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

2011 COURT DECISIONS

Concerning
The NYS Workers Compensation Board

To search other years, click on the date: 2015   2014   2013  2012   prior   2010    2009    2008

Email the Insider with your comments and questions on this case.


— — DECEMBER 2011 — —


Morphew v Aero
December 29, 2011 NYS Appellate Division, Third Department
§29: Apportionment of legal fees

RESCINDED the Workers Compensation Board’s decision that the claimant was not entitled to reimbursements for certain expenses from his 3rd party law suit. After being awarded comp benefits for a March 2004 work accident, claimant commenced a third-party action, received a settlement offer of $725,000, and then received the carrier’s consent. In its consent, the carrier asserted a lien in the amount of $132,002.63 for compensation payments already made [The total amount of the workers' compensation payments to claimant prior to settlement was $201,053.98, and the carrier accepted the reduced amount to account for its equitable share of the litigation costs commensurate with that figure.]. Additionally, the carrier "specifically reserve[d] its rights to claim a credit and offset for the net amount of the settlement payable to [claimant] against any prior, subsequent or future claim for [w]orkers' [c]ompensation indemnity and/or medical benefits arising out of this occurrence." The carrier then suspended its indemnity payments to claimant based upon its offset against claimant's proceeds from the settlement. After the Board classified claimant with a moderate to marked permanent partial disability, claimant requested further action and a Law required the carrier to contribute its share of the litigation costs associated with the offset amount by paying claimant a discounted rate of indemnity. On appeal, the Board reversed, finding that an award of such payments to claimant would alter the terms and conditions of the settlement consent agreement, which was beyond its jurisdiction.

Because "carriers are obligated to contribute the costs of litigation in proportion to the total benefit that they receive”, the carrier has a legal obligation to "pay its equitable share of litigation costs as benefits accrue" even in cases in which future benefits are too speculative to apportion the carrier's litigation costs at the time of settlement. The Court essentially stated that, contrary to the Workers Compensation Board’s position, Burns v Varriale, 9 NY3d 207, 214 [2007]did apply. “Although, in its consent to settlement, a carrier may seek to be released from its affirmative obligation to pay its share of litigation expenses, it is ‘required to express that release plainly and unambiguously in the consent to settlement agreement’. Thus, contrary to the Board's determination that it lacked jurisdiction, whether the carrier ‘plainly and unambiguously’ absolved itself of its continuing responsibility to contribute to the litigation costs consistent with its offset is a question of fact for the Board to resolve and, accordingly, the matter must be remitted.” Prevailing party represented by: Justin S. Teff of counsel to Law Office of Ralph M. Kirk (Kingston) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #5040 5518 [1D158-7677]


Coyle v Midwest Steel
December 22, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal

REVERSED the Workers Compensation Board’s decision that claimant’s lost earnings were not causally related to claimant's work-related disability while also ruling that the claimant did not voluntarily withdraw from the labor market. As the result of an established claim for an injury to his left knee in 1998, claimant underwent multiple knee and hip replacement surgeries, and consequential compensable injuries to his back and right hip were established. After the light duty position to which he returned in June 2009 was eliminated in August 2009, claimant was offered a full-duty position as an ironworker, but feeling that he could not accept the position due to his medical restrictions, he retired. Payments were made to the claimant until December 2009 when the carrier raised the issue of claimant's voluntary removal from the labor market. In December 2009, a law judge ruled that the claimant was entitled to continued benefits and, then in February 2010, ruled the claimant had involuntarily retired due to his causally related disability. A Board panel affirmed the December 2009 decision, but reversed the February 2010 decision, denying further benefits due to claimant's failure to maintain a sufficient attachment to the labor market subsequent to December 12, 2009, prompting a pro-se appeal.

In reversing the Workers Compensation Board, the Court wrote, “The Board's finding that claimant's retirement was involuntary ‘gave rise to an inference that his reduced earning capacity continued after retirement’. That inference is removed only by ‘direct and positive proof that something other than the disability was the sole cause of claimant's reduced earning capacity after retirement’. Further, ‘[p]roof that the claimant has not sought work postretirement, by itself, does not defeat the inference or shift the burden to [the] claimant to show that the disability was a cause of the reduction’ . Rather, the employer or workers' compensation carrier ‘must demonstrate that something other than the disability was the sole cause of claimant's reduced earning capacity after retirement, such as age, economic conditions or other factors unrelated to the disability. Here, the Board relied solely on the fact that claimant failed to actively search for employment or avail himself of any employment services after retirement in denying him further benefits. Given the lack of any proof by the employer that something other than claimant's disability was the sole cause of his reduced earnings after retirement, we conclude that the Board's determination denying claimant further benefits is not supported by substantial evidence and must be reversed.” Prevailing party represented by: Mark Du of counsel to the Law Office of Joseph Romano (NYC) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0985 8460 [1D157-7676]

The Insider It seems that the Workers Compensation Board did a review on its own motion of this same June 4, 2009 decision for which the 3rd Department has just issued the above opinion. Based on that review, issued September 29, 2011, the Board panel determined that Full Board Review was not warranted, had determined that the MOD should be amended, and, in effect, reversed itself, finding involuntary withdrawal from the labor market. While one can agree or disagree with the result of the Board panel’s ‘voluntary’ review of its own decision, one is prompted to ask, “At what point does a Board panel decision become final if the Board can change its mind when the fancy (or a politician’s phone call) generates an arbitrary review and reversal?”]

While we await what will be a clarification on the issue of Voluntary Withdrawal From the Labor market, the record shows that the Workers Compensation Board has a failing grade on this issue this year, getting only 7 of 11 affirmances (63%) of its decision to date.


Lewis v Stewarts Marketing
December 22, 2011 NYS Appellate Division, Third Department
Untimely Submissions/Defenses

REVERSED the Workers Compensation Board’s ruling that claimant sustained a permanent total disability because the Board denied the carrier the right to cross examine witnesses. In 2008, the employer sought a hearing to determine the degree and permanency of claimant's disability for injuries sustained in a compensable accident in 1997. After claimant provided an updated medical report indicating that he had a permanent total disability, the employer submitted an independent medical report indicating that claimant suffered a moderate partial disability of a permanent nature and was capable of performing some type of work. A law judged denied the employer's request to cross-examine claimant and his physician concerning claimant's ability to work, determined that claimant had a permanent total disability, and awarded benefits with videotapes proving §114-a fraud. In reversing the Board, the Court agreed with the carrier that its request to cross-examine claimant and his physician was improperly denied since they did make a timely request to do so (see 12 NYCRR 300.10 [c]). In its reversal the Court also noted that “Moreover, inasmuch as the record contains conflicting medical reports regarding the nature of claimant's disability, denial of the employer's request to cross-examine claimant's physician clearly prejudiced the employer. Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for appellants. Commissioners of Record: Higgins, Libous, Foster WCB #6980 0429 [1D157-7675]

The Insider The carrier had also sought a ruling on §114-a but the Law Judge and Workers Compensation Board's Panel determined that medical reports found the claimant totally disabled, and did not directly rule on the §114-a issue. The carrier then raised this issue again with new evidence and, in a December 8, 2009 decision, was hit by a Law Judge with a §114-a(3)(i) penalty for raising this issue, an issue for which no decision (certainly not noted in any of the Board panel MOD’s) had previously been rendered. The carrier’s appeal to the Board on this penalty was not only denied but the carrier was then hit with a $500 penalty under §23 for a frivolous appeal. Yet (1) the record show that the Board had yet to rule on the fraud issue and (2) the decision of the Appellate Court to remand for testimony on both degree of disability and work ability would appear to make the videotapes and investigator’s report, the basis of the fraud claim, neither a waste of the Board’s time nor a frivolous appeal. Or did I miss something?]

the Insider This is the first Workers Compensation Board case on this issue to make it to the Appellate Court since posting started here in late 2008


Carlineo v Snelling & Snelling
December 15, 2011 NYS Appellate Division, Third Department
Employment: Temp Worker

AFFIRMED the Workers Compensation Board’s ruling that Snelling & Snelling (S&S), a temp agency, was solely liable for workers' compensation benefits paid to claimant. Claimant obtained his position with F.T. Well Support, through S&S, LLC, a temporary employment agency. His claim was established after he injured both of his legs in a work-related motor vehicle accident while working at the location of Fortuna Energy, a client of FT Well. S&S was ordered to pay temporary awards and the case continued on the issue of general/special employment with S&S contending the either/or both Fortuna and FT Well were totally or partially liable for the claim. After claimant and FT Well testified, the Law Judge found that S&S was claimant's employer and there was no special employment relationship with Fortuna. There were numerous appeals and Board panel decisions regarding testimony by S&S and its witnesses but ultimate the Board determined that S&S was provided a full and fair opportunity to develop the record. S&S’s appeal to the Appellate Court on this issue was dismissed as interlocutory. The Law Judge determined that claimant was a special employee of FT Well, and not any other entity, but that S&S was 100% liable for payment on the claim pursuant to the contract between S&S and FT Well. Although claimant and FT Well testified that FT Well set claimant's hours, directed and supervised his work and provided the necessary equipment, substantial evidence supports the Board's determination that S&S is solely liable for payment of the claim: S&S obtained workers' compensation insurance for the temporary employees that it provided to FT Well and part of the fees that FT Well paid to S&S were intended to include the cost of such coverage. Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy respondent. Commissioners of Record: Ferrara, Finnegan, Bell WCB #5050 7422 [1D156-7674]


Dudas v Town of Lancaster
December 15, 2011 NYS Appellate Division, Third Department
§18 notice to employer

AFFIRMED the Workers Compensation Board’s ruling that denied the claim’s establishment [The Insider see note below] for what appears to be late notice, while rejecting the carrier’s argument that claimant did not give timely §18 notice of injury. Claimant allegedly injured his right ankle on February 28, 2007 when he slipped on a patch of ice at the employer's Town Hall. He continued to work and did not seek medical treatment until March 9, 2007 when he presented at the local emergency room complaining of pain and swelling. A review of the March 9 emergency room report indicated that the claimant injured his right ankle when he fell off a porch whereas a review of additional medical records, including the medical opinion of the carrier's consultant, show that the history provided by the claimant was that he injured himself at work, when he slipped on some ice. When these symptoms persisted, claimant sought treatment from an orthopedist in May 2007 following which the prospect of surgical intervention was discussed. Despite his ongoing difficulties and treatment, he did not report his injury to the employer until June 27, 2007.

The carrier initially authorized medical care, but then controverted the claim following receipt of the emergency room records, which indicated that claimant twisted his ankle falling off a porch, thus raising a question as to whether the underlying injury actually was work related, a question first brought to the Board’s attention by the carrier two months after receiving the emergency room report. Following a hearing, Law Judge found that claimant failed to timely report the accident and disallowed the claim.

While the claimant asserted that the employer waived the defense of timely notice, the carrier had shown that its receipt of the claimant's emergency room records constituted "newly discovered evidence" sufficient to allow the late filing of its notice of controversy. The Workers Compensation Board panel then addressed the issue of, “How soon after the receipt of newly discovered evidence must the notice of controversy be filed.” While the carrier argued that there is no time limit in the statute or regulations, the Board agreed with the Law Judge who found that the notice of controversy must be filed “within a reasonable period of time” after the newly discovered evidence is discovered, although neither of these decisions set a fixed date for such, finding that in this case that the notice of controversy was “unreasonably” late.

Nonetheless, the Court affirmed the Workers Compensation Board’s denial of the claim, asserting, “Here, despite ongoing symptoms, claimant continued working and delayed both reporting the accident and seeking treatment, which may well have permitted claimant's condition to worsen and, more to the point, prevented the employer from promptly investigating the underlying incident. Under these circumstances, we cannot say that the Board abused its discretion in disallowing the claim.” Prevailing party represented by: Russell D. Hall of counsel Hamberger & Weiss (Buffalo) for Town of Lancaster and another, respondents. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB# 8071 2755 [1D156-7673]

The Insider The Workers Compensation Board panel decision states, “the WCLJ found that the evidence supported finding that the SIE failed to timely controvert the claim. . . In addition, the WCLJ also found that the claimant failed to timely provide notice to his employer and disallowed the claim.” I am still not clear as to how the Law Judge, Board, and Court would find that the insurer failed to timely controvert the claim on the issue of notice and then disallow the claims because there was no timely notice.


Pucci v DCH Auto Group
December 15, 2011 NYS Appellate Division, Third Department
Reopening by claimant

AFFIRMED the Workers Compensation Board’s rulings (1) which denied claimant's application to reopen his claim, and (2) denied claimant's request for reconsideration or full Board review. In October 2003, claimant, after sustaining work-related injuries, was awarded workers' compensation benefits. Although he returned to work in December 2003, he left his employment with DCH in May 2004 and accepted a position at another firm at a lower rate of pay. Two months later, claimant requested a reduced earnings award, denied in August 2005 by the Board, finding that claimant left his job at DCH for personal reasons unrelated to his compensable injuries. The case was closed and claimant did not appeal that decision. In April 2008, claimant sought to reopen his claim again seeking a reduced earnings award. The Board affirmed the Law Judge concluding that such claim merely was a reiteration of the original claim filed in 2004 and denied in 2005 and that claimant had not set forth sufficient facts to warrant reopening the claim. Claimant's subsequent application for reconsideration or full Board review was then denied.

The Court stated that, because the Workers Compensation Board had already denied his original request for reduced earning in a decision never appealed, the merits of that claim were not properly before the Court. Although the Board may reopen, modify or rescind a prior determination (see 12 NYCRR 300.14 [a] [2]) where claimant presents proof that a material change in condition has occurred, “here the claimant relied solely upon the fact that he underwent back surgery in 2007 as well as other of his and his employer’s submissions,” it concurred with the Board’s findings of an insufficient basis upon which to reopen. Claimant's remaining arguments, to the extent not specifically addressed, were been examined and found to be lacking in merit. Prevailing party represented by: Jill M. Johnson of counsel to Ryan, Roach & Ryan (Kingston) for DCH Auto Group, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5031 5308 [1N156-7672]


Elrac Inc v Exum
December 13, 2011 NYS Court of Appeals
§11: Jurisdiction Uninsured Motorist

We hold that a self-insured employer whose employee is involved in an accident may be liable to that employee for uninsured motorist benefits, notwithstanding the exclusivity provision of the Workers' Compensation Law. Exum, while driving a car owned by and in the course of his employment with his employer Elrac, was in an accident with another car, driven by a person without liability insurance. Elrac was legally self-insured and thus had not obtained an insurance policy to cover the car Exum was driving. Exum served a notice of intention to arbitrate on Elrac, seeking uninsured motorist benefits, a notice stayed by a lower court but affirmed by the Appellate Division.

Insurance Law § 3420 (f) (1) requires every policy of motor vehicle liability insurance to contain a provision requiring payment to the insured of all sums that the insured is entitled to recover as damages from the owner or operator of an uninsured motor vehicle. In Matter of Allstate Ins. Co. v Shaw (52 NY2d 818 [1980]), we held that a self-insurer had the same liability for uninsured motorist coverage that an insurance company would have. There is no policy reason why Exum's uninsured motorist protection should decrease because he happened to be driving the car of a self-insurer.

But there is a difference between this case and Shaw: here the person claiming uninsured motorist coverage was an employee of the self-insurer. It is undisputed that Exum was entitled to workers' comp from Elrac, and Elrac claims that he is therefore barred from recovering uninsured motorist benefits. Exum points out that we permitted an employee of a self-insurer to recover in Matter of Country-Wide Ins. Co. (Manning) (62 NY2d 748 [1984]), which involved essentially indistinguishable facts. Because we did not discuss the workers' compensation issue in Manning, however, we assume that the issue is open.

Workers' Compensation Law § 11 says: ‘The liability of an employer [for workers' compensation benefits] . . . shall be exclusive and in place of any other liability whatsoever, . . .’ Although the words "any other liability whatsoever" seem all-inclusive, there are cases of which this is one in which they cannot be taken literally. Specifically, the statute cannot be read to bar all suits to enforce contractual liabilities. An action against a self-insurer to enforce the liability recognized in Shaw is, in our view, essentially contractual. The situation is as though the employer had written an insurance policy to itself, including the statutorily-required provision for uninsured motorist coverage. This action is therefore not barred by WCL §11" and the order of the Appellate Division should be affirmed. [1D156-7671]


Grilikhes v Intl Tile & Stone
December 13, 2011 NYS Appellate Division, First Department
3030...Employment: Who is or dual

Supreme Court granted defendants International Tile & Stone Show Expos's and Metropolitan Exposition Services' motions for summary judgment dismissing the Labor Law §241(6) cause of action as against them. The plaintiff worked for a contractor (MES) who was on a list approved by the New York Convention Center Operating Corporation (NYCCOC), the operator of Javits. The terms of that between the exhibitor, New York Convention Center Operating Corporation (NYCCOC), the operator of Javits, allegedly gave MES all “Obligation to control the work site, and the responsibility of ensuring that the work contemplated by the permit was performed in a safe and proper manner.

Plaintiff, who worked at the Javits Center and was injured while dismantling one of the exhibit booths, received his paycheck from NYCCOC as were the workers’ compensation benefits he began to receive after the subject accident. He signed in at an NYCCOC desk and was then sent to an MES desk, to sign in there as well. MES gave plaintiff a list of tasks to complete each day and supplied him with all necessary work materials, including safety equipment, for which among other reasons, plaintiff considered MES his supervisor during the tile show.

Plaintiff commenced this action against MES and ITSS alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). MES moved for summary judgment dismissing the complaint on the ground that plaintiff was its special employee and therefore his claim was barred by Workers' Compensation Law § 29(6). ITSS also moved for summary judgment, on the ground that it was neither an owner nor a contractor and therefore could not be held liable. The lower court granted both motions finding that (1) MES was plaintiff's employer for workers' compensation purposes since it told him what to do, and when and where to do it, and (2) because there was no evidence that NYCCOC retained any control over plaintiff once he left the NYCCOC sign-in desk in the morning. As for ITSS, The Appellate Court found that “[T]he key criterion is the right to insist that proper safety practices were followed. . . . Because ITSS had no authority or ‘Obligation to control the work site, and the responsibility of ensuring that the work contemplated by the permit was performed in a safe and proper manner . . ., it cannot be deemed an owner for purposes of Labor Law liability.’ ” Accordingly, its motion for summary judgment dismissing the § 241(6) claim was properly granted. [1D156-7670]


Smith v TWA
December 8, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Workers Compensation Board’s ruling that the claimant voluntarily withdrew from the labor market. After filing a claim for injuries sustained while working as a baggage handler in 2001, claimant was awarded compensation benefits. Although a Law Judge determined that she had a permanent partial disability and had not voluntarily withdrawn from the labor market, a Board panel reversed. In this case, medical experts opined that claimant was capable of returning to work with some restrictions and claimant acknowledged that she had not worked since August 2001, she refused to return to work when her employer offered her the opportunity to do so, she made no efforts to seek other employment within her restrictions, and she failed to pursue available vocational or employment services. The Court agreed that, “Substantial evidence supports the Board's determination that claimant voluntarily withdrew from the labor market.” Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for TWA and another, respondents. Commissioners of Record: Foster, Bell, Higgins WCB #0015 3845 [1N155-7669]

?In view of the upcoming Court of Appeals decision in the Matter of Zamora v New York Neurologic, the listing of prior Workers Compensation Board cases for reference may well become moot.


