7

NEWS FOR
THIS WEEK

December 31, 2015
Thursday

COMMENTARY: A few thoughts as the year ends and some suggesions for next year.

DECISIONS: There are no decisions from the Third Department this week but seven new cases have been added to the Third Department's January hearing calendar.

Week
#367

Issue
#1

Contact The Insider at:    TheInsider@InsideWorkersCompNY.com                                                                         212-734-9450

COURT DECISIONS

Concerning
The NYS Workers Compensation Board

December 31, 2015: There are no decisions from the Third Department this week but seven new cases have been added to the Third Department's January hearing calendar.

NEW  An index listing cases by issues, broken down into four basic categories. This index consists of all the cases posted in 2013, 2014, and to date in 2015, including cases of outside New York State. The page, listed in the Links on the left under DECISIONS, is ISSUE INDEX

Pending cases, at both the 3rd Department and the Court of Appeals, are noted in the list below: PENDING CASES.

Every Friday morning, we post summaries of the week's court decisions relating to workers compensation issues, future calendars, and motions. This site has posted over 1000 decisions since 2008, from:

  • NY State’s Appellate Division, Third Department where all appeals of Board decisions are heard as well as the First, Second, and Fourth Departments.
  • Court of Appeals which hears appeals on decisions made by the Third as well as motions accepted or denied by the Court of Appeals and transcripts of hearings before the Court of Appeals.
  • State Supreme Courts and County Courts
  • Federal and other States' Courts whose decisions may impact on future interpretations of New York State's own workers compensation law

Other features include our annual posting of the TOP ATTORNEYS:
• TOP ATTORNEYS FOR 2013 •

Top Attorneys for 2012           Top Attorneys for 2011  
Top Attorneys for 2010           Top Attorneys for 2009  


Keefe v Aramatic Refresh Servs
October 31 NYS Appellate Division, Third Department
Disability: Degree of or R/E «»5020...Disability: Degree of or R/E

AFFIRMED the Board’s ruling that the claimant’s award is to be based on the wage rate with reference "to the latest 'injury' when there have been two or more" injuries. The claimant had a back injury claim in 2004 and again in 2009 when he was found to have temporary total disability and the Board used his 2009 AWW (lower than his 2004 AWW) to calculate his weekly benefits. Citing both the Matter of Meszaros v Goldman, 307 NY 296, 300 [1954] and WCL§§ 2 [9] and 15 [5-a], [7]), the Court agreed with the Board’s determination. But the Court noted that the Board, without any explanation, reduced the award for the period of temporary total disability to reflect a "marked temporary partial disability. So, while affirming the AWW to be used, the Court ordered the Board (which acknowledged its error) to revisit the degree of disability. Prevailing party represented by: Daniel W. Gracey of counsel to the Law Office of Joseph Buttridge (NYC) for Aramatic Refreshment Services Inc. and another, respondents. [3A254-7783]


Hearing Transcript

Beth v NYS Office of Children & Family Services
Court of Appeals
Argued: October 17, 2013 Appeal by: Claimant
Issues: 3rd Party Credit . . . . .3A254-8502
Link to Format Court Transcript


Hearing Transcript

Hroncich v Con Edison
Court of Appeals
Argued: September 9, 2013 Appeal by: Claimant
Issues: Causally Related Death . . . . .3A254-8501
Link to Format Court Transcript

PENDING CASES

APPELLATE COURT, THIRD DEPARTMENT

October 31, 2013: There are now only the following eight cases which have been argued before the Appellate Court for which we await decisions. No new cases have been posted for November.

10-11-2013 Banton v NYC Dept Of Corrections
10-15-2013 Bednarek v Caring Professionals
10-07-2013 Caezza v Via Health
10-16-2013 Canceleno v Graphic Service And Equipment
10-17-2013 Good v Town Of Brutus
10-08-2013 Hinovic v Greenstar Coop Market
09-05-2013 Mallette v Flatterys
10-17-2013 Pengel v Chloe Foods Corporation

COURT OF APPEALS
October 31, 2013
: No new workers comp related cases have been added by the Court of Appeals and no new motions addressed by the Court. The only case still active at the Court's motion calendar is Auqui v. Seven Thirty One Limited noted in the summary further down this. Transcripts for the cases heard this session are noted above:

MOTION DECISIONS recently issued by the Court of Appeals, with issue date.

? Kigin v NYS WCB 10-23-2013 Motion for leave to appeal by the claimant after the NYS WCB denied claimant's request for a medical variance which would have allowed additional medical treatment.

? Cameron v Crooked Lake House 10-15-2013 Motion for leave to appeal by the carrier on the issue of causally related loss of earning capacity denied.

? Morin v Town of Lake Luzerne : 09-12-2013 - Motion for leave to appeal by Town of Lucerne denied on decision by 3rd Dept which reversed the Board's ruling that apportionment did not apply to an earlier non-WC injury.

? Sharon Bland v Gellman Brydges & Schroff: 09-12-2013 - Motion for reargument of motion for leave to appeal by Bland denied.

? Rolleri v Mastic Beach Ambulance: 09-10- 2013 - Motion for leave to appeal by Rolleri denied on decision by 3rd Dept which affirmed the Board that there was no causal relationship.

? Cucinella v NYC Tr Auth : 08-29-2013 - Motion for leave to appeal by Cucinella denied on decision by 3rd Dept which affirmed the Board’s ruling that pro-se claimant violated WCL §114-a, permanently disqualifying him from receiving future wage replacement benefits.

? Prior Week's Posting ?


Leslie v Hartford
October 24, 2013 NYS Appellate Division, Third Department
Employment: Who is «»3030__Employment: Who is or dual

AFFIRMED the Board’s decision which ruled that maintenance man was a covered employee when injured while working at his employee’s personal residence. Claimant was employed as a maintenance man for Bucci Real Estate (BRE) working at several properties owned by Joseph G Bucci (JGB) including his real estate office and his personal residence situated on a horse farm. AS part of his compensation the lived at a residence also located on the horse farm that included utilities, and he was provided with a truck and a gas card. The carrier or new the claimant is not covered by the policy because he was not an employee of BRE and the employer’s workers comp application listed only one clerical office employee. The claimant and employer argued that claimant was covered by the workers come policy and there was no evidence he was working for JGB personally. Also both JGB and the insurance broker testified that the carrier was informed that the office clerk had been replaced by a maintenance worker. The Court agreed with the Board there was substantial evidence to support the conclusion that the claimant was an employee of BRE and, absent a policy exclusion, the claimant was covered by the policy. Prevailing party represented by: Peter K. Skivington of counsel for Joseph G. Bucci and represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent. [3A253-7870]

[ED. NOTE:]For whatever reasons JGB had taken the position that he wanted his employee covered by workers compensation, this claim puts to rest the complaint of injured workers that their employers are always conspiring with carriers to deny them coverage.


Riccelli Ent v NYS WCB 4th 2013-10-21
Self-Insured Trusts «»3195...Self-Insured Trusts

The Court of Appeals, on October 23, 2013, accepted a motion to allow additional time for presentation of papers on this case. The issue at hand is an April 30, 2012 decision by the Supreme Court, Onondaga County to proceed with a hearing for a Judgment Pursuant to New York CPLR Article 78. Petitioners/plaintiffs are former members of TRIWCT (a self-insured group trust). In this matter, the original petition was filed on November 29, 2010, and sought, upon various grounds under Article 78, a judgment annulling and setting aside assessments made in July of 2010 and all other assessments levied by the New York State Workers’ Compensation Board due to its participation in the now defunct TRIWCT. The Supreme Court agreed to hood in abeyance all the Board’s penalties and assessment, pending the actual hearing on the merits of the Riccelli , who has been joined in this matter by a number of other members of the Trust. A link to the original 169-page decision, annotated by this website, is noted below. [3A253-7869]


Caldera v Ins Co of Penn
May 14, 2013 United States Court of Appeals, Fifth Circuit, Texas
Medicare Reimbursement «»3172...Medicare issues

In an interesting case from Texas, a claimant who failed to get preauthorization from his WC carrier had surgery paid for by Medicare for a total of $42,637. Although he was not out-of-pocket for the costs at issue, he filed a claim against the WC carrier. Perhaps it was the Medicare provisions that allows a Medicare beneficiary may recover from his workers' compensation carrier twice the amount that Medicare paid on his behalf if, among other things, the carrier qualifies as a "primary plan." The worked claimed that Medicare MSP overrides any state exclusions and that since Medicare deemed his surgery necessary, the Texas WC Board’s opinion was not relevant. The Court , in a lengthy opinion disagreed on both points, thus making it possible for Medicare to seek reimbursement directly from the claimant for his failure to see pre-authorization from the WC carrier. [3A253-786]

Hroncich v Con Edison
October 15, 2013 NYS Court of Appeals
Apportionment: Death «»3070...Apportionment: Death

AFFIRMED, in a 7-page ‘split’ decision, the Board’s decision which did not apportion death benefits between work-related and non-work-related causes. The Board found compensibility and classified Hroncich as permanently partially disabled as of June 1993, with asbestosis and asbestos-related pleural disease resulting from his employment with Con Ed. After he died in September 2007 as the result of thyroid cancer, first diagnosed in 1999 and deemed unrelated to his work at Con Ed, his widow (claimant) successfully filed a claim for death benefits, which was challenged by Con Ed’s third party administrator questioning causation and noting the absence of prima facie medical evidence.

The claimant’s medical expert testified that, in essence, Hroncich's thyroid cancer, once it invaded his lungs, triggered inevitable death that likely occurred earlier than it would have otherwise because his lungs were compromised by preexisting occupational lung diseases.” Con Ed did not present any medical evidence but argued that Hroncich's asbestosis and asbestosis-related pleural disease played no role in his death because, when he was originally diagnosed 14 years earlier, his pulmonary function was normal and, since no further pulmonary tests were done, there is no evidence of weakened lungs.” In addition, Con Ed argued that the overwhelming cause of his death was thyroid cancer. Conceding that the law regarding apportionment in this context was "unsettled," Con Ed nonetheless urged that a reduced award was "warranted" by the minimal and speculative contribution of work-related pulmonary diseases to Hroncich's demise.

In denying apportionment, the Board cited the Matter of Webb v Cooper Crouse Hinds Co. (62 AD3d 57 [3d Dept 2009]) that "apportionment is not available between work-related and non-work-related causes of death" when determining death benefits. This position was affirmed in this case February 19, 2012 by the Appellate Court, Third Department which ruled that "inasmuch as the record concededly contains substantial evidence supporting the Board's determination that decedent's occupational illness contributed to his death, claimant is entitled to death benefits without apportionment." The Court today noted that Con Ed relies on WCL §15(7) and §10 to argue for apportionment of death benefits between work-related and non-work-related causes. (Respondent Special Disability Fund, Special Funds Conservation Committee and amicus City of New York likewise argue that WCL §15(7) explicitly provides for apportionment of death benefits.) The Court of Appeals then wrote a detailed explanation as to why each of Con Ed’s arguments were not relevant to the case at hand, finally noting that, “As the Board points out, to the extent WCL §16 is thereby unduly harsh on employers, Con Ed's plea for redress is properly made to the legislature, not the courts.

PIGOTT, J.(concurring): Justice Pigott determined that the claimant was not entitled to death benefits but concurred with the majority making this a unanimous decision because he found that Con Ed’s challenge to the finding of causation was not preserved for review. Pigott writes that the Court of Appeals has yet to consider whether the Appellate Courts' interpretation of the statute is correct and, if so, how far it should be taken, i.e., whether a work-related injury that is only a minor "contributing factor" to the decedent's death is compensable. He writes that case law puts that question into serious doubt as current interpretation implies “any tangential work-related injury or disease that contributes in any way to the death may result in a death benefit. This leads to two problems. First, it lends itself to arbitrary determinations as to whether a particular death has a ‘causally related’ antecedent. Second, there is no statutory basis for allowing ‘apportionment’ in §16 with respect to the cause of death, and at the same time denying apportionment when fashioning an award. Here, there is no dispute the work-related injury may have hastened the decedent's death, but that's all. The statute doesn't provide for an award in such a case. No apportionment should mean just that - as to both the cause and, as the WCB argues here, the award of benefits. The Legislature didn't write the statute that way; why should the courts rewrite it?

ED NOTE: The statement in this case regarding the responsibility of the State Legislature rather than the courts to make law is reaffirmed rather bluntly in the Matter of People v Herne (a non-WC case) issued by the Franklin Country Court October 15, 2013 (link here):Whether this result is good law or bad law is not for the Court to discern. Whether any change in the law is called for remains within the sound discretion of the Legislature.” This is a point on which both Pigott and his colleagues agree although they do so from opposite sides of the fence.

[3B252-7867]

Dow v Silver Constr
October 17, 2013 NYS Appellate Division, Third Department

Procedure: Denial FBR «»7050...Procedure: Denial FBR

REVERSED the Board’s decision to deny both an initial application for review and a full board review. The Board’s position was that the employer failed to properly place all necessary parties on notice of the application. But the record showed that all prior attempts to serve notice upon two parties had been returned as undeliverable. And, for the other two parties, the counsel for the parties was served, there is no assertion that these parties did not receive notice of the application, and one even filed a rebuttal. Therefore, the Court agreed with Silver that the Board erred in determining that the application was not served upon all parties of interest.Prevailing party represented by: Steven Weinberg of counsel to Gottesman, Wolgel, Malamy, Flynn & Weinberg (NYC) for appellant.[3B252-7866]


Auqui v. Seven Thirty One Limited
September 26, 2013 Court of Appeals
Collateral Estoppel «»9998_Collateral Estoppel

ADDITIONAL MOTIONS ACCEPTED FOR RE-ARGUMENT: The Court of Appeals has just accepted additional motions from the County of Suffolk, New York State Bar Association, Workers' Injury Law & Advocacy Group, Real Estate Board of New York et al., Defense Association of New York, Inc., Federation of Defense and Corporate Counsel, and New York State AFL-CIO et al. to be added to those filed in June 27, 2013 by (1) New York Committee for Occupational Safety and Health, (2) Injured Workers Bar Association, (3) New York State AFL-CIO, et al., (4) New York State Bar Association, (5) Workers Injury Law & Advocacy Group, (6) The Center for Popular Democracy, (7) New York State Trial Lawyers Association, (8) Make the Road New York et al.,and (9) The Black Institute. See the June Summary of this case for more details.

Coleman v Compass Group
May 21, 2013 NYS Appellate Division, Third Department
§32 «»7045...§32

_8b-final-cover-html-see-my-white.jpg Motion for leave to appeal by carrier dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. The underlying February 28, 2013 decision affirmed the Board’s ruling that an injured worker had the right to reject a §32 settlement at a hearing before an administrative law judge. The reason for the rejection was not noted in the Third Dept.'s decision, thus inferring that no reason was needed or relevant. Perhaps the claimant read my book “Workers Compensation Section 32 Settlements: A Treasure or A Trap” between the date she originally agreed to the §32 and the date she appeared the second time before the law judge. [3B251-7685]


Canfora v Goldman Sachs
October 3, 2013 NYS Appellate Division, Third Department
§25-a: Reimbursement Period «»3130...§25-a: Reimbursement Period

AFFIRMED the Board’s decision to transfer liability per §25-a to the Special Fund for Reopened Cases (Fund), after this case had been sent back to the Board in May 2012 for it to justify its earlier decision. On May 29, 2008, the carrier requested that liability for a May 2001work-related in jury be transferred to Fund per §25-a. On March 82, 2012 in response to the carrier’s appeal of the Board’s decision to make that transfer with an effective date of May 30, 2006, the Court “reversed the Board's determination and remitted the matter for reconsideration, citing the Board's failure to follow a prior decision which stated that liability may not transfer to the Special Fund until the first day after the three and seven-year time limits set forth in Workers' Compensation Law § 25-a have expired, or give an explanation for departing from this precedent (93 AD3d 988 [2012]).”

The Board then reaffirmed its earlier decision, concluding “that §25-a does not preclude a transfer of liability retroactive to a period of time prior to the lapse of seven years after the underlying injury and that any prior decisions by [the Board] to the contrary would not be followed.” The Court noted that there was no issue on the “7 & 3" rule, only on the retroactive transfer of liability to the Fund to a period of time prior to the lapse of seven years following claimant's injury. The Court made a major distinction: While there as a two-year limit to the application of transfer of liability, “there is no statutory requirement that there be a seven-year lapse from the date of a claimant's injury prior to the date of a retroactive transfer of liability.” Thus, “the Board’s determination does not preclude such a retroactive application and the Board’s new decision explains set forth sufficient reasons for no longer following any prior decisions to the contrary." Prevailing party represented by: Lauren M. Bilasz of counsel to Weiss, Wesler & Wornow (NYC) for Goldman Sachs Group and another, respondents, and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. [3A250-7864]

| — — SEPTEMBER 2013 — — |


Robinson v Franklin Cty Soc Servs
September 26, 2013 NYS Appellate Division, Third Department
§28: time bar «»1210...§28: time bar

AFFIRMED the Board’s ruing that the pro-se claimant's application for WC benefits was barred by WCL §28. In June 2010, after claimant filed an application for WC benefits based upon a workplace incident that occurred in March 2008, the self-insured employer submitted a form indicating that the claim was accepted, "without prejudice under WCL §21-a," but payment had not begun because claimant had not lost time from work beyond the waiting period. At the initial hearing, the employer controverted the claim based upon, among other things, Workers' Compensation Law § 28, which provides that the right to workers' compensation benefits shall be barred if the claim is not filed within two years after the claimant's workplace accident. Finding that the defense was not waived, the Workers' Compensation Board dismissed the claim as time-barred.

Claimant contends that the employer waived the defense of timeliness because it initially accepted the claim without raising the issue. §28 provides that the employer "shall be deemed to have waived the bar of the statute unless the objection to the failure to file the claim within two years is raised on the first hearing on such claim at which all parties in interest are present." Inasmuch as the record reflects that the defense of untimeliness was raised at the first hearing at which all parties in interest were present, [the Court could] find no reason to disturb the Board's determination. Prevailing party represented by: Robert E. Geyer Jr of counsel to Wolff, Goodrich & Goldman (Syracuse) for Franklin County Department of Social Services, respondent [39249-7863]


Capodagli v West Seneca CSD
September 19, 2013 NYS Appellate Division, Third Department
§25-a: True Closing «»3140...§25-a: True Closing

REVERSED the Board’s ruling which did not allow a hearing to determine the applicability of §25-a. Specifically, when the Special Fund for Reopened Cases (Fund) sought to have a hearing to determine if there were advance payments by the employer to the claimant. The Law Judge, affirmed by a Board panel, denied that request. In reversing the Board the Court noted that, “Inasmuch as the record does not contain an affidavit or testimony of claimant or any other evidence regarding whether claimant was performing light or limited duties and, if so, whether she received full wages, we find that the Board's decision is not supported by substantial evidence and the matter must be remitted for further development of the record.”
Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent.
[39248-7862]


NYS WCB v Hamilton Wharton Group
August 30, 2013 NYS Supreme Court
GSIT's «»3185...§50(5): Assessments & GSITs

In this GSIT case, the NYS WC Board’s motion to consolidate several allegedly related cases into one was ruled against for its failure to act in a timely manner.

The WCB brought Actions Nos. 1 and 2 in its capacity as successor in interest to the NY Healthcare Facilities WC Trust ("the Trust") in which the WCB seeks to recover the accumulated deficit of the Trust, estimated at approximately $33 million. The WCB moved to consolidate three actions and to be substituted as plaintiff in Action No. 3 with respect to the claims asserted against the Common Defendants.

While the Court agreed that “there certainly are good reasons to consolidate the three actions, . . . [b]ut two years passed without any effort by the WCB to consolidate, coordinate, intervene or otherwise join the cases. In the interim, critical legal issues have been articulated and resolved in Action No. 3, fact discovery is said to be virtually complete, and the case is expected to be trial ready by the end of the year. . . . [The Action No. 3 Plaintiffs] ha[ve] worked diligently for over [four] years to move [their] case forward, and [they] will suffer significant prejudice in waiting, possibly for two years or more, for the other [two] Actions to arrive at the same point in discovery. Further, it is prejudicial to the front-running plaintiffs to necessarily place completed discovery aside, to be re-visited and re-evaluated . . . . [39247-7861]

[ED. NOTE:] When you realize that the WCB can not even keep its own house in order in a timely basis when they are the aggrieved party, is it no wonder they do not care about how long it takes for them to handle an injured worker's file? But, heaven help the lawyer who is one day late in a filing at the Board.


Lopez v Sunrise One
September 9, 2013 NYS Supreme Court
Other «»9998...Other

After a damages-only trial, the jury awarded plaintiff Ignacio Valdez Garcia total damages of $3,106,714, consisting of $500,000 for past pain and suffering, $900,000 for future pain and suffering, and $1,706,714 for future medical expenses, with the awards for the future intended to compensate Plaintiff over 28 years.

What is relevant to the workers comp community is the defense raised regarding allocation/calculation of future medical expenses, on the grounds that the injured worker’s immigration status should be a factor in making such a determination. In an opinion that could well be used in discussing future earnings capability of someone who may return to their home country or even an American considering a move outside the U.S.A., the Court rejected the employer’s defense which was,

without allowing inquiry into plaintiff's immigration status, the jury was left with the impression that the future medical services were to be provided in the United States, which in and of itself, is not supported by the record and ignores the reality that Plaintiff will be [sic] choice return to his country or be deported"; "to prevent a defendant from putting a plaintiff to his proof by precluding the defense from presenting facts material to the accurate assessment of damages is prejudicial to the defense."

In precluding Defendants, the Court relied on the First Department's decision in Angamarca v New York City Partnership Hous. Dev. Fund Inc. (87 AD3d 206 [1st Dept 2011]):

Nor can we say, in the instant case, that the trial court erred in refusing to permit cross-examination of plaintiff about his immigration status and prior desire to return to Ecuador. Any argument, by defendant, that plaintiff was subject to deportation to Ecuador or had expressed an interest, prior to the accident, in someday returning to Ecuador, in an effort to suggest that plaintiff would incur lower medical expenses in Ecuador than in the United States, would also have been inappropriate . . . [D]efendant proffered no evidence that deportation was anything other than a speculative or conjectural possibility. The speculation that plaintiff might at some point be deported [*4]or voluntarily return to Ecuador was so remote that it rendered the issue of citizenship of scant probative value to the calculation of damages . . .[39247-7860]

[ED. NOTE:]For the record, the issue was his hypothetical return to his home country and nothing to do with his immigration status in terms of his level of compensation.


Decisions on this page go back to January 2015.
To search other years, click on the date:  2014   2013  2012  2011    2010    2009    2008


— — PENDING CASES — —

NYS APPELLATE DIVISION, THIRD DEPARTMENT

December 23, 2015: The Following 16 cases await the Court's ruling.

11-24-2015   Bennett v Saint Raymond's Church
12-15-2015   Bordino v Con Ed
12-15-2015   Campbell v Interstate Materials
12-15-2015   Cassano v Sunrise Med Lab
01-13-2016   Finch v Steve Cardell Agency..
12-15-2015   Galuski v NYS Div Of Military
01-07-2016   Granville v Town of Hamburg..
12-15-2015   Haynes v Catholic Charities
01-13-2016   Nanterne v Ahdoot
01-08-2016   Reddien v Joseph Davis Inc..
12-15-2015   Szadek v Wilson Greatbacth
12-15-2015   Waddy v Barnard College
11-24-2015   Walczyk v Lewis Tree Serv
01-08-2016   Woodruff v Phelps Sungas
01-13-2016   Zaremski v New Visions
01-14-2016   Zobel v Chemung County & FCS Administrators

COURT OF APPEALS

♦ Motions Denied by the Court of Appeals

Ling Chen v Reuters Am Holdings
December 17, 2015  -  NYS Court of Appeals: Motion for leave to appeal denied. This case was ernver heard before the 3rd Department.  It is interesting to note that the first motion to be heard before the 3rd Department, October 9, 2014, was accepted with the caveat that it explain why that motion was filed late. The next five motions to the 3rd were denied, including one denying permission to go to the Court of Appeals which itself, on three occasions, denied a motion to hear the case, December 17, 2015 being the last.

Bland v Gellman Brydges & Schroff
**November 24, 2015 — NYS Court of Appeals:  Motion for leave to appeal by claimant of an April 16, 2015 decision by this Court denied. A previous motion was denied by this same Court September 10, 2015.

Sheng v Time Warner Cable
November 24, 2015 — NYS Court of Appeals: Motion for leave to appeal the Courts August 20, 2015 dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Claimant has unsuccessfully appealed denial of a Full Board Review.

Other Motions that have been denied can be found on MOTIONS: COURT OF APPEALS

Scott Empara v New Rochelle Sch District
Ling Chen v Reuters Am. Holdings
Paul Schwenger v NYU Sch. of Medicine

Tiffany Cruz v NYC Dept of Children's Servs
Sharon K. Bland v Gellman, Brydges & Schroff

Hearings set:

Regency Oaks Corporation v Norman-Spencer Mckernan, Inc.: Appeal Dismissed upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Ace Fire Underwriters Insurance Company v Special Funds Conservation Committee: 1st Dept. App. Div. Order of 2-24-15; Affirmance; Leave to appeal granted by Court of appeals, 9-22-15; Workers' Compensation - Special Funds - where the workers' compensation insurance carrier approves the settlement of a third-party personal injury action without first obtaining the consent of the Special Funds Conservation Committee (SFCC) to such settlement, and the SFCC thereafter denies retroactive consent for the settlement, does the Court in which the underlying personal injury action was commenced have the power to compel the SFCC to consent to the settlement nunc pro tunc, or must the carrier seek such relief from the Workers' Compensation Board.

04400PRIOR WEEK'S POSTINGS

Bennett v Roman Catholic Diocese
    December 24, 2015    NYS Appellate Division, Third Department    
    1210...§28: time bar      5C366-8110
AFFIRMED the Board’s ruling that the claim for claimant's neck injury was barred by WCL §28. On January 25, 2010, while performing maintenance duties, claimant fell from a ladder, injuring his back, left hip, left leg and ankle. His claim was established for injuries to his left leg and back after which claimant underwent extensive medical treatment for these injuries. After many of these procedures were done, his physician recommended an MRI of claimant’s cervical spine because of complaints that forward flexion of his neck caused pain in his lower back. The March 1, 2012 MRI revealed some disc bulges and herniations in claimant's cervical spine which, for the first time, were mentioned in the medical notes, suggesting that they may be the cause of his lower back pain. The physician then filed a request for authorization for surgery that was denied based on a contrary report by another orthopedist. At a March 2013 hearing, the Law Judge ruled that the claim for a causally-related neck injury was barred by WCL §28.

The Board determined that, under WCL §28, the claim for claimant's neck injury was clearly untimely as it was first raised in March 2012, more than two years after claimant's January 2010 work-related accident. The claimant asserted that the carrier's payment of medical expenses that included a CT scan of his cervical spine immediately after the accident constituted an advance payment of compensation. The decision determined that, when claimant was taken to the hospital immediately following his fall, a number of diagnostic tests were performed to assess the severity of his many injuries, including a CT scan of the head. These tests disclosed that his primary injuries were a fractured femur and lumbar disc, and they did not reveal any abnormalities in his cervical spine. Significantly, the course of claimant's continuing medical treatment during the ensuing two years focused on these injuries, not on any problems with claimant's neck. Under these circumstances, it could not be inferred that the carrier's payment of medical expenses related to the CT scan constituted an acknowledgment of liability for injuries to claimant's neck. The Court concluded, “Accordingly, inasmuch as substantial evidence supports the Board's decision that the claim for claimant's neck injury is barred by WCL §28, we find no reason to disturb it.Prevailing Party: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Roman Catholic Diocese of Rockville Centre and another, respondents.
 
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Vallecillo v NYC Dept of Corrections
    December 24, 2015    NYS Appellate Division, Third Department    
    7032...Venue issues §114-a(3)       5C366-8109
AFFIRMED the Board’s ruling which assessed a monetary penalty against claimant's counsel for seeking a change in venue, pursuant to WCL §114(3)(ii). Claimant, who resides in Brooklyn, was injured in the course of his employment as a correction officer in Queens.  Editor’s Note: Although this is the fifth ruling against Rella by the Court in two years on this same issue, the points raised by Rella in this case are different from those in his prior cases.

Claimant's counsel, Gerarda M. Rella of Rella & Associates, filed a claim for workers' comp benefits with the Board, including a venue request, which was supported by a handwritten note signed by claimant asking that his hearing be held in the City of White Plains, Westchester County, asserting that "it is the most efficient hearing point in the [s]tate" based upon his "wish to limit the amount of time lost from work for attendance at hearing [sic]" and that having it at this hearing point "will accomplish that goal." Rella also contended that venue in White Plains promoted judicial economy: the claimant had other comp claims pending in the nearby City of Peekskill, Westchester County. The Board rejected this assertion finding that there was no reason to anticipate that claimant would be required to attend future hearings in those pending cases, as they were nearing completion.

The Law Judge, in denying the venue request, noted that, prior to this application, Rella had been advised in a similar matter that venue was not established for the convenience of the attorney. The Law Judge concluded that Rella's venue request was made without reasonable grounds and imposed a penalty on Rella of $500 pursuant to WCL §114-a (3) (ii). On claimant's application for review, the Board affirmed, with one Board member dissenting. Upon claimant's application for reconsideration or full Board review, the Board affirmed and assessed an additional penalty of $500 for the frivolous appeal.

The Court wrote

Rella's venue request was based upon entirely unsupported assertions that failed to justify a change of venue either outside of claimant's residential district or the district where his public employer is located. We further find that the Board acted within its discretion in declining to consider the newly proffered justification for the venue request, which Rella advanced for the first time in the application for Board review (see 12 NYCRR 300.13 [e] [1] [iii]). As substantial evidence supports the Board's finding that, prior to this venue change request, Rella had been advised in another matter involving "virtually identical circumstances" regarding the rules governing venue and that Rella had no reasonable basis for either the motion to change venue or the appeal to the Board, we decline to disturb the Board's assessment of separate penalties for the venue request and the appeal to the Board.

Prevailing Party: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent

The Insider: It would have been interesting to see what would have happened had this venue request been made by an attorney other than Rella, as some of the points Rella raised were not in his prior requests.

 
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Walczyk v Lewis Tree Serv
    December 24, 2015    NYS Appellate Division, Third Department    
    5050...Schedule Loss of Use issues       5C366-8108
AFFIRMED the Board’s ruling that claimant was entitled to a schedule loss of use (SLU) award payable in a lump sum while still receiving awards for a permanent partial disability(PPD). Claimant’s 2005 back injury resulted in compensation followed by a 2009 decision that he had a resulting PPD for which he thereafter received continuing disability benefits. Claimant also filed a claim in 2007 for bilateral carpel tunnel syndrome (CTS), later established as an occupational disease. In 2013 it was determined that, due to his CTS, he had a PPD with a 15% SLU of each hand, resulting in an award of $29,280, based upon 73.2 weeks of compensation (see WCL §15[3][c]).

The Law Judge concluded, that in order to stay within the maximum statutory weekly compensation of $400 (see WCL §15[6]), since claimant continued to be concurrently paid compensation for the back injury at a rate of $380 per week (from April 10, 2007 to May 10, 2008) and at a rate of $360.16 thereafter, the loss of use award for the CTS should be paid at a weekly rate of $39.84 (when added to the $360.16 per week for the back injury equals $400 weekly) for the statutory 73.2 weeks. As a result, claimant would receive a total SLU award of only $2,916 ($39.84 weekly x 73.2 weeks = $2,916). The Board determined that claimant was entitled to be paid the full SLU award (i.e., $29,280) in a lump sum pursuant to WCL §25(1)(b).

The Board correctly held that WCL §§15(3)(u) and 25(1)(b), as amended in 2009 (see L 2009, ch 351, §§1, 2), authorize the payment of the SLU award in a lump sum. The purpose of a SLU award for a PPD is "to compensate for loss of earning power." That is, it "is not given for an injury, but for the residual physical and functional impairments." Whether a SLU award or continuing disability benefits is warranted is a question of fact for the Board to resolve and the parties in this case did not dispute the propriety here of a SLU award, which is allowed where "there is no continuing need for medical treatment and the medical condition is essentially stable." Although, for purposes of calculating PPD awards, WCL §15(3) "assigns . . . a fixed number of lost weeks' compensation according to the bodily member injured", "the weekly rate and the number of the weeks in the schedule are merely the measure by which the award is calculated [and] payment of the schedule award is not allocable to any period of disability."

Under established precedent, where an injured worker is receiving nonscheduled award payments and periodic SLU award payments for different injuries, the concurrent payments may not exceed the statutory cap of $400 per week in benefits, as provided by WCL §15(6)(a). As relevant here, however, under WCL §§15(3)(u) and 25(1)(b), as amended in 2009, where there is a permanent partial loss of use of more than one member or body part, the award "shall be fully payable in one lump sum upon the request of the injured employee" (WCL §15 [3] [u]). These statutory amendments were a response to existing precedent holding that, contrary to Board policy, the WCL precludes payment of SLU awards for a PPD as a lump sum.

In view of the foregoing, the Court found that the Board correctly ordered the SLU award to be paid in a lump sum as an authorized alternative to periodic payments, which did not violate the maximum disability rate provisions of WCL §15 (6). Contrary to the carrier's argument, in Matter of Schmidt v Falls Dodge, Inc. (19 NY3d at 183), the Court of Appeals expressly declined to address the implications of the 2009 amendments, and nothing in that decision precludes the Board's award to claimant of a SLU award in one lump sum. Prevailing Party: Brian O'Keefe of counsel to Grey & Grey (Farmingdale) for Robert Walczyk and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.
 
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Yanas v Bimbo Bakeries 
    December 17, 2015    NYS Appellate Division, Third Department
    1030...Causal Relationship: PFME, et al            5C365-8107
AFFIRMED the Board’s ruling that claimant did not sustain an occupational disease and denied his claim. Claimant, whose duties at Bimbo Bakeries included, among other things, loading a flour sifter machine, submitted a claim in November 2012 after experiencing pain in his right wrist and being diagnosed with carpal tunnel syndrome, flexor tendonitis, and ulnar impaction syndrome. A Law Judge (1) credited the testimony of claimant's supervisor in determining that claimant's job duties did not entail sufficient repetitive action for an occupational disease and (2) did not credit the opinions of claimant's physicians regarding causation, since both physicians failed to establish an adequate understanding of claimant's work activities or obtain a complete medical history.

Here, the Court wrote:

The Board's decision regarding the presence and classification of a medical condition — i.e., an occupational disease — is a factual consideration that will not be disturbed if it is supported by substantial evidence"). Here, the Board credited the testimony of claimant's supervisor regarding claimant's job duties in determining that claimant failed to sufficiently prove "a specific repetitive movement suggesting a link between a distinctive feature of [his] job and [his] injuries". Further, since claimant's physicians failed to show adequate knowledge of his work activities or medical history, "'[t]he Board was free to reject this less-than-compelling medical evidence,' and its finding that claimant did not submit credible medical evidence of a causally related occupational disease is supported by substantial evidence".

Prevailing Party: John Paniccia of counsel to Stockton, Barker & Mead (Troy) for Bimbo Bakeries and another, respondents.

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— — PENDING CASES — —

NYS APPELLATE DIVISION, THIRD DEPARTMENT

December 23, 2015: The Following nine cases await the Court's ruling.

11-24-2015   Bennett v Saint Raymond's Church
12-15-2015   Bordino v Con Ed
12-15-2015   Campbell v Interstate Materials
12-15-2015   Cassano v Sunrise Med Lab
12-15-2015   Galuski v NYS Div Of Military
12-15-2015   Haynes v Catholic Charities
12-15-2015   Szadek v Wilson Greatbacth
12-15-2015   Waddy v Barnard College
11-24-2015   Walczyk v Lewis Tree Serv

COURT OF APPEALS

♦ Motions Denied by the Court of Appeals

Ling Chen v Reuters Am Holdings
December 17, 2015  -  NYS Court of Appeals: Motion for leave to appeal denied. This case was ernver heard before the 3rd Department.  It is interesting to note that the first motion to be heard before the 3rd Department, October 9, 2014, was accepted with the caveat that it explain why that motion was filed late. The next five motions to the 3rd were denied, including one denying permission to go to the Court of Appeals which itself, on three occasions, denied a motion to hear the case, December 17, 2015 being the last.

Bland v Gellman Brydges & Schroff
**November 24, 2015 — NYS Court of Appeals:  Motion for leave to appeal by claimant of an April 16, 2015 decision by this Court denied. A previous motion was denied by this same Court September 10, 2015.

Sheng v Time Warner Cable
November 24, 2015 — NYS Court of Appeals: Motion for leave to appeal the Courts August 20, 2015 dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Claimant has unsuccessfully appealed denial of a Full Board Review.

Other Motions that have been denied can be found on MOTIONS: COURT OF APPEALS

Scott Empara v New Rochelle Sch District
Ling Chen v Reuters Am. Holdings
Paul Schwenger v NYU Sch. of Medicine

Tiffany Cruz v NYC Dept of Children's Servs
Sharon K. Bland v Gellman, Brydges & Schroff

Hearings set:

Regency Oaks Corporation v Norman-Spencer Mckernan, Inc.: Appeal Dismissed upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Ace Fire Underwriters Insurance Company v Special Funds Conservation Committee: 1st Dept. App. Div. Order of 2-24-15; Affirmance; Leave to appeal granted by Court of appeals, 9-22-15; Workers' Compensation - Special Funds - where the workers' compensation insurance carrier approves the settlement of a third-party personal injury action without first obtaining the consent of the Special Funds Conservation Committee (SFCC) to such settlement, and the SFCC thereafter denies retroactive consent for the settlement, does the Court in which the underlying personal injury action was commenced have the power to compel the SFCC to consent to the settlement nunc pro tunc, or must the carrier seek such relief from the Workers' Compensation Board.

04400PRIOR WEEK'S POSTINGS

Goutremout v Advance Auto
    December 3, 2015    NYS Appellate Division, Third Department
    3140...§25-a: True Closing     5C363-8106
REVERSED the Board’s decision by finding the Board erroneously did not shift liability for the claim, per WCL §25-a, to the Special Fund for Reopened Cases (Fund). As a result, the Board’s denial of a request for reconsideration and-or full Board review was dismissed, as academic. In August 2005, claimant was awarded a 25% schedule loss of use of her right leg for a 2001 work injury, and the case closed. In February 2009, claimant successfully filed a request for further action seeking authorization for right knee replacement surgery. After claimant was awarded an overall 50% loss of use of her right leg in March 2011, the carrier successfully sought transfer of liability to the Fund as of September 20, 2010. A Board panel reversed finding that §25-a -a relief was unavailable because the last payment of compensation was made in March 2011, less than three years from the request to shift liability to the Fund. The Court wrote:

Liability for a claim shifts to the Special Fund "when an application for compensation is made by an employee . . . after a lapse of seven years from the date of the injury . . . and also a lapse of three years from the date of the last payment of compensation." Here, both of those time limitations were satisfied when claimant made an application to reopen the claim in February 2009. The Special Fund's "liability [was] triggered, as a matter of law, upon the passage of time as provided by the statute." Although relevant to the period of retroactivity, the carrier's payment of compensation in March 2011 and its September 2012 request that liability be transferred to the Special Fund are not determinative as to when that liability attached. To hold otherwise would be contrary to the purpose of the statute, which "is to shift the liability for paying stale claims to the [Special] Fund."

Prevailing Party: Robert Geyer of counsel to Wolff, Goodrich & Goldman (Syracuse) for appellants.

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Lozowski v The Wiz
    December 3, 2015    NYS Appellate Division, Third Department
    1040...Causal Relationship: Stress    AI         5C363-8105
AFFIRMED the Board’s ruling that claimant did not suffer an accidental injury (stress) arising out of and in the course of his employment. In August 1999 claimant took a leave of absence, then ceased working entirely after complaints he made to his employer over sales commissions went unresolved. In September 2000, claimant filed for workers' compensation benefits alleging that the work-related stress from "harassment on [the] job" caused him to develop anxiety and depression. In November 2011, a Law Judge disallowed the claim finding that, despite 10 years having passed since commencement of the case, claimant had failed to provide prima facie evidence with regard to the employer's alleged misconduct nor did he indicate how it caused or contributed to his psychological injury. After a Board panel returned the case for another hearing, following the claimant’s testimony, deposition testimony of claimant's treating psychologist and the carrier's IME, the Judge again disallowed the claim. This time the Board panel affirmed on the basis that claimant failed to show that the stressors he experienced were any greater that those experienced by similarly situated workers in the normal work environment.

The claimant testified that, as a result of his dispute with the employer, he suffered debilitating depression that resulted in his treating psychologist recommending ultimately, his inability to return to work. However, he had a long and continuous history of anxiety and depression dating back to 1973 long before he stated work in 1998. In addition, a review of the file showed that no evidence was entered into the record establishing that claimant actually performed work or conducted sales for which the employer failed to provide payment or that the employer otherwise unlawfully withheld commissions that claimant was entitled to receive. Prevailing Party: David Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Royal Insurance Company of America.   
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Sparkes v Holy Family Church
     December 3, 2015    NYS Appellate Division, Third Department
     1130...Causal Relationship: Was there?
     7050....Procedure: Denial FBR                  5C363-8104
AFFIRMED the Board’s decisions which (1) agreed that claimant's right hip condition four years after the initial injury was causally related and (2) then denied the employer's application for reconsideration and-or full Board review. After an April 2008 work injury to her right hip, claimant received compensation, then returned to work, receiving treatment through June 2008. Then, in 2012, she successfully sought medical treatment complaining of persistent pain in her right hip, filing a claim for medical treatment causally related to the 2008 injury. One point of contention was the Board’s decision that the deposition testimony of Daniel Carr, the employer's medical expert, was inadmissible just because the claimant’s attorney failed to appear at Carr’s deposition, a right which the claimant’s attorney later waived in writing.

The Court determined that the Board's conclusion that Carr's deposition testimony was inadmissible was a legal error. That said, the Law Judge expressly considered the testimony of both the claimant’s doctor, Bogosian, and Carr and found Bogosian's testimony of causal relationship more convincing. In its affirmation, a Board panel actually reviewed Carr's opinion in its decision, agreed with the Judge’s finding that Bogosian’s reports were "more credible."

Nor do [the Court] perceive any due process violation, as the employer claims, arising out of the fact that its application for reconsideration and-or full Board review was denied by the same three Board members who issued the September 26, 2013 Board decision. An application for full Board review must be considered by at least three members and may not be decided by the chair alone (WCL §§23, 142 [2). There is no requirement that the three members must be different than the members who issued the underlying decision.” Prevailing Party: Marjorie Leff of counsel to the NYS Attorney General, for WCB, respondent.
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770000  NOVEMBER  2015   7777777777777

Russo v New Hampshire Ins Co
    November 25, 2015    NYS Appellate Division, Second Department
    3160...§29: 3rd Party/MVA liens                           5B362-8102
The Appellate Court reversed the Supreme Court’s judicial approval of a settlement nunc pro tunc. As the result of a July 30, 2012 work-related auto accident, workers comp benefits were paid to the claimant by the carrier (New Hampshire Insurance Co. as one party). The vehicle which struck the petitioner's vehicle allegedly was insured by State Farm pursuant to a policy with a bodily injury liability limit of $25,000 per person. Although no action was commenced against the owner or operator of that vehicle, State Farm tendered the $25,000 policy to the petitioner, which the petitioner accepted without obtaining the consent of the carrier. In June 2014, the petitioner successfully sought judicial approval of the settlement nunc pro tunc.

