SLU), was classified with a 70% schedule loss of use of his right arm, awarded benefits, and the case was closed.

In 2007, claimant resumed treatment for his injury, then successfully applied to reopen his claim based on recent medical reports indicating that his medical condition had worsened since the 2003 classification. The Law Judge found sufficient medical evidence of a change of condition, rescinded the 2003 SLU determination, reclassified claimant with a permanent total disability from 2003 onward, and modified claimant’s award accordingly. Upon appeal, a Board panel reversed, concluding that claimant failed to show that his condition changed to such an extent that a reopening of his prior classification was justified.

The Board’s decision as to whether to reopen a case per WCL §15(6) is a matter committed to the Board’s discretion and will not be disturbed on appeal absent an abuse of discretion. Furthermore, it is for the Board to resolve conflicting medical evidence and, in so doing, it “may selectively adopt or reject portions of a medical expert’s testimony“. The Court agreed with the Board that there was no “meaningful distinction between Smallman’s preclassification and postclassification medical narratives. . . . Despite the existence of other medical evidence in the record to support a contrary result, we find that the foregoing constitutes substantial evidence in support of the Board’s conclusion that claimant did not establish a sufficient change in his medical condition warranting a reopening of his 2003.” Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Crucible Materials Corporation and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Yarleque v Sally Lou
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s denial of claimant’s two requests for reconsideration or full Board review. Having worked for the employer for less than four months in 1996, claimant submitted in June 2000 two applications for benefits allegedly arising out of that employment — one for carpal tunnel syndrome and the second for back, neck and shoulder injuries. Although the carrier argued that both were time-barred pursuant to WCL §28, the Law Judge found the claims timely and established both. A Board panel reversed the Law Judge per §28. The claimant then requested and was denied full Board review on both cases, hence the appeal to the Appellate Court. The Court wrote,“In that regard, the grounds for seeking review or reconsideration are narrow; the movant must generally show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination”.

In this case, the Board in its underlying decision concluded that claimant’s CTS was an occupational disease for which the latest possible date of disablement was November 1, 1996, when claimant stopped working, thus making her claim untimely. As for the second claim,the Board found that her admission in the footnote of her brief confirms that she knew that those injuries were work-related no later than December 21, 1996 together with the evidence that claimant stopped working on November 1, 1996 because of her injuries, amply support the Board’s decision that both claims involved occupational diseases and were filed beyond the two-year period. Prevailing party represented by: Jeremy B. Davis of counsel to Gregory J. Allen, State Insurance Fund for Sally Lou, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Barone v Interstate Maintenance
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling which denied the employer’s request for reconsideration and/or full Board review. Although the main issue in this case was jurisdiction as the claimant, an employee of a New York firm, was injured in 1993 while making deliveries in New Jersey, the appeal is based on the Board’s denial of a review on the basis that the case was dormant for 10 years, until the employer and its president applied for reconsideration and/or full Board review of the Board’s 1996 decision finding subject matter jurisdiction. The Court wrote, “the employer failed to demonstrate the existence of any newly discovered evidence, a material change in condition or that the Board improperly failed to consider the issues raised before it. Furthermore, the employer failed to make its application ‘within a reasonable time after [it] . . . had knowledge of the facts constituting the grounds upon which such application [was] made’ (12 NYCRR 300.14 [b]). Accordingly, we cannot say that the Board abused its discretion in denying the employer’s request for reconsideration and/or full Board. . . .Finally, we note that the employer’s arguments regarding personal jurisdiction and allegedly improper conduct of Travelers were not raised before the Board in the application for reconsideration and/or full Board review and, thus, are unpreserved for our review.. 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….

▼ Posted Friday May 7, 2010 ▼

Carlineo v Snelling & Snelling
May 6, 2010 NYS Appellate Division, Third Department
Procedure: Due Process

AFFIRMED the Board’s ruling which returned a case for development of the record on the issue of general/special employment. Claimant was employed by Snelling, a temporary employment agency, and was injured in a car accident for the owner of the car (Michael Comstock) to whom he been assigned as a laborer, providing services to Fortuna Energy.