Maye v Alton Mfg
December 8, 2011 NYS Appellate Division, Third Department
Hearing Loss

REVERSED the Workers Compensation Board’s ruling by finding that the pro-se claimant had a further causally related disability. After claimant retired in March 1994, his work-related occupational hearing loss was established with a 59.5% binaural hearing schedule loss of use and the case was closed in 1997. In 2005,the claimant contended that the causally-related binaural hearing loss had increased to 71.56%. Although the Law Judge agreed, a Board panel in an amended decision reversed. Bearing the burden of establishing that a causal relationship exists between his injury and his employment, the claimant relied on the medical report of his treating otalaryngologist, who stated unequivocally that "[claimant's] hearing loss is 100% causally related to his job." The Court then noted that, “Inasmuch as there was no conflicting medical evidence presented here, the Board's rejection of the treating physician's uncontroverted medical opinion on causation was improper.[ED. NOTE:] The Board panel, and subsequently, the full board apparently determined, incorrectly, that once the hearing loss was established, no further modification in the degree of disability would be accepted if they fell outside the time lines in §49-bb, a point emphasized in the amended decision. Prevailing party represented by: Bobby C. Maye Rochester, appellant pro se. Commissioners of Record: Finnegan, Paprocki, Bell WCB #7941 6753 [1N155-7668]


Ortiz v Rose Nederlander
December 8, 2011 NYS Appellate Division, First Department
Employment: special employee

DENIED defendants' motion for summary judgment dismissing the complaint as defendants failed to demonstrate that plaintiff was their special employee and, thus, barred from maintaining this personal injury action under the Workers Compensation Law. The claimant brought this civil action after being injured during the course of her employment cleaning defendants' theater. The record shows that plaintiff was compensated by nonparty Nederlander Producing Company of America (NPCA), which was also her supervisor's employer. Although identifying the entity which controlled the work of plaintiff's supervisor is highly probative of who controlled the injured plaintiff's work, the record does not support defendants' assertion that they controlled the work of plaintiff's supervisor. Moreover, the fact that defendants and NPCA appear to be affiliated, does not establish, as a matter of law, that they were "alter egos or joint venturers for the purpose of barring plaintiff's claims under the Workers' Compensation Law". The argument that NPCA was merely a "common paymaster" is not dispositive of the special employer issue as the record showed that NPCA also entered into an employment contract with plaintiff's supervisor. Furthermore, even if one defendant funded NPCA's payroll, such fact is just a single factor militating in favor of a special employment relationship. Standing alone, and without, inter alia, the additional showing that, defendants directed and controlled plaintiff's duties, or the existence of a contract by which defendants directly undertook duties in relation to plaintiff, the funding-source element is not dispositive. [1N155-7667]

 


Zamora v New York Neurologic
Decision dated :not yet issued NYS Court of Appeals
Voluntary Withdrawal from the Labor Market

Because of the potential impact of the decision in this case on those thousands of injured workers whose fate rests on the Workers Compensation Board's determination if they have or have not voluntarily withdrawn from the labor market, I have written a COMMENTARY on this case along with my prediction of the ultimate decision. Click here for the link.


Sauers v K-Mart Corp
December 1, 2011 NYS Appellate Division, Third Department
25-a: True Closing

RESCINDED and returned to the Workers Compensation Board for proper review the Board’s ruling that §25-a did not apply. The basic question was whether or not the deferral of a medical procedure commended during a medical examination just prior to the end of a seven-year period which would have transferred the case under §25-a. In this case, the claimant’s medical provider recommended surgery during an exam on March 17, 2009,two weeks prior to the seven-year anniversary of her April 1, 2002 injury, the date after which the claim would have been transferred under §25–a. The claimant shortly thereafter decided to defer what she considered to be very serious surgery and opted for remediation of her pain through prescriptions rather than surgery. A few weeks later, after the seven-year period elapsed, she decided that medication was not working and requested the surgery. The carrier argued that the case was closed based on the March 17 exam in the claimant did not pursue surgery. The Board determined that the March 17, 2009 report kept the case open whereas the carrier argued that the case was closed when the claimant decided not to proceed with surgery and was then reopened after the seven-year period when the claimant decided to pursue surgery. The court determined that the Board could not consider whether or not the claimant’s deferral and then reconsideration constituted a form of closing and reopening and therefore sent it back to the Board review. [ED. NOTE:] In my opinion, the claimant’s deferral to await the results of using medication meant that a clearly foreseeable event (her decision) would be forthcoming in the immediate future which meant that the case was not closed. Had the board taken the time to review the carriers appeal rather than focusing on a daily March 17 exam, there would have been no delays in resolving this case nor the cost of thousands of dollars incurred by both sides as a result of this totally unnecessary appeal.] Prevailing party represented by: John M. Cordon Jr. of counsel to Hamberger & Weiss(Buffalo) for appellants. Commissioners of Record: Ferrara, Libous, Paprocki WCB #4020 8675 [1D154-7666]

— — DECEMBER 2011 — —


Morphew v Aero
December 29, 2011 NYS Appellate Division, Third Department
§29: Apportionment of legal fees

RESCINDED the Workers Compensation Board’s decision that the claimant was not entitled to reimbursements for certain expenses from his 3rd party law suit. After being awarded comp benefits for a March 2004 work accident, claimant commenced a third-party action, received a settlement offer of $725,000, and then received the carrier’s consent. In its consent, the carrier asserted a lien in the amount of $132,002.63 for compensation payments already made [The total amount of the workers' compensation payments to claimant prior to settlement was $201,053.98, and the carrier accepted the reduced amount to account for its equitable share of the litigation costs commensurate with that figure.]. Additionally, the carrier "specifically reserve[d] its rights to claim a credit and offset for the net amount of the settlement payable to [claimant] against any prior, subsequent or future claim for [w]orkers' [c]ompensation indemnity and/or medical benefits arising out of this occurrence." The carrier then suspended its indemnity payments to claimant based upon its offset against claimant's proceeds from the settlement. After the Board classified claimant with a moderate to marked permanent partial disability, claimant requested further action and a Law required the carrier to contribute its share of the litigation costs associated with the offset amount by paying claimant a discounted rate of indemnity. On appeal, the Board reversed, finding that an award of such payments to claimant would alter the terms and conditions of the settlement consent agreement, which was beyond its jurisdiction.

Because "carriers are obligated to contribute the costs of litigation in proportion to the total benefit that they receive”, the carrier has a legal obligation to "pay its equitable share of litigation costs as benefits accrue" even in cases in which future benefits are too speculative to apportion the carrier's litigation costs at the time of settlement. The Court essentially stated that, contrary to the Workers Compensation Board’s position, Burns v Varriale, 9 NY3d 207, 214 [2007]did apply. “Although, in its consent to settlement, a carrier may seek to be released from its affirmative obligation to pay its share of litigation expenses, it is ‘required to express that release plainly and unambiguously in the consent to settlement agreement’. Thus, contrary to the Board's determination that it lacked jurisdiction, whether the carrier ‘plainly and unambiguously’ absolved itself of its continuing responsibility to contribute to the litigation costs consistent with its offset is a question of fact for the Board to resolve and, accordingly, the matter must be remitted.” Prevailing party represented by: Justin S. Teff of counsel to Law Office of Ralph M. Kirk (Kingston) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #5040 5518 [1D158-7677]


Coyle v Midwest Steel
December 22, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal

REVERSED the Workers Compensation Board’s decision that claimant’s lost earnings were not causally related to claimant's work-related disability while also ruling that the claimant did not voluntarily withdraw from the labor market. As the result of an established claim for an injury to his left knee in 1998, claimant underwent multiple knee and hip replacement surgeries, and consequential compensable injuries to his back and right hip were established. After the light duty position to which he returned in June 2009 was eliminated in August 2009, claimant was offered a full-duty position as an ironworker, but feeling that he could not accept the position due to his medical restrictions, he retired. Payments were made to the claimant until December 2009 when the carrier raised the issue of claimant's voluntary removal from the labor market. In December 2009, a law judge ruled that the claimant was entitled to continued benefits and, then in February 2010, ruled the claimant had involuntarily retired due to his causally related disability. A Board panel affirmed the December 2009 decision, but reversed the February 2010 decision, denying further benefits due to claimant's failure to maintain a sufficient attachment to the labor market subsequent to December 12, 2009, prompting a pro-se appeal.

In reversing the Workers Compensation Board, the Court wrote, “The Board's finding that claimant's retirement was involuntary ‘gave rise to an inference that his reduced earning capacity continued after retirement’. That inference is removed only by ‘direct and positive proof that something other than the disability was the sole cause of claimant's reduced earning capacity after retirement’. Further, ‘[p]roof that the claimant has not sought work postretirement, by itself, does not defeat the inference or shift the burden to [the] claimant to show that the disability was a cause of the reduction’ . Rather, the employer or workers' compensation carrier ‘must demonstrate that something other than the disability was the sole cause of claimant's reduced earning capacity after retirement, such as age, economic conditions or other factors unrelated to the disability. Here, the Board relied solely on the fact that claimant failed to actively search for employment or avail himself of any employment services after retirement in denying him further benefits. Given the lack of any proof by the employer that something other than claimant's disability was the sole cause of his reduced earnings after retirement, we conclude that the Board's determination denying claimant further benefits is not supported by substantial evidence and must be reversed.” Prevailing party represented by: Mark Du of counsel to the Law Office of Joseph Romano (NYC) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0985 8460 [1D157-7676]

[ED. NOTE:] It seems that the Workers Compensation Board did a review on its own motion of this same June 4, 2009 decision for which the 3rd Department has just issued the above opinion. Based on that review, issued September 29, 2011, the Board panel determined that Full Board Review was not warranted, had determined that the MOD should be amended, and, in effect, reversed itself, finding involuntary withdrawal from the labor market. While one can agree or disagree with the result of the Board panel’s ‘voluntary’ review of its own decision, one is prompted to ask, “At what point does a Board panel decision become final if the Board can change its mind when the fancy (or a politician’s phone call) generates an arbitrary review and reversal?”]

?While we await what will be a clarification on the issue of Voluntary Withdrawal From the Labor market, the record shows that the Workers Compensation Board has a failing grade on this issue this year, getting only 7 of 11 affirmances (63%) of its decision to date.


Lewis v Stewarts Marketing
December 22, 2011 NYS Appellate Division, Third Department
Untimely Submissions/Defenses

REVERSED the Workers Compensation Board’s ruling that claimant sustained a permanent total disability because the Board denied the carrier the right to cross examine witnesses. In 2008, the employer sought a hearing to determine the degree and permanency of claimant's disability for injuries sustained in a compensable accident in 1997. After claimant provided an updated medical report indicating that he had a permanent total disability, the employer submitted an independent medical report indicating that claimant suffered a moderate partial disability of a permanent nature and was capable of performing some type of work. A law judged denied the employer's request to cross-examine claimant and his physician concerning claimant's ability to work, determined that claimant had a permanent total disability, and awarded benefits with videotapes proving §114-a fraud. In reversing the Board, the Court agreed with the carrier that its request to cross-examine claimant and his physician was improperly denied since they did make a timely request to do so (see 12 NYCRR 300.10 [c]). In its reversal the Court also noted that “Moreover, inasmuch as the record contains conflicting medical reports regarding the nature of claimant's disability, denial of the employer's request to cross-examine claimant's physician clearly prejudiced the employer. Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for appellants. Commissioners of Record: Higgins, Libous, Foster WCB #6980 0429 [1D157-7675]

[ED. NOTE:] The carrier had also sought a ruling on §114-a but the Law Judge and Workers Compensation Board's Panel determined that medical reports found the claimant totally disabled, and did not directly rule on the §114-a issue. The carrier then raised this issue again with new evidence and, in a December 8, 2009 decision, was hit by a Law Judge with a §114-a(3)(i) penalty for raising this issue, an issue for which no decision (certainly not noted in any of the Board panel MOD’s) had previously been rendered. The carrier’s appeal to the Board on this penalty was not only denied but the carrier was then hit with a $500 penalty under §23 for a frivolous appeal. Yet (1) the record show that the Board had yet to rule on the fraud issue and (2) the decision of the Appellate Court to remand for testimony on both degree of disability and work ability would appear to make the videotapes and investigator’s report, the basis of the fraud claim, neither a waste of the Board’s time nor a frivolous appeal. Or did I miss something?]

?This is the first Workers Compensation Board case on this issue to make it to the Appellate Court since posting started here in late 2008


Carlineo v Snelling & Snelling
December 15, 2011 NYS Appellate Division, Third Department
Employment: Temp Worker

AFFIRMED the Workers Compensation Board’s ruling that Snelling & Snelling (S&S), a temp agency, was solely liable for workers' compensation benefits paid to claimant. Claimant obtained his position with F.T. Well Support, through S&S, LLC, a temporary employment agency. His claim was established after he injured both of his legs in a work-related motor vehicle accident while working at the location of Fortuna Energy, a client of FT Well. S&S was ordered to pay temporary awards and the case continued on the issue of general/special employment with S&S contending the either/or both Fortuna and FT Well were totally or partially liable for the claim. After claimant and FT Well testified, the Law Judge found that S&S was claimant's employer and there was no special employment relationship with Fortuna. There were numerous appeals and Board panel decisions regarding testimony by S&S and its witnesses but ultimate the Board determined that S&S was provided a full and fair opportunity to develop the record. S&S’s appeal to the Appellate Court on this issue was dismissed as interlocutory. The Law Judge determined that claimant was a special employee of FT Well, and not any other entity, but that S&S was 100% liable for payment on the claim pursuant to the contract between S&S and FT Well. Although claimant and FT Well testified that FT Well set claimant's hours, directed and supervised his work and provided the necessary equipment, substantial evidence supports the Board's determination that S&S is solely liable for payment of the claim: S&S obtained workers' compensation insurance for the temporary employees that it provided to FT Well and part of the fees that FT Well paid to S&S were intended to include the cost of such coverage. Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy respondent. Commissioners of Record: Ferrara, Finnegan, Bell WCB #5050 7422 [1D156-7674]

?This is the only Workers Compensation Board case in 2009, 2010, and 2011 regarding the employment relationship and ensuing liability of a temp agency towards an injured worker.


Dudas v Town of Lancaster
December 15, 2011 NYS Appellate Division, Third Department
§18 notice to employer

AFFIRMED the Workers Compensation Board’s ruling that denied the claim’s establishment [ED. NOTE: see ED. NOTE below] for what appears to be late notice, while rejecting the carrier’s argument that claimant did not give timely §18 notice of injury. Claimant allegedly injured his right ankle on February 28, 2007 when he slipped on a patch of ice at the employer's Town Hall. He continued to work and did not seek medical treatment until March 9, 2007 when he presented at the local emergency room complaining of pain and swelling. A review of the March 9 emergency room report indicated that the claimant injured his right ankle when he fell off a porch whereas a review of additional medical records, including the medical opinion of the carrier's consultant, show that the history provided by the claimant was that he injured himself at work, when he slipped on some ice. When these symptoms persisted, claimant sought treatment from an orthopedist in May 2007 following which the prospect of surgical intervention was discussed. Despite his ongoing difficulties and treatment, he did not report his injury to the employer until June 27, 2007.

The carrier initially authorized medical care, but then controverted the claim following receipt of the emergency room records, which indicated that claimant twisted his ankle falling off a porch, thus raising a question as to whether the underlying injury actually was work related, a question first brought to the Board’s attention by the carrier two months after receiving the emergency room report. Following a hearing, Law Judge found that claimant failed to timely report the accident and disallowed the claim.

While the claimant asserted that the employer waived the defense of timely notice, the carrier had shown that its receipt of the claimant's emergency room records constituted "newly discovered evidence" sufficient to allow the late filing of its notice of controversy. The Workers Compensation Board panel then addressed the issue of, “How soon after the receipt of newly discovered evidence must the notice of controversy be filed.” While the carrier argued that there is no time limit in the statute or regulations, the Board agreed with the Law Judge who found that the notice of controversy must be filed “within a reasonable period of time” after the newly discovered evidence is discovered, although neither of these decisions set a fixed date for such, finding that in this case that the notice of controversy was “unreasonably” late.

Nonetheless, the Court affirmed the Workers Compensation Board’s denial of the claim, asserting, “Here, despite ongoing symptoms, claimant continued working and delayed both reporting the accident and seeking treatment, which may well have permitted claimant's condition to worsen and, more to the point, prevented the employer from promptly investigating the underlying incident. Under these circumstances, we cannot say that the Board abused its discretion in disallowing the claim.” Prevailing party represented by: Russell D. Hall of counsel Hamberger & Weiss (Buffalo) for Town of Lancaster and another, respondents. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB# 8071 2755 [1D156-7673]

[ED. NOTE:] The Workers Compensation Board panel decision states, “the WCLJ found that the evidence supported finding that the SIE failed to timely controvert the claim. . . In addition, the WCLJ also found that the claimant failed to timely provide notice to his employer and disallowed the claim.” I am still not clear as to how the Law Judge, Board, and Court would find that the insurer failed to timely controvert the claim on the issue of notice and then disallow the claims because there was no timely notice.


Pucci v DCH Auto Group
December 15, 2011 NYS Appellate Division, Third Department
Reopening by claimant

AFFIRMED the Workers Compensation Board’s rulings (1) which denied claimant's application to reopen his claim, and (2) denied claimant's request for reconsideration or full Board review. In October 2003, claimant, after sustaining work-related injuries, was awarded workers' compensation benefits. Although he returned to work in December 2003, he left his employment with DCH in May 2004 and accepted a position at another firm at a lower rate of pay. Two months later, claimant requested a reduced earnings award, denied in August 2005 by the Board, finding that claimant left his job at DCH for personal reasons unrelated to his compensable injuries. The case was closed and claimant did not appeal that decision. In April 2008, claimant sought to reopen his claim again seeking a reduced earnings award. The Board affirmed the Law Judge concluding that such claim merely was a reiteration of the original claim filed in 2004 and denied in 2005 and that claimant had not set forth sufficient facts to warrant reopening the claim. Claimant's subsequent application for reconsideration or full Board review was then denied.

The Court stated that, because the Workers Compensation Board had already denied his original request for reduced earning in a decision never appealed, the merits of that claim were not properly before the Court. Although the Board may reopen, modify or rescind a prior determination (see 12 NYCRR 300.14 [a] [2]) where claimant presents proof that a material change in condition has occurred, “here the claimant relied solely upon the fact that he underwent back surgery in 2007 as well as other of his and his employer’s submissions,” it concurred with the Board’s findings of an insufficient basis upon which to reopen. Claimant's remaining arguments, to the extent not specifically addressed, were been examined and found to be lacking in merit. Prevailing party represented by: Jill M. Johnson of counsel to Ryan, Roach & Ryan (Kingston) for DCH Auto Group, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5031 5308 [1N156-7672]

?The only prior Workers Compensation Board case on this issue was in 2010, also affirmed for the carrier. Thomas v Crucible Materials


Elrac Inc v Exum
December 13, 2011 NYS Court of Appeals
§11: Jurisdiction Uninsured Motorist

We hold that a self-insured employer whose employee is involved in an accident may be liable to that employee for uninsured motorist benefits, notwithstanding the exclusivity provision of the Workers' Compensation Law. Exum, while driving a car owned by and in the course of his employment with his employer Elrac, was in an accident with another car, driven by a person without liability insurance. Elrac was legally self-insured and thus had not obtained an insurance policy to cover the car Exum was driving. Exum served a notice of intention to arbitrate on Elrac, seeking uninsured motorist benefits, a notice stayed by a lower court but affirmed by the Appellate Division.

Insurance Law § 3420 (f) (1) requires every policy of motor vehicle liability insurance to contain a provision requiring payment to the insured of all sums that the insured is entitled to recover as damages from the owner or operator of an uninsured motor vehicle. In Matter of Allstate Ins. Co. v Shaw (52 NY2d 818 [1980]), we held that a self-insurer had the same liability for uninsured motorist coverage that an insurance company would have. There is no policy reason why Exum's uninsured motorist protection should decrease because he happened to be driving the car of a self-insurer.

But there is a difference between this case and Shaw: here the person claiming uninsured motorist coverage was an employee of the self-insurer. It is undisputed that Exum was entitled to workers' comp from Elrac, and Elrac claims that he is therefore barred from recovering uninsured motorist benefits. Exum points out that we permitted an employee of a self-insurer to recover in Matter of Country-Wide Ins. Co. (Manning) (62 NY2d 748 [1984]), which involved essentially indistinguishable facts. Because we did not discuss the workers' compensation issue in Manning, however, we assume that the issue is open.