In reversing that order, the Appellate Court found that there must have been a ‘settlement’, per WCL §29(5), but in this case where “no third-party action was ever commenced on the claim to which the settlement relates, the Supreme Court is without authority to grant a petition pursuant to WCL §29(5) to approve a settlement nunc pro tunc. Accordingly, the Supreme Court should have denied the petition and dismissed the proceeding.”

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Davis v Erie County Dept of Soc Servs
    November 20, 2015    NYS Appellate Division, Fourth Department    
    3005...§11: Jurisdiction-Workfare               5B362-8101
The Appellate Court reversed the Supreme Court’s denial of a motion of defendant Erie County Department of Social Services seeking to dismiss the complaint against it. When the plaintiff sought damages for injuries allegedly sustained while participating in the "Enrollment in Work Experience" program, Erie County unsuccessfully sought to have the complaint dismissed on the ground that workers' compensation benefits are plaintiff's exclusive remedy. The Appellate Court found:

"Where, as here, there is an issue of fact whether an injured plaintiff is an employee within the meaning of the Workers' Compensation Law, he or she may not choose the courts as the forum for the resolution' of that issue". Thus, the Court "should not have entertained [defendant's] motion at this juncture, and the case should have been referred to the Board for a determination" whether plaintiff has a valid cause of action for damages or whether he is limited to benefits under the Workers' Compensation Law.

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Still v City of Middletown 
    November 25, 2015    NYS Appellate Division, Second Department
    5110...Voluntary Withdrawal    5B362-8100
The Appellate Court denied an Article 78 challenging the City of Middletown’s determination to terminate the petitioner's employment as a senior account clerk. After being out on workers compensation leave for over a year, she was served with 30 days' written notice that her employment would be terminated pursuant to Civil Service Law §71 and given an opportunity to present, at a meeting, any evidence as to why the City should not proceed with the termination of her employment. When the petitioner failed to demonstrate that she was medically fit to return to work, with or without accommodation, the City served the petitioner with a notice of termination dated July 15, 2013. The Court determined that “Under the circumstances, the City's decision to terminate the petitioner's employment was not arbitrary or capricious, an abuse of discretion, in violation of lawful procedure, or affected by an error of law.”

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Hills v NYC Bd of Education
    November 19, 2015    NYS Appellate Division, Third Department    
    5132...Missing checks                     5B361-8100
    7200...Decision Inadequately/Poorly Written
REVERSED the Board’s ruling that the carrier did not have to replace a lost check mailed to claimant that had allegedly been cashed by someone else. The carrier timely mailed a check representing the final payment on a claim, presenting a cancelled check made out to claimant in the amount of $4,580.20, apparently endorsed by claimant to another individual. Claimant testified that the signature on the check was not hers and that she did not know anyone by the name to which the check was endorsed. A Law Judge determined that it was the responsibility of the carrier to investigate the matter through its issuing bank while, at the same time, issuing a new check to claimant. A Board Panel reversed, concluding, “that by timely mailing the check to claimant at her proper address, the employer was deemed to have paid her and had no obligation to issue another check.

While the Court noted in its decision that this decision was based on two prior decisions (2007 and 2011), defense argued that the Board had also take the opposite position in which it “explicitly rejected the finding in Cap Cities that, by timely mailing the check to that claimant, the carrier should be deemed to have paid the claimant, and the Board directed the carrier to issue a new check.” In a second case, the Board found “despite a timely mailing of the check to a claimant's address by the carrier, ‘payment is not actually made until the check is received and cashed’” and that "where a carrier has been given an opportunity to rebut [a] claimant's evidence of non-receipt of payment, and has failed to do so, it is appropriate to direct the carrier to reissue the check."

The Court reversed the Board decision, sending it back on the grounds that, “ ‘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.’ . . . As the Board did not provide its reasoning for departing from its prior precedent, that part of the decision must be reversed and the matter remitted for further proceedings.”  Prevailing Party:  Timothy Rogers of counsel to Polsky, Shouldice & Rosen (Rockville) for appellant.

The Insider: This case is an example, far too common at the Board, of the Office of Issue Resolution offering contradicting opinions and Board panel members signing the decision, in some cases the same Board members deciding “yes” one week and “no” the next. Is this due to a lack access to a legal database (Lexis, WestLaw, or -in-house) or just intellectual laziness? Regardless of the reasons, I would expect that an attorney in a private practice would be terminated for such consistently sloppy work.
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Lopadchak v RW Express
    November 19, 2015    NYS Appellate Division, Third Department
    1200...§18 notice to employer                     5B361-8099
AFFIRMED the Board’s ruling that the claimant was excused from providing timely notice of his accident pursuant to WCL §18. Although the claimant submitted a claim for a January 2, 2012 accident directly to the Board on January 31, 2012, the employer did not get notice until it received the Board’s Notice of Case Assembly which was mailed February 6, 2012. The carrier controverted the claim, contending, among other things, that claimant had not provided written notice of the accident within 30 days of its occurrence per WCL §18. When a Board panel affirmed a Law Judge decision excusing the lack of timely notice, finding that the employer was not prejudiced thereby, the employer appealed.

The Court noted that, “Failure to provide timely written notice of an accident to an employer pursuant to WCL § 18 generally bars the claim ‘unless the Board excuses that failure on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced." Ultimately the Board determined that (1) the claimant filed timely with the Board, (2) the Board’s notice to the employer was done only a few days after the 30 days, and (3) the record reflects that claimant received medical attention in February, “the short delay between the expiration of the 30-day notice period and the employer receiving notice of the claim did not prejudice the employer so as to prevent it from properly investigating the claim.Prevailing Party: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent.
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Pickering v Car Win Constr
    November 19, 2015    NYS Appellate Division, Third Department
    7100...Legal Fees                      5B361-8098
AFFIRMED the Board’s ruling which disallowed an award of counsel fees. After his case was established and he received benefits for a work-related injury, claimant requested consent from the employer's workers' compensation carrier to settle a third-party claim. The carrier and claimant entered into a §32 settlement whereby the carrier agreed to waive a recoverable lien of $527,252.42 (15% of the $351,501 required to satisfy the carrier's lien) for past benefits against the proceeds of the third-party action and claimant waived his right to any future workers' compensation benefits and discharged the carrier from any further liability under the claim. When claimant sought $52,725 in counsel fees based upon the negotiated waiver of the lien. A WCL Judge, affirmed by a Board panel, approved the settlement agreement, but denied the payment of counsel fees.

The Court found “no abuse of the Board's discretion in its finding that a waiver by a workers' compensation carrier of a lien against a third-party recovery is not compensation within the meaning of the WCL. Although claimant does benefit from the waiver of the lien, the benefit derived relates to the third-party proceeds and not to compensation awarded him under the WCL.Prevailing Party: Andrea Catalano of counsel to Weiss, Wexler & Wornow (New York City) for Car Win Construction, Inc., respondent.
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Marku v ABM Industries
    November 12, 2015    NYS Appellate Division, Third Department
    5250...Aggregate Trust Fund
    7050...Procedure: Denial FBR       5B360-8097
AFFIRMED the Board’s ruling that (1) the carrier’s payment to the Aggregate Trust Fund (ATF) was timely and (2) denied a request that the Board reconsider its decision. A Law Judge classified claimant as permanently partially disabled and directed that the employer's workers' compensation carrier deposit into the Aggregate Trust Fund (hereinafter ATF) "an amount equal to the present value of all unpaid benefits together with such additional sum as is necessary for the administration of such fund" per WCL Law § 27 [2]. The Judge's decision further provided, "A supplemental decision will follow which will detail the amount of the deposit. The carrier is responsible for payments as directed until the deposit is made into [the] ATF." By decision filed December 31, 2010, the Board affirmed, continued the case, and referred the matter to the ATF "for an actuarial computation of the deposit amount [due]." The Board further noted that "[f]ollowing the issuance of a supplemental decision that contains the amount of the deposit, the case can be marked for no further action."

Although the actuarial computation was completed in July 2011, the supplemental decision detailing the sum due and directing the carrier to make the required deposit was not issued. In January 2013, a Judge found that the Board's December 2010 decision was sufficient to direct the carrier's payment of the award to the ATF, chastised the carrier for failing to do so, and imposed a penalty for what was deemed to be an "unnecessary hearing."

Ultimately, the Board rescinded the penalty and interest on the basis that “As a general principle, the obligation to pay the lump sum into the ATF is fixed once the carrier is directed to pay it.” Here, the Board found (and the record clearly demonstrates) that a supplemental decision detailing the amount due and directing the carrier's deposit thereof – the issuance of which was expressly contemplated by both the original Judge and the Board – was never tendered.  In conjunction therewith, the Board implicitly concluded that neither the C-40 request for actuarial computation nor the Board's December 2010 decision was sufficient to direct the carrier to make the required deposit. The ATF's assertion that the Board abused its discretion in denying the ATF's application for reconsideration and/or full Board review was examined and “found to be lacking in merit.” Prevailing Party: Carmel Corcoran of counsel to Jones Jones (New York City) for ABM Industries and another, respondents.
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Strujan v New York Hosp   
    November 5, 2015    NYS Appellate Division, Third Department
    3140...§25-a: True Closing
    1030...Causal Relationship: PFME, et al     5C359-8096
AFFIRMED the Board’s (1) ruling that liability did not shift to the Special Fund for Reopened Cases (fund) pursuant to WCL §25-a and (2) denial of claimant’s late appeal.

Claimant received comp of $360 for just over a week of lost time for a 1997 physical injury but her claim for consequential psychiatric and emotional injuries were ultimately denied in 2010, at which time the Board noted that no further action was planned. In 2012, the employer requested a §25-a transfer of liability to the Fund. After a Law Judge found that the case had been truly closed and transferred liability for the claim to the Fund, the Board reversed the finding that the merits of claimant's continued claims of additional sites of injury (migraines) and entitlement to further casually-related lost wages remained undetermined. The record showed that although a 2010 reserved decision denied her claims for consequential emotional and psychiatric injury, the additional claim of consequential migraines was never addressed, a claim raised also in 2012. Accordingly, the Board's decision that the case was not truly closed was supported by substantial evidence.

As for claimant's appeal, the remaining arguments raised in her brief had been previously
decided by the Board, and all avenues of appeal regarding them had been exhausted. Prevailing Party: Jill Singer of counsel to the Special Funds respondent and David Sanua of counsel to Gorman & Rankin (NYC) for appellants-respondents new York Hospital.
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Jackson v Barber
    November 5, 2015    NYS Appellate Division, Third Department
    9501...Municipal Law §207               5B359-8095
AFFIRMED a ruling by Cortland County that "a determination by the Workers' Compensation Board that an injury is work-related" does not, "by operation of collateral estoppel, automatically entitle an injured employee to General Municipal Law § 207-c benefits".  After a diagnosis of plantar fasciitis in his left foot while working as a correction officer for the Cortland County Sheriff's Department, claimant filed a successful application for workers' comp benefits. Respondent Annette Barber, the personnel officer of respondent County of Cortland, denied the application on the merits upon her determination that petitioner's condition was idiopathic, i.e., without a specific cause.

The Court noted that, pursuant to General Municipal Law § 207-c [1], correction officers are entitled to benefits when they are injured "in the performance of [their] duties", so long as they can establish the existence of a "'direct causal relationship between job duties and the resulting illness or injury'". But the IME opined that, to a reasonable degree of medical certainty, petitioner's plantar fasciitis was idiopathic. Despite petitioner's introduction of contrary expert evidence, the Hearing Officer "was entitled to weigh the conflicting medical opinions and determine which expert to credit."
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770000  OCTOBER  2015   77777777777

Brady v Northeast Riggers
     October 29, 2015    NYS Appellate Division, Third Department
     5035...Total Industrial Disability        5A358-8093
AFFIRMED the Board’s decision that claimant, at the time of the decision, did not have a total industrial disability. The Court noted that, while a “claimant who has a permanent partial disability may nonetheless be classified as totally industrially disable[d],” such a finding can not be made, as in this case, permanency of claimant's injury had not yet been determined by the Board.

A year after the union construction worker’s claim for workers' comp benefits from a March 2012 injury was established, the carrier sought to challenge claimant's attachment to the labor market and claimant sought a finding of a temporary total industrial disability. Although a Law Judge found attachment to the labor market, the Law Judge found that claimant had not yet been classified with a permanent disability and, therefore, the issue of total industrial disability was premature. In affirming the Board, the Court also added in its decision, “Contrary to claimant's assertions, we find no legal basis upon which a classification of temporary total industrial disability may properly be made absent a prior determination of permanency.Prevailing Party represented by: Michael Violando of counsel to Sullivan Keenan Oliver & Violando (Albany) for Northeast Riggers & Erectors and another, respondents.
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Lichten v NYC Transit Authority
     October 29, 2015    NYS Appellate Division, Third Department
     5010...Causal Relationship: Medical (ANCR/ODNCR)          5A358-8093
AFFIRMED the Board’s ruling that claimant did not sustain a causally related disability to his bilateral knees. Although claimant stopped working as a bus driver in January 2010 after suffering a heart attack, in March 2011, he filed a claim for workers' comp based upon an occupational disease stemming from repetitive stress injuries to his legs, including his hips, knees and feet, caused by his many years of working as a bus driver. Ultimately, a Law Judge established the case for an occupational disease to claimant's bilateral hips, but disallowed the claim with respect to his bilateral knees, a decisions affirmed by a Board Panel.

While the claimant’s treating rheumatologist indicated a history of hip and foot complaints, the rheumatologist gave no opinion regarding claimant's knees. The claimant’s treating orthopedist testified he diagnosed claimant with, among other things, degenerative arthritis of the left and right knees, conditions causally related to claimant's work activities, explaining that the repetitive use of his legs to apply the brakes and gas were stressors that could worsen the development of these conditions over time. The carrier’s orthopedic IME opined that claimant's osteoarthritic conditions were caused by a preexisting condition. He acknowledged the possibility that claimant's use of his right leg in applying the brake could have potentially aggravated an existing condition in claimant's right knee, but he did not render an opinion regarding the likelihood that this, in fact, had been the case with claimant.

Although there were contrary medical opinions or, on some issues, no opinions, the Board could reasonably conclude from the rheumatologist's testimony that, at the time that claimant was employed and for some time thereafter, he was not experiencing knee problems. Since the credibility determination is within the Board's authority, the Court found that substantial evidence supports the Board's decision. Prevailing Party represented by: Carmel Corcoran of counsel of Jones Jones (New York City) for New York City Transit Authority, respondent.
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There were no decisions issued October 15 or 22, 2015

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Watts v Arnot Ogden Med Center
    October 8, 2015    NYS Appellate Division, Third Department
    5110...Voluntary Withdrawal
    7050...Procedure: Denial FBR      5A355-8092   

AFFIRMED the Board’s rulings (1) that claimant demonstrated an attachment to the labor market and (2) which denied the carrier’s requests for reconsideration and/or full Board review. As the result of a 2007 cervical injury, the claimant, a certified nurse's assistant, was awarded workers' compensation benefits for a specified period of time. When she subsequently sought additional causally-related lost earnings, the Board found that claimant sustained a temporary total disability from October 2009 onward. But it rejected her claim for further benefits, finding that she was not attached to the labor market from May 2009 to October 2009, and that she would accordingly need to establish her reattachment to the labor market in order to be entitled to further awards.

At a March 2013, the Board found that she had reattached to the labor market as of January 2011. Claimant testified that, when she sought employment within her medical restrictions, she was told that no positions were available to accommodate her disability. Also, the Office of Vocational and Educational Services for Individuals with Disabilities informed claimant that she would not benefit from its services given her medical limitations. Under these circumstances, the Court agreed that substantial evidence supported the finding that claimant's efforts of actively searching for employment and her goal of remaining attached to the labor market were sufficient to demonstrate her reattachment to the labor market. The Court reviewed the employer's contention that the Board erred in denying its requests for full Board review and found them to be unpersuasive. Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.

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Baczuk v Good Samaritan Hosp
    October 8, 2015    NYS Appellate Division, Third Department
    5163...Wage earning Capacity   5A355-8091
AFFIRMED the Board’s ruling that claimant sustained a causally related 90% loss of wage-earning capacity. Claimant earned an average weekly wage of $2,318.52 as a critical care nurse during her three years with the employer. As the result of several allergic reactions to the hand sanitizer used at the hospital, in 2009 she suffered from respiratory distress, resulting in her hospitalization. After claimant stopped working and applied for workers comp, her case was established for a work-related injury of reactive airway dysfunction syndrome and an allergy to the hand sanitizer. Nonetheless, because she continued to have a chronic cough that often was triggered by talking or laughing, claimant was unable to find work fitting her medical qualifications and, in December 2012, she took a part-time job as a cashier at a department store — working 20 to 25 hours per week at a wage of $8 per hour. A Law Judge concluded that she had a permanent marked partial disability with a 90% loss of wage-earning capacity, awarding weekly benefits of $600. A Board panel AFFIRMED the 90% loss of wage-earning capacity, but modified the Law Judge's decision by capping benefits at 500 weeks resulting in the self-insured employer appealing.

The employer challenged the Board's finding that claimant sustained a 90% loss of wage-earning capacity, contending that the calculation should not have been based solely upon claimant's earnings at the department store, but also should have taken into account the vocational and functional considerations outlined in the NYS Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity. The employer further argued that claimant's earnings loss was only 25% as indicated in the labor market survey prepared by its employment consultant.

The Court countered:

That WCL §15(3)(w) provides that the compensation rate for injured employees who have permanent partial disabilities that are not subject to schedule awards is based upon "the difference between the injured employee's average weekly wages and his or her wage-earning capacity thereafter in the same employment or otherwise.” WCL §15(5-a) further provides that the wage- earning capacity of an injured employee with a partial disability "shall be determined by his [or her] actual earnings" while disabled. Notably, the Court of Appeals has recognized that "where actual earnings during the period of the disability are established, wage-earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period.”

It was also found that, although the self insured’s employment consultant found that there were nine nursing positions in claimant's geographic area that would not cause her to be exposed to the hand sanitizer to which she is allergic and paid between $1,500 and $1,600 per week, it was noted that the consultant did not meet the claimant nor take into account claimant's difficulties in communicating due to her chronic coughing and the fact that overwhelming medical evidence indicated that claimant continued to suffer from prolonged bouts of coughing frequently brought on by talking or laughing, which was an impediment to her ability to perform her job as a nurse. “As there is substantial evidence in the record to support the Board's finding that claimant sustained a causally related 90% loss of wage-earning capacity, [the Court] finds no reason to disturb its decision.” Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent

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Scott v Manhattan & Bronx Surface Transit
     October 8, 2015    NYS Appellate Division, Third Department
    1030...Causal Relationship: PFME, et al      5A355-8090
AFFIRMED the Board’s ruling that claimant did not sustain a causally related disability and denied his claim. After the claimant, a bus operator for nearly 26 years, applied for benefits due to orthopedic pain allegedly the result of the repetitive stress of performing his job duties, a Law Judge found that there was insufficient evidence of a causal relationship between claimant's physical condition and his employment and denied the claim. Although the carrier failed to file a timely notice of controversy, this "did not relieve claimant from his burden to demonstrate a causal relationship between his employment and medical condition."

The Board heard from three of the claimant’s treating physicians who testified as to his medical condition but were “unable to give an opinion as to a causal relationship between claimant's physical condition and his employment,” one of whom noted that “these ‘wear-and-tear type problems’ were not unusual for a man of claimant's age and overweight condition.”

The Court stated that “it is within the province of the Board to resolve any conflicts in the medical testimony and it was free to reject all or part of the medical evidence offered." In this case it agreed with the Board that “substantial evidence supports the decision that claimant did not establish that his orthopedic condition was causally related to his employment and, as such, the decision will not be disturbed.”  Prevailing Party represented by: Sarah Thomas of counsel to Jones Jones, LLC (New York City) for Manhattan and Bronx Surface Transit Operating Authority, respondent
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Guadagno v RIC Steel Erectors
    October 8, 2015    NYS Appellate Division, Third Department
    3175...§25(4)[a] Reimbursement        5A355-8089
AFFIRMED the Board’s ruling that the State Insurance Fund (SIF) was not entitled to the payment of interest, per WCL §25(1)(f), from the Fund for Reopened Cases (Fund) on certain payments for claimant's medical expenses. SIF, the employer's carrier, made the last payment of compensation in 1989 for a 1981 work-related injury and the case was closed. In 2001, SIF sought to transfer liability to the Fund per WCL §25-a; in 2007, the Board agreed, transferring liability to the Fund as of October 23, 1999. The parties thereafter agreed that the Fund would pay a total of $680,581.92 in full satisfaction of SIF's reimbursement request, and the Fund remitted the final payment on October 22, 2010.

In response to a December 2010 SIF request for interest in the amount of $315,651.14 on the reimbursed medical expenses, a Law Judge determined that SIF was entitled to interest pursuant to §25(1)(f) but limited the amount to interest on a $4,069.32 award made in 2005 for M&T expenses. A Board panel disagreed, holding that WCL §25(1)(f) does not apply to the transfer of claims under WCL § 25-a such that SIF is not entitled to the interest provided for in WCL §25(1)(f), including the interest on the $4,069.32, Also it retroactively modified prior decisions on this claim to remove all references to the statute.

The Court interpreted the language of WCL §25(1)(f) to reflect that it was intended for controversies where the Board directs an entity to make certain payments on a claim pending the resolution of a dispute regarding liability, which could otherwise be deemed an admission of liability. Finding that situation does not exist in this case, the Court affirmed the Board, determining that the interest provision included in WCL §25(1)(f) is inapplicable to transfers of liability under WCL § 25-a. Prevailing Party represented by: Jill Singer of counsel to the Special Funds respondent.

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Palazzolo v Dutchess County
    October 8, 2015    NYS Appellate Division, Third Department
    3140...§25-a: True Closing           5A355-8088
AFFIRMED the Board’s ruling that claimant's case was not truly closed per §25-a for the purpose of shifting liability to the Special Fund for Reopened Cases (Fund). Although claimant suffered an injury in July 2000, her lost work time did not exceed the waiting period, hence no application for lost wages was submitted and no finding was made as to permanency or any degree thereof. On June 12, 2001, the employer was directed to produce payroll records and a C-240 statement of wage earnings for purposes of calculating average weekly wages, and the issue of permanency was left unresolved. When claimant made further requests for medical authorization in 2013, the employer requested liability be transferred pursuant to WCL § 25-a.

But because the employer did not provide the C-240 until May 17, 2013, after claimant applied for further medical treatment, the Law Judge denied the employer's request to transfer liability, finding that the case was never truly closed, as there were directives for the carrier to produce payroll records and for both sides to submit permanency medical reports, and there was an outstanding issue of average weekly wages. Upon review, the Board affirmed.

The Court noted the Board’s found that, at the time of the request to shift liability, several issues remained open: the C-240 had not yet been submitted and issues of permanency and average weekly wages had not been resolved. Accordingly, the Court agreed that the Board's decision that the case was not truly closed was supported by substantial evidence. Prevailing Party represented by: Jill Singer of counsel to the Special Funds respondent.

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Savage v American Home Care
    October 8, 2015    NYS Appellate Division, Third Department
    3110...§15(8) Reimbursement Special Fund      5A355-8087
AFFIRMED the Board’s ruling that the carrier is not entitled to §15(8)(d) reimbursement from the Special Disability Fund (Fund). Claimant’s June 2003 injuries resulted in a claim and payment of awards. Subsequent to filing a claim for §15(8)(d) reimbursement, the carrier and Fund, in July 2004, entered into a stipulation whereby they agreed that WCL §15(8)(d) applied to the claim unless "total disability develop[ed] solely due to" the June 2003 injury. In 2012, the carrier requested a hearing to resolve the issue of apportionment, citing a September 2005 report of an independent medical examination (IME). A Law Judge determined that claimant suffered a permanent total disability from the June 2003 injury and, thus, that the carrier was not entitled to reimbursement.

To receive reimbursement from the Fund pursuant to WCL §15(8)(d), the carrier was required to demonstrate that "claimant suffered from (1) a preexisting permanent impairment that hindered job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than would have resulted from the work-related injury alone."

Although the claimant suffered 1975 and 2001 work-related lower back injuries, claimant testified at the hearing that, at the time of the 2003 injury, he was not working under any restrictions nor had he been working under any restrictions during the past 15 years. Since the 2003 injury, the record reflected that claimant is unable to work in any capacity.

Although a 2005 IME report indicated that "at least 80 percent of [claimant's] current disability is due to the [June 2003] injury," Board noted the IME report revealed that the IME did not review any of claimant's medical records related to treatment that occurred prior to the 2003 injury nor did he indicate whether claimant's prior lower back injuries posed a potential hindrance to his employability. Thus the Court found “that substantial evidence supports the Board's decision that the carrier failed to establish its entitlement to reimbursement from the Fund and that claimant suffered a permanent total disability as a result of the 2
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Riescher v Central Hudson Gas
    October 8, 2015    NYS Appellate Division, Third Department
    3075...Apportionment: Awards, SLU         5A355-8086
AFFIRMED the Board’s ruling as to how it apportioned the increase in the schedule loss of use (SLU) award between two carriers: Alliance National Insurance and Travelers Indemnity. Claimant suffered two injuries to his left knee while employed as a lineman for a utility company filing claims for workers' comp for each. The 1999 injury (Alliance) resulted in a left leg SLU of 30%. The 2009 injury (Travelers) was established for injuries to both of knees, including a total bilateral knee replacement. Based upon medical evidence attributing the need for left knee surgery to both injuries and per the agreement of the two carriers, the cost of claimant's left knee surgery was apportioned 80% to the 1999 Alliance claim and 20% to the 2009 Travelers claim.

In February 2013, a Law Judge ruled that apportionment was applicable only to the increase in the SLU for claimant's left leg. Following further proceedings and additional medical evidence, the Judge found an overall SLU of his left leg of 50%, an increase of 20% over the prior SLU. Applying the apportionment percentages to the increase and taking into account Alliance's responsibility for the prior 30% SLU award, Alliance was effectively responsible for 46% of the 50% overall SLU award and Travelers was responsible for 4%. A Board panel rejected Alliance’s argument that the apportionment percentages should be applied to the overall SLU, not just the increase.

Initially, Alliance did not request Board review of the February 2013 decision which specifically stated that the stipulated apportionment percentages applied "only to the increase in the schedule loss of use regarding claimant's left leg," Alliance did request Board review of the May 2013 decision establishing that claimant had a 50% overall SLU, applying the percentages to determine each carrier's liability. Contrary to Alliance's claim, the Court found that the Board did not abuse its discretion when it fully considered Alliance's argument with respect to the manner in which the apportionment percentages should have been applied, but chose not to revisit this issue in light of the February 2013 decision. Prevailing Party represented by: Christina Hassler of counsel to the Law Offices of John Wallace (Buffalo) for Travelers.

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October  1, September 10, 17, and 24, 2015: No opinions were issued these weeks.

770000  SEPTEMBER 2015  777

Hirschbeck v Commr of Baseball
    September 3, 2015    NYS Appellate Division, Third Department
    3160...§29: 3rd Party/MVA liens        59350-8085
AFFIRMED the Board’s decision which ruled that the employer was entitled to offset its future compensation to claimant pursuant to WCL §29(4). Claimant, a major league baseball umpire, was awarded workers' comp due to a 2002 hip injury. Following complications and several surgeries for hip replacement, he was deemed permanently partially disabled. Claimant commenced a third-party action alleging medical malpractice and products liability claims related to his initial hip replacement device. After that action was settled in 2011 for $3.2 million, the workers' comp carrier suspended benefit payments, claiming that it had reserved its rights to a future offset from claimant's settlement proceeds as evidenced by a 2007 agreement, a claim affirmed by the Board.

The Court agreed, finding found that a 2007 agreement was entered into with the claimant in connection with the carrier intervening in the third-party action seeking reimbursement of costs and a workers' comp lien. The document expressly stated that the employer and its carrier "shall continue to maintain their statutory right to assert a dollar for dollar credit up to the net recovery on future benefits" pursuant to WCL §29. The Court wrote that, despite ambiguities alleged by the claimant, “the express language in the 2007 agreement notified claimant of the carrier's intent to seek credit against future awards of compensation benefits.” Prevailing Party represented by: Sean J. Denvir of counsel to Ryan Roach & Ryan (Kingston) for Office of the Commissioner of Baseball Major League Baseball and another and Jill Singer of counsel to the Special Funds respondent.

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Petrillo v Comp USA
    September 3, 2015    NYS Appellate Division, Third Department
    5130...§114-a: Fraud     59350-8084
AFFIRMED the Board’s decision that the pro-se claimant violated WCL §114-a and disqualified her from receiving further workers' comp benefits. Claimant sustained work related injuries in 2005 and a consequential injury in 2011. In 2011, the carrier raised the issue of a possible non-work-related accident and injury. Following a hearing, at which claimant's testimony indicated that she had recently been employed, the carrier alleged that claimant had violated WCL §114-a by, among other things, not informing the carrier of her employment. A Law Judge, subsequently affirmed by a Board panel, found that claimant violated WCL §114-a, assessing both mandatory and discretionary penalties.

Claimant testified at the initial hearing that she was enrolled in a part-time training position for only a month in 2011 and she was not certain whether she had informed the carrier of the position. She also testified that, although it was supposed to be a paid position, she was not paid due to her refusal to participate in the training program. The carrier then submitted employment records, including payroll information, claimant's application for employment, tax documents and a signed acknowledgment that claimant received the employer’s employment handbook. Claimant admitted at the second hearing that she had been paid $430 for her work and that she was owed more wages. Although she maintained that she participated in a vocational position intended to evaluate her ability to work and not actual employment, the Board determined that claimant violated WCL §114-a by making false representations regarding material facts and that the discretionary penalty of permanent disqualification from receiving wage replacement benefits was warranted. Prevailing Party represented by: Stephen Wyder Jr. of counsel to Hamberger & Weiss (Rochester) for Comp USA and another, respondents.

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Page v Liberty Cent Sch Dist
    September 3, 2015    NYS Appellate Division, Third Department
    7050...Procedure: Denial FBR    59350-8083
AFFIRMED the Board’s decision which had reversed a decision of a Workers' Compensation Law Judge (who directed further development of the record) denying full Board review, based on the claimant’s appeal of the wrong dates of decision. In July 2004, claimant, found to have hypersensitivity reaction to the presence of fungi, had her claim established with a finding of temporary total disability. In 2006, the claim was amended to include multiple chemical sensitivity and awards were continued.  After a Law Judge classified claimant with a permanent total disability, the Board rescinded that finding, referring the matter to an impartial specialist to report on the claimant's disability classification rate. The impartial specialist testified that multiple chemical sensitivity is not a medically-recognized condition and, in any event, it was his opinion that claimant was not suffering from any causally-related disability. By decision filed December 19, 2012, the Board credited the testimony of the I/S, found no further causally-related disability, thereby reversing the Law Judge’s finding of total permanent disability, and closed the case.

Claimant's January 17, 2013 application to the Board for reconsideration and/or full Board review of its December 19, 2012 decision was denied on March 28, 2013 [Ed. Note: no reason given in the opinion]. Her January 11, 2013 letter seeking a hearing to determine degree of disability resulted in a hearing at which the Law Judge construed the Board's December 19, 2012 decision as rejecting his prior decision that claimant suffered a causally-related total disability but continued the case for further development of the record to determine clamant's appropriate, lesser degree of disability. The employer appealed on the grounds that the Board, on December 12, 2012, had precluded further development of the record as there was no causally-related disability. This appeal was accepted by the Board in a January 2014 decision.

The Court determined that the Board’s denial was neither an abuse of discretion nor an arbitrary or capricious act when it did not accept the claimant’s request for a review of the Board’s January 2014 decision regarding  further development of the record regarding the issue of claimant's causally-related disability as this was addressed in the December 19, 2012 decision, the one she should have appealed to the Court. The Court noted that on January 11, 2013, claimant did file a notice of appeal with the Court as to the December 19, 2012 Board decision, but failed to timely perfect that appeal. Prevailing Party represented by: John Oliver of counsel to Sullivan Keenan Oliver & Violando (Albany) for Liberty Central School District, respondent.

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Sheng v Time Warner Cable
    September 3, 2015    NYS Appellate Division, Third Department
    7050...Procedure: Denial FBR     59350-8082
AFFIRMED the Board’s February 28, 2014 decision which denied pro-se claimant's application for reconsideration and/or full Board review. Claimant received workers comp benefits for 2005 work-related injuries until 2007 when she returned to work. After her employment ended in April 2008, she raised the issues of permanency and reduced wages. A Law Judge awarded additional benefits from April 11, 2008 to October 29, 2008, but found no further compensable lost time. After a Board panel affirmed the Law Judge, by a decision filed September 25, 2013, claimant sought and was denied reconsideration and/or full Board review in a decision filed February 28, 2014. Although the claimant sought a review of the February 28, 2014 denial, she challenged the Law Judge’s factual findings, contending that she should have been found to have a permanent disability and argued that she did not receive a fair hearing. The Court wrote that “Claimant's remedy regarding these issues was to appeal the Board's September 2013 decision, which she failed to do. Under these circumstances, we cannot say that the Board's denial of claimant's application was arbitrary or capricious or an abuse of its discretion.Prevailing Party represented by: Theresa Wolinski of counsel to Foley, Smit, O'Boyle & Weisman (Hauppauge) for Time Warner Cable, Inc. and another, respondents.

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Ali v Liberty Lines Tr
    September 3, 2015    NYS Appellate Division, Third Department
    7050...Procedure: Denial FBR               59350-8081
AFFIRMED the Board’s decision which denied the application of the workers comp carrier for reconsideration and/or full Board review. After claimant filed a claim for benefits stating that he had suffered a stroke while working, a Law Judge determined that there was a causal relationship between claimant's stroke and his employment and established the claim. After this determination was upheld by the Board in a decision filed July 1, 2013, the carrier applied for reconsideration and/or full Board review, an appeal the Board denied.

The Court found that the employer has failed to “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.” Accordingly, the Court concluded that the Board neither acted in an arbitrary or capricious manner nor abused its discretion in denying the employer's application. Prevailing Party represented by: Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent.

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770000  JULY 2015  770000

Nunez v Park Plus

July 24, 2015 Supreme Court, Bronx County
    3010...§11: Grave Injury
    3030...Employment: Who is or dual         57345-8080

The Lower Court rejected Desoto Parking’s motion for summary judgment dismissing the complaint, third-party complaint and all cross-claims as against it on grounds, et alia, that  Desoto is the alter ego of co-third-party defendant, Little Man Parking LLC, (Little Man). The reason is that Desoto, in its answer to the third-party complaint asserted a cross-claim against Little Man for "contribution, apportionment and indemnification." The First Department has held that the "pendency of a claim asserted in litigation by one corporation against the other suggests, on its face, that the entities have at least some adverse interests and, in the absence of any explanation, it is impossible to conclude as a matter of law that [the pertinent corporations], however they may be related, "function[ ] as one company" and "share ... a common purpose" to such an extent that they should be considered alter egos."

So, it seems that by presenting a myriad of defenses, asserting the cross claim against Little Man while simultaneously arguing Little Man was its alter ego, Desoto’s request for summary judgment was easily denied.

Also, the Court ruled that the total amputation of one toe and the partial amputation of a second toe was not a “grave injury” as defined by Workers' Compensation Law 11, writing that WCL §11 listed “loss of multiple toes” as one definition of “grave injury” whereas partial amputations are not a loss under §11. As a result, the Court mandated that his employer(s) not be held liable for plaintiff's on the job injuries.
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Cox v Saks Fifth Ave
    July 9, 2015    NYS Appellate Division, Third Department
    1040...Causal Relationship: Stress    57344-8079
   ♦7260...Procedure: Failed to address all issues

REVERSED the Board which incorrectly ruled that claimant did not sustain an accidental injury in the course of his employment and denied his claim. Claimant began working as a sales associate in the employer's handbag department in November 2011. After he filed a claim in April 2012, alleging that work-related stress caused him to develop anxiety disorder, panic disorder, agoraphobia, insomnia and weight loss, a Law Judge established the claim for anxiety, panic disorder and depression. Upon review, Board reversed, finding that claimant had not demonstrated that he was exposed to stress that was any greater than that experienced by his peers.

The record showed that the claimant was directed by a supervisor, during a promotional event for a manufacturer of high-priced luxury goods, to fabricate orders for the purpose of increasing the store inventory, an allegation partially confirmed by his supervisors. The Law Judge concluded that claimant sustained a mental injury as a result of "the stress of being directed to engage in deceptive business practices" and that this stress was greater than that experienced in the normal work environment because "[p]ressure to engage in unethical and illegal practices . . . cannot be considered a normal work environment." The Bard’s reversal was based on its determination that since others in that same department participated in the misrepresentation, “claimant's stress was not greater than that of similarly situated workers.

The Court found the Board’s analysis “untenable’, essentially stating that “the imprimatur of ‘normal’ cannot be placed upon a workplace where an employee is directed to carry out a deceptive, unethical or potentially illegal practice because an employer also gave that direction to other employees.”  In fact , “[t]he employer's witnesses testified that corrective action — including termination — had been taken when similar practices occurred at the store in the past, and claimant testified that he would have been fired for such conduct in other upscale department stores where he had previously worked.” Prevailing Party represented by: Geoffrey Scooter (New York City) for Jeremy Cox, appellant.
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Hill-Chapman v Earlybird Delivery
    July 9, 2015    NYS Appellate Division, Third Department
    7060...Procedure: Failed to address all issues       57344-8078

REVERSED the Board’s ruling because the Board failed to address all the issued rased in the appeal. The Board had ruled that decedent's death arose out of and in the course of his employment when he collapsed and died while working as a dispatcher for the employer. Security videotape of the dispatch office on the night of decedent's death shows him sitting at his work station in apparent discomfort before eventually collapsing on the floor. His body was found several hours later, and an autopsy determined that decedent died from a pulmonary embolism due to deep venous thrombosis of the lower extremities with an unknown cause. The employer presented the independent medical report which opined that venous thrombosis of the lower extremities can be an inherited condition or acquired although the report did not determine the cause of decedent's fatal embolism or whether it was related to his work.

The Court agreed with the Board that the Board did not err in denying its request to cross-examine the medical examiner who performed the autopsy as both the medical examiner and carrier witness concluded that decedent died from a fatal embolism of unknown cause and, "[I]n the absence of a viable difference in the expert opinions expressed in the medical reports, no prejudice accrues as a result of the denial of the right to cross-examine a medical expert."

The employer also argues that it was improperly denied an opportunity to obtain decedent's medical records. We note that the Board did not resolve or even acknowledge this issue in its decision, despite it being raised in the employer's application for review. Therefore, the matter must be remitted in order for the Board to address this issue

However, the Court reversed the Board because it did not resolve or even acknowledge in its decision the employer’s argument in its application for review that it was improperly denied an opportunity to obtain decedent's medical records, sending it back for resolution of this issue. Prevailing Party represented by: David Allweiss of counsel to Malapero & Prisco (New York City).
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Haines v Verazzano of Dutchess
    July 22, 2015    NYS Appellate Division, Second Department
    3005...§11: Jurisdiction       57344-8077

The Court approved a motion for summary judgement dismissing an action to recover damages for personal injuries on the ground that the action is barred by the exclusivity remedy provisions of Workers' Compensation Law (WCL) §§ 11 and 29(6). The plaintiff, employed by nonparty R.L. Baxter Building Corp., allegedly was injured while performing construction work on premises owned by the defendant and commenced this action to recover damages for personal injuries, alleging, inter alia, a violation of Labor Law § 240(1).

"A defendant moving for summary judgment based on the exclusivity defense of the Workers' Compensation. . . by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity." Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it was the alter ego of the plaintiff's employer, since the two companies operated as a single integrated entity.
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Berhe v Trustees of Columbia Univ
    July 14, 2015    NYS Supreme Court
    3005...§11: Jurisdiction                57344-8076

Just as it did on August 27, 2014, in the virtually identic Matter of  Munion v Trustees of Columbia Univ. in City of N.Y., the Appellate Division, Second Department approved a motion for summary judgement dismissing an action to recover damages for personal injuries on the ground that the action is barred by the exclusivity remedy provisions of Workers' Compensation Law (WCL) §§ 11 and 29(6).

Columbia University established its prima facie entitlement to judgment as a matter of law dismissing the complaint through the deposition testimony and affidavit of the general manager at Columbia and the affidavit of TemPositions' chief executive officer, that the defendant controlled and directed the manner, details, and ultimate result of the plaintiff's work.
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Bunn v Wegmans Food Mkts
    July 2, 2015    NYS Appellate Division, Third Department
    1210...§28: time bar                   57341-8075

AFFIRMED the Board’s ruling that claimant's application for workers' comp benefits was, per §28, timely filed. Claimant, a mechanic working for the self-insured employer (SIE) since October 2006, was diagnosed with bilateral carpal tunnel syndrome (BCTS) in December 2009. Based on his doctors August 2012 opinion that claimant's BCTS was causally related to his employment, claimant applied for benefits in October 2012, alleging that he suffered from an occupational disease occasioned by the "repetitive use of tools." A Law Judge found that the claim was time-barred per §28 as claimant knew or should have known in December 2009 that his occupational disease was caused by his employment. A Board panel reversed, establishing the claim with date of disablement as August 7, 2012.

The Court wrote, “Here, the record evidence establishes that claimant has a long-standing history of suffering from bilateral shoulder and arm pain and intermittent numbness in his hands. Beginning in 2002, claimant's primary care physician suspected that he may suffer from CTS. After his symptoms began to intensify in December 2009, an EMG test conducted that month revealed BCTS. Notwithstanding this diagnosis, it was not until claimant was seen by a doctor from an occupational health practice on August 7, 2012 that the causal relationship between claimant's diagnosis and his employment was first brought to light. Based upon this evidence and mindful of the broad latitude afforded to the Board, we find substantial evidence supports the Board's determination that August 7, 2012 is the date of claimant's disablement, as it was not until that time that he knew or should have know that his occupational disease was due to the nature of his employment. Prevailing Party represented by: Daniel E. Zea of counsel to Zea Proukou (Rochester) for Lloyd Bunn and Iris Steel of counsel to the NYS Attorney General, for WCB.
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Empara v New Rochelle SD
    July 2, 2015    NYS Appellate Division, Third Department
    3075...Apportionment: Awards, SLU             57341-8074

AFFIRMED the Board’s ruling that claimant was not entitled to an increase in the schedule loss of use. As the result of claimant’s work injury in 2003, all parties stipulated to a 37.5% schedule loss of use (SLU) of claimant's left leg. After a second injury in 2009 resulted in surgery on his left knee, his orthopedic surgeon opined that claimant suffered a permanent impairment of 40% to his left leg, prompting claimant to seek additional benefits. In November 2012, a Law Judge determined, without explanation or any indication as to whether the prior SLU was considered, found a 20% loss of use of his left leg that was causally related to the 2009 accident.  When, in January 2013, the Law Judge awarded benefits based upon the 20% loss of use of claimant's left leg, the SEI appealed, objecting to the award as it did not consider the previous 37.5% SLU from the 2003 accident.

