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NEWSWIRE
July 30, 2010 (Friday): 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.
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COURT DECISIONS
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| ►Appellate Court Affirms WCB Twice |
| ►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. |
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OUR NEWEST POLL RESULTS
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| ►Poll Results:GSIT’s; Keep them or Dump Them |
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ON OUR OTHER PAGES
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| ►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? |
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THIS WEEK’S NEWSWIRE
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| ►Welcome to New Comm Lobban |
| ►Next Commissioner: Arda Nazerian? |
| ►Picking up WC checks at employer: Illegal or Not? |
| ►New Law on Hearing transcriptions |
| ►WA State: Privatizing WC Insurance? |
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PRIOR WEEKS’ NEWSWIRE
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| ►Major Federal Case on Independent Contractor v Employee |
| ►NYS Legislature Does, Too |
| ►Labor Comm Fight Over New Commissioner? |
| ►New Commissioner Disappears & Another to the Ready? |
| ►Don’t Forget the poll on GSIT’s |
| ►SFCC Data Loss Cost Vendor $60K in penalties |
| ►And You Thought I was Tough! |
| ►Couldn’t say it better myself! |
| ►Is the WCB Staff’s Paranoia Warranted? |
| ►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 |
| ►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
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| ►Link to our Archive Index |
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Welcome to New Comm Lobban
July 22, 2010: Newly appointed Board Member/Commissioner Loren Lobban is now sitting as a member of the Board.
And, contrary to the impression that certain executives at the Board wished to convey, the 300 to 400 proposed Memorandums of Decisions the presented to you each month are yours not to simply sign but to read and review. And if you find any errors, be they grammatical or factual or misinterpretation or improper application of the workers compensation law, you not only have the right but also the responsibility to reject the draft decision and insist that it be done correctly. After all, it is your name that will be forever linked to that decision and not the signature of the person who drafted it and who may have other concerns.
I used to ask this of my colleagues all the time, unfortunately frequently to no avail, “Are you prepared to stand in front of the appellate court record of appeals and justify both the quality and final determination of the decision you have signed? Or are you satisfied with one of the many rebukes issued by the appellate court in the past year basically admonishing the board and those who signed the decision for poor judgment, lack of judgment, or just plain sloppiness.“
Next Commissioner: Arda Nazerian?
Jul 21, 2010: As previously reported, the name of the possible next Board Member/Commissioner is Arda Nazerian, who most recently served as senior policy advisor and communications director to Nassau County executive Tom Suozzi, where she managed large scale initiatives related to government efficiency, health and human services and regional planning, according to her bio. She had previously served as head of media and public relations at the American Stock Exchange. She came to Wall Street following a ten-year career in public service working for former New York Governor Mario Cuomo, including serving as director of his New York press office. Nazerian is a founding member of the advisory board for the master’s program in strategic communications at Columbia University and an active member in the Armenian General Benevolent Union As to whether her four years with Suozzi will outweigh her time with Governor Mario Cuomo remains to be seen. And perhaps, her appointment will just sit at the Labor Committee until the ext Governor Cuomo takes office in January 2011.
Picking up WC checks at employer: Illegal or Not?
Jul 28, 2010: The New York State Worker’s Compensation Board has ruled that Buffalo County Executive Chris Collins’ policy requiring injured workers receiving workers compensation are required to pick their checks up from their supervisors.
Collins’ office indicated that this would apply to only a very small number of injured workers and could save taxpayer money. “We need to be able to explain to them every two weeks opportunities to come back to work on light duty, so they can transition back to their jobs. It’s not punitive.“
The Board, voting unanimously, not only feels that this is illegal but, according to claimant attorney Anne Dimatteo, will consider seeking in order from the State Supreme Court to enforce the board’s ruling. The Board used as its basis for ths determination WCL §25: Compensation, how payable, which reads in part “(1) The compensation herein provided for shall be paid periodically and promptly in like manner as wages, ...”
[ED. NOTE: But the Board decision appears not to address the issue of what is the rule for those employees who were paid by check at their place of employment and not by a direct deposit to their checking/savings account. According to the Board’s interpretation, does this mean Erie cannot make direct deposits but must require those workers to continue to show at their place of employment to pick up their check?]
In response, Collins office replied in part, “(The Board) can express displeasure, but they have no control in this. We are well within the law to say that people need to pick up their checks.”
New Law on Hearing transcriptions
Jul 28, 2010: State Senator Diane Saving, a member of the NYS Labor Committee, has had her bill to “amend the workers’ compensation law, in relation to recording of investigation transcripts” approved by the State Senate and passed on to the State Assembly’s Labor Committee. Savino’s bill adds two words to WCL §122 Transcripts: “A copy of the testimony, evidence and procedure of any investigation, or a particular part thereof, recorded and transcribed by a stenographer in the employ of the Board.“
WA State: Privatizing WC Insurance?
Jul 29, 2010: It appears as if another state is looking allowing the private sector to compete, in workers compensation insurance, with what has previously been a state operated monopoly.
In Washington State, only one of four states that maintains a strict state monopoly, ballot Initiative 1082, sponsored by the Building Industry Association of Washington which is a politically conservative construction trade group, will go to the voters this coming November, with the sponsors having collected 150% of the required signatures. According to balletpedia.org, the Secretary Of State certified the measure by a 3% random signature check. The initiative also would cut the employee share of workers’ comp premiums.
Major Federal Case on Independent Contractor v Employee
NYS Legislature Does, Too
July 22, 2010: In a case involving the use of workplace contracts to define certain individuals as independent contracts, the 9th U.S. Circuit Court of Appeals in California filed a ruling on July 13, 2010, that the use of these contracts can not automatically be used as a defense by employers seeking to avoid California’s law. What makes this case of interest in New York is that one of the three judges participating in this decision was New York’s Eastern District’s Senior District Judge Edward Korman, sitting by designation, who wrote the final decision.
In the Matter of Narayan; Rahawi and Heath v RMW EGL, INC.; Eagle Freight Systems, Inc., three California truck drivers, who signed such agreement, then claimed that they were denied employee benefits in contravention of various California labor laws. Although a state court ruled in favor of the employer, the federal court reversed the decision, sending it back to a jury to determine wheter the facts inthe case suppoted the plaintiffs of the defendents.
As to what the implications may be for such litigation in New York State, particulary in view of Judge Korman’s participation, will remains to be seen. In fact, State Senator George Onorato (D-Queens), the chairman of the Senate Standing Committee on Labor, on Julne 30, 2010 announced that the State Senate and Assembly have given final approval to his legislation (S.5847-F/A.8237-D) that cracks down on the practice of employee misclassification in the construction industry and will help to prevent the siphoning off of tens of millions of dollars in state tax revenue each year into New York’s underground economy.