Workers' Compensation Law § 11 says: ‘The liability of an employer [for workers' compensation benefits] . . . shall be exclusive and in place of any other liability whatsoever, . . .’ Although the words "any other liability whatsoever" seem all-inclusive, there are cases of which this is one in which they cannot be taken literally. Specifically, the statute cannot be read to bar all suits to enforce contractual liabilities. An action against a self-insurer to enforce the liability recognized in Shaw is, in our view, essentially contractual. The situation is as though the employer had written an insurance policy to itself, including the statutorily-required provision for uninsured motorist coverage. This action is therefore not barred by WCL §11" and the order of the Appellate Division should be affirmed. [1D156-7671]


Grilikhes v Intl Tile & Stone
December 13, 2011 NYS Appellate Division, First Department
3030...Employment: Who is or dual

Supreme Court granted defendants International Tile & Stone Show Expos's and Metropolitan Exposition Services' motions for summary judgment dismissing the Labor Law §241(6) cause of action as against them. The plaintiff worked for a contractor (MES) who was on a list approved by the New York Convention Center Operating Corporation (NYCCOC), the operator of Javits. The terms of that between the exhibitor, New York Convention Center Operating Corporation (NYCCOC), the operator of Javits, allegedly gave MES all “Obligation to control the work site, and the responsibility of ensuring that the work contemplated by the permit was performed in a safe and proper manner.

Plaintiff, who worked at the Javits Center and was injured while dismantling one of the exhibit booths, received his paycheck from NYCCOC as were the workers’ compensation benefits he began to receive after the subject accident. He signed in at an NYCCOC desk and was then sent to an MES desk, to sign in there as well. MES gave plaintiff a list of tasks to complete each day and supplied him with all necessary work materials, including safety equipment, for which among other reasons, plaintiff considered MES his supervisor during the tile show.

Plaintiff commenced this action against MES and ITSS alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). MES moved for summary judgment dismissing the complaint on the ground that plaintiff was its special employee and therefore his claim was barred by Workers' Compensation Law § 29(6). ITSS also moved for summary judgment, on the ground that it was neither an owner nor a contractor and therefore could not be held liable. The lower court granted both motions finding that (1) MES was plaintiff's employer for workers' compensation purposes since it told him what to do, and when and where to do it, and (2) because there was no evidence that NYCCOC retained any control over plaintiff once he left the NYCCOC sign-in desk in the morning. As for ITSS, The Appellate Court found that “[T]he key criterion is the right to insist that proper safety practices were followed. . . . Because ITSS had no authority or ‘Obligation to control the work site, and the responsibility of ensuring that the work contemplated by the permit was performed in a safe and proper manner . . ., it cannot be deemed an owner for purposes of Labor Law liability.’ ” Accordingly, its motion for summary judgment dismissing the § 241(6) claim was properly granted. [1D156-7670]

Like the case above involving a claimant working for a temp agency, the specific of this case are unlike any which have been to the Appellate Division in the last three years.


Smith v TWA
December 8, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Workers Compensation Board’s ruling that the claimant voluntarily withdrew from the labor market. After filing a claim for injuries sustained while working as a baggage handler in 2001, claimant was awarded compensation benefits. Although a Law Judge determined that she had a permanent partial disability and had not voluntarily withdrawn from the labor market, a Board panel reversed. In this case, medical experts opined that claimant was capable of returning to work with some restrictions and claimant acknowledged that she had not worked since August 2001, she refused to return to work when her employer offered her the opportunity to do so, she made no efforts to seek other employment within her restrictions, and she failed to pursue available vocational or employment services. The Court agreed that, “Substantial evidence supports the Board's determination that claimant voluntarily withdrew from the labor market.” Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for TWA and another, respondents. Commissioners of Record: Foster, Bell, Higgins WCB #0015 3845 [1N155-7669]

?In view of the upcoming Court of Appeals decision in the Matter of Zamora v New York Neurologic, the listing of prior Workers Compensation Board cases for reference may well become moot.


Maye v Alton Mfg
December 8, 2011 NYS Appellate Division, Third Department
Hearing Loss

REVERSED the Workers Compensation Board’s ruling by finding that the pro-se claimant had a further causally related disability. After claimant retired in March 1994, his work-related occupational hearing loss was established with a 59.5% binaural hearing schedule loss of use and the case was closed in 1997. In 2005,the claimant contended that the causally-related binaural hearing loss had increased to 71.56%. Although the Law Judge agreed, a Board panel in an amended decision reversed. Bearing the burden of establishing that a causal relationship exists between his injury and his employment, the claimant relied on the medical report of his treating otalaryngologist, who stated unequivocally that "[claimant's] hearing loss is 100% causally related to his job." The Court then noted that, “Inasmuch as there was no conflicting medical evidence presented here, the Board's rejection of the treating physician's uncontroverted medical opinion on causation was improper.[ED. NOTE:] The Board panel, and subsequently, the full board apparently determined, incorrectly, that once the hearing loss was established, no further modification in the degree of disability would be accepted if they fell outside the time lines in §49-bb, a point emphasized in the amended decision. Prevailing party represented by: Bobby C. Maye Rochester, appellant pro se. Commissioners of Record: Finnegan, Paprocki, Bell WCB #7941 6753 [1N155-7668]

?No prior Workers Compensation Board cases on this increase of a change in disability under §49-bb. The other two hearing loss cases in 2010 dealt with establishing the case.


Ortiz v Rose Nederlander
December 8, 2011 NYS Appellate Division, First Department
Employment: special employee

DENIED defendants' motion for summary judgment dismissing the complaint as defendants failed to demonstrate that plaintiff was their special employee and, thus, barred from maintaining this personal injury action under the Workers Compensation Law. The claimant brought this civil action after being injured during the course of her employment cleaning defendants' theater. The record shows that plaintiff was compensated by nonparty Nederlander Producing Company of America (NPCA), which was also her supervisor's employer. Although identifying the entity which controlled the work of plaintiff's supervisor is highly probative of who controlled the injured plaintiff's work, the record does not support defendants' assertion that they controlled the work of plaintiff's supervisor. Moreover, the fact that defendants and NPCA appear to be affiliated, does not establish, as a matter of law, that they were "alter egos or joint venturers for the purpose of barring plaintiff's claims under the Workers' Compensation Law". The argument that NPCA was merely a "common paymaster" is not dispositive of the special employer issue as the record showed that NPCA also entered into an employment contract with plaintiff's supervisor. Furthermore, even if one defendant funded NPCA's payroll, such fact is just a single factor militating in favor of a special employment relationship. Standing alone, and without, inter alia, the additional showing that, defendants directed and controlled plaintiff's duties, or the existence of a contract by which defendants directly undertook duties in relation to plaintiff, the funding-source element is not dispositive. [1N155-7667]

?On this issue, in 2011, there were four cases at the 3rd Department on appeals of Workers Compensation Board decisions with mixed results (affirmed for claimant: 7605 Duma v Gentian Baca- 04/14/2011 and Mendoza v Dolgetta - 02/10/11; reversed for employer: Choto v Consolidated Lumber - 03/10/11), affirmed for employer Cassaro v Horton - 2011-11-17, and two cases at the 1st Department ( Morato-Rodriguez v Riva Constr - 10/18/11 and Coneo v Washington Hgts. HO Church 02/17/11)


Zamora v New York Neurologic
Decision dated :not yet issued NYS Court of Appeals
Voluntary Withdrawal from the Labor Market

Because of the potential impact of the decision in this case on those thousands of injured workers whose fate rests on the Workers Compensation Board's determination if they have or have not voluntarily withdrawn from the labor market, I have written a COMMENTARY on this case along with my prediction of the ultimate decision. Click here for the link.


Sauers v K-Mart Corp
December 1, 2011 NYS Appellate Division, Third Department
25-a: True Closing

RESCINDED and returned to the Workers Compensation Board for proper review the Board’s ruling that §25-a did not apply. The basic question was whether or not the deferral of a medical procedure commended during a medical examination just prior to the end of a seven-year period which would have transferred the case under §25-a. In this case, the claimant’s medical provider recommended surgery during an exam on March 17, 2009,two weeks prior to the seven-year anniversary of her April 1, 2002 injury, the date after which the claim would have been transferred under §25–a. The claimant shortly thereafter decided to defer what she considered to be very serious surgery and opted for remediation of her pain through prescriptions rather than surgery. A few weeks later, after the seven-year period elapsed, she decided that medication was not working and requested the surgery. The carrier argued that the case was closed based on the March 17 exam in the claimant did not pursue surgery. The Board determined that the March 17, 2009 report kept the case open whereas the carrier argued that the case was closed when the claimant decided not to proceed with surgery and was then reopened after the seven-year period when the claimant decided to pursue surgery. The court determined that the Board could not consider whether or not the claimant’s deferral and then reconsideration constituted a form of closing and reopening and therefore sent it back to the Board review. [ED. NOTE:] In my opinion, the claimant’s deferral to await the results of using medication meant that a clearly foreseeable event (her decision) would be forthcoming in the immediate future which meant that the case was not closed. Had the board taken the time to review the carriers appeal rather than focusing on a daily March 17 exam, there would have been no delays in resolving this case nor the cost of thousands of dollars incurred by both sides as a result of this totally unnecessary appeal.] Prevailing party represented by: John M. Cordon Jr. of counsel to Hamberger & Weiss(Buffalo) for appellants. Commissioners of Record: Ferrara, Libous, Paprocki WCB #4020 8675 [1D154-7666]

?The Workers Compensation Board’s record on this issue continues to imply a lack of understanding by the Board as noted in he following decisions so far this year, virtually all of which were won by Special Funds: Palermo v Primo Coat (10/6/2011); Gaddis v Niagara Mohawk (7/14/2011); Fitzgerald v Berkshire Farm (7/7/2011); Hunt v Price Chopper Golub (6/30/2011); Beder v Big Apple Circus (5/26/2011); and Donnelly v Alden CSD (4/28/2011)


— — NOVEMBER 2011 — —

Cooper v Cosmopolitan Care
November 23, 2011 NYS Appellate Division, Third Department
§32 Reopening

AFFIRMED the Workers Compensation Boards’ decision that a §32 waiver agreement could not be reopened. The pro se claimant settled both of his cases with a §32 waiver agreement in 1999. His request in 2008 to reopen his claims based on additional alleged injuries was rejected by the Board on the grounds that it did not have the jurisdiction to review a waiver agreement once it has been approved. The Court also noted that it, too, did not have the jurisdiction to review a waiver agreement, thus affirming the Board's decision, "that it lacked jurisdiction to consider claimant's request." Prevailing party represented by: Charlotte Flynn of counsel to the NY State Insurance Fund for Cosmopolitan Care Corporation and another, respondents. Commissioners of Record: Firestone, Paprocki, Henry WCB#0855 4127 [1N153-7665]

 


Levy v Plainview Fire Dept
November 23, 2011 NYS Appellate Division, Third Department
Employment: Dual

AFFIRMED the Workers Compensation Board’s ruling that there was dual liability between the volunteer fireman’s organization and the City of New York. Claimant, a volunteer member of the Plainview Fire Department, submitted a volunteer firefighters' claim for benefits based upon injuries allegedly sustained while assisting the NYC Fire Department at the WTC terrorist attack on 9/11/2001 and thereafter. The decision references General Municipal Law §209-I(1) which essentially states that whenever a volunteer firefighter volunteers outside his district to another fire department and that fire department accepts his services, “the volunteer . . . shall then be entitled to all powers, rights, privileges and immunities granted by law to volunteer [firefighers] during the time such services are rendered, . . .” Although the claimant originally volunteered on his own, on September 12, 2001, the Plainview Fire Chief asked for volunteers who would be reporting to the headquarters of the New York City Fire Department where their activities were then directed and controlled by the City. “Inasmuch as a substantial evidence supports the Board’s factual conclusions regarding claimant’s dual employment, the determination will not be set aside even if the record could support a contrary conclusion.” Prevailing party represented by: Jacqueline C. Delorbe of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Plainview Fire Dept. and another, respondents. Commissioners of Record: Ferrara, Foster, Libous WCB#107 0004 [1N153-7664]

Hope v Warren County Bd Elec
November 23, 2011 NYS Appellate Division, Third Department
§14(6): Concurrent Employment

AFFIRMED the Workers Compensation Board’s decision that the employer was not entitled to a §14(6) reimbursement from the Special Disability Fund (Fund) based on the date of the injury. The claimant was injured November 3, 2009 working as an election polling inspector while also having concurrent employment with a retail clothing store. The Law Judge established claimant's average weekly wage (AWW) at $80.69, combining her $3.56 [yes, $3.56] as a poll inspector and $77.13 from the clothing store, and directed the carrier to continue awards at the temporary partial disability rate of $80.69. The carrier appealed, unsuccessfully arguing that awards should have been based only on claimant's primary AWW of $3.56 inasmuch as it could no longer obtain reimbursement from the Fund for additional amounts attributable to an employee's concurrent employment.

While Workers Compensation Law §14(6) provides that, where an injured employee has concurrent employment, compensation is computed based upon the combined average weekly wage of those employments and payment for that compensation is made in the first instance by the primary employer in whose employment the injury occurred, in 2007, WCL §14(6) was amended so as to bar reimbursement from the Fund for claims with a date of accident or disablement on or after July 1, 2007.

The Court wrote,

The carrier argues that the sentence in that statute providing that primary employers "shall be liable for the benefits that would have been payable if the employee had no other employment" (WCL §14[6]) operates to impose a ceiling that limits the liability of primary employers, and that the ceiling survived the 2007 amendments.

We do not agree. Clearly, this statutory phrase does not rule out greater liability on the part of the primary employer, and the carrier's citation to cases from this Court decided prior to the 2007 amendments does not call for a different result .... Nor does the amended statutory language provide support for the proposition that concurrent employment should no longer be taken into account when calculating a claimant's average weekly wage. Indeed, the unambiguous language of §14(6) expressly provides that the injured employee's "average weekly wages shall be calculated upon the basis of wages earned from all concurrent employments." Notably, the overall purpose of the WCL is to provide benefits payable by an employer to an employee injured in the course of employment, without regard to fault. The legislative history of the 2007 amendments indicates that, as relevant here, its purpose was to close the Fund to new claims. We find nothing in the legislative history indicating that the Legislature intended that injured workers receive reduced benefits as a result of the phasing out of that Fund.

Prevailing party represented by: Michael D. Violando of Sullivan, Keenan, Oliver & Violando, L.L.P. of counsel to Martin, Harding & Mazzotti (Albany) for Hazel Hope, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Paprocki, Higgins WCB #021 3160 [1N153-7663]


Longo v Graphic Packaging
November 23, 2011 NYS Appellate Division, Third Department
§3(29)/(30) OD-Who pays

AFFIRMED the Workers Compensation Board’s decision that, because the claim was for an occupational disease, the carrier at time of disablement was liable. Claimant was employed as a maintenance mechanic at a food packaging facility from 1961 to 2001. Throughout claimant's employment, the company was sold several times. Six years after his 2001 retirement with his employer then being Graphic Packaging Corporation, a subsidiary of Coors Brewing Company, he was diagnosed with interstitial lung disease attributable to exposure to asbestos and awarded comp for an occupational disease, with March 15, 2007 set as date of disablement. A Law Judge determined that Zurich, the comp carrier for Coors/Graphic on the date of disablement, was liable for the claim. In their defense Zurich and Coors claim that there is insufficient evidence in the file to establish that Coors was the employer but failed at two hearing to present any contrary evidence, thus giving the Board uncontroverted evidence that Zurich was the carrier of record on the date of disablement. Prevailing party represented by: Leith Carole Ramsey of counsel of counsel to Stockton, Barker & Mead (Albany) for Kraft General Foods and another, respondents and Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for Liberty Mutual, respondent. Commissioners of Record: Lower, Bell, Finnegan WCB #5070 3549 [1N153-7662]


Newman v Old Glory RE Corp
November 23, 2011 NYS Appellate Division, Third Department
§11: Jurisdiction

In vacating a default judgment against the employer, the Supreme Court, New York County, stated that the employer established that "[it] did not receive personal notice of the summons in time to defend and has a meritorious defense" against the claim that it was the decedent's employer when she was injured. The Court then ruled the claim was limited to recovery from workers compensation. [ED. NOTE: My assumption is that, had proper notice been given of the civil action, recovery could have been sought both through the civil court as well as workers compensation. But this is not clear in the preceding decision.] [1N153-7661]


Borgeat v C&A Bakery
November 17, 2011 NYS Appellate Division, Third Department
Special Errand

AFFIRMED the Workers Compensation Board’s ruing that decedent’s death occurred in and out of the course of employment (IOCE). In October 2006, after his regularly scheduled work shift as a delivery driver had concluded, decedent was involved in a motor vehicle accident that resulted in his death. Alleging that the after work activity was a special errand, a Law Judge, affirmed by a Board panel, determined that decedent's death was causally related to his employment and awarded death benefits.[ED. NOTE:This issue and employer/employee relationship was the subject of two prior Board panel decisions, all of which rescinded or modified the underlying Law Judges’ decisions: February 29, 2008 and February 4, 2009. And the matter of Average Weekly Wage, after four years of hearing and three Board panel reviews still remains open, as noted in this March 25, 2010 decision in which IOCE was the only issue determined by the Board.]

While injuries occurring while traveling to and from work are not normally considered in and out of the course of employment, the record supported by both the decedent’s family and the employer, reported that, on occasion, the employer would request that decedent deliver special order cakes to a certain restaurant on his way home from work. Not only was the site of the accident a two-minute drive from the site to which the delivery was to be made, an inspection of the vehicle after the accident showed a cake box bearing the name of the bakery that made the special order cakes. The Court found that “substantial evidence supports the Board's determination that decedent's death arose out of and in the course of his employment.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #4070 1555 [1N152-7660]


Cassaro v Horton
November 17, 2011 NYS Appellate Division, Third Department
employer-employee relationship

AFFIRMED the Workers Compensation Board’s decision that an employer-employee relationship did not exist between claimant and Horton. Injured when the truck he was driving, owned by Horton, flipped over while he was making a delivery, the Law Judge, affirmed by a Board panel, found that claimant was not an employee of Horton. [ED. NOTE: A similar Law Judge decision was rescinded by a Board panel 10/15/2009 and returned to further develop the record.] In finding that the Board had substantial evidence after it considered the key factors as "the right to control the work, the method of payment, the right to discharge and the relative nature of the work; however, no single factor [was] dispositive."

Horton, who ran a trucking company out of his home, specializing in arranging to transport scrap metal and waste tires, would contact claimant when he had work available and claimant would use Horton's truck. Claimant did not have a set schedule and was not paid a salary or hourly wage, but was paid a percentage of the amount that Horton collected for each load and no taxes were withheld from claimant's pay. Horton was not present at the job sites and did not supervise claimant's work. Claimant could choose how many loads he transported and the amount of time he took to transport the loads, so long as he arrived at the destination yard prior to its closing. Horton testified that he and claimant had an agreement that claimant was an independent contractor and that Horton would not take out any insurance on claimant. Further, claimant represented on his 2008 tax return that he was self-employed with respect to the income he earned from Horton. The Court then added, “Finally, inasmuch as claimant's injury predates the effective date of the New York State Construction Industry Fair Play Act, such Act is not applicable here. Prevailing party represented by: John D. Dunne of counsel to Ryan, Roach & Ryan (Kingston) for Horton, respondent. Commissioners of Record: Ferrara, Libous, Paprocki WCB #008 1465 [1N152-7659]

 


Leslie v Eastman Kodak
November 17, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Workers Compensation Board’s ruling that claimant was not entitled to additional comp benefits pursuant to WCL §15(3)(v). As the result of work-related injuries to both shoulders in March 1999 and several subsequent operations, in February 2006, claimant was awarded a 55% schedule loss of use (SLU) of his left arm and a 52.5% SLU for his right arm, entitling him to 355 weeks of benefits. When the schedule awards were exhausted, claimant applied for additional comp benefits per §15(3)(v). After first finding the claimant did qualify, in a February 2, 2009 decision reversing the Law Judge, after a Full Board Review, the Full Board on March 25, 2010 reversed the Board Panel’s February 2, 2009 decision, [ED. NOTE: 14 months to do a Full Board Review] and affirmed the original Law Judge ruling, based on a finding that the loss of income was not due solely to his established injury. In supporting the Board’s final decision in this case, the Court wrote, “Here, claimant testified that, after being laid off by the employer, he attempted to obtain employment in both real estate sales and tax preparation but was unable to do so because of the poor economy. Claimant further testified that he was currently employed as a security guard for 16 hours per week and was available to work more, but the employer had no additional work available. In light of such testimony, substantial evidence supports the Board's decision that the impairment of claimant's earning capacity is due in part to economic factors and not solely to his established injury. Prevailing party represented by: Daniel P. Kuhn of counsel to Hamberger & Weiss (Rochester) for Eastman Kodak Company and another, respondents. Commissioners of Record: Bargnesi, Bell, Libous WCB #7010 6695 [1N152-7658]


Parish v DiNapoli
November 17, 2011 NYS Appellate Division, Third Department

AFFIRMED the decision of the office of the Comptroller of the State of New York which denied petitioner's untimely applications for disability and performance of duty disability retirement benefits. The petitioner claimed that her successfully filling for workers compensation benefits was sufficient notice for her to qualify for disability retirement benefits pursuant to Retirement and Social Security Law Article 15. However, there are several conditions that must be met when asserting that the workers compensation filing qualifies as proper notice for asking for disability retirement benefits , condition detailed in the Appellate Court’s decision Court’s decision.
[1N152-7657]


Raynor V Landmark Chrysler - Lead Case
Collins v Dukes Plumbing
Hardy v Trico
Parkhurst v United Rentals
Salgy v Halsted Communications

November 15, 2011 NYS Court of Appeals
Aggregate Trust Fund

The Insider Because of the length and importance of this case, the attached copy of the decision has line numbers to which reference is made in this summary. Underlining has been added to emphasize key wording.