Claimant opposed, claiming that the appeal was untimely given that the November 2012 decision — not the January 2013 decision — was final with regard to the SLU. Ultimately, the Board, upon full Board review, rejected claimant's challenge, reversing the Law Judge’s decision, finding that claimant was not entitled to any award for the 2009 injury inasmuch as there was no increased schedule loss of use of the left leg greater than that previously awarded in 2003. The Court agreed with the Board that, because the Law Judge made the November 2012 decision without any explanation of how the 37.5% was calculated, “given the ambiguity in the WCLJ's November 27, 2012 decision regarding the applicability of the prior schedule loss of use and whether apportionment would be applied to the ultimate award in connection with the current claim, we cannot say that the Board's decision to grant the employer's application for review was arbitrary and capricious or an abuse of discretion.”

In supporting the SLU degree set by the Board, the Court opined that,

"[w]hether a condition warrants a schedule loss award or an award of continuing disability benefits is a question of fact for resolution by the Board, and its determination will be upheld if supported by substantial evidence". As noted by the Board, a schedule award is not given for an injury, but for the residual physical and functional impairments. "[W]hile the guidelines present useful criteria, the ultimate determination as to the degree of disability rests with the Board."

Prevailing Party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for New Rochelle School District and another, respondents.

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Hopkins v Emcor Group
    July 2, 2015    NYS Appellate Division, Third Department
    1030...Causal Relationship: PFME, et al         57341-8073

AFFIRMED the Board’s ruling that claimant's accidental injury arose out of and in the course of his employment when he suffered serious injuries after he fell from a scissors lift and struck his head on the floor at his job site. Although the carrier controverted the claim, a Law Judge determined that claimant sustained a work-related injury.

The carrier contends that claimant's fall did not arise out of his employment, but rather resulted from a seizure induced either by substance abuse withdrawal or alcohol withdrawal, presenting the testimony of neurologist Emma Ciafaloni, who examined claimant the day after his fall. Ciafaloni could, however, only testify that, based upon claimant's history, the cause of claimant's fall was "likely" a seizure caused by substance abuse withdrawal or alcohol withdrawal, but that there were no objective tests not witnesses to determine whether claimant had actually suffered a seizure before he fell. “According deference to the Board's resolution of witness credibility issues, its determination that the carrier's evidence was speculative and insufficient to rebut the presumption of compensability pursuant to WCL § 21 will not be disturbed.” Prevailing Party represented by: Alexander Osborne of counsel to Connors & Ferris (Rochester) for Cory W. Hopkins, respondent, and Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent.
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Jones v Con Ed
    July 2, 2015    NYS Appellate Division, Third Department
    1140...Accident vs Disease                     57341-8072

AFFIRMED the Board’s ruling that claimant sustained a causally related occupational disease. Claimant worked for the employer for 42 years as a customer service representative, answering multiple telephone calls a day, cradling the phone between his shoulder and neck while simultaneously using the computer to input customer information. In October 2010, seeking treatment for neck pain, he was diagnosed with a repetitive stress injury to his neck. After filing his claim contending his condition was causally related to his employment, a Law Judge found an occupational disease and awarded benefits.

In order for an occupational disease to be established, "the claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her employment." The Court found that, “Here, the unrefuted medical evidence established that claimant's cervical injury was causally related to the nature of his employment activities. As the record amply establishes that the repetitive nature of claimant's employment duties caused the disability by exacerbating a dormant and nondisabling preexisting condition, the Board's decision is supported by substantial evidence and will not be disturbed.Prevailing Party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent.
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Sunukjian v Price Chopper
    July 2, 2015    NYS Appellate Division, Third Department
    3075...Apportionment: Awards, SLU    57341-8071

AFFIRMED the Board’s ruling that the employer was entitled to reimbursement for certain SLU benefits paid to claimant. In 2002, claimant was awarded benefits for bilateral carpal tunnel syndrome and a consequential bilateral shoulder injury, and subsequently awarded a 42.82% schedule loss of use (SLU) of each arm in 2004. In 2010, by stipulation of the parties, a Law Judge rescinded the SLU award, classifying claimant with a permanent partial disability, with a weekly rate of $185.04. Thereafter, when carrier sought to be credited for the prior SLU award payments, the Board initially agreed with claimant that the employer had waived its right to the credit by failing to address the issue in the stipulation. After the employer appealed, the Board ultimately determined that the employer was entitled to the credit.

Not only is an employer entitled to credit for payments of an SLU made prior to the claimant being classified with a permanent disability, there is nothing in the stipulation or elsewhere in the record to indicate that the employer intended to waive the credit, or that the agreed-upon compensation for claimant's permanent disability would include the rescinded SLU award. Thus, while "[a] statutory or regulatory right may generally be waived by a stipulation or by conduct evincing an intent to forgo that right," substantial evidence supports the determination of the Board that neither occurred here. Prevailing Party represented by: John Paniccia of counsel to Stockton, Barker & Mead (Troy) for Price Chopper and another, respondents.
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770000  JUNE 2015  770000
Dacey v Sweeteners Plus
    June 25, 2015    NYS Appellate Division, Third Department
    5130...§114-a: Fraud    56340-8070

AFFIRMED the Board’s decision that claimant did not violate WCL § 114-a. As the result of a 2000 work-related back injury, claimant was classified as permanently partially disabled in 2006 and last reported working in 2007 while continuing to receive benefits for a temporary partial disability. After spinal fusion surgery in 2009, his benefits were made permanent in 2010. Based on video surveillance of claimant in August 2010, the carrier raised the issue that claimant violated WCL §114-a. Claimant testified at a 2011 hearing that he had reported not working in 2010 to his treating physician and the carrier's consultant, and that he had applied for maintenance and cleaning work at a friend’s tattoo parlor but had not been hired. After the carrier's investigator testified that he conducted 23 hours of surveillance of claimant over a three-day period in August 2010, the Law Judge concluded that claimant had violated §114-a by not testifying truthfully at the hearing regarding the true nature of his work activities at the parlor and his physical abilities, and imposed penalties.

A Board panel reversed the Law Judge, finding that, despite surveillance of claimant over the course of three days, the investigator "captured less than one hour of actual footage of . . . claimant," during which there was one "isolated instance of . . . claimant” doing work the Board defined as "de minimis,"
concluding that it "was not inconsistent with claimant's partial disability," also noting that there were no weight lifting restrictions placed upon his activities and no other evidence that claimant performed any work for that business, received remuneration therefrom, or was regularly present thereat. The Court agreed that the activity did not did not contradict his testimony or the Board's factual findings. Prevailing Party represented by: Melvin Bressler, Pittsford, for Jerry Dacey, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.
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Scalo v CD Perry & Sons
    June 25, 2015    NYS Appellate Division, Third Department
    7050...Procedure: Denial FBR    56340-8069

    Matter of Andrew Scalo v C.D. Perry & Sons, Inc
AFFIRMED the Board’s decision to deny the employer and its carrier their request for reconsideration and/or full Board review. The employer controverted the injured worker’s claim for a back injury, arguing that the injury was not work-related or, in the alternative, that the injury is subject to apportionment. A Law Judge, confirmed by a Board panel, established the claim and awarded benefits without apportionment.

The review application was originally denied in 2012 but in 2013 the Court reversed that decision on the grounds that “Applications for Board review are to be considered by a panel of at least three members and may not be decided by the chair, or any other single member of the Board, alone.” and there was no evidence a panel of three had reviewed it.” This time, a Board panel did review it, again rejecting the carrier’s argument that the Board did not consider certain evidence, evidence the Board considered as “not timely produced before the Law Judge.” The Court agreed, writing that there was no evidence that ”the Board abused its discretion or acted in an arbitrary and capricious manner in denying the employer's application for reconsideration and/or full Board review.” Prevailing Party represented by: James Trauring of counsel to James Trauring & Associates (Schenectady) and Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent.
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Lattanzio v Con Edison
    June 18, 2015    NYS Appellate Division, Third Department
    3080...Apportionment: Medical    56339-8068

AFFIRMED the Board’s ruling that apportionment with a non-work related injury did not apply to claimant's compensation award. Although since 2000 claimant has had a neck condition requiring surgeries and intermittent treatment, he worked full time with restrictions until October 2010, when he fell at work sustaining injuries to his back. When the employer contends that WCL §15(7) should be construed to permit apportionment between a current compensable disability and a previous non-work-related, noncompensable disability, a Law Judge found that claimant’s entitlement to benefits did not warrant apportionment.

The employer’s interpretation is untenable as a matter of law inasmuch as apportionment is not applicable "where the preexisting condition was not the result of a compensable injury and the claimant was able to effectively perform his or her job duties at the time of the work-related accident despite the preexisting condition." In affirming the Board, the Court wrote, “Although claimant suffered from pre-existing back and neck pain before the October 2010 accident and was under certain work restrictions for his condition, he worked full time, and the record is devoid of evidence that claimant's preexisting condition limited his ability to satisfactorily perform his work responsibilities. Thus, we agree with the Board that apportionment is not applicable here.” Prevailing Party represented by: Marjorie Leff of counsel to the NYS Attorney General, for WCB, respondent.

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James McCabe v Albany County Sheriff's Department
    June 18, 2015    NYS Appellate Division, Third Department
    7100...Legal Fees   56339-8067

AFFIRMED the Board’s ruling that claimant's counsel fee award was a lien against compensation awarded as a credit to the employer. While employed as a correction office for the Albany County Sheriff's Department, in 2006 claimant sustained various injuries that prevented him from working. The employer paid him his full wages per General Municipal Law (GML) §207-c. and his comp claim was established for several occupational injuries arising from this incident. He was awarded comp, payable to the employer as a credit for the statutory benefits already paid (WCL §30[3]). The claim was amended twice more for additional sites and, ultimately, his counsel was awarded counsel fees in the amount of $2,400, payable from compensation awarded as reimbursement to the employer. After a work-related fall in 2010, (1) the claim was amended to include additional consequential injuries, (2) claimant was awarded comp for six periods of temporary total or partial disability, payable as reimbursement to the employer, and (3) $7,000 in counsel fees awarded as a lien against the award. The Board fond that GML §207-c requires municipal employers to pay full wages to correction officers who are injured in the performance of their duties and WCL §30(3) provides that the amount of such payments "shall be credited against any award of compensation" that may also be made to such an officer.

The employer contends that the mandatory language of the Workers Comp Law provision entitles employers to full credit for such payments and, thus, precludes the attachment of a lien for counsel fees. However, WCL §24 likewise uses mandatory language in providing that, when approved by the Board, counsel fees "shall become a lien upon the compensation awarded . . . [and] shall be paid therefrom only in the manner fixed by the [B]oard" (emphasis added). The lien attaches when the compensation is awarded "and takes precedence over the employer's right to reimbursement of funds previously paid to the claimant-employee."

Contrary to the employer's argument, the fact that the lien here was applied to a credit for benefits already paid by the employer and no reimbursement was paid to the employer from which the counsel fees could be deducted does not require a different result. The Court then, after reviewing the statues and reasoning, ruled that the Board did not abuse its "broad discretion" in making the disputed fee award and agreed with the Board that the “claimant derived an economic benefit from [his attorney’s] services.” Prevailing Party represented by: Alex C. Dell of counsel to the Law Firm of Alex C. Dell (Albany) for James McCabe, respondent.
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Lindsay v Pasternack Tilker Ziegler Walsh et al
    June 10, 2015    NYS Appellate Division, Second Department
    7110...Legal Malpractice    56339-8066

The Court affirmed a King County Supreme Court decision which refused well-know injured workers law firm Pasternack Tilker Ziegler Walsh Stanton & Romano LLP motion to dismiss an action against it to recover damages for legal malpractice.

On November 27, 2006, the plaintiff allegedly was driving his employer's bus when he collided with another vehicle. Shortly thereafter, the plaintiff retained the defendant, thea law firm, to represent him in connection with the motor vehicle accident. According to the defendant, in April 2007, it decided not to prosecute a personal injury action on the plaintiff's behalf and advised the plaintiff of this fact by letter dated June 8, 2007, while continuing to represent the plaintiff with respect to a workers' compensation claim. On or about October 21, 2010, the plaintiff discharged the defendant and hired a new attorney. In November 2012, the plaintiff commenced this action against the defendant to recover damages for legal malpractice. The plaintiff alleged that the defendant failed to commence a personal injury action on his behalf against the owner and operator of the other vehicle involved in the motor vehicle accident before the statute of limitations expired.

In its defense, the law firm asserted that an attorney formerly with the defendant orally informed the plaintiff that "a personal injury action was not feasible" and thereafter sent the letter dated June 8, 2007, to the plaintiff by regular and certified mail.

The Court dismissed these defenses stating that the evidence submitted by the defendant failed to establish that the plaintiff has no cause of action. The evidence did not show that the letter dated June 8, 2007, was sent by certified mail return receipt requested, since the certified mail receipt was never filled out and there was no return receipt submitted. With respect to regular mail, "[t]he mere assertion that notice was mailed, supported by someone with no personal knowledge of the mailing," in the absence of proof of office practices to ensure that the item was properly mailed, does not give rise to the presumption of receipt. It also determined that the affidavit of its former attorney, did not constitute documentary evidence.

The plaintiff also submitted a personal affidavit wherein he stated that he retained the defendant for both his workers' compensation claim and his personal injury claim, he was never informed that the defendant would not represent him in a personal injury action, and he never received the letter dated June 8, 2007. This evidence was accepted by the Court.

The Court also ruled that the statute of limitations relative to the alleged malpractice did not arise three years after the accident but three years after the statute of limitations ran out on the civil claim.

The INSIDER: I had several cases like this when I was a commissioner and said at that time what I write here. The Court’s position on most of these issues is beyond absurd. I will explain why on the COMMENTARY page.
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Bank v Village of Tuckahoe
    June 11, 2015    NYS Appellate Division, Third Department
    3140...§25-a: True Closing          56338-8065
    7052...Misinterpretion of WCL

REVERSED the Board, finding that the Board incorrectly shifted liability, per WCL §25-a, to the Special Fund for Reopened Cases (Fund). In June 2005, claimant suffered a work-related injury with benefits paid up to June 20, 2005, when plaintiff returned to work. In April 2012, claimant's physician requested authorization for an MRI which, on April 23, 2012, showed a medial and lateral meniscal tear. On June 26, 2012, the physician requested authorization to perform surgery, which was performed in late July 2012. When the self-insured employer then sought to shift liability to the Fund per §25-a, a Law Judge determined that this section did not apply, a decision reversed by a Board panel.

The Court found that the Board incorrectly considered the case closed once the MRI application was approved in April 2012 and then was reopened June 26, 2012 when surgery was requested. The Court wrote that in prior cases it recognized that "decision authorizing [an] MRI [does] not constitute a true closing of the case as [the] claimant's future treatment depended upon the results of the MRI and, thus, further action was contemplated although not planned at that time." And “Correspondingly, since the case was reopened when the MRI was requested in April 2012, within the statutory seven-year period, liability does not shift to the Special Fund.” Prevailing Party represented by: Jill Singer of counsel to the Special Funds respondent.

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Greenwood v Inland Fisher Guide
    June 11, 2015    NYS Appellate Division, Third Department
    5020...Disability: Degree of or R/E     56338-8064
    7053...Insubstantial Evidence

REVERSED the Board, finding that the Board incorrectly increased the award rate payable to claimant as a result of his permanent partial disability. A March 1993 accident resulted in a weekly rate of $400 from date of injury until claimant’s June 1993 retirement. The claimant's attorney’s 1996 request for a hearing to resolve degree of disability and reduced earnings issues were resolved in August 2000 when a Law Judge found that the claimant did not voluntarily withdraw from the labor market. The Board also continued claimant's awards at various rates and periods of time from June 1993 through April 1999, with continued payments thereafter of $400 less reimbursement to the employer of $175.

In 2010, an issue arose during §32 discussions as to whether reimbursement payments of $175 were in fact made to the employer in connection with payments made to claimant. The carrier was directed to produce a copy of the pension plan, as well as all reimbursement payments made to the employer from 1999 to date. Although documentation establishing the $225 weekly payments to claimant from April 21, 1999 to date was submitted, no records could be produced of any payments made to the employer to substantiate the $175 reimbursement. In addition, because the 1999 hearing transcript had been destroyed, the basis for the May 1999 Law Judge decision directing reimbursement to the employer could not be ascertained. So, after the Law Judge made certain assumptions setting a tentative reduced weekly earnings rate of $225, the Board modified that decision, finding that the employer was no longer entitled to reimbursement given the employer's failure to submit evidence "that its disability benefits plan continued to pay claimant benefits subsequent to April 21, 1999" and continued claimant's weekly award rate at $400 as of April 1999.

In reversing the Board, the Court found that

the Board's decision is not supported by substantial evidence. As the Board's finding that claimant was entitled to a $400 award is predicated upon the employer's failure to produce evidence regarding payments pursuant to its "disability benefit plan," we find that the decision is not supported by substantial evidence in the record. Accordingly, and despite the fact that the 1999 hearing transcript was destroyed, the matter must be remitted for further development of the record as to whether claimant ever received or was even entitled to disability payments subsequent to April 21, 1999 and to address the absence of a reduced earnings award in the decision at issue herein.


Prevailing Party represented by: Dean LaClair of counselto Falge & McLean(North Syracuse) for appellants.
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Smith v Girls Club of NY
    June 9, 2015    NYS Appellate Division, First Department
    3030...Employment: Who is or dual       56338-8063

The Court affirmed the Civil Court, Bronx County which denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim. Because the record showed that plaintiff was injured while voluntarily participating in a community service program in lieu of incarceration, he failed to establish that he was an "employee" entitled to the protections of Labor Law § 240(1). The evidence did not support the assertion that he was employed by an agent of defendant, and his reliance on the Workers' Compensation Law was unavailing.
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Liberius v NYC Health & Hosp Corp
    June 4, 2015    NYS Appellate Division, Third Department
    7016...Penalties - other    56337-8062
    7052...Misinterpretion of WC Law

REVERSED the Board’s ruling which assessed the incorrect (and lower) fine against the self-insured employer, by using WCL § 25(2-b)(h) rather than § 25(3)(f). Claimant and the self-insured employer entered the conciliation process after which a proposed decision was issued in October 2011 that found claimant to have a permanent partial disability amenable to a 17% schedule loss of use of her right arm and, accordingly, awarded her $25,905.80. The proposed decision became final in February 2012. The employer did not pay the award until September 2012. As a result, claimant requested that, pursuant to §25(3)(f), the employer be required to pay a penalty amounting to 20% of the unpaid compensation. A Law Judge imposed a fine of $500 rather than claimant's requested penalty (compare §25[2-b][h], with §25[3][f]). The Board agreed that the $500 fine provided by §25(2-b)(h) was the sole remedy and affirmed, prompting this appeal by claimant.

The statutory scheme unambiguously entitles claimant to the penalty described in WCL § 25 (3) (f). A decision rendered as part of the conciliation process "shall constitute a final award of the [B]oard for all purposes except that it shall not be reviewable under [WCL §§ 22 and 23]" (WCL § 25 [2-b] [f]). In regard to such an award and without exception, WCL § 25 (3) (f) imposes the 20% penalty when an employer or carrier "fail[s] to make payments of compensation according to the terms of [an] award within [10] days." Otherwise, WCL§25(2-b) (h) gives no indication that its $500 fine was intended to supplant the 20% penalty imposed pursuant to WCL § 25 (3) (f). Therefore, construing this statutory scheme as a whole and according §25(3)(f) its unambiguous meaning, claimant was statutorily eligible for that provision's 20% penalty. In a footnote the Court noted that “Since the Board's decision, the Chair of the Board has exercised his authority to suspend the application of 12 NYCRR 312.5 (j).” Prevailing Party represented by: Robert E. Gray of counsel to Grey & Grey (Farmingdale) for appellant.
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770000  MAY 2015  770000
Ouderkirk v Nestle Food
    May 28, 2015    NYS Appellate Division, Third Department    
    5110...Voluntary Withdrawal  55336-8061
    7053...Insubstantial Evidence

REVERSED the Board’s ruling, by finding that the Board erred in ruling that claimant's removal from the labor market was involuntary. Due to a back injury in 1998, claimant received benefits for four months in 2000, with medical treatment continuing and the Special Fund for Reopened Cases (Fund) accepting liability for the claim in 2006. In 2012 after a surgeon found the claimant totally disabled and performed surgery, the Board awarded compensation at $400 a week. When the Fund sought claimant’s testimony on the issue of voluntary withdrawal from the labor market, the Board found that by taking disability retirement “due, in part, to his work-related injury’” the claimant’s testimony was unnecessary.

The Court found that the Board relied on an affidavit detailing his many medical issues, executed by claimant in 2006 in conjunction with the transfer of liability to the Special Fund. Notably, however, claimant does not state in the affidavit that he retired in 2003, or that he stopped working due to a disability at that time. The only reference he makes as to why he might have stopped working in 2003 was a reference to the fact that, during that year, the employer closed the mill where he worked. On the contrary, medical reports in the record reflect that he was working until 2009. In light of the relevance of whether claimant's decision to retire was due at least in part to a work-related disability, the Court reversed the Board, finding that the Fund was prejudiced by the denial of its request for claimant's testimony regarding this issue. Prevailing Party represented by: Jill Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent.
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Schirizzo v Citibank NA-Banking
    May 28, 2015    NYS Appellate Division, Third Department
    5110...Voluntary Withdrawal      55336-8060

AFFIRMED the Board’s ruling that claimant had involuntarily retired. After 22 years with the employer, in 2009, claimant suffered back injury, never returned to work, filed her claim, retired io 2012 and was und to have a permanent impairment of 75%. When the issues of attachment to the labor market and loss of wage earning capacity were raised, the Board found involuntarily retirement and a 99% loss of wage earning capacity.

Claimant testified that being a bank teller was the only job that she had ever had and that she could not perform her job duties as a result of her injuries. Medical evidence reflected that claimant could not sit or stand for prolonged periods of time and could not lift more than 15 pounds, supporting the Board's determination that claimant's disability caused or contributed to her retirement. The Board’s consideration of her functional limitations, the fact that she only possessed a high school education, as well as her age, her limited work experience and her 75% permanent impairment, supports the Board’s decision to establish a 99% loss of wage earning capacity. Prevailing Party represented by: Marjorie Leff of counsel to the NYS Attorney General, for WCB, respondent.
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Beck v Con Ed
    May 28, 2015    NYS Appellate Division, Third Department
    3110...§15(8) Reimbursement Special Fund     55336-8059
    7052...Misinterpretion of WC Law

REVERSED the Board’s ruling, by finding that the Board erred in ruling that the employer and its third-party administrator were not entitled to reimbursement from the Special Disability Fund(Fund) due to its misinterpretation of the law. In 1997, claimant's husband (hereinafter decedent) established a claim for benefits for asbestos related pleural disease and chronic irritative bronchitis, resulting from prolonged asbestos exposure at work. After he died of lung cancer in 2005, the claimant applied for death benefits.  The employer opposed and, in the alternative, sought §15(8) reimbursement for the death benefits from the Fund. The WC Board awarded death benefits and determined that reimbursement was inappropriate.

Initially, the Board properly denied reimbursement from the Fund because the employer has not demonstrated that, but for a preexisting permanent impairment, decedent's death would not have occurred.

The employer also argues that the Board erred in denying reimbursement for the death benefits under §15(8)(ee). Such reimbursement from the Fund "require[s] a showing that decedent's lung cancer [was] causally related to, or was precipitated by, a dust disease such as asbestosis." In situations "where a dust disease is not a direct cause of death, but is merely a contributory factor or precipitant to a [decedent's] death, the reimbursement rules related to dust disease cases are applicable." Here, the Board found that reimbursement pursuant to §15(8)(ee) was inapplicable because decedent's underlying claim had not been established for asbestosis. The Court wrote, “In our view, however, the relevant inquiry for the Board under the statute is not whether decedent's prior disability claim was established for asbestosis, but whether there is a causal link between his death from lung cancer and asbestosis related to his employment. Notably, the Board denied reimbursement here despite acknowledging that ‘decedent might have been diagnosed with asbestosis prior to his death’. Accordingly, the matter must be remitted so the Board may address this issue.” Prevailing Party represented by: Ralph Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for appellants.
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Kettavong v Livingston County SNF
    May 28, 2015    NYS Appellate Division, Third Department
    3140...§25-a: True Closing   55336-8058

AFFIRMED the Board’s ruling which found that liability per WCL §25-a did not transfer to the Special Fund for Reopened Cases (Fund). In 2010, liability for an established 2003 back-injury claim was transfer per §25-a to the Fund, without objection from any of the parties. But in 2012, when claimant was classified with a permanent partial disability (PPD) and sought causally related reduced earnings, a Law Judge found that claimant entitled to reduced earnings but maintained liability with the Fund. The Board rescinded the §25-a transfer of liability to the Fund, finding that the case was not closed at the time that the employer requested the transfer due to an unresolved issue regarding whether claimant suffered a permanent disability. The employer appealed.

In 2005 a report was filed with the Board in which the IME opined that claimant had reached maximum medical improvement, classifying her with a mild degree of disability. Inasmuch as this report raised the issue of claimant having a permanent disability. As this issue was not resolved in 2011 when the employer requested liability shift to the Fund, substantial evidence supports the Board's decision that the case was not truly closed at that time and §25-a did not apply. Prevailing Party represented by: Robert Clark of counsel to Connors & Ferris (Rochester) for Tiffanie Kettavong and Jill Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent.
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Francis v Jewelry Box Corp
    May 28, 2015    NYS Appellate Division, Third Department
    7022...§35 Reopening              55336-8057

AFFIRMED the Board’s ruling which denied the pro-se claimant's application to reopen his claim. In 1993, the Board approved a lump-sum nonschedule adjustment pursuant to WCL §15(5-b) in the amount of $54,600 based on a 1987 right-hand injury. Claimant filed several applications to reopen the claim that were denied by the Board as well as by the 3rd Department on May 17, 2012. When his 2012 application to reopen the claim at the Board was again denied by the Board, he appealed to the Court.

The Court ruled, “As in the matter previously before this Court, claimant had not demonstrated that there has been an unanticipated change in his condition or degree of disability since the lump-sum nonschedule adjustment, and the Board's denial of the application on this ground will not be disturbed. We also find that claimant's request for an extreme hardship redetermination of his disability status pursuant to WCL §35 was properly denied as such redeterminations[, in summary,] apply only to accidents that occurred on or after March 13, 2007.Prevailing Party represented by: David Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Jewelry Box Corp and Jill Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent.
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Kuczynski v Trinity Foundry
    May 28, 2015    NYS Appellate Division, Third Department
    3080...Apportionment: Medical    55336-8056

AFFIRMED the Board’s ruling which ruled that apportionment applied to claimant's comp award. He was employed at Kennedy Valve from 1978 to 1980 (owned at that time by ITT Grinnell), from 1981 and 1982 at Trinity Foundry and, in 1994, returned to Kennedy Valve (now owned by McWane Inc.) One week after returning to McWane, he injured his shoulder, never returning to work there. In 2004, after being diagnosed with chronic obstructive pulmonary disease, he filed a claim for workers comp.

Following hearings where all three foundry employers appeared, a Law Judge found that claimant's COPD was 25% related to his foundry work, 75% to his smoking, and established the claim. Although none of the employers appealed this determination, McWane, as the most recent foundry employer, was found liable for the claim. McWane thereafter raised the issue of §44 apportionment of liability with the previous foundry employers. The Board ultimately apportioned liability for the claim to Grinnell at 71%, Trinity at 28% and McWane at 1%. Trinity, the second employer, appealed.

WCL §44 states that the liable employer may seek apportionment of the total compensation due among previous employers in the same field who employed the claimant "at the time of or following the contraction of the compensable occupational disease." The only evidence presented as to when claimant contracted COPD was from McWane's medical expert, who opined that claimant had contracted COPD by 1978. Although the expert further opined that claimant's foundry work had only a minimal impact on his disease, the Court found that substantial evidence supported the Board's determination that claimant contracted COPD prior to his 1994 employment with McWane and that liability for the claim should be apportioned among the three foundry employers. Prevailing Party represented by: Jason Carlton of counsel to Gitto & Niefer (Binghamton) for Anthony Kuczynski and Gary Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for ITT Grinnell, respondent.
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LaClaire v Birds Eye Foods
    May 28, 2015    NYS Appellate Division, Third Department
    5050...Schedule Loss of Use issues    55336-8055

AFFIRMED the Board’s ruling that claimant was entitled to permanent partial disability benefits rather than a schedule loss of use award. Claimant sustained an injury to her left knee in 2007, a claim subsequently amended to include a right knee injury. After the Board determined that her condition warranted a marked permanent partial disability (PPD) classification rather than a schedule loss of use (SLU) award, the carrier appealed.

The Court noted that, “An award of continuing disability benefits, rather than a schedule loss of use award, ‘is indicated where there is a continuing condition of pain or continuing need for medical treatment or the medical condition remains unsettled.’" Claimant's orthopedic surgeon testified that continuing disability benefits were appropriate, noting that claimant suffered from crepitus, swelling and severe pain in her knees that would likely worsen over time, and, accordingly, opined that she had sustained a 75% PPD. Although the carrier’s IME disagreed, the Court deferred to the Board's assessment of credibility and finding that substantial evidence supported its finding of a marked PPD. Prevailing Party represented by: Bethany Arliss of counsel to Meggesto, Crossett & Valerino (Syracuse) for LaClaire and Marjorie Leff of counsel to the NYS Attorney General, for WCB, respondent.
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Larberg v Suffolk County Police Dept
    May 28, 2015    NYS Appellate Division, Third Department
    7050...Procedure: Denial FBR       55336-8054

AFFIRMED the Board’s ruling that denied pro-se claimant's request for reconsideration and/or full Board review. Claimant’s claim that he suffered from work-related heart disease was closed in 2008 by the Board for lack of prima facie medical evidence. His 2013 application for reconsideration and/or full Board review was then denied. In affirming the Board, the Court wrote, “Inasmuch as claimant has only appealed from the Board's denial of his request for full Board review, the merits of the underlying decision are not before us. Instead, the sole issue for our consideration is whether the denial of full Board review ‘was arbitrary and capricious or otherwise constituted an abuse of discretion’. The decision here was neither, as claimant failed to ‘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.’" Prevailing Party represented by: David Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Suffolk County Police Department and another, respondents.
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Venditti v D'R Annunzio & Sons
    May 28, 2015    NYS Appellate Division, Third Department
    1030...Causal Relationship: PFME, et al    55336-8053

AFFIRMED the Board’s ruling that claimant did not sustain causally related injuries to his neck and back. Although the claimant was awarded workers' compensation benefits for injuries to his ribs, chin, right shoulder and left knee after he was involved in a work-related motor vehicle accident, the Board determined that claimant failed to establish causally related injuries to his neck and back.

Claimant's treating physician opined that, based solely upon claimant's subjective complaints, the neck and back pain were causally related to the work accident. But he added he has never diagnosed claimant with any injuries to his neck or back, nor has he provided any treatment to those areas. Claimant's pain management physician testified that he began treating claimant for neck and back pain five years after the accident, but he did not know the extent of claimant's injuries to these areas and could not give an opinion as to whether the pain was related to the accident. The employer's medical expert testified that claimant only complained to him of pain to his right shoulder and left knee. Regarding claimant's neck and back, the expert diagnosed a cervical strain and a lumbar radiculopathy that had both resolved. He further testified that he could not opine that any injuries to claimant's back or neck were causally related to his work accident. The Court ruled that, “Given that the resolution of conflicting medical opinions is within the exclusive province of the Board, we find its decision to be supported by substantial evidence.” Prevailing Party represented by: Andrea Catalano of counsel to Weiss, Wexler & Wornow (New York City) for D'Annunzio & Sons and another, respondents.
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Schottenstein v Silverman
    May 26, 2015    NYS Appellate Division, First Department
    9998...Other: Libel      55336-8052

Dr Douglas Schottenstein, a physician who treated a workers' compensation claimant, alleges that he was defamed in his profession by a report prepared by Dr Warren Silverman, a consultant hired by the workers' compensation insurer to determine whether certain medications and treatment prescribed the claimant were indicated. Schottenstein alleges that Silverman exceeded the scope of his assigned task by reporting that the medical records he reviewed indicated possible fraudulent billing and unnecessary treatment rendered, and recommending that the matter be referred to the Office of Professional Misconduct and the Attorney General's Office.

The Appellate Court affirmed the lower court’s ruling which granted Silverman's motion to dismiss the complaint, to deny the motion as to the cause of action for libel per se. The Appellate Court ruled that:

The complaint fails to state a cause of action for intentional infliction of emotional distress, since defendant's report fails "to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

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McLeod v MTA
    May 7, 2015    NYS Supreme Court
    5200...Medical Exams: Appointments/Records     55334-8051

The key issue in this case deals with the authorizations that an injured worker must provide the employer regarding the release of medical records. In its 20-page decision, the Court acknowledged that this is an issue which the New York State’s Appellate Divisions have treated differently: whether an injured worker has waived the physician-patient privilege as to their entire medical history by asserting claims for loss of enjoyment of life, future lost earnings and total disability due to permanent physical injuries.

On June 14, 2010, the injured worker, a 56 year old male, was allegedly injured while in a tunnel 60 feet below ground, traveling in a type of train car when the train allegedly stopped violently and abruptly causing him to be thrown forward and backward. The bill of particulars alleges that he suffered permanent injuries, listing 21 distinct injuries as well as stating, “in boiler plate fashion”:

The injuries have resulted in pain, deformity, disability, stiffness, tenderness, tingling sensation, weakness and limitation and have further prevented the plaintiff from enjoying the normal fruits of his activities, including but not limited to social, economic, and educational.

The injured worker testified at length about his medical history and many medical problems, including a heart condition for which reason one of his treating doctors “told [him] after the accident that the heart condition that [he] suffered from before the accident was a reason to consider retirement.” He also testified that he was in a motor vehicle collision that occurred in April or May 2011, and "the car was totaled."

The employer sought authorizations from the injured worker seeking 38 categories of records from medical providers who treated plaintiff before and after the 2010 accident. The injured worker objected to some of these demands on the grounds that not all these providers treated him for any of the injuries that he sustained as a result of the 2010 accident, and that the demands were "irrelevant, and not reasonably calculated to lead to the discovery of relevant evidence."

There were two key issues in this case the Court considered:

[O]nce the patient has voluntarily presented a picture of their medical condition, it is only fair and in keeping with the liberal discovery provisions of the CPLR to permit the opposing party to obtain whatever information is necessary to present a full and fair picture of that condition.

However, it is equally well-settled that "[t]he waiver of the physician-patient privilege made by a party who affirmatively asserts a physical condition in its pleading does not permit discovery of information involving unrelated illnesses and treatments."

The Court noted that when a plantiff asserts claims for loss of enjoyment of life or for lost future earnings due to a permanent disability, the physical or mental conditions that are affirmatively placed at issue are not readily apparent, which complicates the determination as to what would be "related" to the "condition at issue." By pleading loss of enjoyment of life or future lost wages or lost earning capacity based on permanent, disabling physical injuries, the plaintiff would be deemed to have waived the physician-patient privilege for their entire medical history.

After citing different interpretations from the other Appellate Divisions regarding the scope of the waiver of physician-patient privilege when loss of enjoyment of life is claimed, the Court determined that, by pleading "total disability", a plaintiff has waived the physician-patient privilege as to his entire medical history. However, that is not to say that a plaintiff's entire medical history is discoverable so the Court ruled that, in this case, “Authorizations should be reasonably limited to the records of treatment that occurred during the five-year period prior to the date of this accident, June 14, 2010, and up to the present time.

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Galeto v Rodriguez
    May 4, 2015    NYS Supreme Court: New York County
    3010...§11: Grave Injury             55334-8050

The SUPREME COURT in New York County ruled in favor of the carrier's motion for summary judgment ,dismissing this action on the grounds that injured worker (injured worker) did not sustain a "serious injury" within the meaning of Insurance Law §5012(d). In order to establish prima facie entitlement to summary judgment under the 90/180 category of the statute (defining ‘serious injury'), a carrier must provide medical evidence of the absence of injury precluding 90 days of normal activity during the first 180 days following the accident . However, a carrier can establish prima facie entitlement to summary judgment on this category without medical evidence by citing other evidence, such as the injured worker's own deposition testimony or records demonstrating that injured worker was not prevented from performing all of the substantial activities constituting customary daily activities for the prescribed period. Once the carrier meets this initial burden, the injured worker must then demonstrate a triable issue of fact as to whether he or she sustained a serious injury

The injured worker claims he sustained, inter alia, injuries to his right knee, left shoulder and lumbar spine, and an exacerbation of a preexisting left ankle injury as a result of the August 9, 2012 motor vehicle accident. The carrier’s medical experts provided detailed records indicating that the injured worker’s injuries were not as severe as claimed, such that the Court ruled “Based on the foregoing [medical reports], carrier has satisfied his burden of establishing prima facie that injured worker did not suffer a serious injury, and the burden shifts to injured worker to raise a triable factual question”.

The Court then noted that the doctors testifying on behalf of the injured worker failed to raise a “triable factual question”, writing that one doctor's opinion was "conclusory" and several of his doctors’ testimonies were "insufficient to raise an issue of fact."

Finally, injured worker did not raise an issue of fact on the 90/180 category. Injured worker  had been back at work for approximately 4 months 120 days when he had knee surgery on 1/7/thereby precluding him from reaching threshold based on the 90/l 80 category. Thus, injured worker failed to submit any evidence that raises a triable issue of fact sufficient to defeat summary judgment.

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Harper v Public Energy
    April 30, 2015    NYS Appellate Division, Third Department
    5130...§114-a: Fraud
         54332-8049
AFFIRMED The Board’s ruling that the claimant did not violate WCL §114-a. At issue was whether the claimant “knowingly” misrepresented his taking his prescribed medication, the opiate Kadian for which he was required to undergo urine drug tests to ensure that he was taking the medication. After tests showed he was not taking his Kadian (an around-the-clock opioid pain reliever) on a regular basis, he was discharged from the care of his pain management physician. The employer argued that claimant had knowingly misrepresented his Kadian usage and should be disqualified from receiving wage replacement benefits pursuant to WCL §114-a. The Board disagreed.

The Court noted that, while claimant attempted to explain why he did not routinely take Kadian, the Board rejected his testimony as incredible. The Board also noted the lack of evidence that claimant was selling the excess Kadian or attempting to profit from it and, accordingly, found that the record did not establish that his misrepresentations were made for purposes of obtaining compensation. Thus, substantial evidence supports the Board's determination that a penalty under WCL §114-a (1) was not warranted. Prevailing Party represented by: Heather N. Babits of counsel to Vecchione, Vecchione & Connors (Garden City) for Dan Harper, respondent and Iris Steel of counsel to the NYS Attorney General, for WCB, respondent.
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Holley v Syracuse Utils
    April 30, 2015    NYS Appellate Division, Third Department
    3140...§25-a: True Closing
     54332-8048
AFFIRMED the Board’s ruling that liability for the claim did not shift to the Special Fund for Reopened Cases pursuant to WCL §25-a. As the result of a left knee injury in June 2001, claimant was found in 2003 to have a 25% schedule loss of use of his left leg. No further benefits were awarded until June 2012, when a Judge awarded benefits for work that claimant had missed from August 2008 to October 2008 and directed that they be credited against the prior schedule loss of use award.  In October 2012, the carrier’s request that liability for the claim per §25-a be transferred to the Special Fund was denied as premature.

In affirming the Board, the Court found that the 2012 credit issued against the SLU was, in effect, a payment of compensation: "by claiming credit for an overpayment, the carrier was relieved of making a payment as of the date that it would have been required to make such payment". Otherwise, the carrier here would have been required to make payment to claimant in June 2012. Inasmuch as the carrier sought to shift liability to the Special Fund less than a year later, the Board properly found that the time periods of WCL §25-a had not been met. Prevailing Party represented by: Jill Singer of counsel to the Special Funds respondent.
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Hunter v Town of Hempstead
    April 30, 2015    NYS Appellate Division, Third Department
    5110...Voluntary Withdrawal      
54332-8047
AFFIRMED the Board’s ruling that claimant voluntarily removed himself from the labor market. Claimant, a sanitation worker, awarded workers' comp benefits for a 1996 back injury, returned to work later that year, and a finding of permanency was not made. In 2005, liability for the claim was shifted to the Special Fund. In the interim, claimant obtained workers' comp benefits as the result of other injuries to both knees, his left foot, and his right shoulder. All of those claims were resolved via schedule loss of use awards. In 2010, claimant retired after 32 years of service, crediting his decision to the various work-related injuries he had sustained and, thereafter, sought an award of postretirement benefits, arguing that the 1996 injury had left him unable to work. The Board ultimately disagreed, finding that claimant's retirement was unrelated to the 1996 injury, thus constituting voluntary withdrawal from the work force.

The Court noted that substantial evidence in the file supported the Board’s decision. (1) Claimant testified he was able to work despite the constraints placed upon him by the 1996 back injury, noting that his knee problems caused him far more difficulty. (2) He stopped working immediately before he underwent a second knee replacement and was advised that he would not be able to return to employment as a result of that surgery. And (3) a 2010 report by claimant's treating chiropractor stated claimant was "disabled due to work injury to his knees."  The Court also noted that “the fact that an orthopedist found the 1996 injury to be totally disabling after claimant's retirement did not compel a different result or entitle him to ongoing benefits.”  Prevailing Party represented by: Jill Singer of counsel to the Special Funds respondent.
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Gonzalez v NYC
    April 28, 2015    NYS Appellate Division, First Department
    7010...§23:Late Appeal            54332-8046
REVERSED an order of the Supreme Court, Bronx County, an order which granted petitioners' motion to deem a late notice of claim timely filed. Petitioner Gonzalez is alleged to have sustained injury on August 14, 2012 in a fall while working at the MTA yard in the Bronx. It is conceded that the time to file a timely notice of claim expired on November 12, 2012, and this proceeding seeking leave to serve a late notice was not commenced until January 9, 2013  Gonzalez avers in his affidavit that petitioners were unable to meet with counsel (Fortunato & Fortunato, PLLC,) to prepare a timely notice because Hurricane Sandy, which struck on October 29, 2012, prevented them from traveling from their home in Bayonne, New Jersey to their attorney's office in Brooklyn until November 20, 2012, ostensibly because they could not obtain gasoline for their vehicle.

Th Appellate Court essentially found that “petitioners' attempt[ed] to deceive the Court” and “unnecessarily protract[ed] summary proceedings.”

Time sheets reveal that Gonzalez had regularly attended work at the Bronx railway yard where his injury was sustained during the period beginning October 31 and extending through November 16, 2012, and he does not dispute that he traveled by car. In addition, petitioners do not allege that they were prevented from using alternative methods of public transportation to reach their attorney's office. Petitioners, in Gonzalez's sworn affidavit, have boldly misrepresented their ability to travel into the City to meet with counsel and omitted that Gonzalez actually did travel into the City on numerous occasions in the weeks immediately prior to expiration of the time period for serving a notice of claim.

While the absence of support for a proffered excuse may be outweighed by other considerations petitioners' attempt to deceive the court as to why they were unable to file a timely notice of claim should not be condoned and alone warrants dismissal of the application.