Labor Comm Fight Over New Commissioner?
Jul 21, 2010: A few weeks ago, I noted that there is another name in the hopper for one of the vacancies as a Board Member/Commissioner of the New York State Workers Compensation Board, a woman who held a key position in Tom Suozzi’s administration, although rumor also has it that some members of the Senate Labor Committee are not happy with the choice - maybe because Suozzi was not kind to the Democratic members of the State Legislature in some of his remarks about the problems in New York State. Well, the newspapers have confirmed my alert. According to the New York Daily News:
That person appears to be Gov. Paterson’s last hurrah of political patronage is not confined to the state Parole Board. Paterson recently nominated a former aide to ex-Nassau County Executive Thomas Suozzi to the state Workers’ Compensation Board - at the urging of the state Democratic Party boss. The cushy job for Charo Ezdrin pays $90,800 a year - and comes with a six-year term, lasting well past the four-year term of the next governor.
AIG Sues its Competitors
July 3, 2010: U.S. District Judge Robert Gettleman of the Northern District of Illinois today has authorized AIG to pursue a lawsuit against Hartford Financial Services, Liberty Mutual, and Travelers Insurance for alleging conspiring to damage AIG’s position in the workers compensation insurance market. But he also dismissed a number of other actions sought by AIG against these same parties. (American International Group Inc et al v. ACE INA Holdings Inc et al, U.S. District Court, Northern District of Illinois, No. 09-02026.)
Coventry Health Fined $262 for WC Fraud
July 3, 2010: Coventry Health Care, Inc. (NYSE: CVH) announced today that the Court Of Appeal, Third Circuit for the State of Louisiana has affirmed the trial court’s decision to grant summary judgment against First Health Group Corp., Inc. (a wholly-owned subsidiary of Coventry) for $262 million in previously-disclosed provider class action litigation in Louisiana state court. The suit involves claims of alleged violations of notice provisions of Louisiana’s Any Willing Provider Act in connection with providers providing services to injured workers with workers’ compensation claims. More specifically, a number medical/service providers have successfully argued that Coventry’s method of taking discount from the bills, in accordance with the contracts signed with these providers, submitted violates Louisiana Law.
This link will take you to link will take you to the statement on the potential liability included in Coventry’s Annual Report (Form 10-K) for the year ended December 31, 2009. In its statement regarding the Court’s decision, Coventry stated that it does not believe the decision is supported by the facts or the law and intends to file a motion for rehearing and explore other avenues of appeal. The Company believes that it has available resources to pay any final unappealable judgment in this litigation.
New Commissioner Disappears, Another to the Ready?
July 2, 2010: If a tree falls in the forest and there is nobody around, does it make a sound?
If the WCB does not announce new appointments of Commissioners to the Board and one who is confirmed won’t take the oath of office, does anyone know?
On April 16, 2010 I announced the confirmation hearings of two of Governor Paterson’s newest appointees as commissioners to the Workers Compensation Board: Sam Williams and Loren Lobban.
Commissioner Williams, although not formally introduced by the Board as a new member, has been busy at work fulfilling his duties.
Loren Lobban, on the other hand, although logically approved by the State Senate, did not take his oath of office as there were a few pending “personal matters” which had to be settled before he could/would be able to take his oath of office and become an employee of the Board. Although I know of nothing negative that would have delayed Lobban’s completion of the process, this is not the first time one of Governor Paterson’s nominees has been approved by the State Senate failed to take office. In early 2009, Dr. Geraldine M. Chapey also apparently was confirmed by the state Senate but did not take the all of office, the final step in becoming a Commissioner.
One has to ask two questions: (1) to the Governor’s office properly ‘vet’ the nominee and (2) in the nominee fully understand what would be the responsibilities and accompanying rejections and other activities? Is this a reflection on the quality of decision-making in the Paterson administration or a reconsideration by these nominees when after being affirmed to a close look at the Board and decide to run the other way.
On the other hand, there is a new potential nominee being discussed: a woman from Nassau County who was involved in the administration of a former Democratic County Executive Tom Suozi.
Don’t Forget the poll on GSIT’s
July 1, 2010: it’s not too late to cast your opinion in my poll about the Group Self-Insured Trusts.
Perhaps the most interesting comment to date is:
I am still reading up on this issue, so I do not yet want to lay blame. But I believe this is a case of res ipsa loquitur, and I suspect the Board and the State fell asleep at the wheel–in much the same ways as when auditing the Special Disability Fund for ample funding. Yet before we start creating new rules and regulations that there might not be enough personnel to enforce, perhaps we should start simplifying and reviewing the glitches in the current system. Past attempts to put a band-aid on a cancer have only made things worse.
All I know about the writer is that they checked off the box that they represent carriers and/or employers. Feel free to add your two cents - your anonymity is guaranteed.
SFCC Data Loss Cost Vendor $60K in penalties
June 29, 2010: webtechnologyresources has posted an article regarding the issue of privacy of employee information and identity theft. Whether electronic or paper, employee files deserve to be treated with great care. Establishing security and end-user privileges calls for a balance of incorporating, HR policy, system knowledge and day-to-day operations.
One company that failed this test was CS Stars, LLC, A subcontractor for the New York State Special Fund Conservation Committee, one of whose employees on May 9, 2006 notice a computer was missing that held personal information, including the names, addresses, and Social Security numbers of recipients of workers’ compensation benefits. But CS Stars waited until June 29, 2006, to notify Special Funds and the FBI of the security breach. New York’s Information Security Breach and Notification Law, effective in December 2005, requires businesses that maintain computerized data which includes private information to notify the owner of the information of any breach of the security of the system immediately following discovery, if the private information was, or is reasonably believed to have been, acquired by a person without valid authorization. The law affects not only businesses in their dealings with their customers, but employers in their role as custodians of employees’ personal data.
As a result of an investigation by the office of Attorney General Andrew Cuomo, CS STARS agreed to comply with the law and ensure that proper notifications will be made in the event of any future breach, and will pay the Attorney General’s office $60,000 for costs related to this investigation.
For full details on the SC Star matter and the issue of confidentiality of employee information, you can click here to go to the complete report
And You Thought I was Tough!
June 28, 2010: Tyler Murphy, Staff writer for the Evening Sun in Chenago County in central New York State, published an article about an Afton business man, Edward J. Panus, was found guilty by a Chenango County jury of six felonies after prosecutors argued you to forward it is Worker’s Compensation benefits.