AFFIRMED the Workers Compensation Board’s ruling that the Workers' Compensation Board (the Board) and the Appellate Division properly construed the amended statute by requiring the carrier to deposit a lump-sum amount into the Aggregate Trust Fund (ATF) representing the present value of the award. The carrier objected on three basic grounds: The Board was incorrect to make the payment mandatory and retroactive and the decisions was unconstitutional. The Court wrote [Line #35] “This appeal requires us to address the amendments to Workers' Compensation Law §§ 27 (2) and 15 (3) (w) as they pertain to insurance coverage by private insurance carriers only.

In rejecting the ‘mandatory’ issue, the Court wrote that which was discretionary is now mandatory [Line #46].

Prior to 2007, the Workers Compensation Board, at its discretion, could also order a private insurance company to deposit into the ATF the present value of an unscheduled permanent partial disability indemnity award (see former Workers' Compensation Law §27[2]). The 2007 amendment to Workers' Compensation Law §27(2) added language to the existing statute now making such payments for unscheduled awards mandatory, (L 2007, ch 6, §46).

In rejecting the ‘retroactive' issue, the Court wrote [Line #142],

The carrier further claims that the Workers Compensation Board and the Appellate Division are improperly applying the statute retroactively. The statute, however, only governs non-scheduled permanent partial disability awards made after its passage. The fact that the award may relate to an injury that occurred prior to the enactment of the statute does not render it retroactive. "'A statute is not retroactive . . . when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events'" (Forti v New York State Ethics Commn., 75 NY2d 596, 609-610 [1990] quoting McKinney's Cons Laws of NY, Book 1, Statutes § 51). That is the case here. Thus, the carrier's claims of inequity due to the overturning of settled expectations as the result of the amended statute is without merit as the statute neither altered the carrier's pre-existing liability nor imposed a wholly unexpected new procedure. It merely changed the time and manner of payments of non-scheduled permanent partial disability awards.

As to the constitutional issues, the law does not violate the Taking Clause because [Line #178]

The statute neither increases the amount of compensation owed to claimant, nor does it appropriate the carrier's assets for the use of the State. . .

Nor does it violate the Contracts clause because [Line #191]

The amendment merely makes what was once discretionary, mandatory.

The Court then summarized its decision [Line #226]

This amendment is neither retroactive, arbitrary and capricious nor unconstitutional. Although the carrier argues that the legislation, as enacted, is unfair and places an unanticipated financial burden on private insurance carriers, we are merely interpreting the statute by applying the rules of statutory construction. It is not our role to pass on its fairness or wisdom. It is for the legislature to limit the statute, if it so desires.

The Insider  I see a potential legal issue arising when the ATF settles a claim with a §32 settlement for a sum less than what has been deposited. To whom does the balance of the money belong? The fund or the carrier? The Court of Appeals wrote [Line #177]

The Takings Clause prohibits the government from taking private property for public use without providing just compensation. The amended statute, as applied, does not violate this clause. The statute neither increases the amount of compensation owed to claimant, nor does it appropriate the carrier's assets for the use of the State (see Connolly v Pension Benefit Guar. Corp., 475 US 211, 225 [1986]; cf. Alliance of Am. Insurers v Chu, 77 NY2d 573, 577-578 [1991] [statute held unconstitutional because insurers had a property interest in the fund whose earnings were diverted to the State's general fund]). Here, there is no such diversion, the mandatory deposit only reflects the present value of what is owed to an injured worker.

I read this to state that these funds are held in trust by the ATF for the beneficiary, the injured worker. When events transpire that end that relationship and the terms of the trust, i.e., the trustee’s responsibilities have been completed but the fund not depleted, it seems that the remaining balance of the fund is to be returned to the depositor and not the trustee. For what other purpose would the ATF hold these funds? But with the State’s overreaching on ‘surplus’ insurance funds, such as those held by the State Insurance Fund, will the State simply move the unused funds into the general budget?

A lengthier analysis of this issue and other issues that will arise from the Court's decision can be found on the COMMENTARY page.

Prevailing party represented by: Steven C. Wu for respondent Workers' Compensation Board. [1N151-7656]


Jin v Chen 3rd
November 10, 2011 NYS Appellate Division, Third Department
§14: Average Weekly Wage

AFFIRMED the Workers Compensation Board’s decision that set the average weekly wage for decedent at $780. Decedent was delivering food on a motorcycle for the employer when he sustained fatal injuries in a motor vehicle accident. Two days after the accident, the employer filed a C-2 form reporting his death and stated that decedent's gross weekly wage was $350. Claimant, decedent's widow, subsequently filed an application for death benefits, alleging that decedent's monthly pay was $2,500. Thereafter, the employer filed a C-11 form which reported that decedent earned $780 per week. After extensive deliberation, the Board determined that the $780 reported by the C-11 submitted by the employer was the best measure of the decedent’s wages and tips for the six-day week he regularly worked. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #012 3983 [1N155.7655]

The Insider My reading of the underlying MoD gave me the impression that the employer and the carrier had different perspectives on the proper AWW.

 


Browne v Medford Multicare
November 3, 2011 NYS Appellate Division, Third Department
5110...Voluntary Withdrawal

AFFIRMED the Workers Compensation Board’s decision that claimant voluntarily withdrew from the labor market. [ED. NOTE:] The August 26, 2010 amendment was a Full Board Review which modified this decision only to the extent of adding that the claimant did have a moderate partial disability. Both Board decisions reversed the Law Judge decision awarding benefits.] Claimant, a certified nurse's aide, injured when she fell at work, successfully applied for workers' comp benefits. After she rejected the employer's offers to place her in a light-duty assignment, the carrier asserted that she had voluntarily withdrawn from the labor market, holding that claimant had no compensable lost time following the employer's last offer of light-duty work. In affirming the Board the Court held that, “Whether claimant's failure to accept a light-duty assignment constituted a voluntary withdrawal from the labor market presented a factual issue for the Board, the resolution of which will be upheld if supported by substantial evidence.” The Board found that the detailed light duty position offered to her was withing the restrictions listed by an IME, more than offset the opinion of her medical provider who told her not to accept the assignment. Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O'Boyle & Weisman (Hauppauge) for Medford Multicare and another, respondents. Commissioners of Record: Bargnesi, Foster, Finnegan WCB #4080 6362 [1N155-7654]

 


Fazzary v Niles
November 3, 2011 NYS Appellate Division, Third Department
Employment: Who is

AFFIRMED the Workers Compensation Board’s decision which ruled that apportionment applied to claimant's workers' comp award. In November 2002, claimant began employment with Borg Warner Company (hereinafter the employer). In July 2003, claimant began experiencing pain. He eventually stopped working in July 2004. His claim for workers' compensation benefits was established for an occupational disease of the neck and shoulder. Thereafter, the employer raised the issue of apportionment, per WCL §44, with claimant's previous employer, Shepard Niles, where he had been employed for 28 years performing various manual labor tasks. After a Law Judge denied the apportionment, a Board panel reversed. Although claimant was asymptomatic and was not treated for neck or shoulder pain while employed by Shepard, both Shepard Niles and the employer presented reports of independent medical experts who examined claimant and reviewed his medical records. Each expert opined that claimant's prior employment with Shepard Niles was partly responsible for his cervical degenerative disease. Considering this medical proof, the Court agreed that there was substantial evidence to support the Board's determination that claimant contracted the occupational disease while employed by Shepard Niles, rendering apportionment appropriate. Prevailing party represented by: Gary C. Tyler of counsel for Hinman, Howard & Kattell (Binghamton) for Travelers Insurance Company, respondent. Commissioners of Record: Ferrara, Libous, Williams WCB#9040 3898 [1N155-7653]


Machajewski v Town of Cambria
November 3, 2011 NYS Appellate Division, Third Department
VFBL

AFFIRMED the Workers Compensation Board’s decision to grant claimant's application for death benefits pursuant to the provisions of the Volunteer Firefighters' Benefit Law (VFBL). The decedent, who collapsed while responding to an automobile accident and died shortly thereafter, was determined to have suffered an acute coronary artery thrombosis, uncontested by the carrier. The Board applied the presumptions contained in VFBL §§ 44 and 61 and established a claim for workers' comp death benefits by his widow, thus reversing the Law Judge. Claimant is entitled to death benefits if that condition "resulted from the duties and activities in which [decedent] was engaged" (VFBL §61[1]). Here, decedent had never been diagnosed with a heart condition, was examined by his physician just weeks before his death and was found to be in good health. The accident scene where he collapsed was described as chaotic and emotional, [detailed in both the Board’s and Court’s rulings.] Although the carrier’s consulting cardiologist opined that death resulted from various risk factors unrelated to his duties as a volunteer firefighter, the doctor admitted that exertion could trigger heart problems and that wearing bulky gear placed additional stress on decedent's heart. While the cardiologist characterized decedent's actions at the accident scene as "routine" for a volunteer firefighter, even typical firefighting tasks were unusual in the course of decedent's daily life, and the Board properly determined that claimant's demonstration of entitlement to death benefits had not been rebutted. Prevailing party represented by: Carrie Q. Curvin of counsel to Lewis & Lewis (Buffalo) for Mary S. Machajewski, respondent and Estelle Kraushar of counsel to the NYS Attorney General, for WCB. Commissioners of Record: Ferrara, Libous, Paprocki WCB #806 0027 [1N155-7652]


Williams v NYC
November 3, 2011 NYS Appellate Division, Third Department
§161 World Trade Center Cases & Notice

AFFIRMED the Workers Compensation Board’s ruling that claimant was not a participant in the WTC rescue, recovery or cleanup operations and denied workers' comp benefits. The Insider An earlier decision by the Board denying this claimant’s appeal was rescinded by the Court because of the Board’s decision “repeatedly referring to and ostensibly premising a decision on an activity that is not germane, with no analysis of the pertinent activity, does not permit meaningful judicial review.” The case was reviewed by the Panel and a Full Board review which again denied the claim.]

Prior to her September 2002 retirement, claimant was employed in the NYC Dept of Social Services when shortly after September 11, 2001, she among others was reassigned to issue relief checks to individuals who lived or worked below Canal Street and suffered various damages as a result of the terrorist attacks. This assignment did not require claimant to work outdoors or, according to her supervisor, cause claimant to come into contact with soot or dust from the WTC site. Claimant, who had a history of bronchitis and asthma and also was a former smoker, returned to her regular office duties in February 2002. Alleging that her special assignment caused an aggravation of her preexisting respiratory problems, claimant filed four claims for workers' comp benefits between December 2005 and June 2007 and, to avoid having these claims dismissed as untimely, twice registered as a "participant in [the] World Trade Center rescue, recovery and clean-up operations" (WCL §162).

The basis for the Court agreeing with the Workers Compensation Board’s denial of the claim and the Panel’s reversal of the Law Judge decision Board’s conclusion that the term “recovery” did not encompass the sort of economic recovery efforts engaged in by claimant and her coworkers rather than in any rescue-related activities within the meaning of WCL Article 8-A. Both the Court’s and the Board’s decision cover in detail the definition of the classes of workers covered and those not covered by WCL §162 and Article 8-A. Prevailing party represented by: Larry A. Sonnenshein of counsel to Corporation Counsel, New York City for City of New York, respondent. Commissioners of Record: Ferrara, Libous, Higgins/Henry WCB #0060 0519 [1N155-7651]


—— October 2011 ——


Guidice v Herald Co
October 27, 2011 NYS Appellate Division, Third Department
§25-a: Advance Compensation

RESCINDED and returned to the Board its decision which improperly shifted liability to the Special Fund for Reopened Cases per WCL §25-a. After filing her claim for CTS in August 2000, the claimant had surgery, returned to work January 30, 2004, received a 15% SLU, then in January 2006 after a second surgery, claimant again returned to work. Over the course of the next two years, claimant worked at times without any restrictions and, on other occasions, was subject to varying degrees of restriction. In March 2009, the carrier successfully sought to transfer liability for the claim to the Fund per WCL §25-a. The decisions rested on the factual question regarding whether claimant received an advance payment of compensation, a factual question for the Board to resolve. The record reflects (as detailed in the Court’s decision), that the claimant was accommodated with certain limitations and restrictions on her work, due to her CTS. The Court then wrote, “Accordingly, in view of the various restrictions under which claimant did (or did not) work during the relevant time period, we cannot say that the Board's decision is supported by substantial evidence. We therefore remit this matter for such further development of the record as will enable the Board to ascertain whether ‘the employer paid for something [it] did not get in the way of service’.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent.Commissioners of Record: Bargnesi, Libous, Bell WCB #6001 0966 [11107650]

 

—— SEPTEMBER 2011 ——


Farm Family Cas Ins v Brady Farms
September 30, 2011 NYS Appellate Division, Fourth Department
§ 11: Jurisdiction

The Appellate Court granted a motion stating that State Farm had no duty to defend or indemnify the Brady Farms, the owner and operator of a farm, in connection with fatal injuries sustained by Brady's employee (hereafter, decedent) while working at the farm. At the time of the accident, the Brady was insured under a primary policy issued by State Farm as well as an umbrella policy also issued by State Farm. Brady did not have workers' compensation insurance at that time. The decedent filed for workers compensation benefits, establishing that his estate elected to forego the recovery of damages through a civil action and instead sought to pursue what was essentially a claim for the workers' compensation insurance benefits Brady should have secured for him. Per WCL §26-a (1) (a), an employer that failed to secure workers' compensation benefits for an injured worker is liable for the payment of benefits awarded to the injured worker.I n effect, the employer (Brady) is substituted for the insurer it failed to hire as the party responsible for payment of the workers' compensation benefits awarded to decedent.I n view of the uncontroverted proof in the record that the workers' compensation award issued against Brady in connection with decedent's death is outside the scope of coverage for Brady under the Package policy, the Appellate Court granted the summary judgement sought by State Farm. [11107649]

Gardner v Triple R Transport
October 20, 2011 NYS Appellate Division, Third Department
Income from self-employment Decision Poorly Written

RESCINDED and returned to the Board for proper review (1) the claimant's average weekly wage, thus (2) rendering moot the issue of its denial for Full Board Review (FBR). Claimant, a truck driver who was injured 1999, and was awarded benefits based on claimant's 1999 tax return, which reflected that his gross income was $49,224, resulting in an average weekly wage (AWW) of $946.61. The carrier sought a FBR, contending claimant's AWW should have been based upon his net income, taking into account tax deductions taken by claimant for certain employment-related expenses. Whether claimant's average weekly wage should be based upon his gross income or net income as reported on his tax forms is a factual determination to be made by the Board. While claimant is considered an employee for workers' comp purposes, he is treated as self-employed for tax purposes. The Court noted that, “The Board has held in at least one case that is factually indistinguishable from the instant matter that, in determining the average weekly wage of such a ‘hybrid’ claimant, expenses which are characterized as mandatory/necessary should be deducted from the claimant's gross profit.” The Court, in sending this back for a proper review, wrote, “There is no indication in the record before us that the Board reviewed claimant's tax deductions and determined which, if any, should have been deducted from his gross earnings in fixing his average weekly wage, and the Board has not set forth an explanation for its deviation from prior precedent. Prevailing party represented by: Rudolph Rosa DiSant of counsel to the NY State Insurance Fund for Triple R Transport. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #0002 9540 [11107648]

 

Medina v Phillips
October 18, 2011 NYS Appellate Division, First Department
Employment: Who is

REVERSED the motion of the lower court by finding it incorrectly denied a motion for nunc pro tunc approval of settlement of the underlying personal injury action pursuant to WCL §29(5). Plaintiff Medina, during his employment with Shiva Ambulette Service, was injured when the vehicle he was operating was struck by a vehicle operated and owned by defendants. Medina commenced a personal injury action against defendants, alleging he suffered a "serious injury," as defined by Insurance Law § 5102(d). On or about October 3, 2008, Medina entered into a settlement of the underlying action with defendants in the amount of $20,000. Until that date, he had been receiving workers' comp benefits from his workers comp, nonparty respondent First Cardinal.

The lower court erroneously denied Medina's request for a nunc pro tunc order granting him a right-to-settle letter from First Cardinal. "A judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even in cases where the approval is sought more than three months after the date of the settlement, provided that the petitioner can establish that (1) the amount of the settlement is reasonable, (2) the delay in applying for a judicial order of approval was not caused by the petitioner's fault or neglect, and (3) the carrier was not prejudiced by the delay.” The record does not show that the delay in obtaining approval was attributable to the fault or neglect of plaintiff but rather that First Cardinal "unwittingly lulled [plaintiff] into believing that it was willing to waive [plaintiff's] failure to obtain timely consent or court approval of the settlement." The remained of the decision details the many indicia supporting the Appellate Court’s decision. [11107647]

 

Morato-Rodriguez v Riva Constr
Octoober 18, 2011 NYS Appellate Division, Third Department
Employment: Who is

Granted the motion for summary judgment dismissing the complaint against it as being barred by WCL §11. The motion court correctly determined that plaintiff's claims against defendant Riva are barred by WCL § 11. Riva demonstrated that it and nonparty WTS Contracting Corp. are alter egos by establishing that they share a president and chief executive, an office manager and an office address, and were insured by the same liability and WC policies. Although plaintiff was paid with a WTS check and WTS was identified as his employer in the report regarding his accident as well as in the Board’s notice of award, these facts are consistent with the averment by the president of both Riva and WTS that WTS was merely the payroll entity for all Riva employees. Additionally, plaintiff testified that his supervisor, a Riva employee, was the only person who instructed him regarding the work. [11107646]

 


Becker v Rauli & Sons
October 6, 2011 NYS Appellate Division, Third Department
Aggregate Trust Fund

AFFIRMED the Board’s ruling that, even if claimant is deceased, carrier must make a deposit into the ATF per WCL §27(2). After a finding of permanent total disability, a Law Judge directed the carrier to deposit the present value of all unpaid benefits into the aggregate trust fund by February 2009. Rather than appeal or make the required deposit, the carrier continued to make payments directly to decedent. After he died in August 2009, the carrier sought to be relieved of its obligation to make the deposit. The Board directed that the deposit be made with interest.