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Matias v NYC
    April 29, 2015    NYS Appellate Division, Second Department
     3005...§11: Jurisdiction
             54332-8045
UPHELD an order of the  Supreme Court, Queens County which denied their motion to amend their answer to assert an affirmative defense based on the exclusivity provision of the Workers' Compensation Law, and for summary judgment dismissing the complaint insofar as asserted against them. After sustaining an injury the course of his employment by the City of New York as a correction officer at Rikers Island, as he was being transported in a NYC Fire Dept ambulance to a local hospital, the ambulance was involved in a motor vehicle accident. Matias applied for workers' comp benefits for the injuries he sustained in the prison, and commenced this action against, among others, the City of New York for injuries he allegedly sustained as a result of the motor vehicle accident.

While the Court acknowledged the exclusive remedy of Workers COMPENSATION Law (per §11), the Court referenced the Matter of Baldwin v City of New York (2007), in writing “Here, notwithstanding the plaintiff's claim for workers' compensation benefits for the injuries he sustained in the prison, he is not precluded from commencing a separate action to recover damages caused by separate injuries that occurred outside the scope of his employment.
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Hillman v Kohls NY DC
    April 23, 2015    NYS Appellate Division, Third Department
    7055...Procedure: Due Process/Mailings             54331-8044
    7054...Failure to follow procedure

REVERSED the Board’s ruling because the Board ‘failed to engage in its fact-finding role’ when it approved the claimant’s entitlement to workers' comp benefits at the temporary total disability rate. With claimant receiving benefits from a 2007 injury at the temporary total disability rate since 2008, a Law Judge issued a decision in November 2012 that continued benefits at that rate. Then in May 2013, the Judge issued a decision continuing those benefits but granted the carrier the right to suspend payments if claimant failed to produce current medical evidence. After the employer appealed both decisions, a Board panel affirmed the Judge.

With regards to the 2012 decision, because the issues of medical evidence not warranting a finding of temporary total disability and voluntary withdrawal from the work force were not raised before the Judge, the Board did not abuse its discretion in refusing to consider them. When the carrier raised these issues at the 2013 hearing and the Judge ruled against them, the Board found that the appeal from that decision was "moot" because the arguments were identical to the ones it refused to consider in the appeal from the November 2012 decision. Under these circumstances, the Court determined that, "the Board failed to engage in its fact-finding role, thereby depriving [the employer] of the opportunity to have the Board consider the merits of an issue that was properly preserved,' [and] its decision must be reversed to allow that review to occur." Prevailing Party represented by: Naveen M. Nadipuram of counsel to Weber, Gallagher, Simpson, Stapleton, Fires & Newby (NYC), for appellants.

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Bland v Gellman Brydges Schroff
    April 16, 2015 NYS Appellate Division, Third Department
    54330-8043
THREE APPEALS by both the pro-se claimant and the two carriers (each 50% liable) were reviewed with two affirmances and one dismissal. A 1993 claim was established for claimant against Gellman, Brydges & Schroff, with responsibility for that claim later transferred to the Special Fund and a 2008 claim established against Ronco Communications, for which Travelers Insurance Company is the responsible workers' compensation carrier.

In the first claim, Court ruled as moot the carriers appeal of Board's approval of claimant's request for a variance (Botox injections for headaches) as the Board has issued an amended decision superceding the decision under review.

In the second claim, the Court ruled claimant is not aggrieved by, and therefore cannot seek review of, portions of the decision that the Board decided in her favor granting her awards for certain time period after determining that she proved her attachment to the labor market.

In the third claim, in affirming that Travelers was obligated to reimburse claimant for certain expenses, the Board found that the hearing transcript and written decision were inconsistent, resulting in a recision of the Law Judge decision and ordering a new audit. As the claimant appealed the initial decision regarding the discrepancies, this appeal was also ruled moot because it relates to activities that occurred (or failed to occur) after the Board's decision was filed.

The Court ended its decisions by finding that the claimant's remaining arguments either concern issues that were decided in her favor, are not related to the decisions on appeal, are not properly preserved or before the Court, or are lacking in merit.
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Bellantoni v NYC Food & Nutrition Svc
    April 9, 2015    NYS Appellate Division, Third Department
    7011...Interlocutory     54329-8042

DISMISSED an appeal by the employer, as interlocutory, from a Board decision ruled that the employer waived the right to raise the defense that claimant provided untimely notice of her injury. Although the claimant ‘s application for compensation was challenged by the employer, neither filed a timely prehearing conference statement as required by WCL §25(2-a)(d) nor an affidavit demonstrating due diligence and good cause for the delay. The Board determined that the employer waived its defenses to the claim (12 NYCRR 300.38 (f) (4)).  The Court, writing that "Inasmuch as the Board's decision was interlocutory and did not dispose of all of the substantive issues or reach a potentially dispositive threshold legal issue, it is not appealable" , declined “to review the Board's decision here, as it continued the case for a determination by a Law Judge as to whether claimant has presented sufficient evidence to establish a claim, and the employer may appeal, if necessary, from the Board's final decision on this issue.
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MARCH 2015
Burns v NYS WCB
    March 26, 2015    NYS Appellate Division, Third Department
    5160...§14: Average Weekly Wage     53237-8041

AFFIRMED the Board’s decision establishing the claimant's average weekly wage because claimant had not raised a key aspect of his defense during his hearing. Because claimant was a Board employee, his claim was addressed within the "neutral outside arbitration process" provided for by WCL §20(2)(a) with WCL §14(1) used to set his AWW. Claimant sought review, arguing that he had been promoted to a new position shortly before his injury such that his AWW should have been calculated under WCL §14(2). The arbitration panel declined to address §14(2) because that point had not been raised before the arbitrator. In affirming the decision, the Court wrote, “The powers of the arbitration panel are identical to those of the Board and, as such, it could decline to review ‘any issues . . . that were not raised before the’ arbitrator (12 NYCRR 300.13 [e] [1] [iii]; see WCL §20 [2] [e]). Claimant did not attack the statement of earnings provided to the arbitrator by the Board, and that statement did not indicate that any issue existed with regard to the calculation of his average weekly wage.Prevailing Party represented by: Matthew R. Mead of Stockton, Barker & Mead (Troy) of counsel to the State Insurance Fund for NYS WCB and another, respondents.
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Demperio v Onondaga County
    March 26, 2015    NYS Appellate Division, Third Department
    1030...Causal Relationship: PFME, et al    53237-8040

AFFIRMED the Board’s ruling that claimant sustained a compensable injury for mental injuries. Claimant, working as a secretary at a medical facility, filed her claim alleging work-related mental injuries after she responded to the suicide of a patient. A Law Judge found that this caused disabling depression, anxiety, and posttraumatic stress disorder. Psychological injuries caused by witnessing the aftermath of a suicide have been held to be compensable where "the claimant was an active participant in the tragedy," as opposed to a bystander. In 2006, a patient leapt from a window at the facility where claimant worked and impaled himself on picnic tables outside of claimant's office. Claimant was one of the first workers to reach the scene and, despite her lack of medical training, was directed by her supervisor to retrieve an oxygen tank for the patient. Claimant did so, but began to feel anxious and hyperventilate and "lost it" altogether after she was ordered by facility officials not to speak to investigators about her prior interactions with the patient. Therefore, substantial evidence exists for the Board's finding that claimant was indeed an active participant in the events surrounding the suicide. The Board was further free to, and did, credit medical evidence indicating that claimant developed disabling depression, anxiety and posttraumatic stress disorder as a result of the incident. Prevailing Party represented by: Stephen Lance Cimino, Syracuse, for Kim Demperio, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent.
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Dudek v Victory Mkts
    March 26, 2015    NYS Appellate Division, Third Department
    7020...§123: Late Appeal (7 years)   53237-8039

AFFIRMED the Board’s ruling that claimant's claim was stale and could not be reopened pursuant to WCL §123. Claimant injured his right knee in 1986, had knee surgery, was paid compensation (without Board intervention) and returned to work the same year. In 2001 after successfully applying for a new claim for reinjury to his knee (his physicians did not draw any link between the 1986 and 2001 incidents), claimant underwent knee replacement surgery in 2011. An independent medical examination found that the knee replacement surgery was 60% attributable to the 1986 injury and 40% attributable to the 2001 injury. The employer successfully argued before a Law Judge argued that liability for the 1986 claim should be shifted to the Special Fund for Reopened Cases (Fund) pursuant to WCL §25-a and that WCL §123 barred any further payment of benefits.

"Pursuant to WCL §25—a, the transfer of liability for a claim is appropriate when an application to reopen a closed case is made more than seven years from the date of injury and more than three years after the last payment of compensation." As there were no payment made after 1986, voluntarily or otherwise, and no further Board proceedings anticipated, substantial evidence supports the finding of the Board that the case had been truly closed in 1986 and that a shift in liability to the Special Fund was appropriate.

WCL §123 bars the reopening of a case and award of benefits against the Special Fund "after a lapse of eighteen years from the date of the injury or death and also a lapse of eight years from the date of the last payment of compensation." Because claimant's case was truly closed in 1986 and no effort was made to reopen it until 2011, substantial evidence supports the Board's decision that the provisions of WCL §123 apply. Prevailing Party represented by: Jason Carlton of counsel to Gitto & Niefer (Binghamton) for Victory Markets and another, respondents and Jill Singer of counsel to the Special Funds.
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Florentino v Mount Sinai Med Ctr
    March 26, 2015    NYS Appellate Division, Third Department
    5020...Disability: Degree of or R/E  53237-8038

AFFIRMED the Board’s ruling that claimant was not entitled to an award of reduced earnings benefits for 2011. After claimant, an administrative assistant. applied for workers' comp after developing carpal tunnel syndrome, her claim was established injury to her neck, upper back, both shoulders and hands. A Law Judge classified claimant with a permanent partial disability in January 2011, noting that she could obtain reduced earnings benefits if she returned to work and earned less than her full wages because of her disability (see WCL §15[3][v], [w]). After claimant sought reduced earnings benefits for all of 2011, the Board rejected her application, finding that her earnings reduction did not flow from her disability.

Claimant testified that she spent over 40 hours a week completing her Master's degree, which she accomplished in May 2011. She further spent an average of 10 to 15 hours a week for the entire year attempting to find a distributor for a film that she had produced and, thereafter, to market it. She was not looking for additional work for much of 2011 as a result of these endeavors, but secured a post as an adjunct lecturer that began in August 2011. To the extent that claimant's testimony indicated that she wanted more substantial employment in her field, there is no indication that her inability to find such a position was connected to her disability. Thus, substantial evidence supports the Board's determination that the reduction in claimant's 2011 earnings did not flow, even in part, from her disability. Prevailing Party represented by: David Sanua of counsel to Gorman & Rankin (NYS) for Mount Sinai Medical Center and others, respondents.
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Levitsky v Garden Time
    March 26, 2015    NYS Appellate Division, Third Department
    3075...Apportionment: Awards, SLU       53237-8037
    7052...Misinterpretion of WC Law

REVERSED the Board’s ruling that claimant was entitled to a schedule loss of use (SLU) award and that apportionment applied to that award. Claimant was awarded workers' comp for a November 2009 work-related injury to his right shoulder, resulting in shoulder surgery in January 2011. A Law Judge determined that, based on the medical reports, the 60% SLU award should be apportioned 10% to the 2009 injury and the remainder to claimant’s preexisting conditions: arthritis and a 1981 work-related shoulder injury sustained while claimant was a police officer.

The Court based its ruling on prior decisions which held that "apportionment is inapplicable as a matter of law when the preexisting condition was not due to a compensable injury and the claimant was fully employed and capable of effectively performing his or her job duties notwithstanding the preexisting condition." The Court noted that the record showed that, after his 1981 injury, the claimant returned to work as police officer with no SLU or permanency and thereafter changed careers for personal reasons; he worked for stove suppliers for over 20 years with no restrictions on his work duties and did not again seek medical treatment for his shoulder until the 2009 work injury. And, while there was some evidence that claimant's shoulder was symptomatic over the years, a fact on which the Board relied, the degenerative condition was not attributed to either the 1981 or 2009 work-related injury and claimant remained fully employed. Under settled precedent, "the dispositive issue [for apportionment] is not whether a claimant's preexisting condition was symptomatic but, rather, whether such condition was disabling." The Court reversed the Board finding that there was no evidence of an apportionable disability before the 2009 injury, apportionment of claimant's award was inappropriate and was not supported by substantial record evidence, and the claimant was entitled to an award for the full 60% SLU for that injury. Prevailing Party represented by: Kimberly Gould of counsel to Erwin, McCane & Daly (Albany) for appellant.
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Madigan v ARR ELS
    March 26, 2015    NYS Appellate Division, Third Department
    3170...§13-b Medical Bills: Who Pays   53237-8036

AFFIRMED the Board’s ruling that claimant's prescriptions for pain medications should remain undisturbed. As the result of successful claim for a 1994 back injury, the workers' comp carrier was discharged in 2003, and liability transferred, per §25-a to the Special Fund for Reopened Cases (Fund).
Due to the poor results of lumbar laminectomy and discectomy surgery, claimant had been on pain medication, including oxycontin, since at least 2007. After the Fund's consultant Ajendra Sohal concluded that claimant's doses of oxycontin had escalated without functional gains, the Fund requested a hearing to address the necessity of claimant's medication usage.

After Sohal acknowledged in February 2013 that the WCB had not yet adopted Medical Treatment Guidelines for chronic pain, a Law Judge concluded that the prescribed drugs should be continued and the Special Fund should be liable for their cost until either the Board issued Medical Treatment Guidelines regarding long-term narcotic use or claimant's treating physician recommended that he should be weaned off the pain medication.

The Special Fund's argument that the Board did not follow the relevant Medical Treatment Guidelines lacks merit. Although those guidelines have since been adopted (12 NYCRR 324.2 [a] [6]), they were not yet in existence at the time of the decisions. Inasmuch as the Board's decision to maintain the status quo until the guidelines became effective was consistent with its interim guidance regarding the appropriate medical care of those who are prescribed narcotic medication, the Court “cannot say that the determination was irrational.” Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.
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Phelan v Bethpage State Park
    March 26, 2015    NYS Appellate Division, Third Department
    1030...Causal Relationship: PFME, et al  53237-8035

AFFIRMED the Board’s ruling that claimant did not sustain a causally related occupational disease. After working outdoors performing maintenance and grounds keeping at a state park for over 35 years, in February 2010, he developed a diabetic ulceration with a secondary formation of osteomyelitis which required surgery and, later, partial amputation of his right foot. Claimant stopped working in May 2010 and filed a claim for workers' compensation benefits, alleging that his condition was the result of exposure to the cold while working outside. A diabetic since 1991, he testified that in February 2010, he developed a skin fissure or crack in the side of his right foot that developed into an ulcer and, later, became infected, which he attributed to exposure to cold weather.  The carrier contended that, among others, claimant's condition was the result of diabetes and not a result of the nature of his work, which did not cause the condition. After a Law Judge determined that claimant had sustained a causally related occupational disease, a Board panel reversed, finding no causally related occupational disease and disallowed the claim.

Here, the Court opined that to be entitled to workers' compensation benefits for a condition as an occupational disease, "a claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her occupation through the submission of competent medical evidence." Further, "medical opinions regarding a causal relationship must signify a probability as to the underlying cause of the claimant's injury which is supported by a rational basis." However, "[a]n occupational disease derives from the very nature of the employment, not a specific condition peculiar to an employee's place of work" nor from "an environmental condition specific to the place of work." Because claimant alleged that his condition resulted from the environment in which he worked, rather than from any distinctive feature of his maintenance and grounds keeping work, the Board properly denied his claim. Although both claimant’s treating physicians indicated some causal relationship, one stated, “"
that he did not know what caused the condition.” "The Board was free to reject this less than compelling medical evidence, and its finding that claimant did not submit credible medical evidence of a causally related occupational disease was supported by substantial evidence. Prevailing Party represented by: Tommasino Salvatore Conte of counsel to the State Insurance Fund for Bethpage State Park, NYS Dept of Parks & Recreation and another, respondents.
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Williams v Preferred Meal Sys
    March 26, 2015    NYS Appellate Division, Third Department
    5020...Disability: Degree of or R/E      53237-8034

AFFIRMED the Board’s ruling that claimant sustained a permanent total disability. After claimant’s injuries incurred while making a delivery in 2009 resulted in workers' comp benefits, his claim was later amended to include consequential adjustment disorder. The Board ultimately found that claimant had sustained a permanent total disability from May 2012 onward.

The Board properly rejected the employer's argument that further proof was needed as to claimant's vocational and functional capacity as that evidence is used to "determin[e] 'loss of wage-earning capacity' for the purpose of setting the duration of a claimant's permanent partial disability benefits." In contrast, a permanent total disability is established where the medical proof shows that a claimant "is totally disabled and unable to engage in any gainful employment." Inasmuch as the opinions of orthopedists who have treated and conducted an independent medical examination of claimant constitute substantial evidence to support the finding that claimant has such a disability, the Court found no reason to disturb the Board's determination. Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.
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Wilson v Yonkers Raceway_Empire
    March 26, 2015    NYS Appellate Division, Third Department
    1045...Causal Relationship: Was there?   53237-8033

AFFIRMED the Board’s ruling that claimant sustained an accidental injury due to breathing problems.
Having started with the employer in 2008, she stopped working in 2010, filing a claim alleging that she developed breathing problems due to exposure to environmental irritants at her workplace. The Board ultimately ruled, after a mandatory full Board review, that claimant had sustained an accidental injury and established the claim.

Claimant presented the report and testimony of her treating allergist who opined that claimant suffers from causally-related chronic hypersentivity pneumonitis that can develop from exposure to moldy hay or contaminants from air conditioning vents. Claimant testified that she never had any respiratory problems prior to 2008, and the record reflects that claimant worked in a building that was 60 yards away from horse barns on the employer's property. The record also reflects that claimant and other employees had periodically complained about black particles that came out of the air conditioning vent. In contrast, the employer's medical expert opined that claimant suffers from centrilobular emphysema caused by smoking, although he acknowledged that claimant's serology was positive for exposure to antigens that cause hypersensitivity pneumonitis, among other defenses. "According proper deference to the Board's resolution of conflicting medical evidence and evaluation of witness credibility, we find the Board's conclusion to be supported by substantial evidence and decline to disturb it." Prevailing Party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent.
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Wormley v Rochester CSD
    March 26, 2015    NYS Appellate Division, Third Department
    5020...Disability: Degree of or R/E    53237-8032

AFFIRMED the Board‘s ruling that claimant had sustained a causally related loss of earning capacity. After claimant, a teaching assistant, injured her lower back in September 2008, she never returned to work, successfully applied for workers' comp and was eventually classified as having a marked permanent partial disability. In January 2013, a Law Judge determined that the claimant had sustained an 80% loss of wage earning capacity.

In order to fix the duration of benefits in a permanent partial disability case that is not amenable to a schedule award, the Board is obliged to determine a claimant's "loss of wage-earning capacity" (WCL §15 [3] [w]) in which the Board relies upon various factors in making that determination, "including 'the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, [and] claimant's age.'" Here, there is little question that her back injury prevents her from prolonged sitting, walking, bending or lifting more than 10 pounds. Claimant further takes several strong pain medications that leave her unable to concentrate, cause memory loss, dizziness and blurred vision, and prevent her from driving or operating any heavy machinery. The record also reflects that claimant faces numerous challenges to finding employment, including that she is in her 50s, lacks a high school diploma, has "middle school" level reading and math skills, and lacks experience in fields where one with her educational background could likely find employment. Thus, deferring to the Board's assessment of credibility, substantial evidence supports its determination that claimant has lost 80% of her wage-earning capacity. Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.

The Insider; I am curious as to the grade level for which she was a teaching assistant in view of the fact that she “lacks a high school diploma, has ‘middle school’ level reading and math skills, and lacks experience in fields where one with her educational background could likely find employment.” Or did I miss something?
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March 23, 2015: No decisions have been listed by the Third Department or the Court of appeals this week.
Aponte v NBTY
    March 12, 2015    NYS Appellate Division, Third Department
    5110...Voluntary Withdrawal          [53325-8031]

AFFIRMED the Board’s ruling that claimant voluntarily removed himself from the labor market. Claim was established for neck, back, and knee injuries for a March 2009 incident. Claimant stopped working and, in 2010, the Board found he had voluntarily removed himself from the labor market. He started work again until his contract for that job expired in August 2011 after which he stopped working. Following 2011 surgery on his neck, claimant was found to have a partial disability but, after the 2012 back surgery, his pain was significantly improved and he was found to have a moderate partial disability. The Board ultimately concluded that claimant failed to show attachment to the labor market and, thus, that he was not entitled to an award for lost time after August 2011.

Claimant testified that he stopped working in August 2011 because his contract ended, a factor unrelated to his disability. He added that he made no subsequent attempt to search for employment within medical restrictions because he was awaiting surgery, but admitted that his doctors did not suggest surgery to him until approximately three months after he ceased working, and that they had not told him that he could not work. Although he had submitted applications to "[w]ork agencies" prior to the time that he ceased working, he admitted that he did not prepare a resume or contact the Department of Labor to obtain rehabilitation services after August 2011. In affirming the Board, the Court wrote, “Under these circumstances, we are constrained to find that substantial evidence supports the Board's determinations that claimant's separation from the labor market was voluntary and that he failed to demonstrate that his reduction in earnings was causally related to his disability.Prevailing Party represented by: Heather Babits of counsel to Vecchione, Vecchione & Connors (Garden City Park) for NBTY and another, respondents.
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Losardo v Baxter Healthcare Corp                   
    March 12, 2015    NYS Appellate Division, Third Department
   1030...Causal Relationship: PFME, et a            [53325-8030]

AFFIRMED the Board’s ruling that the claimant did not sustain a work-related injury while unloading truck in October 2007. After filing his claim in March 2009, after a hearing in claimant and his treating physicians appeared and testified, a Law Judge found that the claimant had sustained a work-related injury. A Board penal reversed, finding that the medical evidence did not support that finding.

The claimant testified that he immediately sought medical treatment and the next day he advised the employer. Although the physician noted that claimant lifted heavy objects as part of his job, no mention was made of when or how claimant injured his back, and the physician acknowledged that claimant previously had been treated for back pain by another provider. When claimant returned for a follow-up visit one week later, the physician noted that claimant's "back went out" the preceding Monday and that claimant reported "lift[ing] some furniture at home." Again, no mention was made of a work-related injury. Claimant then was referred to an orthopedist, who evaluated him on October 15, 2007. According to the orthopedist's records, claimant's back pain began at home on October 10, 2007, this "recurrent" pain came on "[g]radually" and claimant "denie[d] trauma." The Court found that the Board's decision was supported by substantial evidence and, as such, will not be disturbed. Prevailing Party represented by: David Wecker of counsel to Foley, Smit, O'Boyle & Weisman (NYC) for Baxter Healthcare and another, respondents.

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OBrien v Albany County Sheriffs Dept
    March 5, 2015    NYS Appellate Division, Third Department
    3130...§25(4)(a): Reimbursement Period     [53324-8029]

AFFIRMED the Board’s ruling that the self-insured employer was not entitled to a §25(4)(a) reimbursement for certain benefits paid to claimant. Claimant sustained several work-related injuries to his shoulders, causing him to miss time from work. His employer paid him "the full amount of his regular salary or wages" pursuant to General Municipal Law § 207-c (1). Although a Law Judge ruled a temporary total disability and awarded benefits for several of periods of time when he was not working, the employer did not file a request for reimbursement for two of those time periods until after the awards of compensation for those periods had been made.  When the Law Judge later awarded an SLU, he precluded the employer from seeking reimbursement for the two time periods for which it had not timely filed claims for reimbursement. The Court agreed with the Board that the employer failed to file timely request for reimbursement as required by §25(4)(a).

The employer contended that WCL §30 applies instead. That statute provides that "any salary or wages paid to . . . [a claimant] under and pursuant to [General Municipal Law § 207-c] shall be credited against any award of compensation . . . under this chapter" (WCL §30[3]).

In rejecting the employers argument the Court wrote:

To analyze these provisions, "the text of a statute is the best evidence of legislative intent and, where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used.

Because these two provisions are related statutes in the Workers' Compensation Law, they "must be construed together unless a contrary legislative intent is expressed, and courts must harmonize the related provisions in a way that renders them compatible."

WCL §§ 25 and 30 both provide a right to reimbursement out of future benefits, with section 30 being more specific regarding the statutory basis for the wage replacement payments sought to be reimbursed. WCL §25 (4) (a) additionally provides that the employer will waive that right if it fails to timely submit a claim for reimbursement. "If by any fair construction, a reasonable field of operation can be found for [both of these related] statutes, that construction should be adopted"];.


“A reasonable construction of these two statutes is to read them together and conclude that the right of reimbursement granted by both statutes will be waived if the employer fails to submit a timely request for reimbursement. Inasmuch as this is the reading adopted by the Board, its decision should not be disturbed.Prevailing Party represented by: Courtney Holbrook of counsel to the Law Firm of Alex C. Dell (Albany) for Frank O'Brien, respondent and Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent.
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Schwenger v NYU School of Medicine
    March 5, 2015    NYS Appellate Division, Third Department
    3030...Employment: Who is or dual           [53324-8028]

AFFIRMED the Board’s ruling that an employer-employee relationship existed between claimant and NYU School of Medicine, despite claimant being paid by a Federal Grant. Claimant was working as a postdoctoral fellow doing laboratory research at NYU School of Medicine (hereinafter NYU). Although he started in 1998, from June 2000 to June 2001 his salary was funded by a federal grant administered through the National Institutes of Health (hereinafter NIH). In October 2000, after allegedly being exposed to piggyback herpes virus while working and became ill, claimant brought an action in Supreme Court against NYU and related entities. NYU successfully moved for summary judgment, arguing that claimant was NYU's employee whose exclusive remedy was, per WCL §29, workers' comp benefits. The Supreme Court found that the existence of an employer-employee relationship was a question of fact for the WCB to resolve, staying all the civil proceedings, pending a ruling from the Board which, ultimately, determined that claimant was an employee of NYU.

Contrary to claimant's assertion, the Board was not preempted by federal law from exercising jurisdiction over him. The Court found that there is neither an explicit nor an implicit indication in any federal statute or regulation that Congress intended to preempt state workers' compensation law.  Claimant instead argued that an intent to preempt may be found in a "program announcement" circulated by NIH. The Court found this announcement related to tax liabilities of individuals receiving grant monies and “in no way alters the relationship between [those individuals] and institutions" and its language does not "even arguably justif[y] the pre-emption of state" workers' compensation law. And contrary to the claimant’s assertion that an employer-employee relationship did not exist, the Court determined that the detailed relationship noted in the Board’s decision constituted substantial evidence to uphold the Board's determination that claimant was an employee of NYU. Prevailing Party represented by: David Secemski of counsel to Jones Jones (New York City) for NYU School of Medicine and another, respondents.
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NYS WCB v Builders Self-Ins Trust
    March 5, 2015    NYS Appellate Division, Third Department
    3195...Self-Insured Trusts      [53324-8027]

In this heavily footnoted 7-page decision, the Appellate Court upheld the majority of the Supreme Court’s rulings in this case brought by the WCB as the Trustee for the successor in interest to this Self-Insured Trust, alleging claims for breach of contract and fraud against the trustees, and claims for breach of contract and unjust enrichment against Marsh. The Board assumed administration of the Trust effective May 1, 2009.

The Supreme Court dismissed the complaint against trustee Barrett Greene on statute of limitations grounds, and dismissed the complaint against Philip LaRocque on jurisdictional grounds. Supreme Court also granted the motions of the trust’s founders and trustees Howard Zubin and Joseph McIvor to dismiss plaintiff's fraud cause of action in its entirety as against them, but denied their motions to dismiss the breach of contract cause of action.

As to Marsh, Supreme Court partially granted its motion to dismiss, by dismissing the portions of the breach of contract and unjust enrichment claims that alleged damages prior to November 30, 2006 as time-barred by the applicable statute of limitations

In the complaint, the Board alleged that the trustees falsely represented that they were capable of managing the Trust funds and overseeing the administration of the Trust and were in breach of contract for failing to perform their duties, or negligently and improperly performed their duties, under the Trust agreement and failed to prevent inherent conflicts of interest.  Inasmuch as a cause of action for fraud does not arise where the "alleged fraud relates directly to plaintiff's cause of action for breach of contract", the Supreme Court properly dismissed this portion of the fraud claim as being directly related to plaintiff's breach of contract claim.

Also proper was the Supreme Court’s dismissal of part of the fraud claim in which the plaintiff alleged that McIvor committed fraud by directing the Trust's bank to release NFBA property being held as collateral against a $750,000 line of credit, which was acting as a security deposit made by the Trust pursuant to WCL §50(3-a)(2)(b).

The Appellate Court’s affirmance and modification of other of the Board’s issues can be found in the decision link at the top of this summary.
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FEBRUARY 2015
NYS WCB v Consolidated Risk
    February 26, 2015    NYS Appellate Division, Third Department
    3195...Self-Insured Trusts
             [52323-8026]
This is a continuation of several actions taken in the Albany County Supreme Court by the NYS Workers Compensation Board (NYS WCB) to recover goup self-insured trusts' accumulated deficits from defendants, alleging numerous causes of action, including breach of fiduciary duty, fraud and fraudulent inducement against various three GSITs and their administrators, insurance brokers, and actuaries:
  • NY Manufacturing Industry Workers' Compensation Self-Insurance Trust (hereinafter NYMIT)
  • Provider Agency Trust for Human Services Workers' Compensation Trust (hereinafter PATH)
  • Retail & Wholesale Industry Workers' Compensation Trust of New York (hereinafter RITNY)
  • The third-party administrator for the trust, Consolidated Risk Services, Inc. (hereinafter CRS)
  • Iinsurance brokers allegedly engaged in marketing the trusts, including Hickey-Finn & Co, Inc
  • Former trustees of RITNY
  • Regnier Consulting Group, Inc., which provided actuarial reports for RITNY .

These cross appeals resulted when the Albany County Supreme Court, on September 4, 2013, among other actions

  • denied motions by the CRS defendants and insurance brokers to dismiss the breach of fiduciary duty, fraud and fraudulent inducement claims as untimely.
  • dismissed as untimely the breach of contract claim against RITNY trustees defendants Jennifer Bartlett and Alice Nykaza but denied the motions of the remaining former trustees to dismiss.
  • dismissed the cause of action for implied indemnification, as asserted against all defendants
In its 12-page decision explaining in detail its reasoning on each action, the Appellate Court first agreed with the NYS WCB that the Supreme Court improperly limited the temporal scope of the actionable misconduct on its breach of fiduciary duty claim. The Appellate Court also rejected the argument of the CRS defendants on their cross appeal that the statute of limitations for the entire breach of fiduciary duty claim is three years, rather than six.

 The Appellate Court further rejected the CRS defendants' assertions that Supreme Court improperly applied the "discovery rule" to certain of those defendants on the fraud and fraudulent inducement claims, although the Appellate Court agreed with Hickey-Finn that the Supreme Court erred in relying upon that rule to sustain the NYS WCB’s claims against it.

As to the CRS defendants, the discovery rule would render all fraud claims regarding RITNY timely if receipt of the forensic audits was the earliest date that the NYS WCB could be said to have possessed knowledge of facts from which fraud could reasonably be inferred. The Appellate Court found that the NYS WCB persuasively responded that the audit uncovered only funding issues related to reserves and liabilities at a particular point in time, not evidence of an intentional failure to disclose the true financial state of RITNY and the dangers related to its operating at a deficit. In the Appellate Court’s view, “given the complex nature of the fraud allegations, including the fact that forensic accountings were required to determine the circumstances constituting the fraud, Supreme Court properly determined that questions of fact exist regarding whether the discovery rule should apply such that alleged misconduct predating the six-year limitations period is cognizable on the fraud claims against the CRS defendants involving RITNY, and on those claims against CRS and its employees involving NYMIT and PATH.

The Appellate Court also rejected, on several grounds, the arguments of defendant David Bramwell, a former employee of CRS, and Mark Bartlett, a former trustee of RITNY, for dismissal of claims against them.

In explaining its positions on all these issues, the Appellate Court referenced nearly identical allegations in the Matter of Murray Bresky Consultants, Ltd. v New York Compensation Manager's, Inc., 106 AD3d at 1256-1258; the Matter of New York State Workers' Compensation Bd. v SGRisk, LLC, 116 AD3d at 1153, and State of N.Y. Workers' Compensation Bd. v Madden (119 AD3d 1022 [2014].
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Barclay v Techno-Design
    February 19, 2015    NYS Appellate Division, Third Department
    3010...§11: Grave Injury
            [52323-8025]
The Appellate Court determined that the injured worker did not sustain a grave injury as provided in WCL §11, even though he had lost 90% use of his upper right extremity and 60% use of the fingers on his right hand due to the loss of functionality of his middle, ring and small fingers. Barclay, employed by Codino when he was injured using Techno-design’s equipment,  commenced a negligence action and products liability against defendant Techno-Design which in turn commenced an action for common-law indemnification and contribution against Codino. Codino moved for summary judgment dismissing the third-party complaint on the ground that Barclay did not sustain a grave injury as provided in WCL §11, thereby barring Techno-Design's claims for relief against Codino.

The Appellate Court found that, inasmuch as Barclay did not sustain a grave injury within the meaning of the Workers' Compensation Law, Techno-Design's third-party complaint should have been dismissed in its entirety. They added that while "this Court has the authority to grant summary judgment to a nonappealing party", given that the statute must be narrowly read, we cannot agree with Techno-Design's argument that the permanent immobility or purported "functional amputation" of three of Barclay's fingers should compel us to expand the legal significance of the "loss of multiple fingers" category and determine as a matter of law that Barclay has a grave injury.
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Lombardo v Otsego County Empls
    February 11, 2015    NYS Appellate Division, Third Department
    5110...Voluntary Withdrawal      [52321-8024]
    7053...Insubstantial Evidence
REVERSED the Board’s ruling that claimant's removal from the labor market was involuntary. In June 2004, claimant filed his retirement papers, with an effective date of July 30, 2004 and continued to work full duty until July 8, 2004, when he sustained work-related injuries which rendered him disabled for the duration of his employment. Workers comp was paid from July 8 to July 30, his scheduled date of retirement and held in abeyance thereafter.  Reopening the claim in 2011, claimant sought awards subsequent to his retirement, controverted by the carrier contending that claimant's retirement constituted a voluntary withdrawal from the labor market. A Law Judge, affirmed by a Board panel, found that, as a result of claimant's disability from his work-related injury, claimant did not voluntarily withdraw from the labor market

The Court noted “the Board's finding that claimant involuntarily withdrew from the labor market is not supported by substantial evidence,” as there was no “evidence that the claimant's disability caused or contributed to retirement." They noted that, “At the hearing, claimant testified that he decided to retire prior to the accident due to personal issues he had with his supervisors and did so with full benefits based upon his 32 years of service. Noticeably absent from claimant's testimony is any assertion that his injuries were a contributing factor in his decision to retire. . . .there is no evidence in the record that claimant, who was 66 years old at the time he retired, had intended to remain attached to the labor market post-retirement. Thus, claimant's decision to remove himself from the labor market was unrelated to his disability, and the record is devoid of any proof that claimant suffered post-retirement loss of wages as a result of his disability.Prevailing Party represented by: Michael Violando of counsel to Sullivan Keenan Oliver & Violando (Albany) for appellants.
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Gramza v Buffalo Bd of Educ
    February 11, 2015    NYS Appellate Division, Third Department
    5130...§114-a: Fraud             [52321-8023]
    7053...Insubstantial Evidence
REVERSED the Board’s ruling by finding, on appeal, that claimant did violate WCL §114-a. Claimant’s slip-and-fall resulted in an established claim. After the employer, in 2010, raised the issue of attachment to the labor market and sought the testimony of claimant and his medical providers on the issue, a Law Judge denied the employer's request for claimant's testimony, but continued the matter for cross-examination of two of claimant's medical providers. Thereafter, the employer alleged violation of §114-a and sought to admit evidence of video and surveillance reports of claimant's activities. After a Board panel reversed the Law Judge’s ruling that the evidence was inadmissible, the Law Judge, who did not review the materials again — despite over a year elapsing between the time that the evidence was submitted and the hearing on remittal — nevertheless concluded that the surveillance materials were not inconsistent with statements that claimant had made to his physicians, and that claimant had a permanent impairment of 75% and continues to be involuntarily retired. The Board affirmed.

In reversing, the Court noted that:

Under WCL § 114-a (1), a claimant may be disqualified from receiving workers' compensation benefits "[i]f for the purpose of obtaining compensation . . . or for the purpose of influencing any determination regarding any such payment, [he or she] knowingly makes a false statement or representation as to a material fact." While the Board's "determination of whether a claimant has violated WCL § 114-a will be upheld if it is supported by substantial evidence in the record", this Court will reverse if, as herein, the determination is based upon "factual inaccuracies and mischaracterizations of" the record.

After viewing the video surveillance, the physician concluded that "claimant clearly is capable of doing far more home-based activities than he admitted to during my independent examination." [Ed. NOTE: these activities are detailed in the decision.] The physician therefore revised his findings, concluding that claimant has only a mild partial disability and no functional disability. Under these circumstances, the Board's finding that "[t]he video surveillance does not show any images of the claimant engaging in physical activities inconsistent with any representation he had made to any of the parties' doctors" was determined not to be supported by substantial evidence in the record.

Also the Court noted that the misrepresentation is not limited just to the claimant’s testimony at the Board but also to disclosures during a medical exam:

[C]claimant's doctor confirmed that the claimant "fail[ed] to affirmatively disclose highly relevant information. Similarly here, the physician who performed the independent medical examination stated that the surveillance revealed claimant to be "capable of doing far more home-based activities than he admitted to during [the] independent examination."

The Court returned the case to the Board for a determination of whether claimant's failure to disclose the extent of his abilities was material, and done both knowingly and for the purpose of obtaining benefits. Prevailing Party represented by: Kristin Machelor of counsel to Hamberger & Weiss, Buffalo for appellants.

The Insider: While one may question how a Law Judge can rule a videotape has no bearing on a case without looking at the video, I must note, for the record, that I was on many panels in which my fellow panel member approved decisions which stated that “after review of the video tapes”, when in fact they never looked at the video...and probably never read the decision anyway before signing it.

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Hershewsky v Community Gen Hosp
    February 11, 2015    NYS Appellate Division, Third Department
    5130...§114-a: Fraud                [52321-8022]

AFFIRMED the Board’s ruling that the pro-se claimant violated WCL § 114-a. In 2011, the carrier raised the issue of where claimant had violated WCL § 114-a after receiving awards due to her 1992 back injury. After a review of video tape showing claimant performing activities inconsistent with her testimony as to her physical limitations, the Law Judge and a Board panel found she had misrepresented her physical condition. After a review of the details of this inconsistency, the Court found that the Board's decision that claimant made false representations regarding material facts was supported by substantial evidence in the record. Prevailing Party represented by: Scott Anglehart of counsel to State Insurance Fund for Community General Hospital and another, respondents and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.
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Hunter v Tops Mkt
    February 11, 2015    NYS Appellate Division, Third Department
    3140...§25-a: True Closing              [52321-8021]

AFFIRMED the Board’s ruling that claimant's case was not truly closed for the purpose of shifting liability per WCL §25-a to the Special Fund for Reopened Cases (Fund). The Injured worker’s claim was established for occupational disease involving right carpal tunnel syndrome, with a date of disablement in May 2005. She had surgery in 2007 and, in 2010, a nerve conduction study revealed possible mild left carpal tunnel syndrome as well. Her 2011 doctor's progress report submitted to the Board diagnosed a continued carpal tunnel syndrome in both hands. Shortly thereafter, the Board found a 10% SLU of the right hand, but did not address the diagnosis of her left hand.

When, in September 2012, the employer requested that liability be transferred to the Fund per §25-a, the Board found that the case was never truly closed, denying transfer of liability. The employer argued that liability should have transferred as the case was truly closed at the time that a 10% SLU was established for the right hand because the issue of left carpal tunnel syndrome had not yet been raised and, thus, no further action was contemplated. But the Board found the 2011 progress report left issues regarding the left hand unresolved at the time that the employer sought transfer of liability. Accordingly, the Board's determination that the case was never truly closed was supported by substantial evidence and the transfer of liability was properly denied. Prevailing Party represented by: Jill Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent.

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Scott v Rochester CSD
    February 11, 2015    NYS Appellate Division, Third Department
    3140...§25-a: True Closing                [52321-8020]

AFFIRMED the Board’s ruling that liability shifted per §25-a to the Special Fund for Reopened Cases (Fund). In claimant’s 2004 case, he injured his back with that claim being established in 2009, with no lost wages. In his 2008 claim, he injured his left knee and stopped working at that time. In a third claim, [Ed. Note: no date in the decision], a Law Judge found a 55% SLU for his left leg and awarded benefits. In 2012, claimant sought treatment in connection with his 2004 back injury, ultimately claiming three months of lost time related to that injury. The carrier sought transfer of liability to the Fund per §25-a resulting in a Law Judge transferring liability to the Fund and awarding benefits for a temporary, marked partial disability.

In this appeal, the Fund argued that claimant admittedly stopped working for reasons unrelated to his back injury and, thus, he was required to demonstrate attachment to the labor market — that is, to show that his inability to work was due to his back injury. Ultimately, the Court determined that the award sought herein was for lost time prior to the date of the hearing, when the Fund raised the issue of attachment to the labor market for the first time. The award of benefits for that period was therefore entirely consistent with the Board's prior precedent. Prevailing Party represented by: Iris Steel of counsel to the NYS Attorney General, for WCB, respondent.
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Zogaria v Quebecor World USA
    February 11, 2015    NYS Appellate Division, Third Department
    3140...§25-a: True Closing              [52321-8019]

AFFIRMED the Board’s ruling that liability shifted per WCL §25-a to the Special Fund for Reopened Cases (Fund). Claimant’s undisputed 2005 work-related knee injury was established and awards made from August to November 2005, after which she returned to work. In December 2006 a Law Judge awarded additional benefits after finding a 22.5% SLU which the carrier paid in full prior to January 4, 2007. Claimant continued receiving symptomatic medical care and, in January 2012, her physician successfully requested authorization for surgery which was done in September 21, 2012. Shortly thereafter, the carrier requested that liability be transferred per §25-a to the Fund. After the Law Judge denied the request, a Board panel reversed, finding that liability shifted to the Fund when the case was reopened in September 2012, the date of the surgery.