District Attorney Joseph McBride said Panus now faces a possible maximum sentence of 24 years in state prison. Panus was convicted of all six charges against him, three counts of first degree offering a false instrument for filing, an E Class felony and three counts of committing a fraudulent practice under the Worker’s Compensation Law, also an E Class felony. Each E felony carries with it a possible maximum sentence of four years in prison, explained McBride.
24 years in jail - and we commissioners would be castigated for stopping benefits!
Couldn’t say it better myself!
June 30, 2010: What follows is a posting from the website of Markoff & Mittman:
What the %$#@$ is going on in the world of New York Workers Compensation?
6/11/2010: Two things came across my desk today and I am floored, stumped, miffed and cannot believe how injured workers are going to take another shot in the stomach!
FIRST - as we all know, the New York State Goverment is in denial and dysfunctional and has not passed a budget. Well, quietly, on the front page of the New York State Workers Compensation Board website the Board quietly announced the following:
YUP - absolutely NO CONTINGENCY plans for the injured workers. (And lets not forget that although the NYS WCB is a State entity, it is funded from assessments on insurance carriers!) This is atrocious!
SECOND - My colleagues upstate started to get weird feed back from some clients that their Third Party Administrator (the company that pays the checks) was going to require the injured worker to pick up his or her check on specific days and times at the employer. Huh? Okay, so in order to save 44 cents postage and a 5 cent envelope the insurance carrier will print the checks, deliver them to the employer and have the employers employee distribute them…perhaps they just want to do it to follow the injured workers?
WHAT IS GOING ON!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Is the WCB Staff’s Paranoia Warranted?
June 18, 2010: In its first ruling on the privacy of workplace texting, the U.S. Supreme Court on Thursday said that a city audit of an employee’s messages on a city-owned pager was a reasonable search under the Fourth Amendment.
The unanimous ruling was issued in the Matter of the City of Ontario, California v. Quon. Essentially, the Court ruled that the employer offers a proper rationale they have the right to read not only all e-mails but even information transmitted by “texting”.
Justice Anthony Kennedy, writing for a unanimous Court, said the city’s search — aimed at determining whether city employees in general needed a higher number of minutes on their pagers — was reasonable under any view of the Fourth Amendment right to protection from unreasonable searches. Even though the case involved a public workplace where the Fourth Amendment would be in full force, employment lawyers on Thursday said the ruling underscores the need for policies on privacy in private work settings as well.
When I was at the board, memos were distributed as to the limitations placed on my usage of the boards e-mail system, my access to the Internet, and my usage of board cell phones. I do not remember anything detailing how much of my privacy they could invade if they so wanted.
Makes you wonder what they are really doing in Albany.
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.
COURT DECISIONS
July 30, 2010 (Friday): Weekly postings of court decisions regarding injured workers compensation issues from the New York State Court of Appeals, New York State Appellate Division (1st, 2nd, 3rd, and 4th Departments), and various lower courts as well as decisions from other states that will be of interest to participants in the State of New York Workers Compensation system. Following the list of cases posted for this week is a list of cases. in which the NYS Workers Compensation Board is a party of interest, for which arguments have either already been made at the New York State Appellate Division, 3rd Department and for which decisions have not yet been issued or for cases which have been scheduled but not yet heard. If you would like to be added to our e-mail alert list or have any submissions or suggestions, send them to: TheInsider@InsideWorkersCompNY.com.
THIS WEEK’S POSTINGS: Two wins for the Board with the injured workers losing on both appeals. 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.
Hilbrandt v Village of Red Hook
July 29, 2010 NYS Appellate Division, Third Department
§ 28: time bar
AFFIRMED the Board’s ruling that claimant’s application for workers’ comp benefits was time-barred by WCL §28. Claimant, working as a volunteer emergency medical technician, was injured on August 26, 2005 causing her to fall on her back and side. Her workers’ comp claim, was initially established for a left ankle and leg injury and later for consequential injuries to her right shoulder.
In April 2008, claimant was first treated for an injury to her right hip and, based upon the report of her treating physician, sought to amend her claim to include a consequential right hip injury. The Law Judge, affirmed by a Board Panel, dismissed the claim for right hip injury as time-barred pursuant to WCL §28. Claimant contends this claim is governed by the Volunteer Firefighters’ Benefit Law (VFBL), which implements a separate and distinct statute of limitations per VFBL §41. The Court wrote that “This issue, however, is unpreserved for our review due to claimant’s failure to raise it before the Judge or the Board. In any event, while we agree that VFBL §41, rather than WCL §28, should have been applied in this case, we would nonetheless find that claimant’s claim for right hip injury, as presented to the Board, is time-barred under either statute.” In addition, both the Board and the Court rejected the claimant’s contention that the hip injury was consequential rather than directly resulting from the accident, based on (1) claimant’s testimony that she began noticing hip pain as early as November or December 2005, but “just kept going with the pain” and did not seek treatment for that condition until April 2008 and (2) claimant’s treating physician concluded that the hip injury was a direct result of the August 2005. Prevailing party represented by: Glenn M. Forman of counsel to Gregory J. Allen, NYSIF, for Village of Red Hook and another, respondents. Click here to read the full court decision of the NYS Appellate Division…
Wooding v Nestle USA, Inc
July 29, 2010 NYS Appellate Division, Third Department
Disability: Industrial v SLU
AFFIRMED the Board’s ruling that claimant did not have a total industrial disability. Claimant suffered an injury to his left arm performing manual labor in 2003. Later confirmed by a Board panel, the Law Judge found that claimant had sustained a schedule loss of use to his arm and not, as he claimed, total industrial disability. Whether a claimant sustained a total industrial disability is a question of fact, and the Board’s resolution thereof will be upheld if supported by substantial evidence. While one vocational counselor opined that the claimant’s physical condition, when coupled with his age, educational background and employment history, seriously impaired his ability to find employment, the Board accepted a vocational evaluation finding incapable of forming sedentary work in fields such as sales or customer service with appropriate training. The counselor conceded that, despite his doubts as to the likelihood of claimant succeeding in retraining, success was possible. [ED. NOTE: Not addressed in this decision is the question as to what will happen if the claimant is unsuccessful in the retraining program. Would the Board then, as it should, reopen the case?] Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Nestle USA, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division…
PENDING DECISIONS
July 29, 2010 Thursday: The following is the one case which has been heard by the 3rd Department this year but for which a decision has not yet been issued.