The employer and carrier do not dispute that the carrier's "liability [was] fixed by the computation and mature[d] on the direction to pay," and that it accordingly remained obliged to make a deposit into the aggregate trust fund despite decedent's death (Matter of Marconi v Marshall, 284 App Div 728, 730 [1954]). Instead, they contend that the Board's refusal to absolve the carrier of that obligation constituted an unexplained departure from prior precedent (see Matter of Applied Elec. Corp., 2001 WL 1017456, 2001 NY Wrk Comp LEXIS 93524 [WCB No. 08336389, July 11, 2001]). Specifically, the prior case involved a self-insured employer that made all death benefit payments to a claimant-widow until her death, notwithstanding an order 11 years earlier to make a deposit with the aggregate trust fund (see Applied Elec. Corp). In that case, however, the Board had mistakenly advised the employer to disregard the deposit order, the aggregate trust fund made no attempt to enforce it for almost eight years, and the extensive delay resulted in the employer paying out more in benefits than the ordered deposit amount (see Applied Elec. Corp). In contrast, the deposit order here was indisputably valid, the carrier did not make unduly large benefit payments to decedent in the brief period between the order and his death, and the Board emphasized that the carrier had not adequately explained its failure to make the deposit. Inasmuch as the prior decision was not based upon "essentially the same facts" as those presented here, the Board was not required to expressly distinguish it. Prevailing party represented by: Nancy E Wood of counsel to the State Insurance Fund for Aggregate Trust Fund, respondent Commissioners of Record: Firestone, Henry, Paprocki WCB #0013 0012 [11097645]


Hamza v Steinway & Sons
October 6, 2011 NYS Appellate Division, Third Department
§114-a: Fraud

AFFIRMED the Board’s ruling that claimant did not commit §114-a fraud. Claimant received benefits based on a back injury and associated depression from a 2001 accident. In 2004, after a private investigator retained by the carrier recorded claimant performing snow removal outside the apartment building in which he resided, the carrier's medical consultants changed their opinions regarding claimant's disability status. Following testimony of several witnesses, the Law Judge found that claimant did not violate §114-a and is permanently partially disabled. Claimant acknowledged that he spread ice melt and shoveled for short periods of time on occasion to assist his wife in her responsibilities as superintendent of the building in which they reside. Claimant further testified that prior to his work-related injury, he assisted his wife to a greater degree than he is now able. Claimant's treating physicians testified that spreading ice melt and shoveling for a brief period were not inconsistent with claimant's medical limitations and did not affect their opinion as to his degree of disability. Although the carrier's medical consultants offered conflicting opinions, credibility determinations and resolution of conflicting medical evidence are issues that rest within the exclusive province of the Board, and it was free to credit the testimony of claimant and his treating physicians over that of the carrier's witnesses. Prevailing party represented by: Estelle Kraushar of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Firestone, Henry, Paprocki WCB #0013 0012 [11107644]

Gillan v NYS Dept of Corrections
October 6, 2011 NYS Appellate Division, Third Department
§114-a: Fraud
Procedure: Denial Full Board Review

AFFIRMED the Boards rulings that (1) the claimant did not violate §114-a and (2) properly denied employer’s request for Full Board Review. In July 2002, claimant sustained injuries to his back, right knee and left wrist, later amended to include consequential major depressive disorder; was awarded workers' comp; and determined to have a permanent partial disability. Following the accident, claimant did not return to work and, in 2003, filed for disability retirement benefits at which time he was classified for that purpose as partially disabled. In May 2007, the carrier unilaterally stopped paying compensation benefits to claimant on the basis that a "fraud referral" concerning claimant had been submitted by a local District Attorney's office, a charge subsequently dismissed. In July 2008, claimant alleged that the carrier improperly suspended compensation payments without following proper procedures. In September 2008, a Law Judge awarded claimant back benefits, penalized the carrier for the unilateral suspension and scheduled a hearing on §114-a. Following a hearing, the Law Judge found no violation. Essentially the decision rested on the claimant’s testimony, supported by that of his physician that the claimant was not restricted from light activity as long as he remained within the restrictions of his partial disability.

The Board, which "is the sole arbiter of witness credibility" found an absence of any discrepancy between claimant's testimony regarding his activities and the medical proof in the record. Thus the Court determined that there was no basis to disturb the Board's conclusion that claimant did not knowingly make a material false statement to obtain benefits. The Court also noted that the Law Judge afforded the Fund the opportunity to have claimant reexamined by an independent medical examiner, the Fund did not do so and instead chose to have the medical practitioner review claimant's medical file and videotaped surveillance footage. In the absence of an actual physical examination, the Board specifically found the resulting report to be of little weight and declined to credit it. “As to the carriers remaining arguments, including their contention that the Board erred in not finding that claimant voluntarily withdrew from the workforce and their challenge to the denial of the employer's application for full Board review,” the Court found them to be unpersuasive. Prevailing party represented by: Iris A. Steel of counsel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Foster, Lower, Finnegan WCB#3020 7239 [11107643]

The Insider When a Full Board Review is denied, only Vice-Chairman Libous participates in that decision, a procedure whose legality I questioned in my May 26, 2009 COMMENTARY "Judicial Economy vs Judicial Integrity"


Bran v Wimbish
October 6, 2011 NYS Appellate Division, Third Department
§14(3),(4): Average Weekly Wage

AFFIRMED the Board’s ruling which increased the claimant’s average weekly wage, after the Court, on May 20, 2010, rejected the Board’s earlier ruling in this case of a $620 AWW, sending it back to the Board for a proper review. The Court now affirmed a $500 AWW based upon the record which reflected that claimant worked for the employer three to four days a week at a rate of $130 per day and that the Board’s calculation of claimant's average weekly wage upon remittal was proper per §14[3],[4]. The Court also rejected the employer assertion that claimant was an undocumented worker who was not legally entitled to earn any wages and, therefore, no average weekly wage should be established, inasmuch as this argument was not raised at the administrative level. Prevailing party represented by: Iris A. Steele of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Ferrara, Finnegan, Foster WCB #2080 2639 [11107642]


Dipippo v Accurate Signs
October 6, 2011 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s decision to deny claimant's application for Full Board Review. Claimant, initially injured when he slipped off the back of a truck suffering multiple injuries, thereafter developed a deep venous thrombosis in his left leg, which he sought to add to his claim as a consequential injury. A Law Judge denied the application, the Board affirmed, and the claimant's subsequent application for full Board review was denied. The Court wrote, “Inasmuch as claimant has appealed only from the Board's denial of his request for full Board review, the merits of the underlying decision are not properly before us. Rather, our analysis is limited to ascertaining whether such denial was arbitrary and capricious or otherwise constituted an abuse of discretion. To that end, claimant did not establish a material change in his condition or present evidence that previously was unavailable, and the record reflects that the Board considered all relevant material in rendering its initial decision. Under these circumstances, the Board's decision denying full Board review will not be disturbed. Prevailing party represented by: Matthew E. Weerth of counsel to Weiss, Wexler & Wornow (New York City) for Accurate Signs and Awnings and another, respondents. Full Boar Decision issued by Libous WCB #0064 4097 [11067641]

The Insider When a Full Board Review is denied, only Vice-Chairman Libous participates in that decision, a procedure whose legality I questioned in my May 26, 2009 COMMENTARY "Judicial Economy vs Judicial Integrity"


Palermo v Primo Coat Corp
October 6, 2011 NYS Appellate Division, Third Department
§25-a: True Closing

AFFIRMED the Board’s decision that liability shifted to the Special Fund for Reopened Cases(Fund) pursuant to §25-a. Although the claim was established and awards made, in 2005, the claimant plead guilty for fraudulently collecting workers' comp while working. Nonetheless, claimant's assertion that she had suffered a consequential left elbow injury was not resolved. As a result of her guilty plea, she was permanently disqualified from receiving further lost wage benefits in 2005, although her medical expenses continued to be paid. In 2008, the carrier applied for a §25-a finding: that liability for the claim should be shifted to the Fund, an application approved by the Board. As there was no dispute that the requisite time periods under §25-a have passed, the sole issue was whether the case was truly closed given the unresolved claim of a consequential injury. The fact that a "claimant's condition may change or worsen in the future" does not preclude a finding that the claim is truly closed. Whether a case is truly closed is a factual question for the Board to determine based on whether further proceedings related to the payment of compensation were contemplated at the time of the presumed closing, with the Court noting that compensation is distinct from the payment of medical expenses. While the issue regarding the alleged left elbow injury remained outstanding, those issues related to the payment of medical expenses and not compensation, as claimant was disqualified from obtaining further lost wage benefits in 2005. Thus, substantial evidence supported the Board's determination that the claim was truly closed. Prevailing party represented by: Charlotte Flynn of counsel to the State Insurance Fund for Primo Coat Corporation and another, respondents. Commissioners of Record: Ferrara, Higgins, Finnegan WCB #0006 2038 [11107640]


Burke v Verizon
September 29, 2011 NYS Appellate Division, Third Department
Legal Fees

REVERSED the Board’s decision which denied an application for an award of counsel fees to claimant's counsel. After the claimant suffered a May 2009 injury but prior to any award of benefits, the carrier began making payments to claimant in the amount of $550 per week. In addition, as part of its benefit plan, the employer began paying claimant wages in lieu of workers' comp benefits so that claimant was receiving his full salary. The employer requested reimbursement for the payments it had made in lieu of the workers' comp. Although there were issues relating to the employer’s right to seek reimbursement, the claimant’s attorney’s request for a legal fee was denied, based on the Board’s conclusion that since there were no payments currently being made to claimant and no current reimbursement owed to the employer, there is no source of funds upon which a lien for counsel fees can attach. The Court, in reversing the Board determined that a line for counsel fees "attaches to any compensation awarded," and the fact that there is presently no balance due to claimant does not necessarily preclude an award of such fees, payable either now or as a lien against any future awards made to claimant.

The Insider On July 31, 2001, the Full Board deliberated at length on this issue and made a decision It recognized that in some cases, it had been argued that since there is no additional/fresh money moving to the claimant, an award of legal fees is not appropriate. References were usually made to both Scandale and Dickman but in WCB #09610566 Westbury (Feb 2001), the Full Board’s reversed the Board Panel decision by distinguishing the prior two cases from Westbury: while a fee was due, it was to come from future payments to the claimant, not by the carrier/self-insured. Then, in Rodd ex rel. Rodd v. Coram Fire Dist., 12 A.D.3d 890, 785 N.Y.S.2d 753 (2004), the Appellate Court agreed with the Full Board that legal fees could come out of awards not yet made or necessarily contemplated.

Prevailing party represented by: Vincent Rossillo of counsel to Fine, Olin & Anderman (NYC) Commissioners of Record: Bargnesi, Higgins, Foster WCB #0078110 [11097639]


Butler v General Motors
September 29, 2011 NYS Appellate Division, Third Department
Untimely prehearing conference statement

AFFIRMED the Board’s ruling that claimant sustained a compensable injury. After he filed a claim, the carrier controverted the claim, and a prehearing conference was scheduled. The employer filed an untimely prehearing conference statement but argued that, because it simultaneously filed an amended notice of controversy, the scheduled conference was premature and should be rescheduled, rendering its statement timely. The Law Judge disagreed citing NYCRR 30.38 [f], declined to excuse the employer's late filing, found that the employer waived its defenses as a result of its untimely statement, and ultimately established the claim. In affirming the Board, the Court wrote, “A prehearing conference is required to be scheduled ‘as soon as practicable . . . after receipt of notice of controversy and a medical report referencing an injury’ and the Board has specified that it must occur within 30 days after those documents are filed. Contrary to the employer's argument, claimant had already filed a medical report referencing his injury, and the prehearing conference was correctly scheduled upon the employer's filing of its initial notice of controversy. Therefore, it was incumbent upon the employer to submit an affidavit demonstrating that its failure to timely file the prehearing conference statement ‘was due to good cause’ and occurred despite its ‘good faith and due diligence’. The employer did not submit the required affidavit and wholly failed to explain why it was unable to file its statement in a timely fashion.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Bell, Finnegan WCB #013 4027 [11097638]


Pacatte v SUNY Cobleskill
September 29, 2011 NYS Appellate Division, Third Department
Causal Relationship: Death & Insufficient Evidence

REVERSED the Board’s decision that the death of was causally related to employment, based on their conclusion that supposition does not support a legal decision. The decedent, a maintenance supervisor, died as the result of chronic obstructive pulmonary disease and lung cancer in 2007. Claimant, decedent's wife, filed for death benefits, asserting that his lung conditions resulted from exposure to asbestos and other substances in the course of his employment. Although there was an issue pertaining to prehearing documentary submissions, the Court found that “substantial evidence does not support the Board's finding that decedent's death was causally related to his employment.” It noted that the decedent's primary care physician submitted a death certificate which states that his death resulted from chronic obstructive pulmonary disease caused by tobacco use and "possible occupational exposure," with lung cancer playing a contributory role, and then added in a covering letter that environmental factors during his employment that "could" have played a role in causing his lung conditions. The Court noted that she did not offer an firm opinion but rather referred specific questions regarding causation to decedent's pulmonologist and oncologist. The Court, in reversing, concluded that, “Inasmuch as these equivocal statements amounted to ‘mere surmise, or general expressions of possibility’ [they] cannot ‘support a finding of causal relationship." Prevailing party represented by: Edward Obertubbesing of counsel to the NY State Insurance Fund for for SUNY Cobleskill and another, appellants. Commissioners of Record: Lobban, Paprocki, Higgins WCB #011 8789 [11097637]


Warner v Franklinville Schools
September 29, 2011 NYS Appellate Division, Third Department
Decision not based on the facts

REVERSED the Board’s ruling that the carrier’s §15(8)(d) application for reimbursement from the Special Disability Fund was untimely, on the basis that the Board did not follow legal procedure. Essentially, in a question as to whether or not the carrier timely filed its reimbursement request forms, it submitted an affidavit detailing the carrier's practice of filing such forms. Although the Law Judge found the affidavit sufficient, the Board panel determined that the affidavit insufficient to show that the reimbursement requests were timely, as the affiant did not have personal knowledge about the form in relation to this claim. While thee Board panel determined that the affidavit submitted by the carrier was insufficient, the Court stated that the carrier should have been given an opportunity to further develop the record. But “because the Law Judge found that the affidavit submitted by the carrier was sufficient, no further testimony from the carrier's employees was required. Significantly, in reversing the Law Judge’s's decision, the Board noted that neither the claims examiner who allegedly sent the forms nor her supervisor submitted documentation or testified. Because the carrier has not been given an opportunity to offer such testimony, and the Board reversed based upon the specific factual issue that the testimony was intended to address, we find that the matter must be remitted for further development of the record. Prevailing party represented by: Joseph A. Caligiuri of counsel to Gielowski, Federice & Caligiuri (Buffalo) for appellants. Commissioners of Record: Bargnesi, Higgins, Foster WCB #8000 7424 [11097636]


Whittaker v Central Sq CSD
September 29, 2011 NYS Appellate Division, Third Department
§ 14: AWW multiplier

REVERSED the Board’s decision to determine average weekly wage under §14(3) and (4) using a 200 multiplier. While both the claimant and the Board found that Law § 14 (1) and (2) are inapplicable because claimant did not work substantially the whole of the year nor is there a similar employee who worked substantially the whole of the year, they disagree on the multiplier. Case law states that the 200 multiplier is a minimum to be applied in calculating a claimant's average annual earnings. In this case the Court found that the 200 bears no rational relationship to the number of days that claimant actually worked and results in an average weekly wage that does not fairly reflect his actual annual earnings. The case was sent back to the Board for review. Prevailing party represented by: Michael P. Oot of counsel to Oot & Stratton (East Syracuse) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #006 9531 [11097635]


Held v WCB
September 13, 2011 NYS Court of Appeals
§50(5): Assessments & GSITs

DISMISSED. In a major setback for those carriers and self-insured seeking a ruling fro the Court that the Board’s determination that the required Aggregate Trust Fund payments is not legal, New York State’s Court of Appeals on its own motion dismissed the appeal on the grounds that no substantial constitutional question was involved. The Appellate Court, Third Department opined in its April 21, 2011 ruling that the Board’s determination that retroactive assessments against group self-insured trusts (GSITs) per WCL §50 (5) (former [f]) are valid, the second time this case has been before the Appellate Court, Third Department. [1109-7634]

The Insider  No word yet as to how this decision, Held v WCB, will impact on the cases still pending at the Court of Appeals (Collins v Dukes Plumbing, Parkhurst v United Rentals, Raynor v Landmark Chrysler, Hardy v Trico, and Salgy v Halsted Communications),


—— JULY 2011 ——


Cicciarelli v Westchester HCC
July 14, 2011 NYS Appellate Division, Third Department
Causal Relatinship: Was there?

AFFIRMED the board's decision that the claimant did suffer from an electric shock while using a pneumatic tube. A key factor in this determination was the failure of the employer to read but the claimants description of the incident when the employer failed to bring in for testimony two coworkers who could allegedly disproved the claimant's story. Prevailing party represented by: Jacob J. Meranda of counsel to Cohen & Siegel (White Plains) for Michelle Cicciarelli and Steven Segall f counsel to the NYS Attorney General for the Board. Commissioners of Record: Bell, Paprocki [Beloten], Finnegan WCB #3060 5820 [11077633]

Gaddis v Niagara Mohawk
July 14, 2011 NYS Appellate Division, Third Department
§25-a: A true closing?

REVERSED the Board's decision that §25-a applied when the Court found "We discern no basis in the statute or the case law for the Board's conclusion that the lack of further lost time awards precludes consideration of a medical report as an application to reopen that, if made prior to the lapse of seven years from the date of injury, would operate to bar liability from shifting to the Special Fund". Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee. Commissioners of Record: Ferrara, Paprocki, Foster WCB #6980 4353 [11077632]

Veeder v NYS Police Dept
July 14, 2011 NYS Appellate Division, Third Department
Causal Relationship: Death claim

RESCINDED and returned for review the Board's determination that the claimant's husband's death by suicide was not closely related. The decedent, a forensic scientist, for the employer, was extensively interviewed by the employer after errors were found in some of his procedures, errors which could have jeopardized the lab's continued existence. After becoming extremely depressed by the stress of these meetings and the potential negative determinations, claimant after writing a suicide note committed suicide. In denying the claim, the Board found that the disciplinary actions brought by the employer were of such a nature that WCL §2(7) precluded the claim. The Court noted that the claimant argued, and the employer agreed, that there was no disciplinary action but simply a set of required interviews on the procedures under review. Since the Board omitted addressing this aspect of the claim, the Court reversed the Board's decision and returned it for additional review. Prevailing party represented by: Brenda Quinn of counsel for Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Commissioners of Record: Ferrara, Libous, Paprocki WCB #0005 4606 [11077631]

Fitzgerald v Berkshire Farm
July 7, 2011 NYS Appellate Division, Third Department
§25-a: True Closing

REVERSED the Board’s decision which ruled that WCL §25-a is inapplicable to the award of workers' compensation benefits. The decedent received benefits for a February 1994 from the date of injury through June 1996 when he got an SLU and the case was closed. IN May 2005, after claiming a consequential injury, surgery was approved and liability for the claim went to the Special Fund (Fund). He had surgery in November 2005 after which he was awarded additional comp, paid by the Fund. But as the result of surgical complications, decedent died in October 2007. When his widow in January 2008 filed for death benefits, the carrier sought to shift benefits to the Fund. The Board disagreed [editor’s emphasis] because since the Fund paid compensation benefits from 2005 to 2007, the time requirements to shift the death claim to the Fund, per §25-a(1), had not been satisfied. In reversing the Board, the Court wrote:

Here, WCL §25-a was triggered and the Fund became liable in November 2005 since both the pertinent seven-year and three-year time frames had undisputedly passed. Under the well-established interpretation of §25-a, the Fund stepped into the carrier's shoes regarding this stale claim and made payments from November 2005 to October 2007. It would be antithetical to the settled statutory purpose to permit these payments to serve as a basis to place liability for the death claim on the carrier, which had already been discharged from liability for claims related to the 1994 incident.