Inasmuch as claimant sought payment for the surgery more than seven years after the date of injury in June 2005 and three years after the last date of the last payment of compensation in January 2007, the issue presented in this case was whether the case was truly closed prior to the time that surgery was performed. In response to the Special Fund's argument that the request by claimant's physician for authorization of surgery constituted an "informal reopening" of the case, the Board determined that the case was informally closed again when the carrier authorized surgery in February 2012. Claimant remained medically cleared for full-duty work at the time of the February 2012 authorization of surgery, and did not seek compensation for lost time. The Court added the following footnote, “The fact that claimant received symptomatic treatment after 2006 would not preclude a true closure; ‘[a] case may be truly closed where symptomatic medical treatment is authorized, even if the claimant's condition may change or worsen in the future, which would result in a reopening of the case.’”  Inasmuch as there was no evidence that other issues remained outstanding after surgery was authorized, and "all that remained to be resolved was whether claimant herself would decide to undergo this surgical procedure", the Court found that, “substantial evidence supports the Board's determination that the case was truly closed in February 2012.Prevailing Party represented by: Debora Doby of counsel to Goldberg Segalla (Buffalo) for Quebecor World USA Inc., and another, respondents.
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Cole v Con Ed
    February 11, 2015    NYS Appellate Division, Third Department
    5110...Voluntary Withdrawal            [52321-8018]

AFFIRMED the Board’s ruling that claimant demonstrated an attachment to the labor market. As the result of asbestos exposure, claimant was found to have a permanent partial disability as of November 1995 with the claim subsequently amended to include diagnoses of chronic bronchitis and chronic obstructive pulmonary disease. Claimant continued to work until he was permitted to voluntarily retire, in lieu of termination for cause, at the age of 69 in November 2009. A Law Judge concluded that claimant's separation from employment was unrelated to his occupational disability, and that claimant was not entitled to benefits subsequent to his retirement because he had voluntarily removed himself from the labor market. A Board panel, in a split decision, reversed the Law Judge. Here, the Board concluded that claimant credibly testified, providing documentary evidence that he actively participated in a job location service and engaged in an independent job search within his medical restrictions, thereby demonstrating attachment to the labor market. The Court also noted that, “the fact that claimant limited that search to jobs within the field that he had worked for nearly 50 years provides no basis to disturb the Board's decision.”  Prevailing Party represented by: Iris Steel of counsel to the NYS Attorney General, for WCB, respondent.
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Campione v FMCS        
    February 11, 2015    NYS Appellate Division, Third Department
    1045...Causal Relationship: Was there?            [52321-8017]

AFFIRMED the Board’s ruling that the pro-se claimant did not sustain a causally related disability. Claimant’s application for alleged neurological injuries caused by exposure to pesticides at her workplace was denied by a Law Judge for lack of substantial medical evidence. Although claimant's medical experts opined that she suffers from a causally related neurologic condition, those opinions were largely based upon her subjective complaints and, like the carrier’s doctor, could find not objective evidence  of any toxicity, toxic reaction, neurological disability or cognitive impairment. Prevailing Party represented by: Andrea Catalano of counsel to Weiss, Wexler & Wornow (New York City) for FMCS and another, respondents.
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Cappelletti v Marcellus CSD
    February 11, 2015    NYS Appellate Division, Third Department
    1045...Causal Relationship: Was there?            [52321-8016]

AFFIRMED the Board’s ruling that claimant sustained a compensable injury. Claimant’s allegation of an autoimmune disorder due to exposure to mold in her workplace resulted in a Law Judge establishing a work-related injury due to mold exposure. Claimant, a teacher, testified that, over time, she was exposed to mold from water damage due to a leaking roof. Her condition worsened considerably in April 2010, when a major construction project took place that included working on the roof and some remodeling near her classroom. She presented three medical opinions, all of which concluded that she suffers from a causally-related autoimmune disorder resulting from that mold exposure. The Court concluded that, although contrary medical evidence was given which could have supported a contrary decision, the Board's decision was supported by substantial evidence. Prevailing Party represented by: Michael Welch of counsel to Welch & Myers (Camillus) for Michelle Cappelletti, respondent and Marjorie Leff of counsel to the NYS Attorney General, for WCB, respondent.
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Lobban v Brown
    February 4, 2015    NYS Appellate Division, Second Department
    3160...§29: 3rd Party/MVA liens   51320-8015

AFFIRMED the lower Court’s ruling which denied the injured worker’s motion, pursuant to WCL §29(5), for judicial approval of the compromise of the action nunc pro tunc. As the result of a motor vehicle accident, claimant successfully filed a WC claim and was awarded benefits. After he filed an action against the driver of the other vehicle, the plaintiff and the defendant settled the action less than two months after it was commenced, for the sum of $48,100. According to the plaintiff, he sought to settle the action quickly because he was experiencing economic difficulties. The plaintiff's workers' compensation carrier did not consent to the settlement. More than three months after entering into the settlement, the plaintiff moved pursuant to WCL §29(5) for judicial approval of the compromise of the action nunc pro tunc, an action which the carrier successfully opposed. The Appellate Court found that the delay in seeking judicial approval was due to the plaintiff's own fault or neglect and the Supreme Court providently exercised its discretion in denying the plaintiff's motion.
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Fidelity & Guarantee Insurance v DiGiacomo
    February 4, 2015    NYS Appellate Division, Second Department
    3160...§29: 3rd Party/MVA liens

The plaintiff appealed from an order of the Supreme Court which denied their motion for summary judgment awarding them the sum of $123,442.47, constituting the net lien claimed by them, and granted the defendants' cross motion for judicial approval pursuant to WCL §29(5) of a settlement of an action commenced by the defendant DiGiacomo (“claimant”) to recover damages against third parties.

The Second Dept modified the order deleting the provision which had denied the plaintiffs' motion for summary judgment, awarding them the sum of $123,442.47, constituting the net lien claimed by them, and substituting, therefor, a provision granting the plaintiffs' motion.

Claimant, who sustained injuries while employed by Bed Bath & Beyond, received more than $189,000 in claims paid for by Sedgwick Claims Management Services (hereinafter Sedgwick) who administered the employer’s WC policy with plaintiff Fidelity & Guarantee Insurance Company. In July 2005, the claimant commenced an action against third parties to recover damages for his injuries. By letter dated May 5, 2008, Sedgwick asserted a continuing lien on any recovery from the third parties. On May 5, 2009, the same day the action was settled for $2 million, claimant advised Sedgwick of the settlement, asking Sedgwick put the plaintiffs' WC lien in writing. Sedgwick did not respond to that letter until October 2009, when it demanded payment of a net lien of $123,442.

Over the next few months, various orders to pay and then not pay were issued involving whether Sedgewick, rather than Fidelity, was the proper party for service and whether the claimant’s potential classification as PPD would affect future awards. Ultimately, the Second Dept ruled that “the plaintiffs are entitled to summary judgment awarding them the sum of $123,442.47, constituting the net lien claimed by them, as they established their entitlement to judgment as a matter of law in that amount.” As to future benefits that may be awarded “amount of that obligation is speculative, and does not affect the plaintiffs' ability to recover the net amount of the lien for benefits already paid.”
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JANUARY 2015
Connolly v Con Ed
    January 29, 2015    NYS Appellate Division, Third Department
    3110...§15(8) Reimbursement Special Fund          [51319-8013]

AFFIRMED the Board’s amended decision which ruled that the self-insured employer’s claim for reimbursement from the Special Disability Fund (Fund) as claim was time-barred. In 1999, a claim was established for claimant for the occupational diseases of asbestosis, asbestosis-related pleural disease and chronic obstructive pulmonary disease. The employer was found to be entitled to reimbursement from the Fund pursuant to WCL §15(8)(ee).  Claimant thereafter died on April 29, 2011 and his widow filed a claim for death benefits, which the employer controverted, and the Fund was put on notice.

The Board determined that the reimbursement claim was time-barred because it was made after July 1, 2010, the outside date for such reimbursement claims under WCL §15(8)(h)(2)(A). Reimbursement under §15(8)(ee) is expressly subject to the limitations contained in WCL §15(8)(h)(2)(A), which "bars claims based upon dates of disablement or accident after July 1, 2007". That subdivision further expressly provides, as here dispositive, that "[n]o carrier or employer . . . may file a claim for reimbursement from the special disability fund after July [1, 2010] and no written submission or evidence in support of such a claim may be submitted after that date."

The Court also rejected the employer’s argument that this is not a “new” claim, positing that it relates back to the original disablement in 1999 thereby establishing its right to reimbursement for a death occurring after July 1, 2010. But the Court quoted a prior case: “[t]he right to death benefits does not accrue prior to death, and death, while not a new injury or accident, results in a ‘new claim’ for purposes of death benefits reimbursement.” Since claimant died in 2011, and the employer's claim for reimbursement for death benefits was necessarily made after the July 1, 2010 cut-off date, the claim is barred. Prevailing Party represented by: Jill Singer of counsel to the Special Funds respondent.
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Estwick v Risk Mgt Planning  
    January 29, 2015    NYS Appellate Division, Third Department
   7032...Venue issues                   [51319-8012]

AFFIRMED, again, the Board’s assessment of a penalty against a claimant attorney for filing a change of venue application made without reasonable grounds. The claimant, who was injured while working in Brooklyn for a Brooklyn employer, lives in Brooklyn. Nonetheless, her attorney submitted to the Board a request by claimant that the venue of any hearings be held in the City of White Plains, Westchester County on the ground that it was the "most efficient" and would limit the amount of time lost from work. The Court wrote that it has “repeatedly upheld the imposition of a penalty of reasonable counsel fees pursuant to WCL §114-a(3)(ii) when, as here, the record contains substantial evidence that a venue request was made without a reasonable basis”. In addition, as it has previously noted in identical decisions, the Court noted that “[g]iven that the only issue on this appeal relates to the assessment against counsel, 'counsel is the party in interest pursuant to WCL § 23 and 'should have filed the notice of appeal on [his] own behalf'.' Given the absence of any allegation of prejudice, we will disregard that defect and treat the appeal as having been taken by counsel.” Prevailing Party represented by: Steven Segall  of counsel to the NYS Attorney General, for WCB, respondent.
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Tangorre v Tech Home Elec
    January 29, 2015    NYS Appellate Division, Third Department    
    5130...§114-a: Fraud               [51319-8011]

AFFIRMED the Board’s ruling that claimant violated WCL §114-a and permanently disqualified him from receiving future wage replacement benefits. In June 2012, two years after claimant suffered work-related injuries to his neck, left shoulder and left arm and was awarded benefits, the carrier raised the issue of labor market attachment. Claimant then mailed copies of invoices showing part-time work causing the carrier to raise the issue of misrepresentations regarding work activity while collecting benefits. Claimant’s defense was that he had informed his prior attorney of his part-time work assuming his attorney would advise the carrier and/or Board. After a Law Judge ruled, despite having "serious reservations concerning the credibility of the claimant's testimony," that there was insufficient evidence of a violation of WCL § 114-a, a Board panel reversed, ruling that claimant knowingly made misrepresentations by falsely testifying that he reported his return to work to his new attorney in February 2012. “Here, although claimant testified that he informed his attorney in February 2012 of his return to work, the Board found that this testimony was not credible, based upon its determination that the letter sent by claimant to his attorney in June 2012 accompanying the payment invoices constituted the first time that claimant had reported that he had returned to work. In the letter, claimant described the job to his attorney, . . . [and] also asked his attorney whether claimant should forward the invoices to anyone else.Prevailing Party represented by: Sarah Merritt of counsel to Stockton, Barker & Mead (Troy) for Tech Home Electric. respondents.
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Wetterau v Canada Dry
    January 29, 2015    NYS Appellate Division, Third Department
    3140...§25-a: True Closing                [51319-8010]

AFFIRMED the Board’s ruling that, per to WCL § 25-a, liability shifted to the Special Fund for Reopened Cases (Fund). Claimant injured his back in 1999, successfully filed a claim, and after back surgery and award of benefits, returned to work. A Law judge closed the cases on September 27, 2000. In July 2005 with the same employer, he was injured again, successfully filing a second claim, for back and left ankle. He was award benefits and, in 2008, classified as permanently partially disabled. The carrier continued to make payment on the 2005 claim. On May 3, 2012 a hearing was conducted on both claims on the issues of apportionment and the carrier's request for relief under WCL § 25-a with respect to the 1999 claim; a Law Judge concluded that WCL §25-a was applicable for the 1999 claim, making it the liability of the Fund.

The Special Fund asserts that the carrier continued to make payments on the 2005 claim that it knew were partially attributable to injuries sustained by claimant in connection with the 1999 claim and that, consequently, three years did not pass from the date of the last payment of compensation, thereby precluding liability from shifting under WCL §25-a.

But the Court disagree writing that, “Upon reviewing the record, substantial evidence supports the Board's finding that the carrier did not make an advance payment of compensation. There is no indication that the carrier knowingly made payments on the 2005 claim that were partially to compensate claimant for injuries sustained in connection with the 1999 claim. Although the independent medical reports prepared in connection with the 2005 claim indicate that his disability was caused, in part, by his preexisting condition, they did not establish that it was specifically due to his 1999 work-related injury. Thus, they did not put the carrier on notice that the payments it made were attributable to this prior injury.Prevailing Party represented by: Sarah Thomas of counsel to Jones Jones (NYC) for Canada Dry and another, respondent.
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Worthington v Samaritan Med Ctr
    January 29, 2015    NYS Appellate Division, Third Department
    1100...Course of Employment: in and out of         [51319-8009]

AFFIRMED the Board’s ruling that claimant sustained a work-related injury from a trip-&-fall and awarded her benefits. Claimant, a registered nurse, as walking down the hallway when her foot became stuck and she fell forward sustaining right foot, left wrist and face injuries. A Law Judge affirmed by a Board panel,  found that claimant sustained a work-related injury and awarded benefits. Absent substantial evidence to the contrary, a presumption exists that an accident that occurs in the course of employment arises out of that employment. The Board credited claimant's testimony regarding the nature of the fall, namely, that it occurred because her foot stuck to the floor and not because she lost consciousness or experienced any kind of medical episode. Although the employer presented medical testimony that offered a variety of alternative causes for claimant's fall based on her pre-existing medial conditions, the Court agreed with the Board that “ such conclusions were based upon mere speculation and were insufficient to rebut the statutory presumption contained in WCL § 21.” Prevailing Party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent.
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January 22, 2015: There have been no workers compensation-related decisions issued this week in any of New York's Appellate Courts.
Carr, Chapter 7 Trustee v Arellano
     January 5, 2015 US Bankruptcy Court for the Middle District of Pennsylvania
     Medicare Set-Asides & Bankruptcy    [51317-8008]

Arellano settled a workers comp claim for $225,000 in workers comp benefits and $72,742 in a Medicare set-aside account (MSA), using the MSA funds to purchase a vehicle and two pieces of real estate.  One of the properties was sold to a relative who is paying Arellano $1,200 a month as amortization and interest.  In 2014 he filed for Chapter 7 bankruptcy, claiming all four items were “exempt under 11 U.S.C. § 522(d)(11)(E). Debtor did not disclose the installment agreement on his original schedule of executory contracts and unexpired leases (Schedule G), nor did he disclose the $1200 installment contract payment as part of his income.”

“[T]he Trustee filed an objection to Debtor's exemption claim asserting that § 522(d)(11)(E) did not authorize Debtor to exempt property that was the proceeds of a workers' compensation claim. On May 22, 2014, Debtor responded to the Trustee's objection asserting that the property could be exempted under § 522(d)(11)(E) and that the property claimed was reasonably necessary for Debtor and his dependents.”

The Court indicated that “[t]he primary issue in this case is whether property acquired through funds derived from a workers' compensation settlement received pre-petition is ‘property that is traceable to payment in compensation of loss of future earnings of the debtor . . . , to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.’" One point made by the Court is the fact that, although Arellano may have misused the funds provided by the MSA, that was not an issue before the Court. The Court’s final decision was that the MSA funds were not part of the estate but a separate trust established for future medical expenses and that the record, detailed in the 21-page decision, showed “that the proceeds of the workers' compensation settlement are reasonably necessary for Debtor's support.”

The Insider: it is important to note that this decision was issued by one judge at approximately 350 judges who preside in Federal Bankruptcy Court proceedings. Therefore there exists not only the likelihood of an appeal but also the probability that another judge could issue a contrary ruling in a similar case. See my COMMENTARY today entitled “Medicare Set-Aside & Bankruptcy."
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Rose v Roundpoint Constr
    January 15, 2015    NYS Appellate Division, Third Department
    5020...Disability: Degree of or R/E        [51317-8007]

AFFIRMED the Board’s ruling that claimant sustained a permanent total disability. Claimant, a heavy equipment operator, after suffering from back and leg pain and stopping work June 4, 2009, successfully filed a claim for a work-related low back injury. Originally determined to have a moderate to marked permanent partial disability, at a subsequent hearing on wage earning capacity, the testimony and report of a vocational expert opined that he was disabled from any employment, resulting in the Law Judge determinating that claimant was totally industrially disabled. The carrier appealed.

A vocational expert opined “that, given claimant's work history, limited education and capabilities, physical restrictions, rural location, severe chronic pain and the side effects of his medications, he is disabled from ‘any and all employment.’ The carrier did not present any vocational evidence, and its medical consultant recognized claimant's inability to return to work as a laborer and the significant medical restrictions on his activities.” The Court wrote that “A claimant who has a permanent partial disability may nonetheless be classified as totally industrially disabled where the limitations imposed by the work-related disability, coupled with other factors, such as limited educational background and work history, render the claimant incapable of gainful employment." In summary, the Court found there was substantial evidence to support the Board's factual determination. Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.
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Regan v City of Hornell PD
    January 15, 2015    NYS Appellate Division, Third Department
    1100...Course of Employment: in and out of     [51317-8006]

AFFIRMED the Board’s rulings (1) that claimant sustained an injury arising out of and in the course of his employment at the World Trade Center site (WTC), and (2) which carrier’s request for full Board review (FBR) was denied. In March 2010, claimant — now employed by the City of Geneva Police Department (hereinafter GPD) — was arrested and charged with driving while intoxicated. Shortly thereafter, he began receiving mental health treatment, resigned from his employment with GPD, filed a claim for workers' comp citing his time at the WTC as the cause of injury, naming HPD as his employer. He then registered his participation in the WTC rescue operations with the WCB per WCL §162.

A Law Judge (1) established an occupational disease claim for post traumatic stress and depression, effective date of April 10,2010 (first treatment), (2) found GPD the employer, and (3) applied §44 apportionment to the claim. A Board panel changed that decision, finding HPD the employer, the date of injury as September 17, 2001, disablement as of April 2010, and WCL Article 8-A applied. The carrier appealed to the Court on the basis that contended claimant's activity did not constitute participation in the rescue, recovery, or cleanup operations such that it would be covered by Article 8-A and the Board improperly denied their application for FBR.

The Court cited prior decisions that Article 8-A "was intended to be liberally construed” and §161 provides that the phrase "'[p]articipant in World Trade Center rescue, recovery, or cleanup operations' means any . . . employee who within the course of employment . . . participated in the rescue, recovery, or cleanup operations at the World Trade Center site between September [11, 2001] and September [12, 2002]." The Court then noted the Board’s detailed references to the claimant’s uncontested description of work at the site, noting that “its reasoning here is consistent with prior Board decisions addressing this issue.”  As to the medical issue, “the Board was free to credit this testimony [of claimant’s  psychiatrist] over that of other witnesses who attributed claimant's condition to different factors in his law enforcement career and his personal life, as 'credibility determinations and the resolution of conflicting evidence are within the exclusive province of the Board'". As HPD and its carrier failed to set forth any newly discovered evidence or allege a material change in condition in their application for full Board review, the Board’s decision to deny a FBR was not unreasonable. Prevailing Party represented by: Jacklyn M. Penna of counsel to Buckner & Kourofsky (Rochester) for City of Geneva Police Department and another, respondents.

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Urbano v Bletsas Plmbg & Htg
    January 15, 2015    NYS Appellate Division, Third Department
    3190...Broker/Employer Fraud                 [51317-8005]

AFFIRMED the Boards ruling that the employer's workers' compensation carrier would remain liable for claimant's claim, despite insurance fraud on the part of the employer. Claimant, injured while employed by Bletsas Plumbing & Heating Corp., sought benefits provided by Oak River Insurance. After learning that Bletsas had been paying claimant "off the books" and had underreported the number of its employees in its application for coverage, Oak River controverted the claim on the grounds that WCL §52(1)(d) relieved it of its obligation to pay benefits to claimant under the policy. A Law Judge and Board panel ruled Oak River responsible.

Oak Rover argued that, under §52(1)(d), enacted in 2007, Bletsas’ actions “shall be deemed to have failed to secure compensation and shall be subject to the sanctions applicable to this section," and, by having “failed to secure compensation,” Oak River is relieved of paying benefits. In affirming the Board, the Court opined that “the amendment was designed to punish fraud perpetrated by the employer, not to rescind coverage or release the carrier from liability to an injured employee. Moreover, case law predating the 2007 enactment of §52(1)(d) makes clear that an employer's fraud in obtaining coverage does not implicate a carrier's responsibility to pay benefits to an injured employee and that cancellation of a workers' comp insurance policy must conform to the requirements of §54(5) in order to be effective.Prevailing Party represented by: Victoria Plotsky, Uninsured Employers' Fund (Schenectady) for Uninsured Employers' Fund, respondent.
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January 8, 2015: No opinons issued this week
DECEMBER 2014

Bennett v Putnam\West BOCES
    December 31, 2014    NYS Appellate Division, Third Department
    1200...§18 notice to employer      4C315-8004

AFFIRMED the Board’s decision that claimant did not give timely notice of injury and denied his claim for workers' compensation benefits. After 15 years working as a school custodian, in 2008, claimant sought medical treatment for problems, resulting in surgery on both elbows and knees. He filed a claim in September 2009 for workers comp based on injuries attributable to "repetitive use of physical labor going up and down the stairs, lifting heavy boxes, [and] shoveling snow." In September 2010, a Law Judge established the claim for bilateral elbows and left knee. The employer’s appeal of this decision was denied as untimely. Thereafter, the employer filed an RFP-2 form seeking a further hearing to establish the date of injury and to resolve the issue of notice under WCL § 18, since these issues had not been decided by the Law Judge. The law judge reestablished the claim, set the data disablement as January 19, 2009, and included the left knee in the claim. An appeal to a Board panel resulted in a reversal and a determination by the Board that claimant sustained a "gradually accruing work related accidental injury to his elbows bilaterally and knees bilaterally with an accident date of March 13, 2008 [date of first medical treatment]," ultimately denying the claim due to the claimant’s failure to give proper notice per WCL §18.

The Court then addressed the issue of ‘res judicata’:

Initially, claimant contends that, under the doctrine of res judicata, the Law Judge's September 10, 2010 reserved decision precludes further consideration of the issue of notice under §18. Given that the cited precedent is a prior decision in this case, the applicable doctrine is law of the case. This Court, however, has acknowledged that the law of the case doctrine has "never been held applicable to Work[ers'] Compensation Law decisions at the administrative level," particularly in view of the broad powers conferred upon the Board by Workers' Compensation Law §123. In view of this, the Law Judge's September 10, 2010 reserved decision did not foreclose further consideration of this issue by the Board.

Technically speaking, the doctrine of res judicata "precludes a party from litigating 'a claim where a judgment on the merits exists from a prior action [or proceeding] between the same parties involving the same subject matter'". Inasmuch as a prior action or proceeding is not involved here, this doctrine is inapplicable.

The Court noted the claimant’s injuries occurred over the course of many years and claimant first sought medical treatment in March 2008 and then had surgeries in July 2008 ,June 2009, August 2009 ,and May 2010. Although he knew his problems were related to his work as of March 2008 and had surgery and medical treatment for a year and a half before filing his claim, he left the employer with no knowledge that the injuries were work-related nor giving it an opportunity to investigate the claim. As such, the Court found no abuse of discretion in the Board’s failure to excuse untimely notice. Prevailing Party represented by: Ralph E. Magnetic of counsel to Cherry, Edson & Kelly (Tarrytown) for Putnam Northern Westchester BOCES and another, respondents.

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Connolly v Covanta Energy
    December 31, 2014    NYS Appellate Division, Third Department
    1140...Accident vs Disease            4C315-8003

REVERSED the Board’s decision that claimant sustained a causally related occupational disease. Claimant worked for 23 years at a garbage recycling and energy production facility as a maintenance mechanic and maintenance planner, frequenting all areas of the plant, including the boiler house where the garbage was burned and the cooling tower. After coughing up blood in 2010, in March 2011 he was diagnosed with allergic bronchopulmonary aspergillosis, allegedly the result of claimant’s exposure to the aspergillus fungus, a type of mold. After claimant filed an application for occupational disease caused by his inhalation of fungus and mold at work, Covanat, the plant operator, controverted the claim, stating the claimant had not produced medical evidence of a causal relationship. A Law Judge, later confirmed by a Board panel, established a claim for occupational disease.

Although the claimant’s treating pulmonologist opined that the claimant’s respiratory condition is casually related to his exposure to the fungus, heat knowledge at the fungus is a common source of pulmonary problems and can be found almost anywhere and, further, “he was unable to pinpoint exactly where or when claimant's exposure occurred, or that it was definitely at Covanta's plant.” Even the carrier doctor stated that the fungus is ubiquitous, found in soil everywhere, and that the claimant could have been exposed in an industrial setting or at home in his own backyard; he further indicated that it could not be determined exactly when claimant was exposed or, given claimant's clinical history, the date of onset of the disease. (Claimant had a history of asthma, was a former smoker, had been exposed to asbestos in a prior job, and had previously been diagnosed with sarcoidosis and chronic obstructive pulmonary disease,)

The Court, in finding there was insufficient evidence to establish the claimant sustained an occupational disease, ruled that “claimant has not demonstrated that his contraction of allergic bronchopulmonary aspergillosis was attributable to a distinctive aspect of his job as a maintenance mechanic and/or planner. Given the commonality of the aspergillus fungus, as acknowledged by both medical experts, claimant could have been exposed to it anywhere at any time. Moreover, to the extent that the mold may have been present in claimant's work environment, it was not a condition specific to claimant's job.No attorney was listed for the Prevailing Party.
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Cruz v City of NYC Dept Child Servs
    December 31, 2014    NYS Appellate Division, Third Department
    3160...§29: 3rd Party/MVA liens        4C315-8002

AFFIRMED the Board’s decision that the self-insured employer was not entitled to take an offset under WCL §29 against the schedule loss of use award (SLU). Claimant filed an application for comp benefits based on a work-related automobile accident which kept her out of work from October 23 to December 28, 2008. Claim was established for injuries to her right hip, right arm, neck and back. After settling a third party action with employer’s consent, claimant and employer stipulated to a 15% SLU of right arm. The Law Judge directed the employer to pay $550 per week for the 9.4 weeks immediately following claimant's injury (listed as temporary total disability) and $550 per week for the next 37.4 weeks (listed as permanent partial disability). In computing the net SLU award paid to claimant, the employer deducted, in addition to payments already made and counsel fees, a sum of $3,310 representing an offset from the third-party settlement. The Law Judge agreed with the claimant that the employer was not entitled to have taken the offset.

The Court noted that the “dispositive question presented on this appeal is whether that part of the schedule loss of use award associated with claimant's 9.4 weeks of lost time falls within this category, despite the fact that it was initially labeled as payment for “ ‘temporary total disability’.” The employer contends that this portion of the SLU award corresponds to claimant's actual lost time and that the offset provisions apply because the $550 weekly portion of the award exceeded the $2,000 per month threshold and represented earnings during the first 9.4 weeks (see Insurance Law § 5102 [a] [2]). However, "[t]he weekly rate and number of weeks in the schedule are merely the measure by which an award is calculated" and, "although a decision by a Law Judge or the Board lists the award as covering certain dates, liability for a schedule award arises as of the date of the accident and 'payment of the schedule award is not allocable to any particular period of disability.'" Here, regardless of how the award was labeled, claimant received only 46.8 weeks of compensation; that is, the total amount to which she was entitled for a 15% schedule loss of use award under Workers' Compensation Law § 15 (3) (a). Inasmuch as claimant received only a schedule loss of use award, the award is not allocable to any particular time period, and the fact that the monthly rate of the award exceeded the $2,000 threshold in Insurance Law § 5102 (a) (2) is irrelevant to the employer's right of offset. Prevailing Party represented by: Patrick M. Convoy of counsel to Polska, Shouldice & Rosen (Rockville Centre) for Tiffany Cruz, and Iris Steel of counsel to the NYS Attorney General, for WCB.
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Lleshi v DAG Hammarskjold Tower
    December 31, 2014    NYS Appellate Division, Third Department
    5130...§114-a: Fraud
    7050...Procedure: Denial FBR           4C315-8001  
         
AFFIRMED the Boards decisions which (1) ruled claimant did not violate WCL §114-a and (2) denied the employer’s application for full Board review (FBR). A Law Judge agreed with the employer that the claimant misrepresented his lack of work activities while receiving benefits for a work-related back injury in 2005, thus violating §114-a; a Board panel reversed that decision, resulting in this appeal and a request for FBR.

Here, claimant acknowledged that he spent most of his time at a membership cafe and occasionally, among other things, unlocked the cafe door in the morning and swept the premises in exchange for the owner, his cousin, allowing him to sleep in a room above the cafe following marital difficulties. According to claimant, he received no compensation for any minimal activity that he performed at the cafe . The employer's surveillance videos and testimony of its private investigator did not contradict claimant's testimony, which primarily show claimant sitting or standing outside the cafe smoking, talking on a cell phone or drinking coffee. The Court agreed with the Board that the claimant did not make any false statement or misrepresentation as to his activities and, therefore, did not violate §114-a.

To the extent that the employer challenges the denial of its application for full Board review on the ground that it was denied solely by the chair on behalf of the Board, we find that such challenge is moot given that a three-member panel subsequently considered and denied that application for full Board review as set forth in a decision filed June 23, 2014. Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.

The Insider: (1) it is interesting to note that, according to the Court decision, the employer did not raise the question of whether the claimant’s activities may have been in conflict with his work-related back injury. (2) I have posted a commentary regarding my long-standing complaint that denials of FBR’s solely by the Chair may be illegal. Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB.

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Pankiw v Eastman Kodak
    December 31, 2014    NYS Appellate Division, Third Department
    3140...§25-a: True Closing                   4C315-8000

AFFIRMED the Board’s decision that claimant's case was not truly closed for the purpose of shifting liability per WCL §25-a to the Special Fund for Reopened Cases (Fund). As the result from 2004 work related injuries to his back and left shoulder resulting in comp awards, in 2007 claimant's treating physician opined that claimant had sustained a 20% schedule loss of use (SLU) of his left arm. In 2008, claimant raised the issue of a consequential injury to his right shoulder.

In 2004, all parties, including the Fund which was liable for payments related to a 1997 injury to claimant's right shoulder, stipulated to amend the 2004 claim to include a consequential injury to the right shoulder, found that claimant had a 30% schedule loss of use of that shoulder and apportioned the claim related to the right shoulder. In November 2011, after claimant filed a request for further action, stating that he was now disabled and was not receiving compensation, a Law Judge transferred liability to the Fund per §25-a, a decision reversed by a Board panel. Prior cases state that, "Whether a case is truly closed is a factual determination for the Board to resolve based primarily upon whether any further proceedings are contemplated with regard to issues concerning the payment of compensation." Here, the Court noted, “although claimant's treating physician opined in 2007 that claimant had a 20% schedule loss of use of his left arm, this issue was not addressed as of the date of the carrier's request to shift liability to the Special Fund. Accordingly, the Board's decision that the case was not truly closed is supported by substantial evidence.”. Prevailing Party represented by: Jill Singer of counsel to the Special Funds Conservation Committee.
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Surianello v Con Ed
    December 24, 2014    NYS Appellate Division, Third Department    
    3110...§15(8) Reimbursement Special Fund   4C314-7999
AFFIRMED the Board’s ruling that the employer is not entitled to §15(8)(d) reimbursement from the Special Disability Fund. Claimant filed his claim in February 2003, diagnosed as having emphysema and later interstitial lung disease as the result of having work at the WTC for six weeks after September 11, 2001. After he was found in March 2007 to be permanently totally disabled, the employer sought reimbursement from the Fund per WCL §15(8)(d) citing, among other things, claimant's preexisting lung disease as a prior physical impairment. The Board denied the employer's application, concluding that claimant's disability was due solely to his exposure at the WTC site, not to a preexisting medical condition. On July 3, 2013, this decision was reversed by the 3rd Dept, finding that the Fund was improperly discharged given the absence of evidence that claimant's disability was caused solely by his WTC exposure.

Upon remittal, the Board found claimant's yearly occupational health exams and diagnostic tests dating back to 1990 were, for the most part, unremarkable except for an indication that his pulmonary function was abnormal and that he had hypertension. It concluded that the record contained little evidence concerning the medical impairments suffered by claimant prior to his work at the WTC s Moreover, the employer's sick leave records disclose that, prior to working at the WTC site, claimant did not miss any significant time from work as a result of the aforementioned medical impairments. Notably, the record is devoid of proof concerning the impact of claimant's preexisting impairments on his general employability. According, the Court determined substantial evidence supports the Board's finding and find no reason to disturb the Board's decision. Prevailing Party represented by: Jill Singer of counsel to the Special Funds.
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Mejia v Drake Group
    December 24, 2014    NYS Appellate Division, Third Department
    7025...Untimely Submissions/Defenses     4C314-7998
REVERSED, in a split decision, the Board’s decision which, among other things, denied a request by the employer to rehear or reopen claimant's workers' comp claim. After claimant filed for benefits alleging injuries sustained when he fell down stairs at employer’s building, employer controverted liability, asserting that claimant was not an employee and that no work-related accident had occurred. After the employer discovered that, following the alleged accident, claimant received treatment under an alias for the injuries he sustained, the employer requested that claimant produce all medical records under that alias, or any other, pertaining to his treatment for the alleged workplace injury. Despite the employer's repeated arguments concerning the relevancy of such medical records and medical authorizations to obtain them, the Law Judge denied the requests and established the claim. When the employer then applied for a reopening and/or a rehearing per 12 NYCRR 300.14, seeking discovery of the additional medical records under claimant's purported alias, the Board denied the application, concluding that any additional medical records sought would not be probative of the relevant issues.

The claimant, while conceding he was treated for the alleged work-related injuries under a different name and date of birth, did not produce those medical records until the third scheduled hearing appearance. The Court noted that the medical records that claimant did produce contain conflicting evidence as to the cause of claimant's alleged injuries: car accident vs slip and fall at work. “As such, the requested records were clearly relevant to the issue of causation and, without those records, the employer did not have the opportunity to fully litigate this issue. Under these circumstances, we are of the view that it was an abuse of discretion to deny the employer's request to reopen the case for further development of the record.” The majority, in a footnote, wrote, “We recognize that the employer's decision to not seek Board review precludes it from arguing that the WCLJ erred as a matter of law or fact in its determination; however, the employer here does not argue that the decision of the WCLJ was not supported by substantial evidence. Rather, the employer asserts that it was denied its right to fully develop the record and cross-examine claimant regarding his initial treatment for the alleged workplace injury and, for this reason, the matter should be reopened or reheard in the interest of justice.”

The dissent by Justice Garry
was based on the alleged employer’s failure to offer evidentiary proof that there was no employment relationship with claimant. In my view, the majority has erred by overlooking two essential factors upon review; the employer first chose not to proffer credible evidence on the central factual issue in this case and, thereafter, set forth no new evidence on this dispositive issue upon the application for a rehearing. These two factors alone warrant affirmance. Prevailing Party represented by: Nicole Dinos Gerace of counsel to Maniatis & Dimopoulos (Tuckahoe) , for appellant.
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Batchelor v NYC Dept of Corrections
    December 24, 2014    NYS Appellate Division, Third Department
    7032...Venue issues        4C314-7997
AFFIRMED the Board's decision, as it has done twice against Rella & Associates and on four occasions against the Law Offices of Joseph Romanoa, to assess a monetary penalty against claimant's counsel pursuant to WCL § 114-a (3) (ii) for seeking review without reasonable grounds. In each case, ‘claimants’ submitted a handwritten note, purportedly authored by claimant,  requesting that hearings on the claims be transferred from New York City to the City of White Plains, Westchester County on the ground that it was "the most convenient location”. The Court noted that "The Board observed that the language of claimant's note mimicked unsuccessful change of venue applications made by other claimants represented by the same counsel, and further pointed out the lack of substantive support for the present application. Under these circumstances, the Board did not abuse its discretion in assessing $750 in reasonable counsel fees against counsel." Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB.
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Jesco v Norampac Mfg
    December 24, 2014    NYS Appellate Division, Third Department    
    5110...Voluntary Withdrawal       4C314-7996

AFFIRMED the Board’s decision that claimant did not voluntarily withdraw from the labor market. Injured in the course of his employment and awarded workers' comp for that injury, his physician released him to light-duty work effective December 5, 2011. On December 1, 2011, the employer directed claimant to report to its physician for an examination and to work for a light-duty assignment the following day, informing him that failure to do so would be considered insubordination. Claimant notified the employer that he could not attend the doctor's appointment because he had a previously scheduled appointment with his own physician, and that he was advised by both his doctor and the workers' comp office not to return to work until his medical clearance date. Thereafter, the employer terminated claimant's employment, subsequently raising the issue of voluntary withdrawal from the labor market, asserting that claimant refused an offer of light-duty employment, resulting in his termination for cause. A Law Judge, affirmed by a Board panel, concluded that claimant acted reasonably and his separation from his job was therefore not voluntary.

Here, the employer conceded that it gave claimant only one-day's notice of the appointment with its physician, and claimant testified that he notified the employer of a conflicting medical appointment with his orthopedic surgeon. In addition, claimant initially declined to report for a light-duty assignment, as ordered by the employer, because it was in conflict with his doctor's medical advice, and the employer has produced no medical evidence contradicting that advice. Upon reaching his medical clearance date, claimant did not report to work because he was told by the employer that he would be arrested for trespassing if he did so. Inasmuch as the failure to accept light-duty work will not be considered a voluntary withdrawal from the labor market "if there is a reasonable basis for the claimant's refusal to accept the light duty work,"substantial evidence supports the Board's determination that claimant did not voluntarily withdraw from the labor market.Prevailing Party represented by: Bruce Rubin (Troy) for Daniel Jesco and Marjorie Leff of counsel to the NYS Attorney General, for WCB.
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Pinot v Straight Line Construction
    December 24, 2014    NYS Appellate Division, Third Department    
    6320...Coverage     4C314-7995

AFFIRMED the Board’s ruling that carrier had liability even though employer allegedly misrepresented the number of its employees for premium purposes.The carrier maintained that pursuant to WCL §52(1)(d), the employer is deemed to have failed to secure compensation and, thus, the policy was canceled and the carrier not liable for the covering claimant’s work-related injuries, an argument reject by the Law Judge and the Board.The Court ruled that, “The rights of recourse and cancellation of coverage, among other things, are set forth in WCL §54(5). Here, there is no indication in the record that the carrier canceled the insurance contract in accordance with WCL §54(5), and even if the carrier could prove its allegation that WCL §52(1)(d) was violated by the employer, such allegation does not relieve the carrier of liability.” Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB.

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Poverelli v Nabisco-Kraft
    December 18, 2014    NYS Appellate Division, Third Department
    1135...Causal Relationship: Aggravation or New       4C313-7994

AFFIRMED the Board’s ruling that claimant did not sustain causally related consequential injuries. As the result of a 1986 work-related back injury, claimant was awarded comp benefits. In 2008 as a result of pain radiating pain through her lower extremities including her knees, she asserted a consequential bilateral knee injury. After a Law Judge found insufficient medical evidence to establish a claim, her appeal to the Board was denied and her attorney was “assessed a penalty for seeking review without reasonable grounds.” Not only did an IME find this “was not causally related to claimant's prior compensable injury”, her own doctor stated, it would be "'very hard . . . to speculate' as to whether claimant's bilateral knee pain was causally related to her prior work-related accident.” The Court then wrote, “In light of such testimony, the Board's finding of no causal relationship is supported by substantial evidence as is its decision to impose a monetary penalty (per WCL §114-a[3][ii]) upon claimant's counsel for pursuing Board review ‘without reasonable grounds.’" Prevailing Party represented by: James U. Cavanagh of counsel to Cherry, Edson & Kelly (Tarrytown) for Nabisco/Kraft Company and another, respondents.
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Diaz v Kleinknecht Elec
    December 18, 2014    NYS Appellate Division, Third Department
    5085...Date of Disablement    4C313-7993
AFFIRMED the Board’s decision to change claimant's date of disablement, resulting in an earlier and lower AWW. Injured in 2001, claimant first sought medical treatment in April 2003 and continued to work until March 2011. The filing of his claim [Ed.Note: no date given in the decision] was controverted by the employer and was subject to alternative dispute resolution, per WCL §25(2-c). The arbitrator classified claimant with a permanent total disability, date of disablement as March 2011 (date last worked), and established that claimant was entitled to the maximum weekly rate of $739.83. In January 2013, the arbitrator, after hearing arguments, rescinded his decision, finding the date of disablement to be the date of claimant's first medical treatment in April 2003, which reduced claimant's weekly award to the maximum allowed in 2003, $400 per week.

The Court noted that decisions on compensation claims issued by arbitrators pursuant to an authorized alternative dispute resolution program are not reviewed by the Workers Comp Board, but may be appealed directly to the Court. Also, the substantial evidence standard does not apply to appeals of claims reaching the Court through the latter procedural route; rather, these cases are reviewed under the standard applicable to review of arbitration awards in general. Pursuant to that standard, courts have limited power to review an arbitrator's award and the Court cited a prior ruling: "[A]n arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice” nor should courts "otherwise pass upon the merits of the dispute."

The Court then noted that “Claimant waived some of his current arguments by proceeding with the arbitration without objecting.” Ultimately the Court found that:

Claimant has not shown that the award was irrational, which would require a showing of an utter lack of any proof to justify the award. Claimant presented proof that his first treatment occurred in April 2003. As claimant concedes that the date of disablement is a discretionary determination and the date of first medical treatment is a proper option, the arbitrator's selection of that date was not irrational. Even if we were to accept claimant's contention that the arbitrator committed an error of law by setting a date of disablement that violated WCL §164, courts cannot vacate an arbitration award solely based on an error of law.

Prevailing Party represented by: Corey I. Zimmerman of counsel to Weiss, Wexler & Wornow (New York City) for Kleinknecht Electric and another, respondents, and Jill B. Singer of counsel to the Special Funds respondent.

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Kalkbrenner v Accord Corp
    December 18, 2014    NYS Appellate Division, Third Department
    7050...Procedure: Denial FBR     4C313-7992
AFFIRMED the Board’s decision to deny pro-se claimant's request for reconsideration and/or full Board review. Claimant sought to amend her workers' comp claim to include consequential arachnoiditis, allegedly suffered as a result of the spinal anesthesia injection administered during the surgery for her work-related knee surgery. After a Law Judge denied the claim based on the lack of credible medical evidence, the claimant unsuccessfully applied for full Board review and/or reconsideration. As claimant only appealed the Board's denial of her request for full Board review, the merits of the underlying decision were  not properly before the Court. The Court then “decline[d] to disturb the Board's decision, as the record reflected that the Board considered all of the relevant material in rendering its decision, and claimant did not establish a material change in her condition or present evidence that previously was unavailable.” Prevailing Party represented by: Jaclyn M. Penna of counsel to Buckner & Kourofsky (Rochester) for Accord Corporation, respondent.
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Manka v Goodyear Tire
    December 4, 2014    NYS Appellate Division, Third Department
    __1020...Causal Relationship: Death              4C311-7991
AFFIRMED that the Board’s ruling that the death of claimant's husband was causally related to his employment. During the deceased’s early employment with his employer of 16 years, his duties included testing samples of ortho-toluidine, which is known to cause bladder cancer. Decedent was diagnosed in 2007 with ureteral cancer and died from the disease in 2008 after which his widow filed for workers comp benefits. A Law Judge credited claimant’s expert regarding causation and found out that he had died as a result of an occupational disease. The employer argued that, although there are studies linking ortho-toluidine exposure to the bladder cancer, there are no established links of such exposure to ureteral cancer and, thus, claimant failed to establish causation.