May 27, 2010 Aides At Home v Workers’ Comp Board
▼ Posted Friday July 23, 2010 ▼
Galanos v Nevada Utils
July 22, 2010 NYS Appellate Division, Third Department
Coverage: Opting out
AFFIRMED the Board’s ruling that the claimant was not a covered employee under the Workers’ Compensation Law, having opted out of coverage as an executive officer of the corporation. After the claim was established, the carrier requested that payments be suspended because, prior to the incident, claimant had signed a C-105.51 form opting out of workers’ compensation coverage due to her status as an executive officer in the employer corporation (WCL §54[6][d]). The claimant countered that (1) she was never an officer of the corporation, (2) the form was filed in error, and (3) since the carrier had been making payments on the claim, it should be estopped from disclaiming coverage. Both the Law Judge and the Board panel found in the employer’s favor. After admitting signing the C-105.51 notice, which stated coverage would not be provided unless and until this election was “revoked by the [employer] corporation” (WCL §54[6][d]), she admitted never revoking it. As to her claim she was not given an adequate opportunity to submit evidence at the hearing supporting her various arguments, the WCB’s decisions noted that she had two months notice of the hearings and that her employment status would be a key factor in the decision. Finally the Court agreed with the Board that, on these facts, the doctrines of laches and estoppel have no application to this proceeding and coverage was properly denied. Prevailing party represented by: Edward Obertubbesing of counsel to Gregory J. Allen, NYSIF, for Nevada Utilities and another, respondents. Click here to read the full court decision of the NYS Appellate Division…
▼ Posted Friday July 16, 2010 ▼
Smallwood v Mereda Realty
July 15, 2010 NYS Appellate Division, Third Department
Employment: Dual?
AFFIRMED the Board’s ruling that a general employment relationship existed between claimant and Pueblo Nuevo Associates. Claimant, the superintendent of a building owned by Pueblo Nuevo and managed by Mereda Realty Corporation, who sustained injuries while providing maintenance at the site, received comp benefits and also commenced an action in Supreme Court against both firms. After a Board Panel modified a Law Judge ruling (claimant was an employee of Mereda) finding that claimant was a general employee of Pueblo and a special employee of Mereda, each responsible for 50%, claimant appealed, contending there was no employment relationship with Pueblo. The Board noted that although Mereda hired claimant, Pueblo retained the authority to fire him. Although his day-to-day activities were directed by Mereda, part of his compensation included a rent-free apartment in Pueblo’s building and his paychecks were from Pueblo’s general payroll bank account, checks noting that they were from Mereda as agent for Pueblo. Added to other indicia, the Court affirmed the Board’s decisions, writing that the existence of an employer-employee relationship, even if there is a written agreement indicating otherwise, is one for the Board to resolve and “its determination in that regard must be upheld if supported by substantial evidence, even if other evidence in the record could have supported a contrary conclusion.” Prevailing party represented by: Rudolph Rosa DiSant of counsel to Gregory J. Allen, NYSIF for Pueblo Nuevo Assoc and another, respondents. Click here to read the full court decision of the NYS Appellate Division…
Poulton v Martec Indus
July 8, 2010 NYS Appellate Division, Third Department
Injury: new or aggravated
REVERSED the Board’s ruling that claimant aggravated a prior injury and awarded workers’ compensation benefits. Claimant, who applied for benefits alleging that he injured his back at work on June 7, 2006, had his claim controverted as he had sustained back injuries in 1998 and 2000 while working for a prior employer; claimant did not apply for workers’ comp benefits in 1998 but the 2000 incident resulted in an established WC claim. The Law Judge, affirmed by a Panel, awarded benefits, concluding that the 2006 incident constituted “an accidental work related aggravation of prior neck and back injuries.” The appeal asserted that the June 7, 2006 incident did not cause a new disability. The Appellate Court determined that “Under the circumstances, ‘the proper inquiry is whether claimant’s employment acted upon [a] preexisting condition in such a way as to cause a disability which did not previously exist’” and concluded it did not, thus reversing the Board.
[ED. NOTE: Not knowing who was on the Panel, it is difficult for me as a former commissioner to speculate as to how, as happens far too often, the Law Judge, the lawyers in the ARD, the Panel, and ultimately the attorneys in the Office of the General Counsel missed the following key indicia used by the Court to support their reversal.]
Claimant testified that he had experienced the same type of back pain ‘every day’ since 1998. On June 2, 2006, claimant scheduled a June 8, 2006 appointment with his treating physician — who had been seeing claimant for his back problems on a monthly basis — to discuss his desire to cease working [Court’s footnote FN2: While scheduling the appointment, claimant informed personnel in his physician’s office that he had increasing back pain and that it had become hard for him to function at work. On June 6, 2006, claimant contacted his physician’s office again and reiterated his desire to discuss going out on disability. We note, in addition, that claimant made no reference to the June 7, 2006 work-related incident on an application for disability benefits that he completed on June 9, 2006.] “At that appointment, claimant made no mention of an incident at work the prior day and, following the examination, claimant’s physician concluded that claimant was disabled and unable to work ‘[b]ecause of his old injuries and his continued decline.’ … Furthermore, claimant’s supervisor testified that claimant regularly complained of back pain and that, before June 2006, claimant stated that he might stop working and seek permanent disability benefits as a result of a back injury sustained at his former job. Finally, a second physician who examined claimant opined that he suffered from degenerative disc disease and that his disability was caused primarily by preexisting problems.” Prevailing party represented by: Jacklyn M. Penna of counsel to Buckner & Kourofsky (Rochester) for appellants. Click here to read the full court decision of the NYS Appellate Division…
▼ Posted Friday July 2, 2010 ▼
Parkhurst v United Rentals
Lloyd v Kelly
Robinson v Gould Pumps
*Collins v Dukes Plumbing
*Earle v Batavia Nursing Home
*Raynor v Landmark ChryslerJuly 1, 2010 NYS Appellate Division, Third Department[*ED: NOTE: The decision issued in Collins, Earle, and Raynor are identical almost word for word with the exception that in the latter three cases, a constitutional issue was raised. See notes below.]AFFIRMED the Board’s ruling, in these six cases, that the Board’s mandating payment, per WCL §27(2), to the aggregate trust fund (ATF) does apply retroactively to claimants’ injuries even if they were sustained before the amendments effective date. In affirming the Board’s decision, the Court also rejected the carriers’ argument that mandating lump-sum payment of claimants’ uncapped PPD awards is improper because the actual amounts of their future benefits are unpredictable and there is no reliable way to calculate their present values.In each of these cases, claimants’ injuries were classified as a PPD with benefits awarded under §15(3)(w). These PPD awards, however, were not capped because claimants’ injuries all preceded the effective date of the amendment. Because each of these uncapped PPD awards was made after July 1, 2007, the private insurance carriers for claimants’ employers were ordered to make a lump-sum payment of the present value of the award into the ATF pursuant to the amendment to §27(2). The full Board found the language of §27(2) as amended to be unambiguous and to evince a clear intent to require payment into the ATF of all §15(3)(w) awards made after July 1, 2007 regardless of the date of injury.The Court wrote that “We do not view these cases as presenting an issue of the retroactive application of the amendment to §27(2).” They then followed with their interpretation of the statute and and legislative intent, including in their decision, “Here, the plain language of the statutes and the legislative history of their amendments persuades us that the inclusion of a reference to §15(3)(w) in §27(2) was intended to expand the types of awards to which the latter’s mandatory payment provision applies rather than to restrict it to awards that are capped by the amendment to §15(3)(w) . … Nor do the principles of statutory construction permit us to imply the limitation suggested by the carriers. Where, as here, “a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.“
The Court also explained its rejection of the carriers’ contention that the Board’s computation of the present value of each claimant’s award is speculative or arbitrary and capricious because the tables used cannot accurately predict the amount or duration of an uncapped award.