Prevailing party represented by: Edward Obertubbesing of counsel to the NY State Insurance Fund for appellants. Commissioners of Record: Ferrara, Foster, Libous WCB #5080 1785 [11077630]

—— JUNE 2011 ——

DeGennaro v Island Fire Sprinkler
June 30, 2011 NYS Appellate Division, Third Department
Schedule Loss of Use issues

AFFIRMED the Board’s decision that claimant was entitled to a schedule loss of use (SLU) award rather than permanent partial disability benefits. After 30 years of employment as a steamfitter, claimant was diagnosed with bilateral osteoarthritis in his long fingers and forced to discontinue working in March 2007. After several years of treatment which failed to resolve the medical issues, the issue arose as to an ongoing award of disability benefits or an SLU award, with the Board finding for a 40% SLU. The IME orthopedic surgeon opined that claimant had demonstrated no measurable improvement despite extensive occupational therapy and that, inasmuch as claimant refused surgery, he had reached maximum medical improvement and an SLU was appropriate. The claimant's treating physician testified that because the claimant’s condition was likely to worsen in the future, classification was appropriate. In affirming the Board, the Court wrote, " ‘Whether 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". Prevailing party represented by: Peter M. DeCurtis of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Island Fire Sprinkler, Inc. and another, respondents Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #2070 1022 [11067629]

Alm v Natural Health Fmly Chiro
June 30, 2011 NYS Appellate Division, Third Department
Causal Relationship: Is there

AFFIRMED the Board’s two decisions that (1) ruled that pro-se claimant did not sustain a causally related injury and (2) denied claimant's request for reconsideration or full Board review. Because claimant failed to address the decision denying her application for reconsideration or full Board review, the Court deemed that appeal abandoned. In January 2008, claimant filed a claim alleging that the installation of new carpeting in her workplace caused her to develop multiple chemical sensitivity, a claim denied by a Law Judge, finding that claimant's health condition was not causally related to her employment. Although her treating physician concluded that claimant had developed multiple chemical sensitivity as a result of the carpeting installation in 2002, he was apparently not fully informed about other possible causes of claimant's symptoms, including the presence of mold and dust mites in her home, and that by her own testimony, her symptoms began prior to the carpet installation, increased several years later in 2007, were most intense at night when she was in her home and failed to abate after she stopped working. The Board concluded that the claimant failed in her burden to establishing a causal relationship between her employment and her condition. Prevailing party represented by: Joseph Buttridge (Albany) for Natural Health Family Chiropractic and another, respondents. Commissioners of Record: Groski, Bell, Finnegan WCB #9080 0417 [11067628]

Eber v Jawanio [Jowanio per WCB]
June 30, 2011 NYS Appellate Division, Third Department
Consequential

AFFIRMED the Board’s ruling that claimant did not sustain a causally related injury. Claimant received workers' comp for a 2001 work-related injury. After a second injury in 2002 she filed a claim, for her face, neck and right shoulder and then sought to amend this claim after allegedly developing complex regional pain syndrome (hereinafter CRPS) in her right arm. In March 2006, while the 2002 claim was still pending, claimant filed a third claim based upon alleged injuries to her right arm, hand and wrist suffered in a slip and fall in the employer's parking lot, which she claimed aggravated her CRPS. In August 2006, the claim regarding the 2002 incident was established for injuries to claimant's face, neck and shoulder, but the Board denied amending the claim to include CRPS, concluding that the credible medical evidence presented did not support a finding that claimant suffered from that condition. The medical evidence upon this third claim regarding CRPS was limited to the report and testimony of Walter Nieves, a neurologist chosen by the Board, who in 2009 opined that claimant suffered from CORPS as the result of the work-related injuries in 2001 and 2002, and the condition was exacerbated by the 2006 fall. Although, based upon this opinion, a Law Judge established the claim, a Board panel reversed, finding insufficient evidence to establish that the 2006 fall caused or aggravated the CRPS. The Court then wrote, “So long as the Board's determination is supported by substantial evidence it will be upheld". Further, "[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". Prevailing party represented by: Kenneth J. Gorman of counsel to Davis & Venturing (Hicksville) for Jawanio, Inc. and another, respondents. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #3060 2907 [11067627]

Hunt v Price Chopper-Golub Corp
June 30, 2011 NYS Appellate Division, Third Department
§25-a: True Closing

AFFIRMED the Board’s ruling that WCL §25-a did not apply as the case was not closed. After injuring his back in July 1994, claimant, a truck driver, had his claim established, missing work intermittently between the date of the accident and September 1995. When claimant began to miss work again as a result of his injuries in 2009, the carrier requested that liability be transferred to the Special Fund for Reopened Cases pursuant to WCL §25-a. A Board panel found that liability should not be transferred to the Special Fund because the case was never truly closed. Here, although a claim for an injury to claimant's neck was not originally established, the employer's medical experts indicated as early as 1995 that claimant had suffered a neck injury as the result of the July 1994 accident. Thus, although the Board purported to close the case in April 1997, unresolved issues remained as to the extent of claimant's neck injury. “Accordingly, substantial evidence supports the Board's conclusion that the case was never truly closed.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Lower, Paprocki, Bell WCB #5941 5663 [11067626]

Angamarca v NYC Partnership
June 21, 2011 NYS Appellate Division, First Department
Undocumented worker

Although this case did not involve workers compensation or Workers Compensation Board, the key issue dealt with the amount of money awarded by a jury for future medical expenses and projected loss earnings with most of the arguments dealing with future medical expenses. The result was a split decision from the Appellate Court, First Department. The injured worker was hired as a construction worker by third-party defendant Roadrunner Construction Corp., despite its knowledge of his immigration status. Roadrunner never requested a social security number from plaintiff and paid him in cash or by check, and never withheld any payroll taxes from his wages. The defendants argued that, because the injured worker had suggested he would return to Ecuador, his home country, after earning a certain amount of money, the value of the future lost earnings and medical expenses should not be based on the American marketplace but rather the appropriate values for Ecuador. The majority, in agreeing with the injured worker that the American marketplace values should be used, wrote, "Although a worker's immigration status may be a legitimate factor in litigating a lost wage claim (Balbuena v IDR Realty LLC, 6 NY3d 338, 362 [2006]), under the facts of this case, the trial court providently exercised its discretion in precluding defendant from inquiring about plaintiff's immigration status. In addressing mitigation concerns, the Balbuena Court explicitly held that where a plaintiff has suffered serious injuries which prevent him from working (such as Angamarca)." The minority countered in part with, “the Court of Appeals suggested that disputes must be resolved without regard to a litigant's immigration status; when material to the issue at bar, the Court has not hesitated to consider it, in one instance finding it dispositive of rights afforded by New York law (see Katz Park Ave. Corp. v Jagger, 11 NY3d 314, 317-318 [2008] [B-2 visitor's visa was "logically incompatible" with a primary residence in New York for rent regulation purposes])." The value of this case are the arguments raised by both sides regarding the issue of the injured worker’ s immigration status in determining awards for future medical and lost wages. [11067625]

NYS WCB v A&T Healthcare
June 16, 2011 NYS Appellate Division, Third Department
Aggregate Trust Fund: Statute of Limitations

Appeal from an order of the Supreme Court in Albany County, which denied a motion by defendant Rome Memorial Hospital (RMH) for partial summary judgment which asserted that the claims for all GSIT deficiencies known prior to June 2002 are barred by the statute of limitations. RMH was a member, from 1999 to 2003, of the New York Health Care Facilities Workers' Compensation Trust (hereinafter the Trust), a trust established in 1997. Beginning in 1999, the Trust began operating at a level where its liabilities exceeded its assets. As this deficiency persisted, The WCB — which is required by law to oversee the Trust per WCL §50[3-a— worked with the Trust to enact measures to close the shortfall. By 2006, after the gap had become increasingly larger, the WCB terminated the Trust, assumed its administration, and retained an accounting firm to perform a forensic audit of the Trust. Upon completion of the audit, the WCB informed all former members of the Trust that they were liable, jointly and severally and on a pro rata basis, for the shortfall of $31,350,780. [Note: Defendant's pro rata share of liability was $798,663.] In June 2008, the WCB commenced this action against all Trust members who failed or refused to pay their pro rata share. RMH moved for partial summary judgment, asserting that the claims for all deficiencies known prior to June 2002 are barred by the statute of limitations was denied. The Court rejected this position, stating that, “Although the Trust was operating with deficiencies [since 1999], the members themselves did not owe anything until an assessment was ordered or demanded. RMH did not breach the contract by not paying extra amounts in 1999 through 2002, as assessments had not been levied in those years. It appears that no breach arose until RMH refused to pay the assessment levied in 2008.” [11067624]

Ths Insider See my Commentary on this case and the ATF debacle itself: Who was Watching the Cookie Jar?


Castelli v NRG
June 16, 2011 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board’s ruling that the carrier was not entitled to reimbursement from the Special Disability Fund (Fund) per WCL §15(8). After the claimant developing asbestosis and chronic obstructive pulmonary disease, exposure to asbestos and other lung irritants in the course of his employment, his claim for benefits was established, with the Board determining that his date of disablement was November 13, 2008. The employer then sought reimbursement for those benefits from the Fund (see WCL §3[2][29]; §15[8][ee]) which the Board denied on the basis that amendments to WCL §15(8) in 2007 closed the Fund to claims with a date of disablement after July 1, 2007. While acknowledging that there were time limits imposed by under the 2007 amendments, the employer contended that the time limit imposed by WCL §15(8)(h)(2)(A) is inapplicable because it pertains only to "claims" for reimbursement and, in the context of dust diseases, a claim for reimbursement is not necessary. In its lengthy decision, the Court summarized its affirmance of the Board, writing:

Our interpretation of the statutory language added in 2007 is supported by the legislative history behind the amendments, which were specifically "intended to close the Fund to new claims as of July 1, 2007"). Indeed, one group expressly recognized that the 2007 amendments would result in "carriers . . . retaining full loss values on every claim, especially those cases involving dust and occupational disease" (Letter of New York Compensation Ins Rating Bd, Mar. 9, 2007, at 4, Bill Jacket, L 2007, ch 6, at 64 [emphasis added]). The employer's preferred interpretation of the 2007 amendments would not only defeat its goal, but would result in an absurd and contradictory result — the Legislature would have subjected WCL §15(8)(ee) to the limitation contained in WCL §15(8)(h)(2)(A), but then defined that limitation in such a way as to render it inapplicable to §15(8)(ee). Accordingly, we hold that the Board's decision is supported by both the language of the statute and its legislative history.

Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB and Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases.Commissioners of Record: Lower, Paprocki, Bell WCB # 002 2018 [11067623]

Walton v Lin-Dot
June 16, 2011 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund
§44 Apportionment Dust Diseases

AFFIRMED the Board’s decision which denied the carrier's request for apportionment among claimant's prior employers pursuant to WCL §44. Claimant, a plumber and pipe fitter with more than 20 years of experience, began working for Lin-Dot (hereinafter the employer) in March 2003, when he developed pains in his neck, subsequently diagnosed as cervical stenosis. Claimant ceased working for the employer in August 2003 and, after he underwent surgery for this condition in 2004, filed a claim for wc benefits, ultimately established for an occupational disease. The carrier’s request to apportion responsibility for the claim among his prior employers was denied. The Court agreed with the Board which found “that claimant, prior to being employed by the employer, was asymptomatic for the injuries subsequently diagnosed to his neck and did not seek or receive any medical treatment for this condition while previously employed” and “there [was] no objective medical proof that claimant's occupational disease was contracted during his prior employment and, as a result, the Board's determination that he contracted this disease while employed by the employer is supported by substantial evidence.” Prevailing party represented by: Timothy Bocek of counsel to Personius, Mattison, Palmer & Bock (Elmira) for Kimbel, Inc. and Jason M. Carlton f counsel to Gitto & Niefer (Binghamton) for CNA Insurance Company and another, respondents Commissioners of Record: Foster, Libous, Bell WCB #9040 2157 [11067622]

Burley v Theriault Transp
June 16, 2011 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

REVERSED the Board’s ruling by finding that the carrier is not entitled to §15(8)(d) reimbursement from the Special Disability Fund (Fund), a case decided on the issue of “employability. Claimant, after sustaining multiple injuries in a head-on collision while driving a cement truck in July 2004, was awarded benefits based upon his injuries. Prior to 2004, claimant suffered from an array of maladies. Hence, carrier application for reimbursement from the Fund was approved by a Law Judge and Board panel. To qualify for reimbursement from the Fund, the employer 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. The Court appeared to accept the Board’s fing in items (2) and (3) but agreed with the Fund that the employer failed to demonstrate that any of claimant's preexisting conditions hindered or were likely to hinder his employment potential. The Court agreed with the Fund's contention that the employer failed to demonstrate that any of claimant's preexisting conditions hindered or were likely to hinder his employment potential. Furthermore, claimant's testimony established that he was continuously employed as a truck driver for 20 years prior to his 2004 accident. Since "employability", the third factor in determining this issue, was not proven by the employer, or even addressed by the Board panel in its decision, the Court reversed and denied reimbursement. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund Commissioners of Record: Lower, Bell, Finnegan WCB #5040 8847 [11067621]

Bobbit v Charbonneau Constr
June 9, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board's ruling that claimant voluntarily withdrew from the labor market. As a result of the 1998 injury to his neck, shoulder, and back, the injured construction worker was awarded benefits and, later, via stipulation was determined to have a permanent partial disability. At that time the carrier contended the claimant had voluntarily removed himself from the labor market and requested discontinuance of benefits. The Law Judge found that because claimant had unrelated health problems that rendered him unable to work, he did not voluntarily separate from the labor market, a decision reversed by a Board panel. Evidence indicated that the claimant’s unrelated health condition and his compensable injury, while preventing him from working in the construction industry, did not render him so disabled he could not seek other employment. Claimant also admitted he has worked nor sought employment since shortly after his accident and has failed to participate in vocational educational services to which he was referred. The Court, in affirming the Board, wrote “substantial evidence supports the board’s determination that the claimant’s separation from the labor market is voluntarily in that it is due to causes other than his compensable injuries.Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for Peter Charbonneau Construction and another, respondents. Commissioners of Record: This decision is not in Lexis. WCB #5981 [11067620]

—— MAY 2011 ——

Beder v Big Apple Circus
May 26, 2011 NYS Appellate Division, Third Department
§25-a: True Closing

REVERSED the Board’s ruling which denied carrier’s request to shift liability to the Special Fund for Reopened Cases (Fund) per WCL §25-a and then denied a request for Full Board Review [rendered moot by this reversal]. Based on his 1987 injury, claimant was awarded benefits, classified as a permanent partial, and paid benefits through October 2005 when he returned to work. After filing three C-8.1 forms in May 2008 disputing bills for medical services provided in 2005, 2006 and 2007 as being untimely submitted, the carrier in November 2008 contended that liability should shift to the Fund per WCL §25-a. In affirming the Law Judge’s denial of §25-a, a Board panel found that the filing of the C-8.1 forms served to reopen the claim within three years from the last date of compensation, precluding the shift of liability to the Fund. This case was closed pursuant to a stipulation by the parties and the last payment of compensation was in October 2005. The Court noted that,

The Board determined, without providing any supporting rationale, that the carrier's submission of the C-8.1 forms in May 2008 constituted an application to reopen the case within three years following the last payment of compensation and found Workers' Compensation Law § 25-a to be inapplicable. The C-8.1 forms at issue here dispute three bills submitted by claimant's medical provider for specific treatments rendered between 2005 and 2007. There does not appear to be any objection to the necessity of the treatments or any evidence that the treatments reflect a change in claimant's condition. The only dispute that can be gleaned from the record is that the carrier contends that the bills for the treatments were not timely submitted (see 12 NYCRR 325-1.24 [b]). Inasmuch as the payment for continuing medical care does not bar the transfer of liability under WCL §25-a, we cannot conclude that the issues raised by the C-8.1 forms, which concern only the timeliness of submitted bills for medical care, would serve to toll the time limitations of WCL §25-a. Accordingly, based upon our review of the record, we find that the Board's determination was not supported by substantial evidence and, therefore, it must be reversed.

Prevailing party represented by: Susan B. Marris of counsel to the NY State Insurance Fund for appellants. Commissioners of Record: Ferrara, Foster, Libous WCB #0878 7920 [11057619]

Steadman v Albany County
May 26, 2011 NYS Appellate Division, Third Department

Causal Relationship: Death

AFFIRMED the Board’s decision that decedent did not sustain a causally related injury and denied decedent's former wife’s claim for death benefits for decedent's two children. Decedent collapsed and died after suffering a heart attack while working for the employer as a mail courier in August 2007. A Law Judge, affirmed by a Board panel, denied the claim, finding that decedent had long-standing heart disease and his death was not causally related to his work activities. WCL §21 creates a presumption of compensability where, as here, an unwitnessed or unexplained death occurs during the course of employment, a presumption the employer may overcome by presenting "substantial evidence to the contrary" (WCL §21). While both sides presented medical evidence to bolster their positions, the Court in supporting the Board’s finding, wrote, as it does in these cases, “ conflicting opinion[s] .. created a credibility issue for the Board to resolve. Inasmuch as the Board's determination is supported by substantial evidence, we will not disturb it.” Prevailing party represented by: George B. Burke III of counsel to Walsh and Hacker (Albany) for Albany County and another, respondents. Commissioners of Record: Ferrara, Finnegan, Foster WCB #5071 0554 [11057618]

Grugan v The Record
May 26, 2011 NYS Appellate Division, Third Department
Schedule Loss of Use v PPD

AFFIRMED the Board’s decision that claimant was entitled to a schedule loss of use award for a 2007 work-related injury to her left hand, for which she received workers' compensation benefits. After a dispute arose as to whether she should be classified as having a permanent partial disability or instead receive a schedule loss of use (SLU) award, the Board ultimately made a 15% SLU, and claimant, seeking a classification, appealed.The Court noted that, “There is no question that claimant has reached maximum medical improvement and her condition is stable, factors that ordinarily render a schedule loss of use award appropriate.” While both sides presented medical evidence to bolster their positions, the Court in supporting the Board’s finding determined that, “[r]esolving this conflicting medical evidence was a matter within the Board's discretion and, accordingly, we will not disturb its finding that a schedule loss of use award was warranted. Prevailing party represented by: John M. Oliver of counsel to Sullivan, Keenan, Oliver & Violando (Albany) for The Record and another, respondents. Commissioners of Record: Libous, Bell, Finnegan WCB #5071 0663 [11057617]

Fischer v UPS
May 19, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal

RESCINDED and returned to the Board for proper review the Board’s ruling, which in turn reversed the Law Judge, that claimant voluntarily removed himself from the labor market and denied his claim for benefits. [ED. NOTE: Although the issue of §25-a was litigated at length, only the issue of voluntary withdrawal was appealed. Prior to retiring as a delivery driver for UPS in April 2006, claimant had two established work-related injuries to his back (1998 and 2001) neither of which caused him to lose time from work nor resulted in the payment of benefits. In August 2008 after claimant sought to reopen his case, whereupon a Law Judge classified him with an 80% PPD. Subsequently, after the claimant sought further action, the Law Judge found that claimant's withdrawal from the labor market was involuntary due to his causally-related disability, and made awards retroactive to the retirement date. However, a Board panel reversed, finding that the retirement was a voluntary withdrawal from the labor market. In reversing the Board, the Appellate Court noted that contrary to the Board’s statement that "[t]here is no medical evidence of treatment for the period between February 15, 2001 and May 16, 2006", a review of the Board’s own files show that the claimant treated regularly during that period. [ED. NOTE: The next sentence of the Board decision reads “In an attached treatment note dated May 2, 2006, Dr. Lasser noted ...”] "Ordinarily, a determination by the Board that a claimant voluntarily withdrew from the labor market “will be upheld if supported by substantial evidence, but such finding cannot be based on incomplete facts or a misreading of the record.” As the Board had done just that, the Court remitted the case back to the Board for further proceedings. Prevailing party represented by: Kevin J. McDonald of counsel to Bond & McDonald (Geneva) for appellant. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #7050 8937 [11057616]

Krausa v Totales Debevoise
May 12, 2011 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

REVERSED the Board’s decision by finding that the employer's workers' compensation carrier was entitled to §15 (8) (ee) reimbursement from the Special Disability Fund (Fund). In 1994, Walter Krausa's claim for occupational disease of silicosis was established, with a date of disablement of September 24, 1992. After being classified as permanently totally disabled, the carrier was found by a Law Judge to be entitled to reimbursement from the Special Disability Fund pursuant to WCL §15(8)(ee). After he died in 2007, the claimant, his widow, filed a claim for death benefits which were awarded in 2009 at which time the Law Judge, affirmed by a Board panel, removed and discharged the Fund as of the date of death, determining that it was no longer liable under §15(8)(ee). The Court indicated that the Board and Fund misinterpreted the WCL with their contention that because the date of death, the basis of the widow’s claim, was after July 1, 2007, §15(8)(h)(2)(A) prohibits the claim: the phrase "date of accident or date of disablement" refers to an employee's date of death, and that no new claims can be entertained based upon deaths occurring on or after July 1, 2007. The Court has previously written that "the clearest indicator of legislative intent is the statutory text, [and] the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." They added, “the statutory terms refer to the ‘date of accident or date of disablement’; they do not reference date of death (Workers' Compensation Law § 15[8][h][2][A]). Inasmuch as the "date of disablement" in this case was previously found to be September 24, 1992, the Board's denial of reimbursement is contrary to the plain terms of the statute." Also, they wrote, “while claims for disability and death benefits are legally distinct and have different accrual dates for statute of limitations, ‘death [is not] a new injury’ or accident, ‘but rather a new claim consequentially related to the original injury.’ ” After a detailed analysis of the language of various statues dealing with these issues, the Court concluded that the carrier was entitled to reimbursement from the Fund. Prevailing party represented by: Marc H. Silver of counsel to State Insurance Fund (NYC) for appellants. Commissioners of Record: Foster, Higgins, Bargnesi WCB #0080 3459 [11057615]

Klamka v Con Ed
May 12, 2011 NYS Appellate Division, Third Department
Causal Relationship: Was there?