One of the claimant’s medical experts, Dr Steven Markowitz, acknowledged that while there are no studies which link ortho-toluidine to ureteral cancer, which is very rare, he (1) pointed to scientific literature concluding that the suspected occupational causes of ureteral cancer were similar to the causes established for bladder cancer and (2) noted that decedent did not smoke or have any other known risk factor for ureteral cancer. He found the link between ortho-toluidine exposure and ureteral cancer to be "highly plausible" and opined to a reasonable degree of certainty that decedent's cancer stemmed from such exposure. The Court affirmed the Board, noting that “While the employer's experts disagreed with Markowitz and a different conclusion by the Board would have been reasonable, substantial evidence nonetheless supported the Board's determination." Prevailing Party represented by: Dennis P. Harlow of counsel to Lipsitz & Ponterio (Buffalo) for Sarah Manka and Steven Segall of counsel to the NYS Attorney General for the WCB.
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Monaha n v Founders Pavilion
    December4, 2014    NYS Appellate Division, Third Department
    __5250...Aggregate Trust Fund     4C311-7990
AFFIRMED the Board’s ruling that the carrier had to make a deposit into the aggregate trust fund (ATF) even though the claimant had died but rejected the Board’s imposition of a frivolous appeal penalty. A Law Judge directed the carrier to make a deposit into the ATF in 2009 but rejected the Board’s imposition of a frivolous appeal penalty. The carrier appealed, during which time the claimant died from causes unrelated to the underlying injury. The carrier then requested that the decisions directing it to make a lump-sum payment to the ATF be rescinded because of claimant's death. The Board upheld the decision by a 2 to 1 vote. Because there was a dissent, the carrier was entitled to and sought full Board review.

The Court cited several cases in determining that WCL §27(4) provides for payment of the lump sum

"as of the effective date of the original award" plus interest, and adds that "[t]he foregoing provision shall apply in the event of such review or appeal regardless of whether the widow or widower or other parties in interest have died or the widow or widower remarried subsequent to the date as of which the present value of the original award was computed"

In rejecting the Board’s penalty, the Court noted that, “The issue regarding the effect on the lump-sum payment of claimant's death while an appeal was pending generated a dissent from the Board, and the law was not so well settled as to support the conclusion that the carrier's appeal was frivolous.Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General for the WCB and Nancy W. Wood of counsel to the NY State Insurance Fund for the ATF.

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NOVEMBER 2014
Cohen v NYS WCB
    November 26, 2014    NYS Appellate Division, Third Department
    7140...Article 78       4B310-7989
REVERSED the Supreme Court’s decision which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's request to be authorized as a workers' compensation health care provider. Cohen, a licensed doctor of osteopathy, applied for authorization to provide medical care to injured workers pursuant to WCL §13-b. In denying the application, The Board noted that the Department of Health's Office of Professional Medical Conduct had imposed a "non-disciplinary order of conditions on [petitioner's] license to practice medicine effective March 23, 2009," determining that, "[b]ased on the information contained in the order of conditions, . . . [petitioner's] application is hereby disapproved," without further elaboration.

The Appellate Court determined that the discretionary determination, made without a hearing, was arbitrary and capricious as the Board refers to an administrative order that, by its terms, did not constitute an admission to or finding of misconduct, is no longer in effect, did not include any factual findings with regard to petitioner's capabilities as a physician. The Court then write that “neither respondent's reference to the order nor our review of the terms of the order permits us to conduct a meaningful review of respondent's determination to disapprove petitioner's request to be authorized as a workers' compensation health care provider." The matter remitted for reconsideration. Prevailing Party represented by: Douglas M. Nadjari of counsel to Ruskin Moscou Faltischek (Uniondale).
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Kigin v NYS WCB
    November 20, 2014    NYS Court of Appeals
    3170...§13-b Medical Bills: Who Pays   [4B310-7988]
AFFIRMED, in a 5-4 decision, that the Workers' Compensation Board did not exceed its statutory authority when it promulgated portions of the "Medical Treatment Guidelines" (see 12 NYCRR 324.2 [a]-[f]).

A more detailed analysis of this decision will be done over the weekend but, in summary, the AFFIRMANCE found that the literal interpretation of the law supported the Board’s decision.

By the same token, the DISSENT pointed out that while the “Board acted within the scope of its statutory authority under the Workers' Compensation Law in adopting regulations incorporating a list of pre-authorized medical procedures, and a system for implementing consideration of treatment recommendations not included on the list,” .... “it imposed a burden on Kigin and other claimants inconsistent with the statute's language and underlying purpose.

A few points warrant serious consideration:

  1. When the Medical Variance form was first introduced, the Board denied virtually all requests by claimants’ medical providers, for technical errors in completing the forms.
  2. When the forms were finally submitted in accordance with the Board’s rules, it took months for a decision to be issued.  Anyone who has had extended medical/rehab treatment knows that stopping treatment for six months to a year can not only delay recovery by years but sometimes can result in an otherwise temporary disability becoming permanent.
  3. Private sector health insurance plans (at least, prior to ObamaCare) made such determinations within a few weeks and did penalize a provider for continuing treatment while the dispute was being resolved.

As noted in my e-mail BULLETIN issued this afternoon, just after the Court of Appeals issued this decision, it is my sense that the legislation was either purposely muddled or designed in the same way as the proverbial elephant: the front-end designers had no idea what the back-end designers were doing.
    
In my book, Behind The Closed Doors, and on occasions in my website, I quoted Michael D. Langan, a former U.S. Treasury official who wrote the following in an op-ed entitled "The Language of Diplomacy":

At one point in my federal government career, I wrote up an explanation of a complicated matter in which I considered to be an extremely clear, cogent manner. The senior government official to whom I reported read it carefully, ruminating and adjusting his glasses as he read it. Then he looked up at me and said "This isn't any good. I understand it completely. Take it back and muddy it up. I want the statement to be able to be interpreted two or three ways." The resulting ambiguity enabled some compromise between competing government interests.

So whether the language in the legislation was purposely written in a 'muddied up' fashion to placate both sides (carriers and claimants) or it was done out of carelessness, the law needs an I M M E D I A TE revision. Prevailing Party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases.
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Dobney v Eastman Kodak
    November 20, 2014    NYS Appellate Division, Third Department
    3175...§25(4)[a] Reimbursement
AFFIRMED the Board’s ruling that the employer was not entitled to reimbursement for certain benefits paid to claimant, under WCL §25(4)(c) rather than WCL §25(4)(a). The payment of $11,500 in benefits to the claimant as the result of a knee injury was reimbursed to the self-insured employer, which had paid claimant $17,400 in wages while she was absent from work. The wages were paid pursuant to the employer's workers' compensation supplement plan, which provided that employees who suffered a workers' compensation injury would receive the difference between their workers' compensation benefits and the amount of pay that they would have received under a separate short-term disability plan ? 100% of their salary initially, and 70% after a certain period of time. That is, injured employees were to receive either 100% or 70% of their salary through a combination of traditional workers' compensation benefits and benefits under the supplement plan.

In June 2010, the employer and its third-party administrator (hereinafter collectively referred to as the employer) again requested reimbursement in connection with additional benefits paid, and claimant asserted that the employer was entitled only to reimbursement of benefits paid as workers' compensation benefits, as opposed to that paid as supplement to those benefits. The employer sought reimbursement for all benefits paid pursuant to its supplemental benefit plan, up to the statutory maximum compensation rate. At a hearing, the employer admitted that it had not submitted a copy of its benefit plan prior to the first award of workers' compensation benefits to claimant. Thereafter, a Law Judge awarded claimant a 55% schedule loss of use of her right leg, equal to 158.4 weeks of compensation at $400 per week, and determined that the employer was not entitled to reimbursement out of that award for wages paid in excess of workers' compensation benefits. The Board ultimately affirmed, prompting this appeal.

The Court has held that an employer's right to "seek credits against schedule awards for moneys paid pursuant to an employee benefit plan . . . stems from Workers' Compensation Law § 25 (4) (c) and is limited by the restrictions in that provision" (Matter of Staruch v New York Tel. Co). The Court concluded that subdivision (4)(a), which imposes no requirement to file the terms of a plan and, indeed, "makes no reference to proof of plan terms[,] . . . was not intended to address moneys paid from an employee benefit plan."

Here, as the Board explained, the employer's workers' compensation supplement plan limited the amount of benefits that an employee with a work-related injury would receive as compared to an employee entitled to benefits under the employer's short-term disability plan ? essentially deducting workers' compensation benefits from the amount paid in salary under the short-term disability plan. Even considering the workers' compensation supplement plan alone, the Court concluded that the injured employee is limited in the amount of benefits paid "thereunder" ? meaning from the plan itself ? if he or she is awarded workers' compensation benefits (WCL §25[4][c]). While the employee initially receives his or her full salary from the supplement plan, if the employer is reimbursed out of a workers' compensation award, then the employee has received less in (or is "limited in the amount of") benefits from the supplement plan itself due to his or her entitlement to those workers' compensation benefits. Thus, WCL §25(4)(c) is applicable and, inasmuch as the employer admittedly failed to file proof of the terms of the plan prior to the first award of benefits, the Board properly determined that the employer's right to compensation was limited to the amount paid to claimant as workers' compensation benefits (see Matter of Karl v New Venture Gear and Matter of Staruch v New York Tel. Co.) Prevailing Party represented by: Daniel A. Bronk of counsel to Bronk & Sommers (Rochester ) for Merline Dobney, respondent and Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent.
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NYS WCB v Bast Hatfield
    November 20, 2014    NYS Appellate Division, Third Department
    3195...Self-Insured Trusts
AFFIRMED an order of a lower Court which denied Bast's motion to compel the WCB to file a satisfaction piece against a certain judgment as the result of a GSIT assessment and related payment. Bast was an employer member of Elite Contractors Trust of New York, a group self-insured trust (hereinafter GSIT) which in April 2010, the NYS WCB determined was insolvent and assumed its administration. After a deficit reconstruction, the WCB levied an assessment against Bast for $2.1 million. Ultimately, in 2011, the WCB obtained a WCL §26 judgment against Bast in the amount of $26,177.15, representing workers' compensation payments that the WCB made to Owen Flavin, one of Bast's injured employees, between July 2010 and November 2011.

In February 2013, Bast moved to compel the WCB to file a satisfaction piece against that judgment on the basis that the judgment had been satisfied by payments made to WCB by the Special Disability Fund (hereinafter SDF) pursuant to WCL §15(8). The Supreme Court denied Bast's motion and determined that the judgment could only be satisfied by payments made by Bast Hatfield or the Trust and, thus, the judgment had not been satisfied.  The Third Dept was unpersuaded by Bast's contention that the payment by the SDF to the WCB served to satisfy the judgment obtained against Bast.  Accordingly, th Third Dept found that the WCB's judgment was not satisfied by reimbursement payments made by the SDF. Prevailing Party represented by: Scott T. Harms, NYS WCB, Schenectady, for respondent.
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Bonilla v Country Rotisserie
    November 13, 2014    NYS Appellate Division, Third Department    
    3197...Policy Cancellation & Terms     [4B308-7985]
AFFIRMED the Board’s decision that the employer's workers' compensation policy was properly canceled. After a claim was placed for a November 2010 work related injury, the carrier controverted the claim on the grounds that the employer's policy had been canceled in August 2010 due to failure of the employer to pay the premiums. Although a Law Judge held the carrier liable per WCL §54(5), a Board panel reversed that ruling, finding the policy had been properly cancelled.

In affirming the Board, the Court noted that the record showed that the carrier had sent the cancellation notice, by certified mail, return receipt requested, to the employer's chief executive officer at her home address, on or about August 4, 2010, with an effective date of cancellation of August 18, 2010. Despite claims to the contrary, the employer’s home address listed on the policy was the employer's address and is no proof in the record that the employer made any subsequent address changes with the carrier. Prevailing Party represented by: Robert W. Manning of counsel to Stewart Greenblatt Manning & Baez (Syosset) for Rochdale Insurance Company, respondent.

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Cunningham v NYC Transit Authority
    November 13, 2014    NYS Appellate Division, Third Department    
    1030...Causal Relationship: PFME, et al  [4B308-7984]
AFFIRMED the Board’s ruling that the claimant did not sustain a causally related occupational disease. Claimant sustained non-work-related, serious injuries to his neck, back and left shoulder as the result of 1988 and 2003 automobile accidents. He continued working as a car inspector for the self-insured employer until 2010, when after developing incapacitating neck, back and leg pain, he applied for workers' comp, asserting that his physical problems and a consequential psychiatric injury were related to repetitive work-related tasks and constituted an occupational disease. Although the employer failed to timely file a notice of controversy and, as such, was precluded from submitting evidence on the issue of whether claimant's condition arose out of and in the course of his employment, the Judge, later affirmed by a Board panel, found the opinions of claimant's treating physicians regarding causation to be incredible and disallowed the claim. The employer's failure to timely file a notice of controversy did not "relieve claimant from his burden to demonstrate a causal relationship" between his employment and medical condition. The Court then noted that:

The record here reflects that claimant has been receiving related medical treatment from at least 2002 onward. Claimant sought more intensive treatment after his pain worsened in 2010, but no physician drew a causal link between the condition and his employment until he raised the issue with his physicians at a friend's urging. An orthopedic surgeon who treated claimant further testified that claimant gave conflicting accounts as to how he had aggravated the condition in 2010 and that claimant's spinal and shoulder problems could have resulted from degenerative changes. The Board was free to reject this less-than-compelling medical evidence as incredible and, as such, substantial evidence supports its finding that claimant did not show the existence of a causally related occupational disease.

Prevailing Party represented by: Lauren M. Bilasz of counsel to Weiss, Wexler & Wornow (New York City) for New York City Transit Authority, respondents.

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Hasbrouck v Harloff
    November 13, 2014    NYS Appellate Division, Third Department
    3030...Employment: Who is or dual                  [4B308-7983]
AFFIRMED the Board’s ruling that claimant was an employee of Christopher M. Harloff. In October 2009, claimant applied for workers comp after he was injured on November 2008 while splitting firewood on Harloff’s property. After a Law Judge found that an employer-employee relationship existed between claimant and Harloff and established the claim, a Board panel reversed, finding that the claim was barred due to claimant's failure to provide timely notice to Harloff  pursuant to WCL §18. Before the claimant’s appeal could be perfected, the full Board rescinded the panel decision, referring the case back to the panel, which, upon reconsideration, found that the statutory notice requirements had been met and affirmed the Law Judge's decision establishing the claim.¹

First, while the testimony of Harloff and his witnesses sharply conflicted with that of claimant and his witness as to the claimant’s employment relationship, this created a credibility issue for the Board's resolution; notwithstanding the evidence in the record to the contrary, substantial evidence supports the Board's finding that claimant was Harloff's employee. Second, inasmuch as there is proof in the record that Harloff had actual knowledge of the injury² the Board did not abuse its discretion in excusing claimant's failure to provide Harloff with timely notice per §18. Prevailing Party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent.


¹, ²
There is nothing in the Court’s decision explaining what proof existed regarding the employment status or how it was that proper notice was given.

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Lewis v Stewarts Mktg
    November 13, 2014    NYS Appellate Division, Third Department    
    7010...§23: Late/Interlocutory/Frivolous Appeal             [4B308-7982]
DISMISSED an appeal for a Board denial of a request for review of a decision continuing the matter for testimony. After several hearings, including a 2001 appeal to the Third Department, the case was returned to the trial calendar for further development of the issues of permanency and proper award rate, at which time the self-insured employer presented an unsigned, proposed draft stipulation. After the Law Judge did not approve the stipulation nor refer to it in decisions following the hearings, but continued the case for medical depositions and additional testimony, the employer appealed, arguing that the Judge should have approved the stipulation and that the Judge should have been removed from the case because he had prejudged the degree of claimant's injury.

The Board noted that the proposed stipulation did not resolve certain open issues and that the employer sought to stipulate to issues beyond its authority to resolve, and determined, in any event, that there was no valid, signed stipulation in the record or decision regarding the stipulation for the Board to review. And the Board declined to remove the Law Judge from the case. Since the Board has the power to disregard even a signed stipulation, the fact that the Board continued the case with respect to the issues addressed by the stipulation shows that the Third Department is being asked to  conduct a piecemeal review of the issues presented in a nonfinal decision in workers' compensation cases that will be reviewable upon an appeal of the Board's final decision. Prevailing Party represented by: Steven Segall  of counsel to the NYS Attorney General, for WCB, respondent.
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Birnbaum v Commissioner of Labor
    November 13, 2014    NYS Appellate Division, Third Department
    9998...Other        [4B308-7981]
AFFIRMED a decision of the Unemployment Insurance Appeal Board which ruled that claimant was ineligible to receive unemployment insurance benefits because he was employed in a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e). Although appointments to various Boards such as the Workers Compensation Board and Department of Labor Board are for fixed terms, these positions as well as other top executive level positions are non-tenured and classified as management/confidential and excluded from access to unemployment insurance.

Claimant worked for the Division of Human Rights as the Deputy Commissioner for Division Initiated Investigations and Complaints, a nontenured position, serving at the discretion of the Commissioner of Human Rights as well as the Governor. When he applied for unemployment insurance benefits when his employment ended, Labor determined that, because his base period employment was in a major nontenured policymaking or advisory position, it was excluded under Labor Law § 565(2) (e). Although a Law Judge overruled that decision, the Unemployment Insurance Appeal Board rescinded the Judge’s ruling and the claimant was ultimately deemed ineligible.
 
For purposes of determining a claimant's eligibility for unemployment insurance benefits, Labor Law §565(2)(e) excludes from employment "services rendered for a governmental entity by . . . a person in a major nontenured policymaking or advisory position." Among other aspects of his job, although claimant did not independently establish agency policy, he was involved in the process and his advice was solicited by the Commissioner. Under these circumstances, there is a rational basis for the Board's decision.
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Gioia v Cattaraugus County Nursing
    November 6, 2014    NYS Appellate Division, Third Department
    5020...Disability: Degree of or R/E         [4B307-7980]

AFFIRMED the Board’s method of calculating claimant's reduced earnings award. After a work-elated back injury resulted in the claimant leaving the nursing profession because of her moderate, permanent partial disability and began working in a delicatessen, at a lower wage.

A Law Judge found a permanent partial disability and calculated her weekly compensation rate at two thirds of the difference between what her average weekly wage would be absent injury and her current wage-earning capacity, per WCL §15[3][w]), as measured by her degree of disability. Upon claimant's application for review, the Board increased claimant's degree of disability and concluded that her wage loss benefits should be based upon her actual reduced earnings from the delicatessen where she now works, as opposed to her degree of disability, and adjusted her weekly awards accordingly. The Court accepted the Board’s conclusion that claimant had not voluntarily withdrawn from the labor market and the Board correctly determined that claimant's award should be based on her actual earnings as long as she remained attached to the labor market, calculating her award on that basis.

The employer argued that the Board should have considered evidence of claimant's ability to earn more and awarded her benefits "consistent with her determined loss of wage earning capacity/degree of disability." The 3rd Department stated that “This is precisely what the cases of the Court of Appeals forbid, and we reject the employer's contrary interpretation of relevant case law.” Citing several cases, the Court wrote that:

The Court of Appeals has repeatedly explained that, for claimants who have demonstrated that they remain attached to the labor market, "where actual earnings during the period of the disability are established, wage earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period."

Prevailing Party represented by: Jason J. Zack of counsel to Connors & Ferris (Buffalo) for Patricia E. Witt and Donya Fernandez  of counsel to the NYS Attorney General, for WCB, respondent.

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Noboa v International Shoppes
    November 6, 2014    NYS Appellate Division, Third Department
    1100...Course of Employment: in and out of      [4B307-7979]
AFFIRMED the Board’s decision that an injury resulting from riding after work in employer’s van was an accidental injury in the course of employment. When Kennedy airport and the store there in which she worked was closed due to a major snow storm and public transportation was suspended, the employer ended the work shift early but agreed to pay the employees for the full shift and then transported her and other employees from the store using a van with no seats that was ordinarily used to transport merchandise. During the ride, claimant injured her spine as a result of being repeatedly thrown against the van door, resulting in the filing of a claim. A Law Judge disallowed the claim, finding that the injury did not arise out of and in the course of claimant's employment, a decision reversed by a Board panel.

Although travel to and from the place of employment is not considered to be within the scope of employment, exceptions exist when the employer takes responsibility for transporting employees, particularly where the employer is in exclusive control of the means of conveyance. Here, it is undisputed that the employer furnished the van for transportation, one of claimant's supervisors was the driver and, further, claimant's injuries were sustained during the course of that transportation while she was still on the clock and being paid. Inasmuch as the employer took responsibility for the inherent risks of transporting its employees from the work site and had exclusive control of the conveyance, The Court fund no reason to disturb the Board's determination that claimant's injury arose out of and in the course of her employment. Prevailing Party represented by: Kevin M. Plante of counsel to Grey & Grey (Farmingdale) for Rosario Noboa and Iris A. Steel of counsel to the NYS Attorney General, for WCB.
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OCTOBER 2014

Anderson v NYC Dept of Design-Cons
    October 2, 2014    NYS Appellate Division, Third Department
    1135...Causal Relationship: Aggravation or New    [4A302-7978]

AFFIRMED the Board’s ruling that the claimant did not sustain a further causally related injury. As the result of a 2002 work-related automobile accident, claimant successfully filed a claim for injuries to his the neck and back later that year, with claimant directed "to submit medical evidence for all additional sites claimed." In 2005 the Board found no further causally related disability. In 2009 after being diagnosed as suffering from a partial right rotator cuff tear, claimant’s allegation that it was related to his 2002 accident was rejected by the Board, finding no causal link between the 2002 accident and the tear. Although claimant’s orthopedist opined that claimant sustained the injury in the accident, the orthopedist admitted that age-related rotator cuff degeneration occurred even without any traumatic injury. The Court ruled that the Board’s finding that the orthopedist had not "testif[ied] convincingly in support of a causal relationship" and there was no other proof to link the rotator cuff tear to the accident was supported by substantial evidence. Prevailing Party represented by: Meghan McKenna of counsel to the City of New York Law Dept for respondent.

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Dowdell v Office of Family-Child Servs
    October 2, 2014    NYS Appellate Division, Third Department
1040...Causal Relationship: Stress    [4A302-7977]
AFFIRMED the Board’s ruling that the claimant's posttraumatic stress disorder was consequential to his established claim for a May 2010 back injury incurred while restraining an unusually violent resident in his capacity as an aide at a juvenile detention center. In April 2011, after alleging that he had sustained mental injuries as a result of the incident, that claim was combined with his 2010 case which was amended to include consequential posttraumatic stress disorder, depression and anxiety. The claimant did return to work but suffered from various stress issues on his return, all of which were clearly delineated by his treating psychologist who stated in no uncertain terms that those conditions flowed from the May 2010 incident. The Court agreed with the Board findings based on the psychologist's factually specific opinion and the employer’s failure to present medical evidence to rebut it. Prevailing Party represented by: Marjorie Leff of counsel to the NYS Attorney General, for WCB, respondent.

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SEPTEMBER 2014

Brown v Ajax et al USCA
May 27, 2014  United States Court of Appeals for the Sixth Circuit (Ohio)
RICO: Racketeer Influenced and Corrupt Organizations Act

The Insider (September 18, 2014): This case has been posted because there are a number of very unhappy injured workers who feel that the NYS workers compensation systems, i.e. the Board, the carriers, the attorneys, medical providers, ad infinitum, are part of a crooked scheme to deny them their rightful compensation. This decision basically tells them that seeking redress through the federal courts will not work.

United States Court of Appeals for the Sixth Circuit (Ohio) ruled that the loss of employee benefits as the result of a workers compensation related case is not actionable under RICO. Although Brown, injured allegedly while working for Ajax, settled the case when Ajax introduced medical testimony suggesting that  the injury occurred outside of work.

However,” Brown thought that Ajax had introduced false medical testimony in order to deny or at least diminish his benefits and that  it had done the same thing to other employees. As a result, he sued Ajax and its alleged  accomplices—insurers, claims administrators and the doctor—under the Racketeer Influenced and Corrupt Organizations Act.”  (RICO)

The Court cited its prior ruling on this subject:

We held that "loss or  diminution of benefits the plaintiff expects to receive under a workers' compensation scheme  does not constitute an injury to ‘business or property' under RICO." We gave two  key reasons for our holding. One was that workers' compensation compensates for personal  injury. The Act, which puts its spotlight on "business or property," does not cover losses that  flow from personal injuries. Id. at 565–66. The other was that a contrary rule would allow the  Act to police fraud in the workers' compensation system, planting the national banner on land  traditionally patrolled by the States. The Act does not speak with enough clarity, we reasoned, to  authorize such an intrusion.

Brown complains that our decision "immunize[s] any insurer, claim adjuster or medical  examiner who fraudulently denied or conspired to deny" workers their benefits. Reply Br. at 5.  That is an overstatement. States can and do impose liability upon people—employers as well as  others—who defraud the workers' compensation system. Brown's own brief tells us that  Michigan's courts would entertain claims that "an insurer, claim adjuster or medical examiner  tortiously interfered with an employee's receipt of . . . benefits." Id. at 3. And the commission  that heads the Michigan workers' compensation system punishes abuses of the workers'  compensation process. See Mich. Comp. Laws Ann. § 418.861b. Our decision does not  "immunize" anyone from these exercises of state power. Our decision means only that federal  judges may not use the Act to seize this power for themselves. That of course was the whole  point of Jackson.

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Cedeno v PACOA
    September 4, 2014    NYS Appellate Division, Third Department
    7016...§114-a(3) Unreasonable Appeal Penalty              [49298-7975]
AFFIRMED, for the 6th time, the Board's decision to assess a monetary penalty against claimant's counsel pursuant to WCL §114-a(3)(ii) for seeking review without reasonable grounds. In each of these identical cases, ‘claimants’ submitted a form on the claimants' counsel's letterhead requesting that hearings on the claims be transferred from New York City to the City of White Plains, Westchester County. on the grounds that it was "the most convenient location." In both cases, "claimants" appealed, challenging both the denial of venue transfer and the penalty. The Board, in issuing a decision on an appeal from a Law Judge penalty of $500, increased it to $750 based on arguments that counsel knew had been previously rejected by the Board. The Court noted in a footnote that:

Given that the only issues on this appeal relate to the assessment of counsel fees, "counsel is the party in interest pursuant to Workers' Compensation Law § 23 and 'should have filed the notice of appeal on [his] own behalf'"

Prevailing Party represented by: Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent.

The Insider: I have sent an e-mail to the law firm inquesion asking about the continuing to appel Board decisionson this issue and will print their response next week.

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Schwartz v State Ins Fund
    September 4, 2014    NYS Appellate Division, Third Department
    5032...Consequential     [49298-7974]
AFFIRMED the Board’s ruling that (1) pro-se claimant's alleged cardiac conditions were not causally related to her established claim and (2) pro-se claimant was not entitled to payment for intermittent lost time. One year after receiving an award based upon her claim that work-related stress caused her to develop an adjustment disorder with mixed depressed mood and anxiety and chronic emotional stress, she sought to amend her claim to include causally-related cardiac conditions of hypertension, mitral and tricuspid heart valve insufficiency and an enlarged left atrium. The result of several hearing found no further causally-related disability and no entitlement to payment for intermittent lost time.

The IME “opined, based upon an examination of claimant and a review of her medical records, including the results of a 24-hour halter blood pressure monitor test administered to claimant, that she does not suffer from hypertension. He further opined that the minimal mitral and tricuspid valve insufficiency levels evidenced in claimant's echocardiogram report were normal, as such trace conditions are commonly found in most people. Finally, he opined that claimant's enlarged left atrium could not have been caused by stress or psychological factors, based upon the results of the echocardiogram.”  The Court determined that the Board decision was supported by substantial evidence.

As to the request for intermittent lost time benefits, the claimant had been taking off an entire day for a 30-minute appointment, which her psychologist said could have been scheduled for later in the afternoon. The Court supported the Board’s determination that claimant took every Friday entirely off from work based upon convenience and not due to her inability to work because of her disability. Prevailing Party represented by: Warren J. Fekett of counsel to Foley, Smit, O'Boyle & Weisman (Hauppauge) for State Insurance Fund, respondent.

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Wait v Hudson Val Com Coll
    September 4, 2014    NYS Appellate Division, Third Department
    1030...Causal Relationship: PFME, et al     [49298-7973]
AFFIRMED the Board’s ruling that claimant sustained a compensable injury when she fell, entering her workplace. The self-insured employer (SIE) asserted that she had staged the fall. A Law Judge, after conducting hearings and viewing video footage of the incident, established the claim. Although claimant’s account of her fall varied somewhat over time, the emergency room physician who treated claimant causally linked her injuries to the fall and testified that victims of acute trauma such as claimant suffered often "don't remember exactly how it happened." The Court, noting that “inconsistent explanations as to how the accident occurred created a credibility issue for the Board to resolve,” gave deference “to the Board's assessment of credibility” affirming its finding that claimant had sustained compensable injuries. Prevailing Party represented by: Alex C. Dell, Albany, for Sherri Wait, respondent, and Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent.

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Van Etten v Mohawk Val Com Coll
    September 4, 2014    NYS Appellate Division, Third Department
    5130...§114-a: Fraud            [49298-7972]
AFFIRMED the Board’s ruling that did not disqualify claimant from receiving future wage replacement benefits despite violating WCL §114-a. The employer alleged that claimant misrepresented the degree of his disability. While agreeing that claimant did violate §114-a, the Board found the discretionary penalty of disqualifying him from receiving future wage replacement benefits to be unwarranted because the evidence of claimant's varying degrees of mobility did not entirely stem from an intent to mislead. Prevailing Party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent.

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Khomitch v Crotched Mtn
    September 4, 2014    NYS Appellate Division, Third Department
    3140...§25-a: True Closing   [49298-7971]
AFFIRMED the Board’s ruling which determined that Special Fund for Reopened Cases (Fund) has standing to litigate whether the payment of M&T made to claimant herein was, in fact, an advance payment of compensation that would preclude transfer of liability. In 2011, claimant requested reimbursement for unpaid medical bills totaling approximately $130 and compensation for seven months of lost time in 2010 from a 2004 injury. The claimant and carrier entered into a stipulation agreeing to resolve all outstanding issues, with the workers' compensation carrier paying $4,750 to claimant as reimbursement for medical and transportation expenses (M&T) and a finding of “no compensable lost time” after 2007. The carrier then sought to transfer liability for the claim to the Fund pursuant to WCL §25-a.

After several hearings, decisions by Law Judges, Board panels, and a full board review, it was determined that while the Fund does not have standing "to litigate the primary issues of compensability of the underlying claim for benefits" or "to reopen a claimant's case and contest the compensability of the claim," it does have standing with respect to proceedings involving claims against the Fund. While there is no dispute that a true payment of M&T would not preclude transfer of liability to the Fund because M&T does not constitute compensation, Fund successfully argued that the record is unclear regarding whether the $4,750 M&T payment was a reimbursement for out-of-pocket medical expenses, or a disguised payment of indemnity benefits that would preclude transfer of the liability, the Board sent the case back to a Law Judge to make this determination and the Court affirmed that decision. Prevailing Party represented by: Richard M. Goldman of counsel to Buckley, Mendelson, Criscione & Quinn (Albany) for Tatiana Khomitch and Jill B. Singer of counsel to the Special Funds.

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AUGUST 2014

Munion v Columbia Univ
    August 27, 2014    NYS Appellate Division, Second Department
    3030...Employment: Who is or dual    [48297-7970]
REVERSED the lower Court, dismissing an action to recover damages for personal injuries on the grounds that the plaintiff, an employee of nonparty TemPositions, was a special employee of Columbia University and tha, by taking workers comp payments via TemPosition, workers comp became the exclusive remedy. The plaintiff was assigned by TemPositions to Columbia University and, while walking to the coatroom where she was working, tripped and fell. Shortly after the accident, she began receiving workers' comp benefits under a TemPositions policy and then commenced this action against Columbia University which moved for summary judgment dismissing the complaint on the grounds that it was the plaintiff's special employer pursuant to WCL §§ 11 and 29(6). Columbia University established its prima facie entitlement to judgment as a matter of law dismissing the complaint through the deposition testimony and affidavit of the general manager at Columbia and the affidavit of TemPositions' chief executive officer, that the defendant controlled and directed the manner, details, and ultimate result of the plaintiff's work. The defendant also had the authority to discharge the plaintiff, and the work she performed was in furtherance of the defendant's business. In addition, the plaintiff, at her own deposition, the transcript of which was submitted by the defendant in support of its motion, stated, inter alia, that TemPositions told her where and to whom to report, but that the defendant's supervisors instructed her on her work duties. Thus, the defendant established, prima facie, that it was the plaintiff's special employer.

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Padgett v State of Florida
    August 13, 2013  Supreme Court, State of Florida
    Constitutionality of the Workers Compensation Law  [48296-7969]

The Court ruled that the Florida Workers' Compensation Act does not provide a reasonable alternative remedy to the tort remedy it supplanted. It therefore cannot be the exclusive remedy. §440.l1 (the affirmative defense of workers' compensation immunity) is constitutionally infirm and invalid.

The Insider: Although the entirety of the 21-page decision is attached (click on the case name to link to decision), there is a detailed 2-page analysis of this case explaining why Florida, justifiably, lost this case, to be fund on the COMMENTARY page
.

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Hauber-Malota v Philadelphia Ins
    August 8, 2014    NYS Appellate Division, Fourth Department
    3160...§29: 3rd Party/MVA liens         [48295-7968]
RULED that an employee, injured in a motor vehicle accident while in the course of her employment, who is barred by the exclusive remedy provisions in the Workers' Compensation Law from suing a coemployee based on negligence, is not entitled to SUM benefits under her employer's automobile liability insurance policy. The Court wrote,

We first observe that plaintiff correctly contends that the exclusive remedy provision in Workers' Compensation Law §29(6) does not bar all actions by injured employees against an employer's insurer for SUM benefits. Although workers' compensation benefits generally are "exclusive and in place of any other liability whatsoever" (§11), the statute "cannot be read to bar all suits to enforce contractual liabilities." Because an action to recover uninsured motorist benefits "is predicated on [the] insurer's contractual obligation to assume the risk of loss associated with an uninsured motorist". However, the critical distinction in this case is that the motor vehicle accident involved vehicles operated by coemployees. . . . [P]plaintiff may receive SUM benefits under the policy only if she is "legally entitled to recover damages" from the owner or operator (11 NYCRR 60-2.3 [f]). The prescribed SUM endorsement language at issue is plain and unambiguous. Indeed, as noted above, the standard form for SUM coverage was promulgated in order to "eliminate ambiguity, minimize confusion and maximize its utility." In interpreting that language, we are guided by decisions of other jurisdictions applying similar SUM endorsement language and the exclusivity provisions of the Workers' Compensation Law to actions in which an employee seeks uninsured motorist benefits for injuries sustained in accidents with coemployees. In the overwhelming majority of those decisions, all interpreting similar "legally entitled to recover damages" policy language, the courts have concluded that, because of workers' compensation exclusive remedy provisions, a plaintiff is not entitled to uninsured motorist benefits. Here, pursuant to the plain language of the SUM endorsement, plaintiff is not "legally entitled to recover damages" from the owner and operator of the offending vehicle because of the status of the operator, Cathlyn Haggerty, as plaintiff's coemployee.

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Gallo v Village of Bronxville PD
    August 7, 2014    NYS Appellate Division, Third Department
    1030...Causal Relationship: PFME, et al   [7967-48294]

AFFIRMED the Board ruling that claimant sustained a myocardial infarction arising out of and in the course of his employment. Claimant, a police sergeant, filed a claim for workers' comp benefits asserting that he suffered a work-related myocardial infarction December 18, 2008, first experiencing mild symptoms while exercising that morning and that, after ascending a flight of stairs at work, he began experiencing shortness of breath, chest pain and arm numbness. His subsequent visit to the hospital showed he suffered a myocardial infarction. The Board ultimately ruled that the infarction was precipitated by the stair climbing, and that it constituted an accident arising out of and in the course of claimant's employment.

In affirming the Board, the Court wrote:

"In reviewing a Board decision concerning the medical question of causality, we will look to the record to determine whether, read as a totality, it contains substantial and adequate opinion evidence to support the Board's finding." A heart injury precipitated by work-related physical strain is compensable, even if "a pre-existing pathology may have been a contributing factor" and the physical exertion was no more severe than that regularly encountered by the claimant.

As the two cardiologists who participated in this case opined that the stair climbing at work acted to trigger a myocardial infarction and no medical evidence was presented to call the opinions of those physicians into question, substantial evidence in the record supported the Board's determination that claimant's myocardial infarction was causally linked to his employment. Prevailing Party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent.

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Schuss v Delta Airlines
    August 7, 2014    NYS Appellate Division, Third Department
    5130...§114-a: Fraud          [7966-48294]
AFFIRMED the Board’s ruling that the pro-se claimant violated WCL § 114-a and disqualified her from receiving further benefits. In May 2011, the carrier raised the issue of §114-a fraud based upon alleged misrepresentations regarding her work activity while receiving benefits. After the claimant testified in 2011 that she had not worked for anyone in any capacity during the time following her 2010 injury, the carrier presented surveillance videos and a written report prepared by a private investigator reflecting claimant leaving her home, driving to a chiropractor's office and remaining there for several hours, wearing a uniform bearing that office's logo, and running errands with other people from that office. The Court agreed that this constituted substantial evidence supporting the Board's determination that claimant was working after her 2010 injury and concealed her employment for the purposes of receiving benefits. Prevailing Party represented by: Heather N. Babits of counsel to Vecchione, Vecchione & Connors (Garden City Park), for Delta Airlines, Inc. and another, respondents.

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Lima v Newport Painting & Dec
    August 7, 2014    NYS Appellate Division, Third Department
    1030...Causal Relationship: PFME, et al    [7965-4829]
AFFIRMED Board’s ruling that claimant did not sustain a work-related injury. Claimant’s allegation that he was injured when he fell from scaffolding was countered by a coworker who testified that she was working with claimant at the time of the alleged accident and that he did not fall. The Board found the witness more credible and disallowed the claim, affirmed by the Court’s determination that the record contained substantial evidence to support its decision that claimant did not sustain a workplace accident. Prevailing Party represented by: Rudolph Rosa Di Sant of counsel to the NY State Insurance Fund for Newport Painting & Decorating and another, respondents.

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Bailey v Ben Ciccone
    August 7, 2014    NYS Appellate Division, Third Department
   5250...Aggregate Trust Fund    [7964-48294]
AFFIRMED the Board’s amended decision which directed the carrier to make a deposit into the aggregate trust fund pursuant to WCL §27(2). As a result of work-related Lyme disease infection, the Board classified claimant as permanently totally disabled and directed the employer's workers' compensation carrier to deposit the present value of unpaid benefits, $341,123.64, into the aggregate trust fund. The carrier argued that the Board erred by imposing a mandatory, rather than discretionary, deposit into the aggregate trust fund because claimant was not classified with a statutory permanent total disability under WCL §15(1). The employer conceded, however, that it did not raise this issue either before the WC Law Judge or in its initial application for review by the Board panel, and the Board did not address it. While the employer did raise the issue in an application for rehearing and/or full Board review, a party's arguments addressed to full Board review are not preserved by its appeal from a Board panel decision Nor does the appeal from the amended decision bring the issue up for review. The Court then wrote, “Rather, our review of that decision is limited to determining whether the denial of full Board review was arbitrary and capricious.” and it was not. Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.

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Thomas-Fletcher v NYC Dept. of Corr
Fraser v NYC Schools Constr
    August 7, 2014    NYS Appellate Division, Third Department
    7017...114-a(3)(I)                [7963 & 7962-48294]
AFFIRMED, in two virtually identical cases, the Board's decision to assess a monetary penalty against claimant's counsel pursuant to WCL § 114-a (3) (ii) for seeking review without reasonable grounds. In each case, ‘claimants’ submitted a form on the claimants' counsel's letterhead requesting that hearings on the claims be transferred from New York City to the City of White Plains, Westchester County on the ground that it was "the most convenient location.". In both cases, 'claimants' appealed, challenging both the denial of venue transfer and the penalty. In one case, the Board, in issuing a decision on an appeal from a Law Judge penalty of $500, increased it to $750 based on arguments that counsel knew had been previously rejected by the Board. In fact, these two cases bring to a total of three that have been argued, and lost, on this one issue by the Law Offices of Joseph Romano, since December of 2013 last year. Prevailing Party represented by: Jared Bretas, City of New York Law Department, for New York City Department of Corrections, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. in Thomas-Fletcher v NYC Dept. of Corrections; and Iris A Steel of counsel to the NYS Attorney General, for WCB, respondent in Fraser v NYC Schools Constr

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|— — JULY 2014 — — |

Bailey v Achieve Rehab
    ♦July 24, 2014    NYS Appellate Division, Third Department
    7016...§114-a(3) Unreasonable Appeal Penalty
    5110...Voluntary Withdrawal               [47292-7961]
AFFIRMED the Board’s ruling which assessed a $500 penalty against the carrier pursuant to WCL §114-a(3)(I). After the claimant had obtained benefits, she and the carrier stipulated that claimant had sustained a permanent partial disability and had not voluntarily removed herself from the work force, with a decision to that effect issued in 2007. Several years later, an IME found claimant capable of working with restrictions. After the carrier failed to get a response from the claimant’s attorney regarding claimant's search for employment, carrier requested claim be reopened on issue of Voluntary Withdrawal from the Labor Market, a request denied by the Board. The Board, noting its departure from prior precedent, held that "a claimant's failure to respond to a work search inquiry without something more may not constitute sufficient evidence of a triable issue of fact upon which a reopening may be based." In so doing, the Board also delineated the types of supporting evidence that would be necessary to warrant reopening a claim. When, in 2012, carrier again sought to reopen the claim, again based on claimant’s attorney’s failure to respond to their request on attachment, the Board again denied but, this time, assessed costs of $1,000 against the carrier pursuant to §114-a(3)(I). The Court agreed stating that the carrier had been warned that the failure of the claimant’s attorney to respond to such an inquiry was not sufficient grounds for a reopening. Therefore, the Court ruled that there was “no abuse of discretion in the Board's decision to assess costs against the carrier.Prevailing Party represented by: Steven Segal of counsel to the NYS Attorney General, for WCB, respondent.

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Maiorano v Alman Plumb
    ♦July 24, 2014    NYS Appellate Division, Third Department
    7032...Venue issues §114-a(3)     [47292-7960]
AFFIRMED the Board’s decision which denied claimant's request for a change of venue and assessed a §114-a(3) $500 penalty to claimant's counsel for filing the application for Board review without reasonable grounds. “Although claimant resides in Brooklyn, he requested that hearings on his claim be held in the City of White Plains, Westchester County on the grounds that it was ‘the most convenient location.’ A Workers' Compensation Law Judge denied the request. Upon review, the Workers' Compensation Board affirmed and assessed costs of $500 against claimant's counsel pursuant to Workers' Compensation Law § 114-a (3) (ii).” the Court wrote that, “substantial evidence supports its determination that a change of venue request was made absent a reasonable basis.Prevailing Party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent

The Insider: If this case appears familiar, it is. The petitioning law firm, the Law Offices of Joseph A. Romano, Yonkers (Anthony Brooks-Morgese of counsel), lost on this same issue before this same Court on March 6, 2014 (Stewart v NYC Transit Authority) and December 19, 2013 (Toledo v Admin for Children Servs) just as did Rella & Associates twice on December 19, 2013 (Banton v NYC Dept of Corrections and Wolfe v NYC Dept. of Corrections).