[*ED. NOTE: The following is the Court’s response to the constitutional issues discussed the Matters of Collins, Earle, and Raynor. ]
As for the constitutional arguments made by two of the carriers, “we are not persuaded that the Board’s application of amended Workers’ Compensation Law § 27 (2) violates the Taking Clause of the Fifth Amendment of the US Constitution. To determine whether there has been a compensable taking of private property for public use, we weigh the economic impact of the challenged statute on the carriers, the extent to which it has interfered with their distinct investment-backed expectations and the character of the governmental action involved. Here, the carriers do not claim that the amendment has increased the amount of compensation owed to claimants, and they offer no evidence of an unexpected additional expense other than administration fees, “a necessary consequence of the . . . regulatory scheme.
“The argument that the amendment violates the Contract Clause of US Constitution, article I, § 10 also is unpersuasive because their existing insurance contracts already had to account for the possibility of a discretionary direction to pay awards into the ATF. We are similarly unpersuaded that §27(2) violates the carriers’ equal protection rights under the 14th Amendment. To the extent that the carriers also contend that the mandatory deposit violates their substantive due process rights, they have not demonstrated that they were deprived of a protected property interest and “that the governmental action was wholly without legal justification.” Prevailing party represented by: In Parkhurst et al, Diana R. H. Winters and, in Collins et al, Karen Schoen both of counsel to Andrew M. Cuomo, Attorney General for respondent (WCB) Click here to read the full court decision in Parkhurst et al… and here for Collins et al…
THIS WEEK’S MOTIONS
July 2, 2010: The following list Motions ruled upon this week by the 3rd Department:
- Blacknall v Lander et Workers’ Compensation Board
Motion granted to to perfect the appeals is extended to 30 days from the date of this Court’s decision in Matter of Cotugno v Albany Park & Fly, Inc. [#508365]
In each of the following cases, motion has been granted, without costs, and the time to perfect the appeal is extended to August 23, 2010.
- Villa v American Fire Restoration et and James Steffen Doing Business as Professional Cleaning Company. Workers’ Compensation Board.
- Guidice v Herald Company et and Fund for Reopened Cases Workers’ Compensation Board.
- Kakuriev v Home Service Systems LLC et and Special Disability Fund Workers’ Compensation Board
- Baxter v T.g. Peppe Inc. et Workers’ Compensation Board.
- Card v Kendall Company et Workers’ Compensation Board.
- Hamza v Steinway & Sons et Workers’ Compensation Board
- Clark v New York Technologies Corporation et Workers’ Compensation Board
- Falkouski v City of Rensselaer Fire Department et Workers’ Compensation Board
▼ Posted Friday June 25, 2010 ▼
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…
▼ 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….
NEWSWIRE
July 23, 2010 (Friday): 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.
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COURT DECISIONS
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| ►Appellate Court Affirms WCB |
| ►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. |
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OUR NEWEST POLL RESULTS
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| ►Poll Results:GSIT’s; Keep them or Dump Them |
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ON OUR OTHER PAGES
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| ►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? |
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THIS WEEK’S NEWSWIRE
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| ►Major Federal Case on Independent Contractor v Employee |
| ►NYS Legislature Does, Too |
| ►Labor Comm Fight Over New Commissioner? |
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PRIOR WEEKS’ NEWSWIRE
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| ►New Commissioner Disappears & Another to the Ready? |
| ►Don’t Forget the poll on GSIT’s |
| ►SFCC Data Loss Cost Vendor $60K in penalties |
| ►And You Thought I was Tough! |
| ►Couldn’t say it better myself! |
| ►Is the WCB Staff’s Paranoia Warranted? |
| ►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 |
| ►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
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| ►Link to our Archive Index |
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Major Federal Case on Independent Contractor v Employee
NYS Legislature Does, Too
July 22, 2010: In a case involving the use of workplace contracts to define certain individuals as independent contracts, the 9th U.S. Circuit Court of Appeals in California filed a ruling on July 13, 2010, that the use of these contracts can not automatically be used as a defense by employers seeking to avoid California’s law. What makes this case of interest in New York is that one of the three judges participating in this decision was New York’s Eastern District’s Senior District Judge Edward Korman, sitting by designation, who wrote the final decision.
In the Matter of Narayan; Rahawi and Heath v RMW EGL, INC.; Eagle Freight Systems, Inc., three California truck drivers, who signed such agreement, then claimed that they were denied employee benefits in contravention of various California labor laws. Although a state court ruled in favor of the employer, the federal court reversed the decision, sending it back to a jury to determine wheter the facts inthe case suppoted the plaintiffs of the defendents.
As to what the implications may be for such litigation in New York State, particulary in view of Judge Korman’s participation, will remains to be seen. In fact, State Senator George Onorato (D-Queens), the chairman of the Senate Standing Committee on Labor, on Julne 30, 2010 announced that the State Senate and Assembly have given final approval to his legislation (S.5847-F/A.8237-D) that cracks down on the practice of employee misclassification in the construction industry and will help to prevent the siphoning off of tens of millions of dollars in state tax revenue each year into New York’s underground economy.
Labor Comm Fight Over New Commissioner?
Jul 21, 2010: A few weeks ago, I noted that there is another name in the hopper for one of the vacancies as a Board Member/Commissioner of the New York State Workers Compensation Board, a woman who held a key position in Tom Suozzi’s administration, although rumor also has it that some members of the Senate Labor Committee are not happy with the choice - maybe because Suozzi was not kind to the Democratic members of the State Legislature in some of his remarks about the problems in New York State. Well, the newspapers have confirmed my alert. According to the New York Daily News:
That person appears to be Gov. Paterson’s last hurrah of political patronage is not confined to the state Parole Board. Paterson recently nominated a former aide to ex-Nassau County Executive Thomas Suozzi to the state Workers’ Compensation Board - at the urging of the state Democratic Party boss. The cushy job for Charo Ezdrin pays $90,800 a year - and comes with a six-year term, lasting well past the four-year term of the next governor.