AFFIRMED the Board’s ruling that claimant sustained a compensable injury and awarded workers' compensation benefits. In July 2008, claimant submitted a claim alleging a March 31, 2008 a back injury during the course of employment, a claim denied by the self-insured employer. The Law Judge ultimately credited claimant's testimony that he suffered a work-related injury to his back as the result of an accident on March 31, 2008. Upon review, insofar as is relevant to this appeal, a Board panel affirmed the injury but modified the date of accident to March 30, 2008. In affirming the Board, the Court wrote, “Whether a compensable accident occurred is a question of fact for the Board to resolve, and its determination will not be disturbed when supported by substantial evidence. Furthermore, the Board has broad authority to make credibility determinations and to draw reasonable inferences from record evidence. Prevailing party represented by: Iris A. Steel of counsel to NYS Attorney General, for WCB and Joseph A. Romano (NYC) for Stanley Klamka Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #0083 3313 [11057614]

Heckerman v Daimler Chrysler
May 12, 2011 NYS Appellate Division, Third Department
Causal Relationship: Was there?

AFFIRMED the Board’s ruling that claimant sustained an asbestos-related work-related accident. In 2002, after working for years in a plant where overhead pipes were wrapped in asbestos insulation, claimant was diagnosed with an asbestos-related lung disease and filed a claim, which the employer contested. A Law Judge disallowed the claim finding that claimant failed to prove an occupational disease but a Board panel, after directing he be examined by an impartial pulmonary specialist, found that the specialist's reports supported the casual relation to his employment of his asbestos-related lung condition, establishing the case for an occupational disease. The Board thereafter amended its decision changing the finding of occupational disease to accidental injury, with an August 2, 2002 accident date. While conflicting proof was presented by fact witnesses about the extent of exposure and by the experts regarding causation, it is undisputed that there was exposure and that claimant has an asbestos-related lung disease. The employer further contends that the record does not support the Board's determination of August 2, 2002 as claimant's date of injury. In selecting August 2, 2002 as the date of injury, the Board explained that while claimant had lost time from work primarily due to his unrelated chronic obstructive pulmonary disease (hereinafter COPD) caused by his years of smoking, it concluded that a report from claimant's physician dated August 2, 2002 constituted the first confirmed diagnosis of a causally related asbestos condition. Prevailing party represented by: Estelle Kraushar of counsel to NYS Attorney General, for WCB, respondent Commissioners of Record: Ferrara, Foster, Paprocki WCB #6020 7009 [11057613]

Nickel v Pilgrim Psychiatric
May 5, 2011 NYS Appellate Division, Third Department
§ 32: Fairness & Legality

REVERSED the Board’s ruling which denied claimant's request to rescind a §32 settlement agreement. Under the §32 approved by the Board in November 2001, the carrier agreed to pay claimant a lump sum payment of $92,950, with claimant's understanding that an attorney's fee of $12,000 would be deducted from the lump sum amount. Further, pursuant to the agreement, claimant acknowledged that the Suffolk County Office of Child Support Enforcement Bureau was to deduct the entire amount of claimant's outstanding child support payments, which apparently totaled $18,973.50, from proceeds of the settlement. In 2009, claimant requested that the Board rescind the settlement agreement. His request was based upon his contention that he believed at the time the agreement was reached that the carrier was to pay the outstanding child support payment separately, and not out of the $92,950 settlement amount. While the Court agreed that "[a] decision duly filed and served approving an agreement submitted to the [B]oard shall not be subject to review pursuant to section twenty-three of this article" (Workers' Compensation Law § 32 [c]; see 12 NYCRR 300.36 [g]).” ... Further, "[a]lthough the Board has continuing jurisdiction over its cases pursuant to Workers' Compensation Law § 123, it is well settled that 'neither the Board nor this Court may review a waiver agreement once it has been approved.'" However, citing the Matter of Hart v Pageprint/Dekalb, 6 AD3d 947 , 948-949 [2004], the precedent setting case on this issue, the Court found that the Board did not hold a hearing prior to approving the agreement in 2001, although required by law at that time. Inasmuch as the settlement agreement was not validly approved, the Board is not precluded in such cases from reviewing the agreement. Prevailing party represented by: Robert Golan (Mineola) of counsel for appellant. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #2961 3821 [1105-7612]

The Insider See my comments in COMMENTARY and REPORT as to how the Board made a major mistake in this case.


—— APRIL 2011 ——

Cuffe v Supercuts
April 28, 2011 NYS Appellate Division, Third Department
Disability: Further Causally Related

AFFIRMED the Board’s ruing that claimant had no further causally related disability. After claimant’s filed for workers comp benefits for a December 2007 injury, the Law Judge found that claimant had sustained a work-related injury and awarded benefits from the date of her injury until April 16, 2008 but then ruled that claimant's disability ceased as of that date, discontinuing benefits. Here, the independent medical examiner retained by the employer's carrier examined claimant on April 16, 2008 and testified that claimant suffered from no disability at that time and could return to work without restrictions. Even though claimant's medical experts opined that she continued to suffer from a total disability, The Court found that the Board's decision was supported by substantial evidence. “It is within the exclusive province of the Board to resolve conflicting medical opinions and its decision will not be disturbed when supported by substantial evidence, despite the existence of evidence that would have supported a contrary result. Prevailing party represented by: Avninder S. Aujla of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Supercuts and another, respondents. Commissioners of Record: Firestone, Higgins, Paprocki WCB #2080 0739

Donnelly v Alden CSD
April 28, 2011 NYS Appellate Division, Third Department
§25-a: True Closing

AFFIRMED the Board’s ruling that WCL §25-a is inapplicable to claimant's award of workers' compensation benefits. As the result of February 2001 work-related injury, a Law Judge filed a decision on May 2, 2006 making an 85% schedule loss of use award for claimant's right leg, authorized further medical treatment and care as necessary and indicated that no further action was planned. Subsequently, in a medical report dated May 21, 2009, claimant's treating physician requested authorization for various procedures. In response the self-insured employer applied to shift liability to the Special Fund for Reopened Cases. Although this request was approved by the Law Judge, a Board panel reversed and found §25-a did not apply. The only question before the Court was whether there was substantial evidence to support the Board's determination that medical reports submitted in January 2009 and February 2009 constituted an application to reopen rather than the claimant’s doctor’s surgery request filed with the Board on May 21, 2009. The Court affirmed the Board’s determination that the effective dates for the WCL §25-a determination were the medical reports filed by the claimant's doctor in early 2009 and not, as was determined by the Law Judge, the formal May 21, 2009 doctor’s request for surgery, which was filed three years and 19 days after the last Board filing in this case, which inter alia, closed the case. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Lower, Bell, Finnegan WCB #8010 2812

Huggins v Masterclass Masonry
April 28, 2011 NYS Appellate Division, Third Department
Course of Employment: Lunch Break

AFFIRMED the Board’s ruling that claimant, on lunch break, did not sustain an accidental injury arising out of and in the course of his employment. In January 2008 claimant, a bricklayer, left his work site, purchased a sandwich and sat down to eat his lunch inside a municipal bus shelter across the street from his work site. As claimant prepared to return to work, a glass panel in the shelter collapsed on him, causing him to sustain various injuries. Claimant thereafter filed this claim for workers' comp. A Board panel, in reversing the Law Judge, found that the injury did not arise out of and in the course of his employment. In affirming the Board, the Court wrote that:

As a threshold matter, an injury is compensable only if it arises out of and in the course of employment (see WCL §10[1]). "Lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employees during the lunch break." Here, although claimant testified that "[i]f one of the foremen saw [him] and wanted [him] to come back," they would tell him to do so, such testimony, in our view, falls short of establishing that the employer retained control over claimant during his lunch break or derived any benefit from claimant eating his lunch inside the public bus shelter. Notably, claimant was not required to carry a beeper, nor was he instructed as to where he should take his lunch break. To the extent that claimant contends that his accident occurred within sufficient proximity to his work site as to qualify as compensable, [the Court] needs note only that "[a] purely fortuitous coincidence of time and place is not enough. There must be a causal relationship or nexus between the accident and the employment.” Claimant's theory as to the cause of the bus shelter collapse (vibrations from the work site) is entirely speculative and, in any event, he failed to establish, among other things, that his accident was "related to a special hazard connected to [his] employment as opposed to a risk shared by the general public." Finally, as for claimant's assertion that he is entitled to the presumption of compensability contained in WCL §21(1), [the Court] needs note only that the statute "does not wholly relieve [claimant] of the burden of demonstrating that the accident occurred in the course of, and arose out of, [his] employment."

Prevailing party represented by: Matthew E. Weerth of counsel to Weiss, Wexler & Warnow (NYC) for Masterclass Masonry and another, respondents. Commissioners of Record: Groski, Paprocki, Finnegan WCB #0082 3201

McCarthy v Verizon
April 28, 2011 NYS Appellate Division, Third Department
§18 notice to employer Procedure: Due Process/Mailings

AFFIRMED the Board’s rulings that (1) sustained a compensable injury and (2) Board did not err in not restoring the case to the calendar to permit it to cross-examine claimant and submit other evidence. Claimant filed his claim for benefits in May 2009, alleging that he sustained a work-related injury in November 2008. The carrier controverted the claim and argued that claimant failed to provide timely notice of the accident. The employer filed a prehearing conference statement, but failed to appear for the conference itself. A Law Judge accordingly relied upon claimant's testimony given at the conference and established the claim. (see 12 NYCRR 300.38 [g] [17]). As to the carrier’s second issue on appeal, The Court noted that relevant regulations do not automatically provide for the adjournment or rescheduling of a prehearing conference where an insurance carrier fails to appear. But since the employer did not seek an adjournment nor offered explanation for its nonappearance beyond a failure by the carrier's third-party administrator to alert counsel to the upcoming conference, the Court perceived no abuse of discretion in the Board's refusal to permit further development of the record. Turning to the merits, claimant's failure to give timely written notice of his compensable injury to the employer bars his 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" (see WCL §18). Here, claimant testified that he orally notified his supervisor of the accident a week after it occurred, ceased working and obtained short-term disability benefits. The Board determined that the oral notice given was sufficient, which was a matter within its exclusive province. Claimant further stated that he had no intention of seeking workers' compensation benefits initially and only did so after his condition worsened. Moreover, he began receiving medical treatment for his injuries soon after the accident, and his medical records were available to the employer. Prevailing party represented by: Thomas N. Kaufmann (Fayetteville) for Shaun McCarthy, respondent and Steven Segall f counsel to NYS Attorney General, for WCB, respondent.Commissioners of Record: Lower, Paprocki, Bell WCB #0006 8798

Held v NYS WCB
April 21, 2011 NYS Appellate Division, Third Department 

§ 50(5): Assessments & GSITs

AFFIRMED, in essence, the Board’s determination that retroactive assessments against group self-insured trusts (GSITs) per WCL §50 (5) (former [f]) are valid, the second time this case has been before the Appellate Court, Third Department. In its original January 15, 2009 decision, the Court determined the appeal concerning various procedures used by the Board to determine assessments was moot as the Albany Supreme Court had, "among other items, partially granted petitioners’ (GSITs) application to vacate certain assessment made pursuant to WCL §50(5)(formerly F). In this decision, the appellate Court has looked at several issues raised by the GSITs and ruled against then on every one, thus upholding not only the right of the Board to assess but to retroactively assess as well.

The GSITs commenced this action in 2008 to challenge the constitutionality of certain annual assessments against them by defendant State of New York Workers' Compensation Board, including assessments imposed pursuant to WCL §50 (5) (former [f]) and (g) to cover the cost of the Board's payment of the compensation liabilities of defaulted groups. During the pendency of this action, the Legislature amended the WCL by, among other things, relabeling WCL §50 (5) (former [f]) as (g) and confirming the Board's authority to impose assessments pursuant to that provision against group self-insurers by expressly including them within the meaning of the term "self-insured employers" (see L 2008, ch 139, §3). The Legislature also amended the WCL by altering the formula used to determine each active and inactive group's share of assessments (see L 2008, ch 139, §3).

Plaintiffs then amended their complaint to add a challenge to the constitutionality of the amended statutes. As a starting point, plaintiffs contend that WCL §50 (5) (former [f]) did not authorize the Board to levy assessments against them for the unpaid compensation and benefits owed by defaulted group self-insurers. They argue that former paragraph (f) refers to "private self-insured employers," and groups are not included in that term because, while groups are self-insurers whose members are employers, they are not themselves employers. Also, the Board’s interpretation of the statute permit it to assess solvent groups for its costs incurred by paying the compensation liabilities of defaulted groups in unrelated fields. Also the Board never previously applied the statute in this manner, that they had no notice that they would be liable for the benefits owed by defaulted groups, and that the Board's interpretation will result in groups being unable to afford to continue to self-insure in the future.

The Court then looked at the proper construction of WCL §50(5)(former [f]). In doing so it concluded that group self-insurers were intended to be included among those to be assessed to provide the funds to cover the defaults of all private self-insurers, including groups, and subjecting groups to the same statutory provisions governing self-insured employers. Further, the legislative history of the 2008 amendments to the WCL confirms that group self-insurers were always intended to be included among the self-insured employers against whom assessments could be imposed pursuant to WCL §50(5)(former [f]). As to the contention that the statue was never previously applied in this manner, while it is true that the Board did not include assessments to cover its payment of the insolvent groups until 2007, after the first groups defaulted. When additional groups defaulted in that year, the assessment amounts increased dramatically in 2008, leading plaintiffs to bring this action. In view of this background, plaintiffs' argument that assessments to cover defaulted groups were never previously imposed, while true, rings hollow as they do not dispute that groups had never previously defaulted. Further, plaintiffs do not deny that they have always been assessed to cover defaulted individual self-insured employers.

As to the assertion that an interpretation allowing assessments against all self-insurers is inconsistent with the contractual obligation of joint and several liability assumed by the individual members of a group self-insurer, the joint and several liability of each member is separate and distinct from the imposition, on a pro rata basis, of administrative expenses on the group.

Turning to the constitutional issues, The Appellate Court disagreed with Supreme Court's conclusion that Board’s application of WCL §50 (5) (former [f]) and (g) was an unconstitutional taking. Here, the amounts of the assessments may have been unanticipated, but it cannot be said that their economic effect on plaintiffs rises to the level of a taking. The GSITs, as voluntary participants who have elected to exercise the privilege of self-insurance, cannot now complain that the assessments imposed to administer the self-insurance program consistently with the purpose and goals of the workers' compensation system is an unexpected taking of their property. Further, the Court determined that the character of the government action at issue here is a public program adjusting the benefits and burdens of economic life to promote the common good and, as such, is not generally the type of regulation considered to rise to the level of a taking. Finally, inasmuch as the statute has authorized the assessments at issue since its enactment in 1976, prior to plaintiffs' existence, they had notice of it and it was not retroactively applied to them. For this same reason, the statute does not violate the Contracts Clause (see US Const, art 1, §10), as a "statute cannot be said to impair a contract that did not exist at the time of its enactment." Additional remarks by the Court on constitutional issues can be found in the 12 page decision attached. Prevailing party represented by: Paul Groenwegen of counsel to the NYS Attorney General, for appellants-respondents.

The Insider In view of the unanimous nature of this decision and the detailed analysis of every one of the GSITs’ arguments, I feel that this matter is now closed, in so far as the legality of the assessments, including retroactive. As to whether or not the WCB and/or the New York State Department of Insurance have some degree of responsibility — moral, ethical, or legal — is an issue yet to be resolved.


Poli v Taconic Correctional
April 21, 2011 NYS Appellate Division, Third Department
§114-a: Fraud

AFFIRMED the Board’s decision that claimant violated WCL § 114-a (Fraud) and disqualified him from receiving future wage replacement benefits. In this case, the claimant was denied benefits with a §114-a finding in a Law Judge decision issued August 12, 2008; had the decision reversed by a Board panel January 12, 2009 because the carrier’s doctor’s intake form was never filed; was then awarded compensation by a Law Judge February 5, 2009; and subsequently found to have committed §114-a by a Full Board review March 4, 2010 (subject of this appeal) after a Board review discovered that the intake form had been filed but overlooked by the Law Judge, the writers of the January 12, 2009 decision, and the three commissioners who signed it. Essentially, the claimant denied having any prior history of an injury to his back in statements to both his and the carrier doctors, yet the medial records show he had a serious non-work related back injury in early 2006: “an MRI taken in April 2006 found evidence of multiple herniated discs and claimant testified that he was out of work for three months as a result of that injury.” On this bases, it was determined that “ substantial evidence supports the Board's determination that claimant made false representations regarding a material fact . . . ” Prevailing party represented by: Rudolph Rosa DiSant (NYC) for Taconic Correctional Facility and another, respondents. Commissioners of Record: Ferrara, Libous, Paprocki WCB #3070 8153

The Insider  Another point worth noting is that in this February 2009 decision, the WCLJ made awards and directed the carrier to continue payments. Yet, the Board panel’s March 2010 decision found that a mandatory penalty was not necessary “as his receipt of benefits was not ultimately affected by his misrepresentations, given that awards were first issued to the claimant approximately 10 months after the carrier initially raised the issue of WCL 114-a and the record was fully developed on the issue. But the Full Board review only two months later found, and the Court agreed, that the original January 2009 decision which allowed compensation was based on a record that failed to include the key piece of evidence: the carrier doctor’s medical intake form. Why the carrier did not cross appeal on this is not noted anywhere in the available record.