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Guidotti v Swissport
    ♦July 24, 2014    NYS Appellate Division, Third Department
    3030...Employment: Who is or dual            [47292-7959]
AFFIRMED the ruling of the Unemployment Insurance Appeal Board that the claimant and other similarly situated were employees. Claimant was an employee of Alitalia until his position was eliminated as part of a staff reduction program at which time he was hired by Swissport to, in effect, perform for Swissair exactly the same duties under the same manner of supervision and work rules. When Swissport claimed he was not an employee based on a “consultant agreement” he had signed, the Board, with the Court’s confirmation, determined that his "agreement", in effect, based on the terms therein, was an employment agreement, thus making him an employee of Swissport.

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Ivy League Tutor v NYS Dept Labor
    July 24, 2014    NYS Appellate Division, Third Department
    3030...Employment: Who is or dual          [47292-7958]         
AFFIRMED the ruling of the Unemployment Insurance Appeal Board that the claimant and other similarly situated were employees. The employer (ILT) is a tutoring referral and billing service that provides in-home tutors to clients seeking assistance with school work and test preparation. After being assessed for unemployment insurance contributions on behalf of the tutors, ILT countered that its tutors were independent contractors. a contention rejected by the Dept of Labor (DoL). In supporting the DoL’s decisions, the Court quoted its prior decisions on a similar case: “an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create and employment relationship."

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Zaldivar v SNS Org
    ♦July 10, 2014  NYS Appellate Division, Third Department
    7010...§23: Late/Interlocutory/Frivolous Appeal        47290-7957
DISMISSED an appeal by claimant as interlocutory as the Board had not yet “dispose[d] of all substantive issues nor reach[ed] legal threshold issues that may be determinative of the claim. [The Court] declines to review the Board's decision inasmuch as it has directed further development of the record and claimant may appeal, if necessary, from the Board's final decision on the issue of whether the carrier consented to the settlement.” Prevailing Party represented by: David Allweiss of counsel to Malapero & Prisco (NYC) for SNS Organization and another, respondents.

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Robinson v Friedman Mgt Corp
   ♦July 7, 2014  New York State Supreme Court - New York County
    3010...§11: Grave Injury      47290-7956
Ruled against a landlord who sought indemnification and contribution pursuant to WCL §11, from their tenant’s employer on the grounds that the tenant’s skin condition was the result of toxic exposure at work and not from construction debris and dust in his apartment. In ruling against the landlord, the Court, in detail, defined a "grave injury", as enumerated in WCL § 11, and "permanent and severe facial disfigurement" and then found that the tenant suffered from neither.

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Winters v Advance Auto Parts
    ♦July 3, 2014    NYS Appellate Division, Third Department
    5110...Voluntary Withdrawal            47289-7955
REVERSED the Board’s ruling that claimant voluntarily removed himself from the labor market, finding that the Board has not adequately explained its departure from its prior precedent.

Claimant injured his back while working and thereafter worked intermittently both for his original employer and at a new employer, LKQ Broadway where he was ultimately terminated absenteeism. After he ceased working and received unemployment insurance benefits, a Law Judge concluded that his separation from employment was due to his compensable back injury and that he did not voluntarily withdraw from the labor market. A Board panel, in a split decision, reversed the Law Judge and on Full Board Review, determined that claimant's awards must be rescinded, finding that claimant failed to produce sufficient evidence of an attachment to the labor market.

The Board’s determination of claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions generally will not be disturbed if its findings are supported by substantial evidence.

Nevertheless, "even though there is in the record substantial evidence to support the determination made," the Board's "failure to conform to [its] precedent will . . . require reversal on the law as arbitrary" if the Board has failed to explain the reason for its departure. As relevant here, the Board has previously determined that a claimant remains attached to the labor market when he or she is actively participating in, among other things, a job-location service   such as One-Stop Career Centers   or Board-approved vocational rehabilitation, and that a claimant's credible testimony regarding that participation is sufficient to establish attachment to the labor market.

Although the Board found that the claimant was actively participating in a search with One-Stop, because claimant did not provide documentation of his participation, the Board concluded that he failed to adequately demonstrate attachment to the labor market. But the Court reversed the Board, finding that, “Although the Board was entitled to require such documentation and to draw a negative inference as to the credibility of claimant's testimony based on his failure to comply with the directive, the full Board here expressly found claimant's testimony to be credible. Under these circumstances, the Board has not adequately explained its departure from its prior precedent. Accordingly, the decision of the full Board must be reversed and the matter remitted to the Board for further proceedings.” Prevailing Party represented by: Crystal R. Peck of Bailey, Kelleher & Johnson,(Albany) of counsel) to Martin, Harding & Mazzotti (Niskayuna) for appellant.

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Lucke v Ellis Hosp
    ♦July 3, 2014    NYS Appellate Division, Third Department
    1040...Causal Relationship: Stress           47289-7954
AFFIRMED the Board’s ruling that claimant suffered from stress arising out of and in the course of her employment. After the claimant, a  physician's assistant, was threatened with physical violence by a surgeon during an hours-long procedure in the operating room, she was removed her from work for her safety until the physician began attending an intensive psychiatric counseling program. Claimant sought psychiatric treatment shortly thereafter and successfully filed a claim for posttraumatic stress and adjustment disorder.  The employer argued that the verbal threat could not give rise to a compensable stress claim, noting mitigating factors such as the presence of others in the operating room and claimant's familiarity with the surgeon's "difficult" personality. However, the Board determined that claimant's uncontroverted psychiatric diagnoses were caused by the incident, and that, threats of physical violence made by her supervisor constituted greater stress than that which normally occurs in similar work environments. Inasmuch as such determination is supported by substantial evidence and this Court cannot "reject the Board's choice simply because a contrary determination would have been reasonable," it must be upheld.” Prevailing Party represented by: Susan Biggins Owens of counsel to Law Firm of Alex C. Dell (Albany) for Caterina Lucke, respondent, and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent.

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Mosley v Hannaford Bros
    July 3, 2014    NYS Appellate Division, Third Department
    1040...Causal Relationship: Stress            47289-7953
AFFIRMED the Board’s ruling that claimant suffered from stress arising out of and in the course of his employment. While working as an assistant store manager, he made a telephone call to a coworker at her home to discuss a work-related matter. Following that telephone call, the coworker's husband became convinced that claimant and the coworker were engaged in a romantic relationship, prompting the coworker's husband to undertake a course of threatening and harassing conduct against claimant, culminating in an unsuccessful murder-for-hire plot against him. Additionally, the coworker's husband contacted claimant's supervisor regarding the alleged affair, which triggered an internal investigation by the employer and ultimately resulted in claimant requesting a transfer to another store. As a result, claimant's preexisting posttraumatic stress disorder was exacerbated to the point that he was unable to continue to work. Claimant the successfully filed a claim for workers' compensation benefits, affirmed by a split Board panel and a Full Board review.

Here, the work-related phone call from claimant to his coworker's home was the basis for the subsequent harassment of claimant at his place of employment, the employer's internal investigation and claimant's request for a transfer, all of which exacerbated claimant's preexisting stress disorder. And since the record revealed no connection between claimant and the coworker's husband outside of claimant's work-related duties, the Board properly found the required nexus between the threatening conduct that exacerbated claimant's preexisting condition and claimant's employment. Prevailing Party represented by: Michael S. Joseph of counsel to James A. Trauring & Associates (Schenectady) for Arthur Mosely, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent.

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Smith v Oneida
    July 3, 2014    NYS Appellate Division, Third Department
    1020...Causal Relationship: Death             47289-7952
AFFIRMED the Board’s ruling that decedent's death was causally related to his occupational illness.
In 1992, claimant's husband (hereinafter decedent) was found to be permanently partially disabled due to injuries to his lungs and he received benefits until his death in 2010. The claimant’s contention that the death was causally related was affirmed by a Law Judge and benefits awarded accordingly. The Court agree with the Board that substantial evidence was represented by the decedent's death certificate listing the immediate cause of death as sepsis, as a consequence of respiratory failure and a C-64 medical report completed by decedent's physician of 20 years, who most recently saw decedent in June 2010, opined that decedent's death was caused either directly or indirectly by his work-related illness. Prevailing Party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent.

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NYS WCB v Madden
    ♦July 3, 2014    NYS Appellate Division, Third Department
    3195...Self-Insured Trusts            47289-7951
This case involves the New York Healthcare Facilities Workers' Compensation Trust[ a group self-insured trust, was formed in 1996 to provide mandated workers' compensation coverage to employees of Trust members per WVL §50 [3-a]] and Hamilton Wharton Group (hereinafter HWG), the Trust's group administrator, contracted with defendant Berenson & Company, LLP for auditing services, defendant Lorette Belgraier for accounting services, and defendant Steven Glaser to serve as the Trust's counsel. In 2006, plaintiff determined that the Trust was insolvent and assumed its administration. Thereafter, plaintiff obtained a forensic audit and a deficit reconstruction revealing that the Trust had an accumulated deficit of over $30 million.

Several appeals and cross appeals were made by all the parties regarding leal fees (how much and by whom). The court’s ultimate decision found that there were grounds for some of the claim and no ground for others in this detailed 10-page decision.

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|— — JUNE 2014 — — |

Ercole v NYS Police
    ♦June 19, 2014    NYS Appellate Division, Third Department
    3140...§25-a: True Closing       [46287-7950]
AFFIRMED the Board’s ruling that §25-a liability shifted to the Special Fund for Reopened Cases (Fund). After claimant suffered compensable injuries, he was awarded a schedule loss of use and the case closed in 2000. Thereafter, his condition deteriorated and, in September 2011, his orthopedic surgeon requested authorization to perform surgery, a request which, because the carrier did not respond within 30 days, was approved, in November 2011, by WCB Chairman issuing "an order stating that such request is deemed authorized."

A day after the Chair issued his order, the carrier requested that liability for the claim be shifted to the Fund. In March 2012, a Law Judge shifted liability to the Fund effective 2009, but held that the carrier remained liable for the surgical costs due to its failure to properly administer the request for authorization. The Board upheld the shift in liability, but, in overruling prior Board precedent,  also determined that the  Fund was liable for the surgical expenses.

The Board has preciously held that, if the carrier attempts to delay a medical procedure with a pending §25-a application, in order to avoid the complications of paying for them and later seeking reimbursement from the Fund, it could be held responsible for those expenses. In an effort to address that concern, the Board had held that, in certain instances, a carrier would be held liable for medical expenses that would otherwise be the responsibility of the Special Fund if it "had attempted to delay payment for the surgery until after a determination was made regarding the applicability of [Workers' Compensation Law] § 25-a, and not based . . . on a good faith objection to the surgery." In the decision at issue here, the Board discussed that precedent at length and overruled it, which it was free to do given that it "set forth its reasons for doing so and considered appropriate statutory and judicial authorities.” The Board, affirmed by the Court, essentially ruled that, even though the §25-a transfer was not requested until after the surgery request, the surgery request was well beyond the 3- and 7-year limits of §25-a and thus were properly the responsibility of the Fund. Prevailing Party represented by: Thomas A. Phillips of counsel to the NY State Insurance Fund for NYS Police and another, respondents.

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Nicpon v Zelasko Constr
    ♦June 5, 2014    NYS Appellate Division, Third Department
    3140...§25-a: True Closing         [46287-7949]
REVERSED the Board’s ruling tby finding that liability did not shift per §25-a to the Special Fund for Reopened Cases (Fund). As the result of a 2003 back injury, claimant was classified with a permanent partial disability at a tentative weekly rate of $125. In December 2008, the self-insured employer (SIE) and claimant entered into a §32 agreement whereby the SIE consented to the settlement of the third-party action for $240,000, waived its liens for both past benefits and future medical expenses, and agreed to cover future medical costs in exchange for claimant's waiver of future indemnity benefits.

When, in December 2011, the employer filed a request for further action by seeking to transfer responsibility for claimant's future medical expenses to the Fund per §25-a, a Law Judge discharged the Fund but a Board panel reversed and found the Fund liable.

Pursuant to Workers' Compensation Law § 25-a(7), where a case is "disposed of by the payment of a lump sum," the date of the last payment of compensation is established by calculating the date to which the amount paid in the settlement would have extended had the award of indemnity benefits been made at the maximum compensation rate warranted on the date the lump-sum payment was approved. The Court ruled that:

Here, the employer entered into an agreement with claimant on December 30, 2008 that permitted claimant to retain the proceeds of the third-party action in exchange for, among other things, his forbearance of future indemnity benefits. In our view, these proceeds constituted a lump-sum payment for purposes of the statute. Contrary to the employer's contention that the statute only applies where the employer itself makes a lump-sum payment to the claimant, we note that the plain language of the statute indicates that it applies "where the case is disposed of by the payment of a lump sum," without reference to the source of such payment (Workers' Compensation Law § 25-a [7]). Thus, because the settlement agreement effectively "disposed" of the employer's obligation to pay future indemnity benefits in exchange for claimant's retention of a lump-sum payment from the third-party action, application of the statute is appropriate to bar transfer of liability for future medical benefits to the Special Fund.

The Court reversed the Board, sending the case back for the Board to calculate the date to which the amount paid in the settlement would extend ? taking into account such factors as the employer's share of litigation costs and the amount of the liens that the employer waived. Prevailing Party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent.

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Hazan v WTC Volunteer Fund
    ♦June 5, 2014    NYS Appellate Division, Third Department
    4100...WTC Cases §161 & article 8-A  [46287-7948]
REVERSED the Board by finding that the claimant was a participant in the World Trade Center rescue, thus covered by WCL article 8-A. After volunteering to work at a triage center at the Chelsea Piers on September 11, 2011, the next day the claimant “went to ground zero, found his way around the barriers, flashed his emergency medical technician card and badge to gain access to the site and attempted to search for survivors. Claimant was not registered or affiliated with any volunteer organization or agency during the course of these two days, and he did not aid in the rescue or recovery operations after September 12, 2001.

In March 2010, claimant registered his participation as a volunteer in the World Trade Center rescue, recovery and/or cleanup operations with the WCB and then filed a claim for injuries sustained as the result of his exposure to dust and toxins. A Law Judge ultimately established the claim which was challenged by the WTC Volunteer Fund “contending that claimant failed to meet the definition of ‘volunteer’ because he did not provide proof that he was acting under the direction and control of a volunteer agency”. A Board panel, citing the definition of "first response emergency services personnel" as set forth in the final revised 2006 Order of the Chair No. 967, found claimant did not qualify.

The Court wrote that, although the Board denied the claim on the grounds that claimant “did not serve under the direction of an authorized rescue entity or volunteer agency" and, hence, "[did] not meet the definition of [a] volunteer" within the meaning of article 8-A, despite the fact that the various Orders of the Chair retained such language, the legislative history showed that  such language is not included in Workers' Compensation Law article 8-A, and "[t]he deletion of this explicit language from the version of [Workers' Compensation Law article 8-A] that finally passed is persuasive evidence that the Legislature rejected" the more restrictive definition of volunteer that originally was proposed.

In reversing the Board, the Court summarized its position: “In sum, as neither the statutory language nor the legislative history supports the Board's requirement that an individual be affiliated with an authorized rescue entity or volunteer agency in order to qualify as a volunteer ... the Board's decision denying claimant's application for benefits upon this particular ground cannot stand [although] claimant still must satisfy the time, location and activity elements of article 8-A, issues not previously addressed by the Board. in order to be entitled to benefits, and we therefore remit this matter to the Board for consideration of those issues and, more to the point, the sufficiency of claimant's proof thereon.Prevailing argument presented by: Michael J. Hutter of counsel to the Pro Bono Appeals Program (Albany) for appellant.

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Smith-Lerner v Art Students League
    June 18, 2014    NYS Appellate Division, Second Department
    3005...§11: Jurisdiction     [46287-7947]
AFFIRMED a lower Court order which denied defendant’s motion for summary judgment dismissing the complaint, based on defendant’s contention that Smith-Lerner’s acceptance of a §32, prior to commencing this civil action, is precluded by the exclusivity of WCL §§ 11 and 29(6). Apparently, the carrier failed to provide evidence to the lower Court, and the Appellate Division, that the respondent actually had the §32 approved by the Board. Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

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|— — MAY 2014 — — |

Anticola v Tops Mkts
    ♦May 29, 2014    NYS Appellate Division, Third Department
    3140...§25-a: True Closing       [45284-7946]
AFFIRMED the Board’s ruling that claimant's case was not truly closed for the purpose of shifting liability to the Special Fund for Reopened Cases per WCL §25-a. The issue was raised when claimant, apparently after returning to work, applied for temporary disability benefits for February 6, 2006 to October 28, 2006 (Hereafter ‘9 month period’). Benefits were awarded and, then, rescinded August 28, 2007 by a Board Panel. A year later, on August 14, 2008, a Law Judge awarded benefits for January 21 to April 1, 2008 but omitted mention of the 9-month period. In January 2012, the claimant’s attorney sent in a letter stating that the relevant 9-month period could be marked for no compensable lost time. The carrier then sought, unsuccessfully, to shift liability per §25-a.

The Court wrote, Here, the employer contends that the claim was truly closed by the WCLJ decision filed on August 14, 2008. However, this contention ignores the fact that, pursuant to the August 28, 2007 WCLJ decision, compensation for the period between February 2006 and October 2006 had been held in abeyance and was, as of yet, unresolved. Although the employer further argues that the case should have been considered truly closed because no further evidence was submitted regarding the periods held in abeyance, that contention is belied by the fact that the employer itself affirmatively addressed the issue in January 2012, evincing the fact that said compensation was still at issue. Accordingly, we find that substantial evidence supports the Board's decision that the case was never truly closed and, thus, transfer of liability to the Special Fund would have been premature.Prevailing Party represented by: Jill B. Singer of counsel to the Special Funds and Iris A. Steel of counsel to the NYS Attorney General, for WCB
.

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Crane v Dalrymple Gravel & Contr                        
    ♦May 29, 2014    NYS Appellate Division, Third Department
   3110...§15(8) Reimbursement Special Fund   [45284-7945]
AFFIRMED that Board’s ruling that the workers' comp carrier is not entitled to reimbursement from the Special Disability Fund per WCL §15-[8][d]. After the claimant was classified with a permanent partial disability due to a 2004 left shoulder injury, the carrier leaned that the claimant suffered from, among other things, preexisting hypertension and degenerative disc disease. Their subsequent application for §15[8][d] reimbursement was denied.

In order to obtain reimbursement from the Fund pursuant to Workers' Compensation Law §15(8)(d), the carrier "must demonstrate that claimant suffered from (1) a preexisting permanent impairment that hindered job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than would have resulted from the work-related injury alone." Although the carrier’s doctors “presented evidence from several physicians who opined that claimant's hypertension and back condition posed a potential hindrance to her employability, neither the medical testimony nor any other evidence in the record indicated that such conditions in fact did so.” And the record showed that the claimant lost no time as the result of her preexisting condition, thus failing to show any medical evidence to support the carrier’s contention. Prevailing Party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee, respondent.

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Goldstein v Prudential                      
    ♦May 29, 2014    NYS Appellate Division, Third Department
    5110...Voluntary Withdrawal            [45284-7944]
AFFIRMED the Boards’ ruling that (1) claimant voluntarily removed herself from the labor market and (2) her Parkinson’s Disease was not a consequential injury. Claimant, an insurance salesperson, sustained compensable injuries to her head, neck and back from a 2001 fall at work, retiring at the end of that year and, in 2004, was diagnosed with Parkinson's. She sought to amend her claim adding consequentially related Parkinson's and seeking post retirement benefits. The WCB determined her disease was unrelated to the 2001 accident and that she had retired voluntarily.

Although claimant submitted medical evidence to show her 2001 head trauma resulted in Parkinson’s, her treating doctor did not agree with the conclusion and the carrier’s doctor opined that her 2001 head injury was not sufficiently severe to have caused the disease.

The Board noted that there was nothing in the record to support the claimant’s contention that she missed work due to her injuries or that her failure to meet her sales quotas forced her to retire. Claimant admitted never informing her employer that she was unable to work, never received medical advice to retire, and made no effort to seek a disability retirement pension. The Court concluded, "Thus, despite the existence of evidence that may have supported a different result, we find the Board's determination to be supported by substantial evidence." Prevailing Party represented by: William T. Burke of counsel to Cherry, Edison & Kelly (Tarrytown) for Prudential and another, respondents.

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Hodzic v TTSI    
    ♦May 29, 2014    NYS Appellate Division, Third Department
    5130...§114-a: Fraud         [45284-7943]
AFFIRMED the Board’s ruling that claimant committed §114-a fraud. Some time after claimant successfully and appropriately applied for workers comp benefits to due a 2005 lower back injury, the carrier disclosed that claimant had been placed under surveillance and, thereafter, raised the issue of possible §114-a fraud. The Board then ruled that claimant knowingly misrepresented his medical condition for the purpose of receiving benefits, finding him to be in violation of § 114-a, assessed a discretionary penalty, and permanently disqualified claimant from receiving wage replacement benefits beginning in September 2010. Although claimant testified at length about his many disabilities, limited lifestyle, etc, evidence showed this not to be true. In fact, “he was only observed using a walker immediately before and after medical and legal appointments.” The Court then opined that the Board’s detailed decisions appropriately justified all the penalties. Prevailing Party represented by: Susan B. Marris of counsel to the State Insurance Fund for TTSI, Inc. and another, respondents.

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Difilippo v Con Ed
Mejia v Camabo Industries
    ♦May 29, 2014    NYS Appellate Division, Third Department
    7032...Venue issues §114-a(3)    [45284-7942, 7941]
AFFIRMED, in both cases, the Board’s assessment of a penalty against the claimant’s attorney for requesting a change in venue without reasonable grounds. In both cases, the claimant, on an undated form on his counsel's letterhead, requested that hearings on his claim be conducted in the City of White Plains, Westchester County for convenience even though the claimant did not live in that county nor was injured in that county. The Board affirmed the Law Judges’ denials of claimants’ requests and, finding that the matter had been continued without reasonable grounds, assessed costs of $500 against Mejia’s counsel and $250 against DeFillippo’s counsel pursuant to WCL §114-a(3)(ii). Prevailing Party represented by: Heather N. Babits of counsel to Vecchione, Vecchione & Connors (Garden City Park) for Con Edison and another, respondents; Lauren M. Bilasz of counsel to Weiss, Wexler & Wornow (NYC) for Camabo Industries; and Steven Segall of counsel to the NYS Attorney General, for WCB.

The Insider: If this cases appears familiar, it is. On December 19, 2013, the 3rd A.D. issued the same decisions in Banton v NYC Dept of Corr and Wolfe v NYC Dept. of Corr.  And On March 6, 2014 in Stewart v NYC Transit Authority.

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Clark v NYC Dept HRA
    ♦May 29, 2014    NYS Appellate Division, Third Department
    7016...§114-a(3) Unreasonable Appeal Penalty   [45284-7940]
AFFIRMED the Board’s assessment of a §114-a(3)(ii) penalty for $500 against claimant's counsel. Claimant whose workers comp case had been established also sued and then settled a third-party action arising out of the accident for $725,000. The carrier consented to the settlement upon the understanding that the carrier's lien for past benefits paid would be satisfied out of the settlement proceeds, and that it would have "a credit for any future benefits owed the claimant until the proceeds of the recovery are exhausted" The Law Judge found that he could not make a proper award without a signed closing statement that indicated the date of payment in the third-party action, and directed claimant to produce that document. Claimant sought Board review of the Law Judge's decision, but did not assert that the Law Judge erred in requiring a signed statement and, indeed, filed one shortly after the decision was issued. Substantial evidence thus supports the Board’s determination that claimant's application for Board review was unnecessary and, as such, an assessment of reasonable counsel fees against counsel for claimant was warranted. The Court then added a footnote: while "the notice of appeal was filed in claimant's name, counsel should have filed the notice of appeal on [his]; own behalf because the only issue on appeal pertains to the sanction against counsel". Prevailing Party represented by: Majorie S. Leff of counsel to the NYS Attorney General, for WCB.

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Williams v Lloyd Gunther El Serv
     ♦May 22, 2014    NYS Appellate Division, Third Department
     3160...§29: 3rd Party/MVA liens     [45283-7939]
REVERSED, again, the Board’s ruling that the carrier may not begin taking a credit against claimant's net recovery from a third-party action until the date on which claimant received the recovery. The Court previously reversed the Board on this same issue in this case on March 14, 2013 ( (104 AD3d 1013, 1015 [2013]). After the claimant’s comp claim was established, he settled a third-party action after getting the comp carrier’s consent.

The carrier provided its consent in a letter dated September 16, 2010 in which it reserved its right to take credit for the third-party recovery when computing deficiency compensation and further stated that ‘"[s]aid credit will be exercised as of this date." After the carrier stopped comp payments on October 1, 2010 per the consent letter, the Board held that the carrier was not entitled to begin its credit until October 5, 2010, the date upon which the third-party action actually settled. When the carrier appealed that decision, this Court reversed the Board, holding that past Board decisions had permitted a carrier to begin taking its credit for a third-party recovery as of the date of consent — when such right was specifically reserved in the consent letter — and that the Board had not provided a rational basis for departing from such precedents, rendering its decision arbitrary. Upon remittal, the Board acknowledged that its decisions had been inconsistent and, relying upon a  recent full Board decision, adhered to its prior decision: a carrier may never exercise its right to credit until a claimant receives the proceeds of a third-party settlement. The Board reasoned further that to permit the carrier to exercise such right before then would constitute a waiver of the right to ongoing compensation benefits by a claimant, which is not valid and enforceable unless such agreement is approved by the Board pursuant to WCL §32.

The Court again reversed the Board, noting among its many objections, the following:
    (1) The Board’s contention that the words "actually collected" in WCL §29(4) require a different result, inasmuch as language in that statute that the carrier "shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided" refers to the amount available for recovery and not the timing of the payment of proceeds.
    (2) The Board's determination that a claimant's consent to waive ongoing benefit rights must be approved per WCL §32 is, as the Court has held previously and the Board itself has recognized, incorrect as WCL §29 contains no authority for the Board to approve the settlement of a third-party action.
Prevailing party represented by: Marc H. Silver of counsel to the NY State Insurance Fund for Lloyd Gunther Elevator Service.

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Storm v Phillips Light
    ♦May 22, 2014    NYS Appellate Division, Third Department    
     1210...§28: time bar
     1140...Accident vs Disease              [45283-7938]
AFFIRMED the Board’s ruling that claimant's application for benefits was timely filed per §28. Although claimant sustained a work-related injury to her right shoulder in 2002 and experienced pain in that shoulder, it was not until 2010 she underwent surgery to repair a rotator cuff tear. Because in 2011 her  occupational physician, Michael Lax, opined that her shoulder condition constituted an occupational disease occasioned by repetitive arm at work, claimant filed for comp benefits. After a Law Judge found the claim time-barred pursuant to WCL §28 and that, in any case, claimant's problems stemmed from the 2002 accident rather than any occupational disease, a Board panel reversed and established the claim.

Claimant received no treatment for her shoulder between 2003 and 2007 when she first  obtained medical treatment for her shoulder pain and, while she thought that the pain was related to her work, the record does not establish that she actually knew that it was related until Lax made his diagnosis in November 2011. The Board selected November 2011 as the date of disablement and, noting the great latitude afforded to the Board in selecting such a date, the Court perceived no basis upon which to disturb the Board’s decision. Prevailing party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB.

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Logan v Westchester Med Ctr
    ♦May 22, 2014    NYS Appellate Division, Third Department
    1210...§28 time bar
    7016...§114-a(3) Unreasonable Appeal Penalty   [45283-7937]
    7252...Misinterpretion of WC Law
AFFIRMED the Board’s ruling that claimant's application for comp benefits was time-barred but REVERSED a penalty assessed against claimant’s attorney. As the result of claimants’ injury in 2004 while moving heavy boxes as an office assistant, her claim was established for an injury to her lower back. In 2011, after she sought to amend the claim to include a consequential right knee injury, a Law Judge dismissed the claim for right knee injury as time-barred pursuant to WCL §28. When a Board panel affirmed, it assessed a penalty against claimant's attorney for seeking review without reasonable grounds.

WCL §28 requires that a claim for compensation be filed within two years after the accident occurred, but that limitations period "does not bar the amendment of a timely-filed claim to include a consequential injury" However, claimant testified that she twisted her knee during the accident and immediately experienced symptoms, and her treating orthopedist opined that claimant had directly injured her knee in the accident. Thus, substantial evidence in the record supports the Board's finding that claimant's knee injury was a direct, not a consequential, injury.

As for the penalty assessment, the Court explained why substantial evidence does not support the Board's further finding that claimant's appeal was "instituted or continued without reasonable ground" such as to warrant a WCL §114-a(3) assessment of fees against her counsel and reversed it. Prevailing party represented by: Lauren M. Bilasz of counsel to Weiss, Wexler & Wornow (NYC) for Westchester Medical Center, and Iris A Steel of counsel to the NYS Attorney General, for WCB. Winning the reversal on the improper penalty was Anthony Brooks-Morgese of counsel to the Law Offices of Joseph Romano (NYC)
.

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Malerba v Ameron Global
    ♦May 22, 2014    NYS Appellate Division, Third Department
     5020...Disability: Degree of or R/E    [45283-7936]
AFFIRMED the Board’s ruling that claimant sustained a permanent total disability as the result of a fire extinguisher that exploded and struck him in the head with additional injuries to his face, left arm, and right wrist, and subsequent consequential depression. After hearings regarding permanency and degree of cognitive impairments, a Law Judge expanded the claim to include a left eye injury, traumatic brain injury, and encephalomalacia, and then credited medical evidence that claimant had sustained a permanent total disability. Although the IME categorized claimant's disability as mild and saw potential for cognitive improvement, disagreeing with claimant’s neurologist who found claimant's physical and mental deficits were totally disabling, the IME found claimant incapable of performing any mentally demanding work. According the Court opined “Substantial evidence thus supports the Board's decision and, as such, we perceive no basis upon which to disturb it.” Prevailing party represented by: Marjorie S. Leff of counsel to the NYS Attorney General, for WCB.

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Canales v Pinnacle Foods
    May 15, 2014     NYS Appellate Division, Third Department
    5020...Disability: Degree of or R/E    [45282-7935]
AFFIRMED the Board’s ruling that a temporary marked partial disability does not include “wage earning capacity as does in determining the rate for a permanent disability and therefore the ruling of a reduced rate (for an 80% disability) for a 12-week period was correct. In December 2010, claimant, a production laborer in a food processing plant, suffered a work-related knee injury. Initially determined by her treating physician to have a level of temporary medical impairment at  100%, in June and July 2011 both he and an IME determined that claimant's level of temporary impairment was 80%, resulting in the carrier reducing the rate to 80% but after 12 weeks the medical reviews found an increase again to 100%. A Law Judge awarded comp at an 80% temporary disability rate for the 12-week period and thereafter at a total temporary disability rate.

Claimant argues that the Board erred in relying solely upon her level of medical impairment and failing to consider vocational factors in determining the compensation rate for her temporary disability during the 12-week period following the IME. Such vocational factors, as claimant undisputedly has, are considered by the Board in determining "loss of wage-earning capacity" for the purpose of setting the duration of a claimant's permanent partial disability benefits (WCL §15[3][w]) whereas claimant argues that Board should have considered them in determining her "wage earning capacity" for the purpose of setting the compensation rate for her temporary disability (WCL §15[5]).

The Court noted that since this is primarily an issue of statutory construction and analysis, the Board's interpretation is not entitled to deference. The Court then wrote a detailed analysis of the legislature’s intent after which it determined that the term "loss of wage-earning capacity" was specifically added only to §15[3][w] when the law was amended in 2007 but not to §15[5] thus indicting the Legislature’s’s intent to limit the application of that concept to permanent and not temporary disabilities. Prevailing arguments presented by: John Hvozda of counsel to Falge & McLean (North Syracuse) for Pinnacle Foods Group and another, respondents.

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Riccelli Enters v NYS WCB
    May 2, 2014    NYS Appellate Division, Second Department
    3195...Self-Insured Trusts        MOTION     [45282-7934]
AFFIRMED a motion by Riccelli, members of a Group Self-Insured Trust (GSIT), for a stay of the enforcement of the Board's determination to levy deficit assessments against them under the authority of WCL §50(3-a)(7)(b) pending the determination of the instant CPLR article 78 proceeding/declaratory judgment action(hereafter, proceeding). After Riccelli and the Board agreed that the third-party administrator of the Trust, Compensation Risk Managers (CRM), acted fraudulently in its management of the Trust, the Board levied assessments against petitioners totaling more than $140 million for their alleged pro rata share of the deficits of the Trust in 2010, prompting petitioners to commence this proceeding. Petitioners allege, inter alia, that the Trust was not validly formed; that the Board's oversight of the Trust amounted to nonfeasance; and that the Board's attempts to impose deficit assessments against them pursuant to WCL §50(3-a)(7)(b) are illegal and violate their procedural and due process rights.

Contrary to the Board’s contention that Riccelli failed to demonstrate the imminent risk of irreparable harm, the Court rejected that argument from the Board. Because the loss of business, as the result of an action seeking the collection of the pro rata share of the deficit assessment or as the result of a potential stop work order, is an imminent risk that is "impossible, or very difficult, to quantify,' " we conclude that the court did not abuse its discretion in determining that petitioners established by clear and convincing evidence that there is a risk of irreparable harm." Additionally, the Court concluded the lower court did not abuse its discretion in determining that petitioners have established the likelihood of success on the merits of at least some of their claims.

The orginal motion and the Court's 169-page decision issued October 21, 2013 to accept it can be found here.

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Estate of Moody v Quality Structures
    May 8, 2014    NYS Appellate Division, Third Department
    1020...Causal Relationship: Death        [45281-7933]
AFFIRMED the Board’s ruing that decedent's death was causally related to his employment. Decedent collapsed while working as a laborer at a construction site, and was later pronounced dead at the hospital. His estate’s application for workers' comp benefits resulted in the Law Judge establishing the claim, finding that the carrier failed to overcome the presumption of compensability provided by WCL§ 21(1). Just returning from a lunch break, the decedent bent down to pick up a pipe, collapsed without warning, and was taken to a hospital where efforts to revive him were unsuccessful. The emergency records listed as the potential diagnosis “among other things, ventricular fibrillation, acute myocardial ischemia and arrhythmia. An autopsy later determined that decedent had a massive cardiomegaly, or an enlarged heart.” The carrier’s cardiologist opined that “decedent's death was caused by a cardiac arrhythmia superimposed on the underlying condition of his enlarged heart. Nash attributed evidence of decedent's lack of sleep as a contributory factor, but did not rule out decedent's work as playing a role in his death.” as the Board fund "the cause of decedent's fatal arrhythmia remains unexplained," the Court opined “that the Board appropriately invoked the presumption of compensability.” Prevailing argument presented by: Alexander Osborne of counsel to Connors & Ferris (Rochester) and Erin Boardman of counsel to Segar & Sciortino (Rochester) for Estate of Hernando Moody, and Marjorie Leff of counsel to the NYS Attorney General, for WCB, respondent.

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Trotman v New York State Courts
    May 1, 2014    NYS Appellate Division, Third Department
    1100...Course of Employment: in and out of     [45280-7932]
AFFIRMED the Board’s ruling that claimant's slip and fall did not arise out of and in the course of his employment. Claimant, a senior court officer, was injured shortly before the beginning of his work shift when he slipped and fell on ice. The incident occurred on a public sidewalk that he was traversing to reach the government center after parking his car on the street. Although a Law Judge established the claim, a Board panel denied his ensuing application, finding that his injury did not arise out of and in the course of his employment.

Although "[a]ccidents that occur on a public street away from the place of employment and outside working hours generally are not considered to arise out of and in the course of employment", as this accident occurred near claimant's place of employment, his claim falls within "a gray area where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation." In order for an incident to be compensable under those circumstances, "there must be (1) a special hazard at the particular off-premises point and (2) a close association of the access route with the premises, so far as going and coming are concerned." The Court opined that the circumstances here did not. While the public sidewalk here was near the government center, it was open to the public and there was no showing that it was "otherwise controlled by the employer, that workers were encouraged to use it or that it existed solely to provide access to the workplace. The ice on the sidewalk, moreover, constituted "a danger that existed to any passerby traveling along the [sidewalk] in that location" and bore no relation to claimant's employment. Prevailing argument presented by: Edward Obertubbesing of counsel to the NY State Insurance Fund for NYS Courts and another, respondents.

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|— — APRIL 2014 — — |

 Krietsch v Northport-E Northport SD
    ♦April 17, 2014    NYS Appellate Division, Third Department
    5032...Consequential             [44278-7931]
AFFIRMED the Board’s ruling (1) that the decedent's back surgery was causally related to the compensable accident, and (2) which denied a request for reconsideration and/or full Board review (FBR). Decedent, suffering from severe scoliosis, had since childhood fixation rods surgically installed to stabilize her spine. In 2008, she fell down a flight of stairs while working, suffering back injuries. The fixation rods appeared to be intact in X rays taken immediately after the accident. However, after subsequent X rays taken eight months later showed that one of the rods had broken, she requested authorization from the Board for surgery to remove the broken rod and take other steps to restore spinal stability. A Board panel, reversed the Law Judge, approved the surgery, and then rejected a request for FBR. In affirming the Board, the Court determined that “[T]he orthopedic surgeon who performed the requested back operation opined that decedent's work accident caused a loss of stability in her spine that required surgery to correct, [further testifying] that the loss of spinal stability occasioned by the work accident led to spinal movement that would have eventually damaged the fixation rods, even if they did not break during the accident itself. The Board credited the surgeon's testimony which, despite medical evidence to the contrary, provided substantial evidence for finding a causal link between the work accident and subsequent back surgery.”  As the carrier advanced no arguments regarding the FBR, the Court deemed their appeal abandoned. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.

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Islam v BD Constr & Bldg
    ♦April 10, 2014    NYS Appellate Division, Third Department
    5135...§10(4) Incarceration    [44277-7930]
AFFIRMED the Board’s ruling that claimant sustained a causally related disability and was awarded workers comp benefits despite being held in detention by immigration pending a deportation hearing, apparently because of his conviction of sexual abuse in the first degree. The Court found that he was not disqualified per WCL §10(4) because (1) his sentence for the sexual abuse was probation without confinement, and (2) his confinement for immigration purposes, on the other hand, was civil and nonpunitive in nature, in particular since he was ultimately released. The Court, in a careful examination of WCL §10(4) was unpersuaded that claimant was "incarcerated upon conviction of a felony" as that phrase is used in the statute. His failure to file C-4's during his detention was excused as he submitted C-4 forms indicating treatment for his established injuries prior to and immediately after his immigration detention. He also provided medical records reflecting continuing symptoms and treatment for his work-related injuries while he was detained. Prevailing party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent.

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Kondylis v Alatis Interiors
    ♦April 10, 2014    NYS Appellate Division, Third Department
    5050...Schedule Loss of Use issues    [44277-7929]
AFFIRMED the Board’s ruling that claimant was not entitled to a schedule loss of use (SLU) award. As a result of a June 2008 accident, a claim was established for injuries to claimant‘s back and left knee and awards made which continued until claimant's death from unrelated causes in July 2009. Thereafter, claimant's attorney sought to amend the claim for additional sites, submitting a report from Dr. Lambrakis, claimant's treating physician, indicating that claimant had sustained a 60% SLU of both his right shoulder and left knee. Ultimately, the Law Judge granted a posthumous SLU award to claimant's widow based upon the medical report. When the carrier appealed contending that such award was not supported by substantial evidence, aa Boad panel agreed, reversing the Law Judge, The Court agreed, findings that "[t]hough the Board may not fashion its own expert medical opinions, it may reject medical evidence as incredible or insufficient even where . . . no opposing medical proof is presented Here, as the Board aptly observed, Lambrakis's conclusion as to the propriety of a schedule loss of use award was stated in an entirely conclusory fashion, was not supported by ‘any specific clinical criteria’ and was made without reference to either the Board's own guidelines ‘or any specific findings on clinical evaluation.’" Prevailing party represented by: Charles L. Browning of counsel to State Insurance Fund (Endicott) for Alatis Interiors Company, Ltd. and another, respondents.

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Perrin v Builders Resource
    ♦April 10, 2014    NYS Appellate Division, Third Department
    5205...Medical Billing       [44279-7928]
DISMISSED the claimant’s appeal which posited that home health aide services provided to claimant were reimbursable at the rate of $25 per hour. After having been approved to receive home health aide services 10 hours per day, claimant's sister began providing these services. After hearing on several issues, the Law Judge determined that she was to receive the rate of $12 per hour rather than the $25 per hour sought. In dismissing the appeal the Court found that the claimant was receiving the approved home health care and the only issue was the rate of pay. Since the claimant was not the aggrieved party and that “any disagreement concerning the reimbursement rate is between the care provider– here, claimant's sister ? and the carrier ... claimant may not raise issues on behalf of his sister, or any care provider.” Prevailing party represented by Edward Obertubbesing of counsel to the NY State Insurance Fund for Builders Resource, Inc. and another, respondents.

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NYS WCB v SGRisk
    ♦April 3, 2014    NYS Appellate Division, Third Department
    3195...Self-Insured Trusts   
Cross appeals from an order of the Supreme Court, entered March 13, 2013 in Albany County, which partially granted defendants' motions to dismiss the complaint on the ground that the complaints were untimely. Between 1999 and 2008, CRM acted as the group administrator for eight WC GSIT’s that were formed to provide workers' compensation coverage to employees of the trusts' members.

  • CRM contracted with defendant UHY for accounting services that included the preparation of annual audited financial statements that each trust was required to submit to WCB.
  • CRM contracted with defendant SGRisk, LLC for actuarial services that included the preparation of annual actuarial reports that the trusts were required to submit to WCB.

At different points between 2007 and January 2010, WCB deemed each of the trusts insolvent and assumed their administration. WCB subsequently obtained independent forensic accountings of each trust and discovered that the trusts had deficits ranging from $4 million to $170 million. WCB commenced this action, as the governmental entity charged with administering the state's workers' compensation system and as successor in interest to the trusts, asserting causes of action for breach of fiduciary duty, breach of contract, aiding and abetting breach of fiduciary duty, fraud and unjust enrichment. Basically, WCB alleged that SGRisk manipulated the trusts' future claims liabilities and UHY purposely portrayed the trusts' financial conditions in a more favorable light for CRM's financial benefit. UHY and SGRisk each moved pre-answer to dismiss the complaint. Supreme Court partially granted the motions. WC BOARD appeals and UHY and SGRisk each cross-appeal.