AIG Sues its Competitors
July 3, 2010: U.S. District Judge Robert Gettleman of the Northern District of Illinois today has authorized AIG to pursue a lawsuit against Hartford Financial Services, Liberty Mutual, and Travelers Insurance for alleging conspiring to damage AIG’s position in the workers compensation insurance market. But he also dismissed a number of other actions sought by AIG against these same parties. (American International Group Inc et al v. ACE INA Holdings Inc et al, U.S. District Court, Northern District of Illinois, No. 09-02026.)
Coventry Health Fined $262 for WC Fraud
July 3, 2010: Coventry Health Care, Inc. (NYSE: CVH) announced today that the Court Of Appeal, Third Circuit for the State of Louisiana has affirmed the trial court’s decision to grant summary judgment against First Health Group Corp., Inc. (a wholly-owned subsidiary of Coventry) for $262 million in previously-disclosed provider class action litigation in Louisiana state court. The suit involves claims of alleged violations of notice provisions of Louisiana’s Any Willing Provider Act in connection with providers providing services to injured workers with workers’ compensation claims. More specifically, a number medical/service providers have successfully argued that Coventry’s method of taking discount from the bills, in accordance with the contracts signed with these providers, submitted violates Louisiana Law.
This link will take you to link will take you to the statement on the potential liability included in Coventry’s Annual Report (Form 10-K) for the year ended December 31, 2009. In its statement regarding the Court’s decision, Coventry stated that it does not believe the decision is supported by the facts or the law and intends to file a motion for rehearing and explore other avenues of appeal. The Company believes that it has available resources to pay any final unappealable judgment in this litigation.
New Commissioner Disappears, Another to the Ready?
July 2, 2010: If a tree falls in the forest and there is nobody around, does it make a sound?
If the WCB does not announce new appointments of Commissioners to the Board and one who is confirmed won’t take the oath of office, does anyone know?
On April 16, 2010 I announced the confirmation hearings of two of Governor Paterson’s newest appointees as commissioners to the Workers Compensation Board: Sam Williams and Loren Lobban.
Commissioner Williams, although not formally introduced by the Board as a new member, has been busy at work fulfilling his duties.
Loren Lobban, on the other hand, although logically approved by the State Senate, did not take his oath of office as there were a few pending “personal matters” which had to be settled before he could/would be able to take his oath of office and become an employee of the Board. Although I know of nothing negative that would have delayed Lobban’s completion of the process, this is not the first time one of Governor Paterson’s nominees has been approved by the State Senate failed to take office. In early 2009, Dr. Geraldine M. Chapey also apparently was confirmed by the state Senate but did not take the all of office, the final step in becoming a Commissioner.
One has to ask two questions: (1) to the Governor’s office properly ‘vet’ the nominee and (2) in the nominee fully understand what would be the responsibilities and accompanying rejections and other activities? Is this a reflection on the quality of decision-making in the Paterson administration or a reconsideration by these nominees when after being affirmed to a close look at the Board and decide to run the other way.
On the other hand, there is a new potential nominee being discussed: a woman from Nassau County who was involved in the administration of a former Democratic County Executive Tom Suozi.
Don’t Forget the poll on GSIT’s
July 1, 2010: it’s not too late to cast your opinion in my poll about the Group Self-Insured Trusts.
Perhaps the most interesting comment to date is:
I am still reading up on this issue, so I do not yet want to lay blame. But I believe this is a case of res ipsa loquitur, and I suspect the Board and the State fell asleep at the wheel–in much the same ways as when auditing the Special Disability Fund for ample funding. Yet before we start creating new rules and regulations that there might not be enough personnel to enforce, perhaps we should start simplifying and reviewing the glitches in the current system. Past attempts to put a band-aid on a cancer have only made things worse.
All I know about the writer is that they checked off the box that they represent carriers and/or employers. Feel free to add your two cents - your anonymity is guaranteed.
SFCC Data Loss Cost Vendor $60K in penalties
June 29, 2010: webtechnologyresources has posted an article regarding the issue of privacy of employee information and identity theft. Whether electronic or paper, employee files deserve to be treated with great care. Establishing security and end-user privileges calls for a balance of incorporating, HR policy, system knowledge and day-to-day operations.
One company that failed this test was CS Stars, LLC, A subcontractor for the New York State Special Fund Conservation Committee, one of whose employees on May 9, 2006 notice a computer was missing that held personal information, including the names, addresses, and Social Security numbers of recipients of workers’ compensation benefits. But CS Stars waited until June 29, 2006, to notify Special Funds and the FBI of the security breach. New York’s Information Security Breach and Notification Law, effective in December 2005, requires businesses that maintain computerized data which includes private information to notify the owner of the information of any breach of the security of the system immediately following discovery, if the private information was, or is reasonably believed to have been, acquired by a person without valid authorization. The law affects not only businesses in their dealings with their customers, but employers in their role as custodians of employees’ personal data.
As a result of an investigation by the office of Attorney General Andrew Cuomo, CS STARS agreed to comply with the law and ensure that proper notifications will be made in the event of any future breach, and will pay the Attorney General’s office $60,000 for costs related to this investigation.
For full details on the SC Star matter and the issue of confidentiality of employee information, you can click here to go to the complete report
And You Thought I was Tough!
June 28, 2010: Tyler Murphy, Staff writer for the Evening Sun in Chenago County in central New York State, published an article about an Afton business man, Edward J. Panus, was found guilty by a Chenango County jury of six felonies after prosecutors argued you to forward it is Worker’s Compensation benefits.
District Attorney Joseph McBride said Panus now faces a possible maximum sentence of 24 years in state prison. Panus was convicted of all six charges against him, three counts of first degree offering a false instrument for filing, an E Class felony and three counts of committing a fraudulent practice under the Worker’s Compensation Law, also an E Class felony. Each E felony carries with it a possible maximum sentence of four years in prison, explained McBride.
24 years in jail - and we commissioners would be castigated for stopping benefits!
Couldn’t say it better myself!
June 30, 2010: What follows is a posting from the website of Markoff & Mittman:
What the %$#@$ is going on in the world of New York Workers Compensation?
6/11/2010: Two things came across my desk today and I am floored, stumped, miffed and cannot believe how injured workers are going to take another shot in the stomach!
FIRST - as we all know, the New York State Goverment is in denial and dysfunctional and has not passed a budget. Well, quietly, on the front page of the New York State Workers Compensation Board website the Board quietly announced the following:
YUP - absolutely NO CONTINGENCY plans for the injured workers. (And lets not forget that although the NYS WCB is a State entity, it is funded from assessments on insurance carriers!) This is atrocious!