Hearings were conducted on the claim, but before Snelling completed its examination of Comstock, a Law Judge rendered a decision finding, among other things, that, at the time of the accident, claimant did not have a general/special employment relationship with Comstock or Fortuna and that Snelling’s carrier was responsible for the payment of this claim. Snelling appealed, requesting that the hearing be reopened so that additional evidence could be submitted as to claimant’s employment status at the time of the accident. Although a Board Panel affirmed the Law Judge, a Full Board Review resulted in the case being returned to the Panel which determined that Snelling’s counsel should have been permitted to complete his examination of Comstock, and the case was sent back to a law judge for this further examination.

In its appeal to the Appellate Division, Snellng argued that the Board panel erred by restricting the hearing on remand to Comstock’s testimony and contends that it should be provided with an opportunity to present additional evidence on the employment issue from other witnesses. The Court ruled that “As the decision being appealed rescinds the original decision and remands the matter to the Law Judge for a new ruling on all issues, it is interlocutory in nature and does not dispose of all substantive issues nor reach legal threshold issues that may be determinative of the claim. As such, this decision may not be the proper subject of an appeal and this appeal must be dismissed.” Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Renz v Home Depot
May 6, 2010 NYS Appellate Division, Third Department
Causal Relationship: Aggravation or New

AFFIRMED the Board’s ruling that claimant was precluded from pursuing her neck injury claim by stipulating to a schedule loss of use award to her arms. The Board found that the claimant injured her left shoulder and authorized surgery and benefits. Following a hearing at which claimant asserted consequential injuries to her right shoulder and neck, a Law Judge amended the case to include a right shoulder injury, authorized medical tests of claimant’s neck and upper extremities for diagnostic purposes, and directed the parties to submit deposition transcripts regarding the issue of whether claimant suffered a neck injury. at a March 2007 hearing before a different LJ and without the submission of depositions related to the neck injury, the parties stipulated that claimant suffered a 25% schedule loss of use of her left arm and a 20% schedule loss of use of her right arm. When the WCLJ asked if there were “[a]ny other body parts,” claimant’s counsel replied, “[n]o.” The parties’ agreement which awarded the claimant approximately $55,000 in total benefits and indicated that “[n]o further action [was] planned” in the case.

Then one month later, claimant moved to reopen the claim, seeking benefits related to her neck injury, right thumb and right ring finger. The case was referred back to the original WCLJ, before whom claimant conceded that she had agreed to forego her neck claim when she entered into the stipulation. Claimant asserted, however, that her neck condition had since deteriorated. The WCLJ noted that claimant’s neck had been symptomatic since the date of the accident and concluded, as relevant here, that the claim for the neck injury and any claims flowing from that injury were barred by the parties’ stipulation. Finding that claimant’s bilateral carpal tunnel syndrome was linked solely to her neck injury, the WCLJ determined that there was no prima facie medical evidence of carpal tunnel syndrome. The Board affirmed, concluding that claimant had not been “forthright” about her intention to pursue the neck claim at the time she entered into the stipulation, and stating that “no further claim regarding the neck may be made at this time.” The Court in its affirmance wrote, “In light of the medical guidelines, the procedural history of this case, evidence that claimant’s neck was symptomatic at the time of the stipulation and the negative response of claimant’s attorney when asked by the WCLJ whether there were ‘[a]ny other body parts,’ the Board did not act irrationally in concluding that the stipulation barred pursuit of the neck claim and denying claimant’s application to reopen the case.” Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman(Hauppauge) for Home Depot USA, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Wilson v General Mills
May 6, 2010 NYS Appellate Division, Third Department
Course of Employment: Assault

AFFIRMED the Board’s ruling that claimant’s injury arose out of and in the course of her employment due to an assault and awarded workers’ compensation benefits. Claimant filed for benefits after a coworker struck her in the face with a work tool. The Law Judge ruled. and the Board affirmed that the assault upon claimant stemmed from work-related differences finding a sufficient nexus between the assault and the employment. The Court agreed that the claimant’s testimony was supported by an affidavit that claimant filed with the Equal Employment Opportunity Commission in support of her discrimination complaint, upon which the employer and its carrier heavily rely, which could be read as suggesting that at least some of the assailant’s offensive comments and conduct stemmed from a promotion and pay raise that claimant received in 2005. 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….

▼ Posted Friday April 30, 2010 ▼

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….

▼ 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….