This Court found that "[t]he cause of action for aiding and abetting breach of fiduciary duty is premised on SGRisk's knowledge of the fiduciary duties owed by CRM and UHY to the trusts, and allegations that SGRisk intentionally continued to underestimate the trusts' future claims liabilities with the knowledge that this would aid and abet breaches of fiduciary duty by CRM and UHY. Because the allegations of fraud perpetrated by SGRisk are essential to this claim, a six-year statute of limitations pursuant to CPLR 213 (8) is applicable, rendering the claim timely." Prevailing party represented by: Charles D.J. Case of counsel to Rupp, Baase, Pfalzgraf, Cunningham & Coppola (Buffalo) for appellant-respondent.
  [44276-7927]

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DePascale v Magazine Dist
    ♦April 3, 2014    NYS Appellate Division, Third Department
     7010...§23: Late/Interlocutory/Frivolous Appeal
DISMISSED appeals from the Board’s amended decision and from the Board’s reconsideration and/or full Board review. After a Law Judge found insufficient evidence of toxic exposure at his employer’s contaminated work site, the Board reversed a Law Judge ruling finding, among other things, that claimant presented insufficient evidence to establish the necessary causal relationship between his illness and his exposure to toxic substances. Thereafter, by decision and amended decision, the Board granted a subsequent request by claimant that it consider new medical and scientific evidence submitted by claimant regarding the causal connection between his illness and exposure the toxic chemicals. The Board then rescinded the Law Judge’s decision and remitted the matter for a new decision, taking into consideration, the additional medical and scientific evidence and permitting the carrier to depose any of the medical providers not previously deposed. In dismissing the appeal, the Court wrote that because the decision on appeal —which rescinded the Law Judge’s original decision and [remitted] the matter to the Judge for a new determination on the issues — was interlocutory and did not dispose of all the substantive issues nor reach legal threshold issues which may be determinative of the claim, the Court would not complete a review of “nonfinal decision.” Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.   [44276-7926]

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|— — MARCH 2014 — — |


Thurston v Con Ed
    ♦March 27, 2014    NYS Appellate Division, Third Department
    3140...§25-a: True Closing      [43725-7925]
REVERSED the Board by finding that, per §25-a, liability did shift to the Special Fund for Reopened Cases. After a 1982 work-related back injury was established and claimant classified as permanently partially disabled, claimant was paid intermittent lost time benefits covering periods between 1982 and 1999 and, in January 2000, his case was closed. In 2011 employer sought to transfer liability to  he Fund. After a Law Judge granted that request, the Board reversed finding that payments made according to the employer’s sick leave plan were “advance payment of compensation.” The Court disagreed finding that, because acknowledgment of liability by the employer is essential to the determination, "payments made pursuant to a sick leave plan regardless of cause are not advance payments of compensation. ... although he continued to lose two or three weeks of time from work per year due to his compensable injury, his wages were paid pursuant to the employer's sick leave policy, which made no distinction between time lost due to sickness or to injury.“ Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) and Steven M. Scotti, Consolidated Edison Company of N.Y.

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Estate of Harris v General Elec
    ♦March 27, 2014    NYS Appellate Division, Third Department
    1020...Causal Relationship: Death         [43275-7924]
AFFIRMED the Board’s ruling, which reversed a Law Judge’s decision in both cases, that Francis Harris (hereinafter decedent) suffered from causally related pulmonary fibrosis and that his spouse Patricia Harris therefore qualified for survivor’s benefits. In supporting the Board interpretation of the medical evidence, the Court wrote that, "[W]hile the Board cannot rely upon expert opinion evidence that amounts to nothing more than pure speculation, the Workers' Compensation Law does not require that medical opinions be expressed with absolute or reasonable medical certainty. . . .All that is required is that it be reasonably apparent that the expert meant to signify a probability as to the cause and that his [or her] opinion be supported by a rational basis.Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent.

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Guillo v NYC Hous Auth
    ♦March 27, 2014    NYS Appellate Division, Third Department
    1040...Causal Relationship: Stress        [43275-7923]
AFFIRMED the Board’s ruling, which reversed the findings of a Law Judge, that claimant did not suffer from stress, the alleged accidental injury arising out of and in the course of her employment. Claimant filed for comp benefits alleging that work-related stress caused her to develop depression, anxiety and posttraumatic stress disorder. After a Law Judge established the claim, the Board reversed on the grounds that “that claimant had failed to show that the stress giving rise to her depression was ‘greater than that which other similarly situated workers experienced in the normal work environment.’” While it was agreed that the claimant did “sustain incapacitating mental trauma as a result of her work”, the Board credited the employer’s testimony and the record which showed that the stress endured by claimant was not any greater than that suffered by her peers. Prevailing party represented by: Lauren M. Bilasz of counsel to Weiss, Wexler & Wornow (NYC) for NYC Housing Authority, respondent.

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Moreland v Reed Blacktopping
   ♦March 27, 2014    NYS Appellate Division, Third Department
    5130...§114-a: Fraud             [43275-7922]
AFFIRMED the Board’s ruling that claimant committed §114-a fraud and permanently disqualified him from receiving future wage replacement benefits. Suffering from a 2008 work-related injury and receiving compensation, claimant or, at his behest, his wife represented that he was not performing any unpaid work in several questionnaires submitted to the carrier and independent medical examiners, testifying to this in front of a Law Judge. Even though evidence was presented showing he had been working as volunteer firefighter beginning in February 2009, he repeatedly denied he was doing any work of any kind and while he stated that “he was performing duties as a volunteer firefighter at the time he made those statements; he asserted, however, that he did not view his work as a volunteer firefighter to be volunteering.” The Court agreed with the Board that the record clearly showed that claimant "engaged in significant work-related activities while intentionally misrepresenting to the carrier that [he] . . . had not been working". Prevailing party represented by: Renee E. Heitger of counsel to Hamberger & Weiss (Buffalo) for Reed Blacktopping and another, respondents.

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Gillard v Con Ed
    ♦March 27, 2014    NYS Appellate Division, Third Department
    3110...§15(8) Reimbursement Special Fund            [43275-7921]
AFFIRMED the Board’s ruling that the employer/TPA was not entitled to §15(8) reimbursement from the Special Disability Fund (Fund). Claimant's husband (hereinafter decedent), after repeated exposed to asbestos in the course of employment, had his claim established in 1998, finding him to be permanently partially disabled by asbestos-related pleural disease. After decedent passed away from lung cancer and congestive heart failure in 2005, claimant successfully sought survivor death benefits. After the employer sought reimbursement for the death benefits from the Fund, which required a showing that decedent's "lung cancer [was] causally related to, or was precipitated by, a dust disease such as asbestosis", the Board determined that reimbursement was inappropriate because decedent's underlying claim had not been established for asbestosis. After the employer sought to reopen decedent's claim for workers' comp benefits to include a diagnosis of asbestosis, as well as to establish the death benefit claim for that condition, the Board (1) denied the employer's request to reopen decedent's claim as untimely and (2) determined that, in any case, there was no proof connecting decedent's lung cancer to asbestosis.

The Board had found that it was the employer who successfully fought to prevent the claim from being established for asbestosis. “Inasmuch as the employer made no effort to reopen those proceedings until a decade later and provided no compelling explanation for that extended delay, we cannot say that the Board abused its discretion in rejecting the employer's application to reopen as untimely.” The Board also observed that the record is devoid of proof drawing a causal link between the asbestosis supposedly suffered by decedent — as opposed to asbestos exposure in general — and the lung cancer that killed him. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds.

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Launer v Euro Brokers
    March 27, 2014    NYS Appellate Division, Third Department
    5020...Disability: Degree of or R/E            [43275-7920]
AFFIRMED the Board’s ruling that claimant was not entitled to an award of reduced earnings. Claimant, who worked as a bond trader on the 84th floor of the WTC of September 11, 2001, had a brief absence from work as a result but returned to work in the same capacity for other firms, then was a principal in a bond trading firm. In 2008, after a move into the financial services field and a corresponding reduction in income, he filed a claim for workers' comp which was established in 2011 for work-related posttraumatic stress disorder (PTSD) with a reduced earnings award as of January 1, 2007 and continuing. On appeal a Board panel, and subsequently a Full Board Review, found that “claimant's reduction in earnings was not a consequence of his compensable disability.” The Court agreed with the Board that the record showed either that he left his positions voluntarily or, that there was no mention of his PSTD in his reasons for leaving. Also, “ claimant made the decision to change careers and began working as a financial advisor in March 2009. Accordingly, the record does not demonstrate that claimant's withdrawal from his former profession was involuntary, particularly in light of the fact that he engaged in the profession for more than seven years following the events that precipitated his condition and does not claim lost wages for most of that period.” There was no mention of his PSTD impacting on this income until afer he filed for his claim and “[n]otably, despite the fact that all of the medical experts agreed that claimant suffered from causally related PTSD, there was no medical opinion that he was incapable of engaging in his former profession. [thus] substantial evidence supports the Board's decision that claimant's reduction in earnings was not causally related to his compensable disability.” Prevailing party represented by: Peter M. DeCurtis of counsel to Stewart, Greenblatt, Manning & Baez (Syosett) for Euro Brokers and another, respondents.

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Visic v O'Nero & Sons
    ♦March 13, 2014    NYS Appellate Division, Third Department    
    7040...§15(6) Reopening              [43273-7919]

REVERSED Board's ruling by finding, just as this same Court did in 2012, for the pro-se claimant. Visic successfully argued that Board, in denying his request to reopen his case, simply ignored the only medical evidence in the file, evidence which supported the claimant. Claimant, injured in 2000 and classified with a marked permanent partial disability, sought to reopen his claim in July 2010 via the submission of medical reports opining that he was now totally disabled. When the Board originally denied his application on the grounds that he had failed to submit new evidence of a change in his medical condition, this same Court reversed, finding that claimant had sought to introduce new evidence but had been denied the opportunity to do so. After accepting that evidence from the claimant’s Dr Vigna, the Board “once again denied claimant's application to reopen his claim, finding that the medical reports submitted were not meaningfully different than those that provided the basis for classifying claimant with a marked PPD.” The Court noted that while th Board has discretion on such matters, in this case the Court found that the Board’s decisions was an abuse of discretion as

the Board did not reject Vigna's opinion, but rather stated that "there is no evidence that the herniation increased claimant's degree of disability" whereas the only evidence before the Board was Vigna's uncontradicted opinion that claimant is now totally disabled.

Pervailing argument presented by Neven Visic representing himself on his own behalf.

The Insider: More on this and the Matter of Danin v Stop & Shop, the next case, in this week’s COMMENTARY.

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Danin v Stop & Shop
    ♦March 13, 2014    NYS Appellate Division, Third Department
     7040...§15(6) Reopening                   [43273-7918]
AFFIRMED Board's ruling denying carrier’s request to reopen PPD case even though claimant failed to respond to carrier's inquiries about a search for work. As the result of claimant’s 2004 back injury, the parties in 2008 stipulated to a finding that claimant suffered a permanent partial disability with appropriate awards, with no further action planned. Failing to get a response to their August 2011 letter to claimant's counsel requesting documentation of claimant's search for work within his medical restrictions, the carrier filed a request for further action with the Board in September 2011, seeking a suspension of benefits on the basis that claimant had voluntarily removed himself from the labor market and/or was no longer attached to the labor market.

In declining the request, the Board found that carrier's letter and claimant's alleged failure to respond, standing alone, were insufficient to warrant a reopening of the claim. Equally important, the Board noted that its finding was a departure from prior decisions, explaining that those decisions had not accounted for the heavy burden placed upon carriers seeking the suspension of benefits in previously closed permanent partial disability cases pursuant to 12 NYCRR 300.23 (1) (c) (1). Subsequently, the carrier sent another letter to claimant's counsel, "recommend[ing that claimant] seek out and attend job search assistance and/or rehabilitation." Failing to get a response, carrier against filed a request for further action, again rejected by the Board finding that the carrier had failed to raise a question of fact as to whether claimant's reduction in earning capacity was due to causes other than his disability.

“Here, the Board denied the carrier's request to reopen the claim based upon its stated policy that the mere failure of a claimant to respond to a request for job search information is not sufficient to raise a question of fact regarding that claimant's wage-earning capacity. Moreover, contrary to the carrier's contention, its letter to claimant with a ‘recommendation’ that he seek out and attend job search assistance and/or rehabilitation services did not amount to an ‘offer’ of such services, the rejection of which the Board would have deemed sufficient to support a reopening. . . . Finally, we disagree with the carrier that the Board impermissibly departed from its earlier decisions, inasmuch as it acknowledged such a departure in its October 20, 2011 decision and clearly set forth its reasons for doing so.” Prevailing party presented by: Robert E. Grey of counsel to Grey & Grey (Farmingdale) for Howard Danin, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.

The Insider
: I consider this a seminal case on the issue of voluntary withdrawal from the labor market as Robert Grey has argued years that the Board has been too quick to find for carriers. He has apparently raised some key points which has prompted the Board to reconsider its positions and redefine its standards, for a start, in cases in which claimants have been classified PPD. More on this and The Matter of Visic v O’Nero & Sons in this week’s COMMENTARY.


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Cerbasi v County Metal & Glass
    ♦March 13, 2014    NYS Appellate Division, Third Department
    3005...§11: Jurisdiction
AFFIRMED the Board’s ruling that the out-of-state carrier was the carrier of record. Appeal from a decision of the NYS WCB, filed September 12, 2012, which ruled that New Jersey Manufacturers Insurance Company (hereinafter NJMIC) was responsible for the payment of claimant's wc benefits. The employer is a New Jersey business that maintained wc insurance in that state through NJMIC. After claimant was injured in 2009 working for the employer at a construction site in New York and applied for benefits, a dispute arose as to whether his accident was covered by NJMIC's policy. A Law Judge determined that the policy did cover the accident as New York was not included in a list of states specifically excluded from coverage on the declarations page submitted by NJMIC, and an attempt by NJMIC to amend the policy to add New York to this list about a month before claimant's accident was ineffective: notice requirements of WCL §54(5) were not followed.

NJMIC argued that claimant's accident was excluded from coverage under the "limited other states' insurance endorsement" that confined the policy's New York coverage to temporarily assigned New Jersey employees. However, no such provision was included in the endorsements that NJMIC supplied; further, despite NJMIC's claim that the limitation was part of the policy's "Other States Insurance" provision, that section of the declarations page merely stated that "Part Three of the policy applies to" covered states — without describing Part Three's contents or mentioning the conditions that it purportedly contains — and Part Three itself was not provided. Prevailing party represented by: Anthony Brooks-Morgese of counsel to Law Offices of Joseph A. Romano (Yonkers) for Michael Cerbasi, respondent and David L. Wecker of counsel to Foley, Smit, O'Boyle & Weisman (New York City) for Levin Management Corp and another, respondents.

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 Stewart v NYC Transit Authority                         
    ♦March 6, 2014    NYS Appellate Division, Third Department
    7016...§114-a(3) Unreasonable Appeal Penalty     [43272-7916]
AFFIRMED the Board’s decision which denied claimant's request for a change of venue and assessed a $500 penalty to claimant's counsel for filing the application for Board review without reasonable grounds. Claimant's counsel, whose client lives in and filed his claim in Brooklyn, sent a letter to the Board requesting that all future hearings related to the claim be held at the hearing location in the City of White Plains, Westchester County. Relying on a policy statement from the Board Chair regarding requests for venue changes, a Law Judge denied the application, affirmed by a Board panel which added the penalty.

Claimant's sole contention is that the Board's decision must be rescinded in its entirety because the policy statement was not properly promulgated. Inasmuch as claimant did not raise this issue before the Board, the Court ruled that it was not preserved for our review. In addition, “the publication at issue is merely ‘an interpretive or explanatory statement of general policy’ that is exempt from the definition of a ‘rule’ under the State Administrative Procedure Act and its rule-making requirements.” Prevailing Party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.

The Insider: If this cases appears familiar, it is. On December 19, 20, the 3rd A.D. issued the same decisions in Banton v NYC Dept of Corr and Wolfe v NYC Dept. of Corr.

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West v Titan Express                            
    ♦March 6, 2014    NYS Appellate Division, Third Department
    9998...Other          [43272-7915]
Dismissed the claimant’s appeal as moot when claimant sought to appeal the denial of a medical variance. The full background of this matter is set forth in a previous decision of this Court (112 AD3d 1279 [2013]). Briefly stated, claimant's physician sought a variance which was approved by a Law Judge but reversed by a Board panel November 2012, resutling in claimant’s appeal to the 3rd Dept. In April 2013, while the appeal was pending, but prior to the filing of the record and briefs, the Board issued a new decision that "amends and supersedes" the November 2012 decision — reaching the same ultimate conclusion, but upon a distinctly different analysis.  Despite the timing, this Court was at no point informed of the amended decision and, therefore, upon discovering its existence, requested further briefing of the issues posed by these unusual procedural circumstances (112 AD3d at 1280). Supplemental briefs were thereafter timely submitted by the Board and the Special Fund for Reopened Cases, but no brief was submitted on behalf of claimant.

The Court, after finding that it was within the Board's statutory authority and broad discretion to issue the amended decision, per WCL §123, essentially determined that “claimant's appeal had not yet been perfected, the amended decision was apparently intended to revise and correct the previous analysis, and the amendment did not alter the substantive result. . . Nonetheless, the amended decision, which by its terms superseded the initial decision, renders the present appeal moot.Prevailing party presented by: Jill B. Singer of counsel to the Special Funds respondent, and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.

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Ali v State of New York                                   
    March 5, 2014    NYS Appellate Division, Second Department
    9998...Other               [43272-7914]
AFFIRMED lower court’s ruling that the NYS WCB is not responsible for injury to claimant caused by a Board employee under the doctrine of respondeat superior. Claimant, sitting in a district office waiting room, was injured when a Board employee, in reaction to the news of his grandmother's death, went over to the waiting area and punched a wooden bench that was in front of the claimant, causing it to fall on the claimant. At the close of the trial on the issue of liability in claimant’s suit against the State of New York to recover damages for personal injuries, the Court of Claims granted the defendant's application to dismiss the claim. In affirming the lower Court, the 3rd A.D. wrote that, “the parties do not dispute that the security guard is an employee of the defendant for purposes of tort liability under the doctrine of respondeat superior. However, the defendant is not vicariously liable for the security guard's conduct because the evidence at trial established that the security guard was acting solely for personal motives unrelated to the defendant's business at the time of the incident . . .Furthermore, the evidence failed to demonstrate that the security guard's conduct was reasonably foreseeable by the defendant.”

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|— — FEBRUARY 2014 — — |

Gullo v Bellhaven Ctr                            
    ♦February 26, 2014    NYS Appellate Division, Second Department
    3005...§11: Jurisdiction            [42271-7913]
An injured worker commenced an action against his employer for failing to tell him until 2009 the positive results of what was a routine employer test for Hepatitis C antibody conducted in 2005. The lower court granted the employer’s motion for summary judgment by dismissing the complaint insofar as asserted against them, solely on the ground that the Workers' Compensation Law provided the exclusive remedy for the damages alleged in the complaint. The Appellate Court reversed, finding that the record does not disclose whether Gullo has filed a claim with the Board. Rather, “the case should have been referred to the Board for a determination as to whether the plaintiffs have a valid cause of action for damages or whether Gullo is limited to benefits under the Workers' Compensation Law.

The Insider: This case is similar to Gibbs v NYC Health & Hosp Corp issued by the 3rd Department February 13, 2014 which also stated that “accident and notice were not finally decided and no decision as to the establishment or disallowance of the claim was rendered.”

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Stevenson v Yellow Roadway     
    ♦February 20, 2014    NYS Appellate Division, Third Department
    1001...§21: Unwitnessed Death/accident      42270-7912
AFFIRMED the Board’s ruling that decedent's death was causally related to his employment. On March 17, 2010, decedent, a tractor trailer operator employed by Yellow Roadway Corporation, crashed his tractor trailer into a toll booth and sustained critical injuries. At some point either before or after the accident, decedent suffered a massive stroke and died two days later. After Claimant, his widow, filed for workers' comp, the employer filed a C-7 controverting the claim on the basis of, among other things, whether it was premised on an accident arising out of and in the course of employment. A Law Judge finding that the emp Stevenson v Yellow Roadway loyer had not timely controverted the claim, barred the challenge.

After the Judge, affirmed by a Board panel, concluded that the case was not ripe for adjudication based upon claimant's failure to produce prima facie medical evidence of a causally related death, a Full Board agreed that the employer was barred from raising defenses to the claim and, relying upon the presumption of compensability set forth in Workers' Compensation Law § 21 (1), established the claim for a causally related death. In affirming the Board, the Court noted that “Inasmuch as decedent clearly had an accident while working, and it was either the stroke that caused the accident or the accident that caused the stroke, the Board properly applied the presumption that decedent's injury was causally related to his employment.” Also, “it is undisputed that the employer did not timely file the C-7 notice of controversy, and "there was no showing of good cause or other reason to excuse the failure." Prevailing Party represented by: Denise Gold (Hewlett) of counsel for Jean Stevenson, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent.

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NY Hosp Med of Queens v Microtech
     ♦February 13, 2014    NYS Court of Appeals
     3011...Undocumented aliens            42269-7911
AFFIRMED the Third Dept’s affirmance of the Board's ruling that §11 protects an employer of an illegal immigrant from 3rd party lawsuit if worker has an established workers comp case, unless the employee suffered a "grave injury," limited to death and the exclusive list of disabilities defined in the statute.

In Balbuena v IDR Realty, LLC (6 NY3d 338 , 363 [2006]), we held that an injured employee's status as an undocumented alien does not preclude recovery of lost wages in a personal injury action against a landowner under the state's Labor Law. This appeal asks us to look at the other side of the coin and decide if an employer's statutory rights under the Workers' Compensation Law are extinguished merely because its injured employee is an undocumented alien; specifically, whether the employer may still invoke section 11's shield against third-party claims for common-law contribution and indemnification. We conclude that, under the facts and circumstances presented by this case, the employees' immigration status does not affect the employer's rights under Workers' Compensation Law § 11, and therefore affirm the Appellate Division.

Essentially, the Lema brothers were injured while employed by Microtech who had a demolition contract with the Hospital. The brothers made claims for and received workers' compensation benefits, which Microtech's insurance carrier paid. Additionally, by complaint dated August 8, 2008, the Lemas sued the hospital for violations of the Labor Law. This is exactly the kind of lawsuit that Balbuena permits to go forward, at least absent proof that the undocumented alien tendered false work authorization documents to gain employment (see Balbuena, 6 NY3d at 363). In a decision dated November 19, 2010, Supreme Court granted the Lemas summary judgment on liability on their causes of action grounded in Labor Law §§ 240 (1) and 241 (6). According to the hospital's attorney, the parties entered into a high-low agreement at the ensuing damages trial, and after the verdict, the judgment was paid in keeping with this arrangement.

The hospital brought this action for common-law and contractual contribution and indemnification against Microtech to recover any damages it incurred in the Labor Law litigation with the Lemas. The hospital alleged that Microtech breached its contract with the Hospital and violated the Immigration Reform and Control Act (8 USC § 1324a) (IRCA) when it hired the Lemas. The hospital insisted that Microtech should not be allowed to "hid[e] behind the language of Workers' Compensation Law § 11 after violating a federal statute" since "New York courts have long held that they will not award a plaintiff the benefit of an illegal bargain." "the Hospital argues only that the employment contracts between Microtech and the Lemas were illegal contracts that are unenforceable in New York Courts. If the illegality of the employment contract does not defeat the employee's rights under an otherwise applicable state statute, as was the case in Balbuena, it is]not clear why it would nonetheless annul the employer's statutory rights.

Microtech took the position that section 11 barred the hospital's action because documentary evidence (the bill of particulars in the underlying personal injury lawsuit and an unsigned purchase order postdating the accident) showed that the Lemas did not suffer a grave injury and that Microtech did not enter into the requisite written contract providing for contribution or indemnification[

Under New York's workers' compensation scheme, an employee receives medical benefits and compensation for workplace injuries, regardless of fault, paid for by the employer. In exchange for this certain and swift remedy, the employee gives up the right to sue the employer for personal injuries. Over time, however, this trade-off was seriously compromised by our decision in Dole v Dow (30 NY2d 143 [1972]). Dole allowed "a primary defendant in an action [to] seek unlimited contribution or indemnification from an employer as a third party . . . although a direct action against the employer would be barred by the exclusivity provisions of the workers' compensation system". As amended by the legislature in 1996, then, section 11 now explicitly limits an employer's exposure to third party liability to those situations where the employee suffers a grave injury, or the employer enters into a written contract of contribution or indemnification with the third party (id. at 55). As this case is presented to us, the Lemas did not suffer grave injuries, there was no preexisting agreement for contractual contribution or indemnification and the hospital does not contend that IRCA preempts section 11; therefore, Microtech is entitled to the safe harbor in section 11. Prevailing Party represented by: Dennis M Wade (NYC)

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Baum v Hylan Group                
    ♦February 13, 2014    NYS Appellate Division, Third Department
    7010...§23: Late/Interlocutory/Frivolous Appeal     42269-7910
AFFIRMED the Board’s decision to deny the carrier’s application to reopen a claim six years after the claim was established. After claimant's husband (hereinafter decedent) was murdered at work, work comp benefits were established in 2004. In 2010 the carrier sought to have the case reopened, pointing to evidence that decedent's murder was unconnected with his employment, citing a 2005 press release from the United States Attorney's Office, stating that decedent was executed by gang members. The Court agreed with the Board that the employer allegedly did not ascertain the facts surrounding decedent's death until several months before its 2010 application for reopening and did not explain the delay in bringing this information to the Board's attention. Thus, the employer's application was properly denied. Prevailing party represented by: Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent.

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Conway-Acevedo v Con Ed                                   
    February 13, 2014 NYS Appellate Division, Third Department
    3110...§15(8) Reimbursement Special Fund     42269-7909
AFFIRMED Board's ruling that there is no §15(8)(d) reimbursement. Based on 2001 work related injuries claimant was awarded workers comp. Subsequently, the carrier sought §15(8)(d) reimbursement from the Special Funds Conservation Committee (Fund). Based on testimony from the claimant and doctors from the Fund and the carrier, a Law Judge found that the carrier was not entitled to reimbursement. Not only did the Court find that the Board applied the proper legal standard, the carrier failed to prove that claimant's preexisting osteoarthritis of the hips hindered or was likely to hinder her employment. Also, the record did not reflect that claimant was experiencing pain due to her arthritic hip condition, that she missed any time from work, or that she was under any restrictions prior to her workplace accident. Prevailing Party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee respondent.

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Cook v E Greenbush Police Dept                    
    February 13, 2014 NYS Appellate Division, Third Department
    1040...Causal Relationship: Stress         42269-7908   
AFFIRMED Board's ruling that claimant's mental stress was not out of the ordinary for his occupation, thus not compensable. Claimant, a patrol officer for the East Greenbush Police Department, was on duty in January 2009 when he was assigned as part of a “contact team” to deal with an armed suspect who was firing shots at passing motorists and law enforcement officers. With the claimant acting as a spotter, the suspect was shot and subsequently died. After missing work on a regular basis in January 2010, he filed for workers comp and  subsequently diagnosed with posttraumatic stress disorder related to the January 2009 incident, which he claimed rendered him disabled. A Law Judge denied the claim, finding that the events giving rise to claimant's injury were part of his job description and responsibilities as a peace officer. After a Board panel affirmed with a split decision, a Full Board review affirmed the Law Judge.

For a mental injury premised on work-related stress to be compensable, "the stress must be greater than that which usually occurs in the normal work environment. Whether the stress experienced by a claimant is more than that normally encountered is a factual question for the Board to resolve, and its finding will not be disturbed when supported by substantial evidence.” The Court added that, although the particular circumstances of the event may have been “extraordinary”, they were certainly in line with the expectations of the job of a police officer. Prevailing Party represented by: Leith Carole Ramsey of Stockton, Barker & Mead (Troy) of counsel) to NYSIF for East Greenbush Police Department and another, respondents.

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Dizenzo v Henderson & Johnson                              
    ♦February 13, 2014 NYS Appellate Division, Third Department
    1100...Course of Employment: in and out of            42269-7907
AFFIRMED Board's ruling that claimant had no further causally related disability. After a January 2011 slip and fall, claimant’s case was established for injuries to his right wrist, right shoulder, and left knee. When the claimant, thereafter submitted medical reports for neck and back injuries, a Law Judge concluded that claimant did not sustain those additional injuries. The claimant’s treating physicians opined that his fall may have exacerbated existing degenerative conditions but failed to convincingly or conclusively establish that this was, in fact, the case. Hence, the claimant’s case was based on an opinion of probability rather than fact. Thus, the Court found that the Board's determination was supported by substantial evidence. Prevailing Party represented by: James U. Cavanagh of counsel to Cherry, Edson & Kelly (Tarrytown) for Henderson & Johnson and another, respondents.

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Malave v Beef & Bourbon
     ♦February 13, 2014 NYS Appellate Division, Third Department
     3030...Employment: Who is or dual                 42269-7906
AFFIRMED the Board’s ruling that Beef & Bourbon was solely liable for workers' comp benefits paid to claimant. Claimant suffered catastrophic injuries, leaving her in a persistent vegetative state, when the employer-sponsored van in which she was traveling from her place of work back to her home crashed. Although the initial claim named Beef & Bourbon and Tacos Ricos as her putative employers, a Law Judge established that the injuries were work-related and found that claimant was an employee of both entities, but had worked for Tacos Ricos on the night of the accident. After Tacos Ricos appealed, a Board panel found that Beef & Bourbon was the employer responsible for the claim. The Court, citing several cases, noted that “Where a claimant has multiple employers, the Board may make an award against any or all of the employers as it sees fit.”  The testimony of the claimant’s mother, supported by an employee of Tacos Rios, was the basis for the Board’s decision. The Court also noted that, in light of claimant's ongoing disability, it was not improper for the Board to have relied upon the hearsay testimony of claimant's mother. As is often the case in controversies of this nature, as whether she was employed there or at Beef & Bourbon on the night of the accident. the Court found the Board's decision that claimant was employed at Beef & Bourbon on the night of the accident to be supported by substantial evidence, notwithstanding the existence of evidence in the record that might have supported a different conclusion. Prevailing argument presented by: David J. Goldsmith of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Tacos Ricos and others, respondents.

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Martineau v Ashline      
    ♦February 13, 2014 NYS Appellate Division, Third Department
    3030...Employment: Who is or dual                       42269-7905
AFFIRMED Board's ruling on employer/employee relationship and denied Full Board Review. After claimant filed a claim for an injury caused by a bull on the Ashlines’ dairy farm, the Ashlines controverted the claim on the basis that claimant was not their employee. While the claimant argued that she had been hired to perform evening milking duties on their farm and that she was performing these duties at the time of her injury, the Ashlines countered that, “they had only met her on two occasions when she appeared on their farm uninvited.” The Law Judge found that claimant was employed by the Ashlines and awarded benefits. In summary, the Court affirmed writing, “Given the significant deference accorded to the Board's resolution of issues of credibility, and despite proof in the record that could support a different result, we find that the Board's determination is adequately supported by the record. ... [Also, u]pon review of the record and submissions, we find no basis upon which to conclude that the Board's denial of reconsideration and/or full Board review was either arbitrary and capricious or an abuse of discretion.” Prevailing party represented by: Kimberly I. Gould of counsel to Erwin, McCane & Daley (Albany) for Denise Martineau, respondent, and Felice Sontupe of counsel to the NYS Attorney General, for WCB, respondent.

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Gibbs v NYC Health & Hosp Corp 
    February 13, 2014 NYS Appellate Division, Third Department
    7010...§23: Late/Interlocutory/Frivolous Appeal                   42269-7904
DISMISSED the carrier's appeal on the grounds that a formal decision had no yet been made and affirmed the Board’s imposition of a §23 penalty. The Law Judge noted that he found "accident and notice based upon the uncontroverted testimony" of claimant. However, the notice of decision specifically stated that the case was continued to address, among other things, "Accident Within Meaning of Workers' Compensation Law, Accident Arising Out of And In The Course Of Employment, Occupational Disease . . . , Notice [and] Causally Related Accident Or Occupational Disease." When the carrier appealed, the Board refused to consider the employer's application, ruling that the WCLJ's decision was not reviewable by it until final. In agreeing with the Board, the Court wrote, “ it appears from a plain reading of the WCLJ decision at issue in this expedited case that all questions relating to, among other things, accident and notice were not finally decided and no decision as to the establishment or disallowance of the claim was rendered.” The Court then affirmed the Board’s penalty, finding that the application for review was brought for the purpose of delay and upon frivolous grounds. Prevailing party represented by: Anthony Brooks-Morgese of counsel to the Law Office of Joseph A. Romano (Yonkers) for Mary Gibbs, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent.

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|— — JANUARY 2014 — — |

Harrison v Canal Furniture
   ♦January 31, 2014  upreme Court, County of New York 
   3020...Coverage        [42268-7903]
In this case, the landlord, M. Harrison, sought to evict the tenant (Canal Furniture) for purported breaches of a commercial lease for a property located in Manhattan, in part based on the Tenant’s failure to have a workers compensation policy. The Court addressed each of the numerous breaches that the Landlord asserted, holding that they had been cured: repairs were made, a valid certificate of occupancy currently existed, and the required claims-made insurance policies had been obtained. However, the Landlord identified one potential incurable breach -- the Tenant's failure to obtain the required occurrence-based policies: specifically, the required workers' compensation insurance, creating a six-year period of potential uncovered claims. The Tenant, having already been fined by the NYS WCB for its failure to have coverage, admitted to this lapse. However, the Tenant argued that this problem has been cured because: (1) all of the relevant employees signed waivers of their workers' compensation claims; and (2) the statute of limitations for such claims has run.

While the Court ruled that these breeches and subsequent corrections were not sufficient to warrant termination of the lease, it wrote:

    . . . the Tenant's contentions that all possible WCL claims are either time barred or released are wrong as a matter of law. First, potential claims are not necessarily time barred due to the possibility that injuries have yet to be discovered. Given that the Tenant's subtenant is a dental practice, uses x-ray machines, it is possible that a former employee might have been exposed to radiation that has yet to manifest into an illness. Such a claim would be timely under WCL §28 if made within two years of discovery of the illness. Second, though the Tenant claims to have obtained releases of all possible claims, such settlements are invalid because they have not been approved by the WCB, as required by WCL §32.

The Insider: Left unaddressed is what the Court would have done had the Tenant not had such a WC policy in place. Would have eviction followed or would the Tenant have be given a grace period in which to correct said deficiency?

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Brown v Penguin 
    ♦January 30, 2014    NYS Appellate Division, Third Department
    1030...Causal Relationship: PFME, et a     [41267-7902]
AFFIRMED the Board’s ruling that the claimant sustained a compensable injury when he removed a heavy piece of air conditioning equipment from a ceiling and carried it down a ladder. The Board found the claimant's account of the accident to be credible as well as the opinions of two physicians who had examined claimant. The Court stated that, rather than being “overly speculative, ...  The physicians who offered those opinions relied, in part, on claimant's account of the accident, which the Board found to be credible.” Finding that there was no medical evidence to the contrary the Court determined that Board’s finding was supported by substantial evidence. Prevailing party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent.

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Dosztan v Kraft Foods         
    January 30, 2014    NYS Appellate Division, Third Department
    1030...Causal Relationship: PFME, et al    [41267-4901]
AFFIRMED the Board’s ruling that the claimant sustained a causally related occupational disease. Claimant, employed in 2003, sought medical treatment in January 2010 for shortness of breath, which resulted in his being taken out of work from May 14, 2010 through August 11, 2010. He then successfully filed a workers comp claim, citing illness to his lungs and sinuses as the result of breathing in grinding dust, cardboard dust, and fumes caused by heat-shrinking polyethylene. The Board determined he had a causally related occupational airway disease and awarded benefits for the lost time from work. Claimant has continued working since August 2010.

The employer contended that the Board's determination was not supported by substantial evidence because it was based upon speculative medical opinion. In disagreeing, the Court noted that:

Claimant presented the medical reports and testimony of [two doctors who] both diagnosed claimant as suffering from respiratory disease related to claimant's work-related exposure to cardboard dust and fumes from shrink wrapping polyethylene. Further, an industrial hygienist testified that the shrink-wrapping process used by the employer would emit respiratory irritants, and claimant's supervisor testified that claimant worked around the shrink wrapping machine on a daily basis and there was cardboard dust in his work area.

The Court summarized its position by stating that, although there may be conflicting medical information as long as the Board’s position is supported by substantial evidence, "notwithstanding the absence of OSHA violations" , the Board's determination will not be disturbed. Prevailing party represented by: Marjorie S. Leff  of counsel to the NYS Attorney General, for WCB, respondent.

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John E. Durst 
    January 29, 2014    NYS Appellate Division, Second Department
    9977...Disciplinary            [41267-4900]
John E. Durst, Jr. has proffered an affidavit of resignation, based on the following:

Cirro Rodriguez retained Durst to handle a claim for Workers' Compensation benefits in a case which settled for $500,000, a portion of which came into the Durst’s possession as Rodriguez’s attorney. Rather than purchasing an annuity, it is alleged that Durst made regular monthly payments directly to Rodriguez for a while, then occasionally, then none at all. At that time, Rodriguez retained new counsel who requested a full and accurate accounting of all settlement funds. Despite several subpoenas requesting the accounting, Durst did not comply.

Based upon the foregoing, and that Durst had been advised that he would be charged with misappropriating client funds, among other charges, Durst acknowledged that he would not be able to successfully defend himself on the merits against such charges and tender his resignation, aware that penalties included the fact that he is barred by Judiciary Law §90 and the Rules of the Appellate Division, Second Department from seeking reinstatement as an attorney for a minimum period of seven years.

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Clarification on Bissell vs Town of Amherst


January 9, 2013: Hal Friedman, the attorney who represented NYSIF at the Court of Appeals in the Matter of Bissell vs Town of Amherst [March 27, 2012], writes that the NYSIF payment to Amherst had nothing to do with paying a contribution to litigation costs based on savings on future medical payments. Friedman states that,

"Rather, it was a settlement of an underlying indemnification dispute between NYSIF and the Town of Amherst. Bissell sued Amherst for damages related to his accident and Amherst impleaded Bissell's employer and NYSIF insured McGonigle & Hilger Roofing Co. as Bissell's injuries exceeded the grave injury standard required to prosecute such claims against employers. NYSIF contended that it owed no indemnification to Amherst because McGonigle & Hilger Roofing Co. had gone bankrupt and was dissolved prior to judgment being entered against Amherst for $23 million in damages. The matter has been in litigation for years and could perhaps have been so for some time to come, but NYSIF decided to settle and indemnity Amherst for a sum somewhat less than the judgment plus interest that Amherst had demanded."

Friedman, who has written this comment on his own and not on behalf of NYSIF,  can be contacted at 2hfs@nyc.rr.com.

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Porter v NYS Elec & Gas
    ♦January 23, 2014    NYS Appellate Division, Third Department
    3140...§25-a: True Closing     [41266-7899]
AFFIRMED the Board’s decision that liability shifted to the Special Fund for Reopened Cases (Fund)  pursuant to WCL §25-a. After claimant suffered injuries on May 1, 2004, his claim was established for occupational disease. With 22.5% apportioned to this most recent accident, no further action planned. Thereafter, claimant continued to work while experiencing back problems and was diagnosed with severe biforaminal stenosis. Classified as partially disabled, he was treated with a series of epidural injections. On April 27, 2011, following MRI’s and a request by claimant's treating orthopedic surgeon, the WCB Chair authorized surgery to be performed on claimant's lumbar spine. On May 10, 2011, the WC carrier requested payment benefits be transferred to the Fund per WCM §25-a, a request denied by a Law Judge but accepted by a Board panel which found that the Chair’s April 27, 2011 order constituted a true closing of the case, thus shifting liability to the Fund.

The Court determined that because, in this case, the statutory time periods had been met, the shifting of liability would occur only if the case had been 'truly closed', which is a factual issue to be resolved by the Board by evaluating if any further proceedings related to the payment of compensation were contemplated at the time that the case was closed, not whether they were actually planned. The Board's decision in this regard will be upheld if supported by substantial evidence. Here, the Board decided “that the April 27, 2011 order finally resolved the issue of treatment with respect to claimant's lumbar spine and made no mention of any further proceedings. Certainly, the submission of additional medical evidence was not contemplated at that time.” The Court then wrote that “substantial evidence supports the Board's decision. A contrary result is not compelled by the subsequent change in claimant's medical condition and his need to have further surgery following the April 27, 2011 order.Prevailing party represented by Jacklyn M. Penna of counsel to Buckner & Kourofsky (Rochester) for New York State Electric and Gas Corporation and another, respondent.

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Cook v DiNapoli
    ♦January 16, 2014    NYS Appellate Division, Third Department
    Jurisdiction            [41265-7898]
The injured worker’s application for performance of duty disability retirement benefits was denied because he failed to provide respondent with timely written notice of the incident as required by Retirement and Social Security Law § 363-c (e) (a), resulting in this Article 78 proceeding. And his defense that his claim was accepted by the WCB does not mean it was timely filed with the WCB. The Court wrote, “However, such notice need not be given where notice of the occurrence has been filed ‘in accordance with the provisions of the workers' compensation law’ or if the ‘failure to file notice has been excused for good cause shown as provided by rules and regulations promulgated by [respondent].’ Here, although petitioner initially claims that the notice provision should be excused because he filed a workers' compensation claim, such claim was not filed within the time permitted by Workers' Compensation Law § 18. The ultimate decision of the Workers' Compensation Board to excuse the untimeliness of that claim was not binding on respondent and did not preclude denial of his retirement application.”

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Mott v Central NY Psychiatric
    ♦January 9, 2014    NYS Appellate Division, Third Department
    3175...§25(4)[a] Reimbursement       [41264-7897]
REVERSED the Board by finding that, contrary to the Board ruling, the employer is entitled per §25(4)(a) to reimbursement for certain benefits paid to claimant. Claimant, an employee of a state-run  psychiatric center, had his claim established and was awarded benefits from July 2008 to September 2009, during which he used his five days of allotted annual personal leave time and received full payment of wages for that time. The Board denied the employer’s request for reimbursement at the comp rate for the advance payment of compensation during claimant's disability, including for the time charged against claimant's personal leave time.

WCL §25(4)(a) provides that, "[I]f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid installment or installments of compensation due." Further, "[a]n employer can be reimbursed for compensation paid to a claimant even if that compensation was paid in accordance with a contract or a collective bargaining agreement" and reimbursement must be awarded to the employer "unless such reimbursement would achieve a disproportionate result, either to the employer or employee."

The Court discounted the Board’s reliance on cases in which the used sick leave credits could not be restored but later could be converted into retirement service credits; the loss of those credits resulted in a permanent benefit to the employers.  Thus, an award of reimbursement for the payment of the accrued sick leave, coupled with the permanent benefit of the reduced sick leave credits, would result in a disproportionate benefit to the employers and a net detriment to the employees.  The Court then concluded, “In the current case, personal leave credits, as opposed to sick leave credits, may not be accrued from year to year or converted into cash or retirement credits.  Rather, here, the denial of reimbursement for payments related to personal leave credits would result in claimant receiving both full wages and compensation benefits for the time in question. Such a result is disfavored and requires that reimbursement be granted to the employer.” Prevailing Party represented by: David R. Klotz of counsel to the State Insurance Fund, for appellants.


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