SECOND - My colleagues upstate started to get weird feed back from some clients that their Third Party Administrator (the company that pays the checks) was going to require the injured worker to pick up his or her check on specific days and times at the employer. Huh? Okay, so in order to save 44 cents postage and a 5 cent envelope the insurance carrier will print the checks, deliver them to the employer and have the employers employee distribute them…perhaps they just want to do it to follow the injured workers?
WHAT IS GOING ON!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Is the WCB Staff’s Paranoia Warranted?
June 18, 2010: In its first ruling on the privacy of workplace texting, the U.S. Supreme Court on Thursday said that a city audit of an employee’s messages on a city-owned pager was a reasonable search under the Fourth Amendment.
The unanimous ruling was issued in the Matter of the City of Ontario, California v. Quon. Essentially, the Court ruled that the employer offers a proper rationale they have the right to read not only all e-mails but even information transmitted by “texting”.
Justice Anthony Kennedy, writing for a unanimous Court, said the city’s search — aimed at determining whether city employees in general needed a higher number of minutes on their pagers — was reasonable under any view of the Fourth Amendment right to protection from unreasonable searches. Even though the case involved a public workplace where the Fourth Amendment would be in full force, employment lawyers on Thursday said the ruling underscores the need for policies on privacy in private work settings as well.
When I was at the board, memos were distributed as to the limitations placed on my usage of the boards e-mail system, my access to the Internet, and my usage of board cell phones. I do not remember anything detailing how much of my privacy they could invade if they so wanted.
Makes you wonder what they are really doing in Albany.
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.
COURT DECISIONS
July 23, 2010 (Friday): Weekly postings of court decisions regarding injured workers compensation issues from the New York State Court of Appeals, New York State Appellate Division (1st, 2nd, 3rd, and 4th Departments), and various lower courts as well as decisions from other states that will be of interest to participants in the State of New York Workers Compensation system. Following the list of cases posted for this week is a list of cases. in which the NYS Workers Compensation Board is a party of interest, for which arguments have either already been made at the New York State Appellate Division, 3rd Department and for which decisions have not yet been issued or for cases which have been scheduled but not yet heard. If you would like to be added to our e-mail alert list or have any submissions or suggestions, send them to: TheInsider@InsideWorkersCompNY.com.
THIS WEEK’S POSTINGS: Another win for the Board on what was an easy call: the claimant who as an officer of a corporation opted out of WC coverage, placed a claim after she was injured in an on-the-job altercation, basically arguing she did not mean to sign the papers, they really did not count, and she changed her mind after the injury. 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.
Galanos v Nevada Utils
July 22, 2010 NYS Appellate Division, Third Department
Coverage: Opting out
AFFIRMED the Board’s ruling that the claimant was not a covered employee under the Workers’ Compensation Law, having opted out of coverage as an executive officer of the corporation. After the claim was established, the carrier requested that payments be suspended because, prior to the incident, claimant had signed a C-105.51 form opting out of workers’ compensation coverage due to her status as an executive officer in the employer corporation (WCL §54[6][d]). The claimant countered that (1) she was never an officer of the corporation, (2) the form was filed in error, and (3) since the carrier had been making payments on the claim, it should be estopped from disclaiming coverage. Both the Law Judge and the Board panel found in the employer’s favor. After admitting signing the C-105.51 notice, which stated coverage would not be provided unless and until this election was “revoked by the [employer] corporation” (WCL §54[6][d]), she admitted never revoking it. As to her claim she was not given an adequate opportunity to submit evidence at the hearing supporting her various arguments, the WCB’s decisions noted that she had two months notice of the hearings and that her employment status would be a key factor in the decision. Finally the Court agreed with the Board that, on these facts, the doctrines of laches and estoppel have no application to this proceeding and coverage was properly denied. Prevailing party represented by: Edward Obertubbesing of counsel to Gregory J. Allen, NYSIF, for Nevada Utilities and another, respondents. Click here to read the full court decision of the NYS Appellate Division…
PENDING DECISIONS
July 22, 2010 Thursday: The following list represents 3 cases, all of which have been heard.
May 27, 2010 Aides At Home v Workers’ Comp Board
May 27, 2010 Hilbrandt v Vil Of Red Hook
May 28, 2010 Wooding v Nestle Usa Inc
▼ Posted Friday July 16, 2010 ▼
Smallwood v Mereda Realty
July 15, 2010 NYS Appellate Division, Third Department
Employment: Dual?
AFFIRMED the Board’s ruling that a general employment relationship existed between claimant and Pueblo Nuevo Associates. Claimant, the superintendent of a building owned by Pueblo Nuevo and managed by Mereda Realty Corporation, who sustained injuries while providing maintenance at the site, received comp benefits and also commenced an action in Supreme Court against both firms. After a Board Panel modified a Law Judge ruling (claimant was an employee of Mereda) finding that claimant was a general employee of Pueblo and a special employee of Mereda, each responsible for 50%, claimant appealed, contending there was no employment relationship with Pueblo. The Board noted that although Mereda hired claimant, Pueblo retained the authority to fire him. Although his day-to-day activities were directed by Mereda, part of his compensation included a rent-free apartment in Pueblo’s building and his paychecks were from Pueblo’s general payroll bank account, checks noting that they were from Mereda as agent for Pueblo. Added to other indicia, the Court affirmed the Board’s decisions, writing that the existence of an employer-employee relationship, even if there is a written agreement indicating otherwise, is one for the Board to resolve and “its determination in that regard must be upheld if supported by substantial evidence, even if other evidence in the record could have supported a contrary conclusion.” Prevailing party represented by: Rudolph Rosa DiSant of counsel to Gregory J. Allen, NYSIF for Pueblo Nuevo Assoc and another, respondents. Click here to read the full court decision of the NYS Appellate Division…
Poulton v Martec Indus
July 8, 2010 NYS Appellate Division, Third Department
Injury: new or aggravated
REVERSED the Board’s ruling that claimant aggravated a prior injury and awarded workers’ compensation benefits. Claimant, who applied for benefits alleging that he injured his back at work on June 7, 2006, had his claim controverted as he had sustained back injuries in 1998 and 2000 while working for a prior employer; claimant did not apply for workers’ comp benefits in 1998 but the 2000 incident resulted in an established WC claim. The Law Judge, affirmed by a Panel, awarded benefits, concluding that the 2006 incident constituted “an accidental work related aggravation of prior neck and back injuries.” The appeal asserted that the June 7, 2006 incident did not cause a new disability. The Appellate Court determined that “Under the circumstances, ‘the proper inquiry is whether claimant’s employment acted upon [a] preexisting condition in such a way as to cause a disability which did not previously exist’” and concluded it did not, thus reversing the Board.
[ED. NOTE: Not knowing who was on the Panel, it is difficult for me as a former commissioner to speculate as to how, as happens far too often, the Law Judge, the lawyers in the ARD, the Panel, and ultimately the attorneys in the Office of the General Counsel missed the following key indicia used by the Court to support their reversal.]
Claimant testified that he had experienced the same type of back pain ‘every day’ since 1998. On June 2, 2006, claimant scheduled a June 8, 2006 appointment with his treating physician — who had been seeing claimant for his back problems on a monthly basis — to discuss his desire to cease working [Court’s footnote FN2: While scheduling the appointment, claimant informed personnel in his physician’s office that he had increasing back pain and that it had become hard for him to function at work. On June 6, 2006, claimant contacted his physician’s office again and reiterated his desire to discuss going out on disability. We note, in addition, that claimant made no reference to the June 7, 2006 work-related incident on an application for disability benefits that he completed on June 9, 2006.] “At that appointment, claimant made no mention of an incident at work the prior day and, following the examination, claimant’s physician concluded that claimant was disabled and unable to work ‘[b]ecause of his old injuries and his continued decline.’ … Furthermore, claimant’s supervisor testified that claimant regularly complained of back pain and that, before June 2006, claimant stated that he might stop working and seek permanent disability benefits as a result of a back injury sustained at his former job. Finally, a second physician who examined claimant opined that he suffered from degenerative disc disease and that his disability was caused primarily by preexisting problems.” Prevailing party represented by: Jacklyn M. Penna of counsel to Buckner & Kourofsky (Rochester) for appellants. Click here to read the full court decision of the NYS Appellate Division…
▼ Posted Friday July 2, 2010 ▼
Parkhurst v United Rentals
Lloyd v Kelly
Robinson v Gould Pumps
*Collins v Dukes Plumbing
*Earle v Batavia Nursing Home
*Raynor v Landmark ChryslerJuly 1, 2010 NYS Appellate Division, Third Department[*ED: NOTE: The decision issued in Collins, Earle, and Raynor are identical almost word for word with the exception that in the latter three cases, a constitutional issue was raised. See notes below.]AFFIRMED the Board’s ruling, in these six cases, that the Board’s mandating payment, per WCL §27(2), to the aggregate trust fund (ATF) does apply retroactively to claimants’ injuries even if they were sustained before the amendments effective date. In affirming the Board’s decision, the Court also rejected the carriers’ argument that mandating lump-sum payment of claimants’ uncapped PPD awards is improper because the actual amounts of their future benefits are unpredictable and there is no reliable way to calculate their present values.In each of these cases, claimants’ injuries were classified as a PPD with benefits awarded under §15(3)(w). These PPD awards, however, were not capped because claimants’ injuries all preceded the effective date of the amendment. Because each of these uncapped PPD awards was made after July 1, 2007, the private insurance carriers for claimants’ employers were ordered to make a lump-sum payment of the present value of the award into the ATF pursuant to the amendment to §27(2). The full Board found the language of §27(2) as amended to be unambiguous and to evince a clear intent to require payment into the ATF of all §15(3)(w) awards made after July 1, 2007 regardless of the date of injury.The Court wrote that “We do not view these cases as presenting an issue of the retroactive application of the amendment to §27(2).” They then followed with their interpretation of the statute and and legislative intent, including in their decision, “Here, the plain language of the statutes and the legislative history of their amendments persuades us that the inclusion of a reference to §15(3)(w) in §27(2) was intended to expand the types of awards to which the latter’s mandatory payment provision applies rather than to restrict it to awards that are capped by the amendment to §15(3)(w) . … Nor do the principles of statutory construction permit us to imply the limitation suggested by the carriers. Where, as here, “a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.“
The Court also explained its rejection of the carriers’ contention that the Board’s computation of the present value of each claimant’s award is speculative or arbitrary and capricious because the tables used cannot accurately predict the amount or duration of an uncapped award.
[*ED. NOTE: The following is the Court’s response to the constitutional issues discussed the Matters of Collins, Earle, and Raynor. ]
As for the constitutional arguments made by two of the carriers, “we are not persuaded that the Board’s application of amended Workers’ Compensation Law § 27 (2) violates the Taking Clause of the Fifth Amendment of the US Constitution. To determine whether there has been a compensable taking of private property for public use, we weigh the economic impact of the challenged statute on the carriers, the extent to which it has interfered with their distinct investment-backed expectations and the character of the governmental action involved. Here, the carriers do not claim that the amendment has increased the amount of compensation owed to claimants, and they offer no evidence of an unexpected additional expense other than administration fees, “a necessary consequence of the . . . regulatory scheme.
“The argument that the amendment violates the Contract Clause of US Constitution, article I, § 10 also is unpersuasive because their existing insurance contracts already had to account for the possibility of a discretionary direction to pay awards into the ATF. We are similarly unpersuaded that §27(2) violates the carriers’ equal protection rights under the 14th Amendment. To the extent that the carriers also contend that the mandatory deposit violates their substantive due process rights, they have not demonstrated that they were deprived of a protected property interest and “that the governmental action was wholly without legal justification.” Prevailing party represented by: In Parkhurst et al, Diana R. H. Winters and, in Collins et al, Karen Schoen both of counsel to Andrew M. Cuomo, Attorney General for respondent (WCB) Click here to read the full court decision in Parkhurst et al… and here for Collins et al…
THIS WEEK’S MOTIONS
July 2, 2010: The following list Motions ruled upon this week by the 3rd Department:
- Blacknall v Lander et Workers’ Compensation Board
Motion granted to to perfect the appeals is extended to 30 days from the date of this Court’s decision in Matter of Cotugno v Albany Park & Fly, Inc. [#508365]
In each of the following cases, motion has been granted, without costs, and the time to perfect the appeal is extended to August 23, 2010.
- Villa v American Fire Restoration et and James Steffen Doing Business as Professional Cleaning Company. Workers’ Compensation Board.
- Guidice v Herald Company et and Fund for Reopened Cases Workers’ Compensation Board.
- Kakuriev v Home Service Systems LLC et and Special Disability Fund Workers’ Compensation Board
- Baxter v T.g. Peppe Inc. et Workers’ Compensation Board.
- Card v Kendall Company et Workers’ Compensation Board.
- Hamza v Steinway & Sons et Workers’ Compensation Board
- Clark v New York Technologies Corporation et Workers’ Compensation Board
- Falkouski v City of Rensselaer Fire Department et Workers’ Compensation Board
▼ Posted Friday June 25, 2010 ▼
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…
▼ 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….
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