Duma v Gentian Baca
April 14, 2011 NYS Appellate Division, Third Department

Employment: Who is

AFFIRMED the Board’s ruling that an employer-employee relationship existed between claimant and Gentian Baca d/b/a A & G Cleaning Services. After being struck by an auto while making a delivery for Baca, claimant sought and was awarded benefits by a Law Judge who found that an employer-employee relationship existed between him and A & G, a decision affirmed by a Board panel. While no single indicia was the determining factor, the Court agreed with the Board that substantial evidence supported its conclusion, notwithstanding evidence in the record that could support a contrary result. The "non-employment application" signed by the claimant was dismissed as claimant, testifying through an interpreter, stated that the document was not explained to him and he did not understand it. A&G not only supplied the truck, set up the delivery schedule and route, and paid for all the trucking operating expenses, but also initially paid him a flat fee of $600.00 per week, which was later raised to $900.00 based on an increase in his working hours. [ED. NOTE:] Many years ago, when I convinced a warehouse worker, who did speak English, to resign, I had him sign a letter to that effect in English and Spanish. At a later unemployment hearing, he would only testify through an interpreter, stating he did not understand or read English, thus, per his attorney, invalidating the one paragraph resignation he signed. That is, until I showed the Court the one he wrote by hand in Spanish and then signed, thus destroying his credibility. Why employers do not use this procedure makes no sense.] Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General for WCB, respondent. Commissioners of Record: Foster, Higgins, Bargnesi WCB #0083 7498

Hammond v Dutchess Bldg
April 14, 2011 NYS Appellate Division, Third Department
§ 15(8) Reimbursement Special Fund

AFFIRMED the Board’s ruling that the carrier's application for reimbursement from the Special Disability Fund (Fund) was untimely. Claimant sustained injuries to his neck and right knee on October 2, 2006, seeking medical attention two days later, and then stopped work October 17, 2006, after which he filed his comp claim. In July 2007, benefits were awarded, starting October 17, 2006 but held in abeyance from April 10, 2007 to May 17, 2007. At the same time his prior workers’ comp claim (left knee) from March, 21 2006. On October 1, 2008, the carrier filed a C-250 form for reimbursement from the Fund per WCL §15(8)(d), citing, among other things, claimant's prior workers' compensation claim as a preexisting disability. A Board panel denied the application, stating that the C-250 was untimely. [ED. NOTE:] In affirming the Board the Court wrote the following, making reference to an October 1, 2008 date of accident as a key factor in its decision, a date of accident neither for this case nor WCB #5061 3203.)

For an employer's C-250 form to be timely, it must be filed "prior to the final determination that the resulting disability is permanent, but in no case more than [104] weeks after the date of disability or death or [52] weeks after the date that a claim for compensation is filed with the chair, whichever is later" (Workers' Compensation Law §15[8][f]. Initially, the employer contends that its October 1, 2008 filing was timely, inasmuch as it was within 104 weeks of October 17, 2006, the date upon which claimant first began to miss work as a result of his injuries and the payment of workers' compensation benefits commenced. However, disability for the purposes of Workers' Compensation Law §15(8)(f) does not necessarily require the cessation of work, but can be found to begin on the date of injury. Here, in concluding that the C-250 form was untimely, the Board relied on the date of the accident, October 1, 2008, as the date of disability. We find no basis to disturb the Board's determination, as the record reflects that all the medical records and forms filed, including the C-2 form filed by the employer on the day after the accident, refer to that date. We must also reject the employer's contention that its application was timely because claimant's case was closed and later reopened. Indeed, Workers' Compensation Law §15(8)(f) further provides that, irrespective of whether the time frames above have been met, the filing of an application is timely if, in the event of the reopening of a case previously closed, it is filed "no later than the determination of permanency upon such reopening". However, whether a case has been truly closed is a factual determination to be made by the Board, the determination of which depends upon whether further proceedings were contemplated at the time of the purported closing, and its decision in that regard will not be disturbed if supported by substantial. Here, at the hearing held on June 28, 2007, a decision on benefits for the period from April 10, 2007 to May 17, 2007 was held in abeyance. Notwithstanding the fact that subsequent decisions in August 2007 and November 2008 stated that no further action was planned, the status of those benefits remained unresolved and, thus, substantial evidence supports the Board's determination that the case was never truly closed.

Prevailing party represented by: Jill B. Singerof counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Commissioners of Record: Ferrara, Foster, Libous WCB #5061 3203

Dow v Silver Construction Corp
April 14, 2011 NYS Appellate Division, Third Department
Interlocutory Appeal

DISMISSED AS INTERLOCUTORY an employer’s appeal regarding the removal of a second firm from notice as a potential employer. Claimant, who applied for benefits in 2005, alleged incurring asbestos related lung disease while employed by Silver Construction Corporation in 1961. Silver then raised the issue that, in 1961, claimant was actually employed by its predecessor, Rizzi Associates, after which a Law Judge, among other things, thereafter placed Rizzi on notice as a potential employer. On review, a Board found that there was insufficient evidence in the record to place Rizzi on notice as a potential employer, removed Rizzi from notice, and continued the case to resolve the issue of an employer-employee relationship. Given that the Board continued the case to determine the issue of an employer-employee relationship, the Board's decision was interlocutory and did not dispose of all of the substantive issues or reach a potentially dispositive threshold legal issue. Hence the decision is not appealable. Prevailing party represented by: George Tabor (NYC) for Lawrence Dow;David J. Goldsmith of counsel to Stewart, Greenblatt & Manning (Syosset) for Travelers Insurance Company ;and Iris A. Steel f counsel to the NYS Attorney General for WCB, respondent. Commissioners of Record: Ferrara, Foster, Libous WCB #0052 0784

Chmura v T&J Painting
April 7, 2011 NYS Appellate Division, Third Department
§11: Jurisdiction

REVERSED the Board’s January 2010 decision which ruled that claimant, a resident of New York, injured on the job while working for a company, with offices only in New Jersey, could file his claim in New York. On Travelers' previous appeal to the Court, the Third Dept. reversed the Board’s decision and remitted the case back to the Board (64 AD3d 987 [2009]), as its initial review of the insurance contract was incomplete. On remittal, the Board again found that Travelers was the liable carrier and this appeal by Travelers ensued. Claimant's employer is a New Jersey corporation with its sole office located in New Jersey. At the time of the accident, claimant was working in New York on a project lasting five or six days. All parties agreed that the claimant's employment was temporary. The carrier, Travelers Indemnity Company, denied the claim on the basis that the policy in effect at the time did not cover the employer for workers' comp injuries occurring outside New Jersey. The Law Judge, affirmed by a Board panel, held that Travelers was the liable carrier. The issue before the Court distilled to whether, as the employer claims and the Board found, the employer's workers' compensation policy is ambiguous. As relevant here, the policy includes a "limited other states insurance endorsement." That endorsement sets forth three conditions, all of which must be met in order for workers' compensation benefits to be paid. Those conditions require that the employee claiming benefits was employed under a contract of hire made in New Jersey and at the time of the injury was "principally employed" in New Jersey, that the claim for benefits is not being made in a state where the employer is required by that state's law to have insurance coverage by virtue of the employer's operation in that state, and that the claimant's work was temporary, a fact to which all parties agreed. The Court then addressed the Board's determination that the second condition — that the employer was not required by New York law to obtain separate workers' compensation insurance — is ambiguous. “Pursuant to New York law, an employer is required to obtain workers' compensation insurance for its employees working in New York (see WCL §50). Moreover, the policy endorsement here clearly states on its face, under the caption ‘IMPORTANT NOTICE,’ that if the employer ‘begin[s] operations in any state other than New Jersey, [it] must obtain insurance coverage in that state and do whatever else may be required under that state's law, as this . . . [e]ndorsement does not satisfy the requirements of that state's workers' compensation law.’ The Board did not articulate what it found to be problematic about this exclusion provision of the endorsement and we find its determination that such provision is ambiguous to be irrational (cf. Matter of Ovando v Hanover Delivery Serv., Inc., 13 AD3d 780, 781-782 [2004]).” Also the Court noted that “the policy's information page clearly states that the policy only applies in New Jersey. In addition, the policy indicates that it cannot be changed or waived except by endorsement issued by Travelers as part of the policy, which the certificate of insurance is not.” Prevailing party represented by: Beverly M. Barr of counsel to Golden, Rothschild, Spagnola, Lundell, Boylan & Garbo (NYC) for appellant. Commissioners of Record: Bargnesi, Higgins, Finnegan (Groski and Henry participated in the earlier decision.) WCB #0064 8820

Sillitti v Liberty Travel
April 7, 2011 NYS Appellate Division, Third Department
Disability: Degree of

AFFIRMED the Board's decision which ruled that the exacerbation of claimant's preexisting chronic obstructive pulmonary disease was temporary. In 2005, while working for Liberty Travel, Inc., claimant was diagnosed as having chronic obstructive pulmonary disease (hereinafter COPD). In 2006, claimant was transferred to another Liberty office After one week of working there, claimant fell ill with bronchitis and was out of work for a week. Soon thereafter, mold was found at that location and that office was temporarily closed to address the issue. When the Sayville office reopened, claimant resumed working there for four months, again became ill, and was out of work for approximately a week after which she transferred to a different office. Claimant eventually ceased her employment with Liberty, filing this claim for workers' comp. A Law Judge prima facie evidence that claimant's COPD was exacerbated by her exposure to the mold, also finding that the aggravation of claimant's preexisting condition was temporary, not permanent, despite claimant's challenge to the duration of the award. In affirming the Board the Court stated that claimant bears the burden of demonstrating, among other things, that the exacerbation of her COPD due to her work conditions was permanent (see WCL Law §§15, 20). But medical testimony from both her and the carrier doctor indicated that COPD is "a condition that can wax and wane," and the medical record is devoid of any information stating that the exacerbation of her preexisting condition is permanent. "Therefore, even if there is evidence in the record that would support a different result, we will not disturb [the] determination" that her exacerbation is temporary.. Prevailing party represented by: Anthony E. Pizza of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Liberty Travel, Inc. and another, respondents. Commissioners of Record: Higgins, Bargnesi, Bell WCB #4070 4238


  — — MARCH 2011 — — 


Brown v Guilderland
March 31, 2011 NYS Appellate Division, Third Department
§ 15(8) Reimbursement Special Fund

RESCINDED and returned for proper consideration the Board’s ruling when the Court determined that the carrier is not entitled to §15(8)(d) reimbursement from the Special Disability Fund (Fund). In 1997, the employer filed a C-2 form based upon claimant's chronic upper respiratory problems, listing January 1997 as the date of injury; the claimant, working with various particulate matter, including clay dust used for ceramics, applied for workers' comp benefits in October 1997, receiving benefits for intermittent lost time beginning in January 1997. The State Insurance Fund, as the carrier, sought reimbursement from the Fund pursuant to WCL §15(8)(d). In December 2008, a Law Judge, subsequently affirmed by a Board panel, found that the carrier was entitled to reimbursement per §15(8)(d). In rejecting the Board’s decision, the Court wrote, “To qualify for reimbursement, ‘an employer must show that the claimant had a preexisting permanent impairment that hindered job potential, a subsequent injury arising out of and in the course of employment, and a permanent disability caused by both conditions materially and substantially greater than what would have been caused by the work-related injury alone.’ Although the factual determination as to whether these factors have been demonstrated is within the exclusive province of the Board, the record herein does not disclose the exact nature of the medical condition upon which the finding of permanent partial disability was based, nor is there sufficient evidence to determine whether the subsequent condition was ‘separable from the prior pre-existing permanent condition and not merely . . . the culmination or the progressive process of the same disease or condition of which the pre-existing condition was a symptom or part’ Furthermore, the record does not allow meaningful review as to whether the carrier has sufficiently demonstrated that claimant's pre-existing ailments created a permanent impairment that hindered job potential. Accordingly, the matter must be remitted for further development of the record.” Prevailing party represented by: Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation Committee, for appellant. Commissioners of Record: Bargnesi, Libous, Finnegan WCB #5971 0815

Appley v America Food
March 31, 2011 NYS Appellate Division, Third Department
§ 23: Frivolous Appeal Penalty

REVERSED the Board’s ruling which improperly assessed a frivolous appeal penalty against the carrier pursuant to WCL §2. Claimant, with a 2003 work-related injury, was not classified as a permanent partial disability until 2009 . Pursuant to amendments to the WCL §27 in 2007, a Law Judge directed the carrier to deposit the present value of the award into the aggregate trust fund (ATF). The carrier appealed, arguing that deposits into the ATF should not be required when the injury occurred prior to the 2007 amendments to the statute. The day after a Board panel affirmed his decision, the Law Judge issued a supplemental decision specifying that the amount of the lump-sum payment to be made was $111,182. When then employer then sought review of the Judge’s supplemental decision, making arguments identical to those raised in its first appeal, the Board again rejected the arguments and, in addition, penalized the employer for pursuing "a frivolous appeal.”

The Court wrote, “Upon an employer's or a carrier's appeal from a WCLJ decision, the Board is directed to impose a penalty if it ‘find[s] that such notice of appeal was served or such application was made for the purpose of delay or upon frivolous grounds’ (WCL §23). Here, the employer appealed to this Court from the Board's September 2009 decision, and asserts that if it had not sought immediate Board review of the WCLJ's supplemental decision, it would have been required to make the lump-sum payment into the ATF during the pendency of its appeal to this Court. The Board responds that the employer's position is legally incorrect because the employer's notice of appeal from the September 2009 decision resulted in a statutory stay of the direction to make an ATF deposit during the pendency of the appeal despite the Judge’s issuance of the supplemental decision. In that regard, we note that WCL §23 provides that where an "award is subject to the provisions of section [27] of this article, the appellant shall pay directly to the claimant all compensation as it becomes due during the pendency of the appeal" (emphasis added). Relying on that language, the Board has clarified that carriers are not required to deposit the present value of an award into the aggregate trust fund — as opposed to making payments directly to the claimant as compensation becomes due — during the pendency of an appeal to this Court from a Board decision directing such a lump-sum. That clarification, however, postdates the administrative appeal from the WCLJ's supplemental decision herein. Under these circumstances, we conclude that, while the employer's rationale for appealing the WCLJ's supplemental decision may have lacked merit, its conclusion that it was required to take a second administrative appeal in order to preserve its rights was not ‘frivolous.’” Prevailing party represented by: Jason M. Carolton of counsel to Gitto & Niefer (Binghamton) for appellants. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #9030 5419

Wilkins v NY Power Authority
March 31, 2011 NYS Appellate Division, Third Department
Refusing medical treatment

REVERSED the Board’s ruling by finding, as did the Law Judge, that the claimant’s refusal to continue treatment was unreasonable. Injured in July 2007, claimant was first examined by a physician on August 1, 2007, who diagnosed him with biceps tendinitis of the right shoulder and prescribed an anti-inflammatory and physical therapy. Claimant, who did not miss time from work as a result of the injury, declined to take the medication, discontinued physical therapy after just one session and did not follow up with his treating physician. In August 2008, after an independent medical examination was found to have a 45% SLU of his right shoulder. A Law Judge denied claimant's requested SLU, finding that the permanency of his injury was caused by his unreasonable refusal to undergo any treatment. Upon review, a Board panel reversed, finding that claimant's refusal to continue treatment was not unreasonable, and awarded the 45% SLU. The Court found that “the unanimous medical opinion of the physicians . . . was that claimant had not yet reached maximum medical improvement that could be achieved if he were willing to undergo the recommended treatment. Moreover, an IME opined both that a course of treatment involving medication and physical therapy involved little risk and that claimant's refusal to engage in such treatment was unreasonable. While certain of claimant's examining physicians testified that claimant had the right to refuse treatment and/or that the failure to engage in treatment would not be harmful, none of them unambiguously testified that claimant's refusal was reasonable. Under these circumstances, where there is no actual medical conflict, the Board's determination that claimant's refusal to participate in any medical treatment was reasonable is not supported by substantial evidence and must, therefore, be reversed.” Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for appellants. Commissioners of Record: Finnegan, Higgins, Foster WCB #5080 8654


Stenson v NYS DOT
March 31, 2011 NYS Appellate Division, Third Department
§ 29: MVA liens & legal fees

REVERSED the Board’s ruling by determining that, in fact, claimant was entitled to reimbursements for the carrier's share of the litigation expenses. The claimant asserts that the decision is in error as, for the holiday period, the carrier should be required to pay the claimant $119.00 per week, which represents the carrier's share of the claimant's third-party litigation expenses with respect to the holiday, pursuant to Burns v Varriale (9 NY3d 207 [2007]), and where the claimant did not waive his right to be paid the carrier's remaining share of the litigation expenses. The claimant maintains that his right to be paid the carrier's remaining share of the litigation benefits is required by Workers' Compensation Law 29, and can only be waived by the claimant's legally binding agreement to waive it.

The Court noted that in this case it was asked to consider the validity of certain limitations that the Workers' Compensation Board has placed on the applicability of Burns v Varriale (9 NY3d 207 [2007]).

As explained in its detailed seven-page decision, the Court wrote that “the Board has misconstrued the scope of Burns by ruling that the case applies only when a carrier's consent to settlement of a third-party action has been compelled by court order and the claimant has been classified with a permanent partial disability prior to obtaining a third-party recovery. Accordingly, we reverse the Board's rejection of claimant's request for equitable apportionment under Burns and remit for further proceedings.

"Here, the Board denied claimant's request for reimbursement pursuant to Burns v Varriale (supra), concluding that the case was inapplicable for two reasons: first, the Board has ruled that Burns is relevant only when a claimant has been classified with a permanent partial disability prior to settlement of the third-party action; and, second, the Board reads Burns as applying only when settlement is compelled by compromise order because the carrier has refused consent. In our view, the Board's reading of Burns is overly narrow and perpetuates the inequities that the Court of Appeals sought to remedy in that case, as well as in Kelly and Brisson.

"While Burns limited the Kelly rule — which required apportionment at the time of settlement — to cases in which the claimant received benefits for death, total disability or schedule loss of use, the Court of Appeals also directed, without limitation, that in other cases "the carrier should be required to periodically pay its equitable share of attorney's fees and costs incurred by a claimant in securing any continuous compensation benefits". There is no requirement that the claimant be classified with a permanent partial disability to obtain continuing apportionment under Burns; rather, the requirement is that the compensation benefits upon which apportionment is based be nonspeculative, such as those that have accrued.

"With respect to the Board's conclusion that Burns has no relevance unless a compromise order has been issued, we note that Kelly established — and Burns reaffirmed — that carriers are obligated to contribute the costs of litigation in proportion to the total benefit that they receive.

"Furthermore, Burns clarified that when future compensation is speculative at the time of settlement, the carrier has the obligation to pay its equitable share of litigation costs as benefits accrue. Given this clearly established legal obligation on behalf of carriers prior to execution of the consent to settlement in this case, and in light of the rule set forth in Brisson that carriers must explicitly and unambiguously reserve any entitlement to future offsets, we conclude that SIF, in seeking to be released from its affirmative obligation to pay its share of litigation expenses, was required to express that release plainly and unambiguously in the consent to settlement. Contrary to the Board's determination that it lacks jurisdiction to determine claimant's request for Burns payments pursuant to the consent to settlement agreement, the question of whether the carrier adequately preserved its right to this portion of the future offset is a fact question for the Board (see id.). Inasmuch as the Board failed to determine this issue in light of the obligation on the carrier set forth in Burns, we must remit for a factual determination of the precise credit to which the carrier was entitled as an offset against future benefits." Prevailing party represented by: Michael P. Daly , Manlius, for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #6050 5286


Beardsley v Walmart
March 24, 2011 NYS Appellate Division, Third Department
Aggregate Trust Fund

AFFIRMED the Board’s ruling that directed the carrier to make a deposit into the Aggregate Trust Fund per WCL §27(2). In this very short opinion, the Court referenced its earlier decisions in the matter of mandatory oaymennts into the ATF, thus joining a long list of cases on the legality of all the Board’s decision regarding mandatory payments into the Aggregate Trust Fund. Prevailing party represented by: Carol Fisher of counsel to the New York State Attorney General, for Workers' Compensation Board, respondent Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #6030 0832


Carroll v Fagan Inc
March 24, 2011 NYS Appellate Division, Third Department
Course of Employment: in and out of

AFFIRMED the Board’s ruling, reversing the Law Judge, that because claimant was not an outside worker the injury did not arise out of and in the course of his employment and denied his claim for workers' comp benefits. Claimant was hired by the employer to perform work at a single construction project at a substantial distance from his permanent residence, receiving a per diem for living expenses in addition to his hourly wages. Injured while commuting to work, he applied for workers' comp which was awarded by a Law Judge finding that the injuries arose out of and in the course of his employment a decision reversed by a Board panel. Although the claimant argued that he had no fixed workplace, the Court agree with the Board that the claimant reported to “a fixed location prior to work each day,” thus removing him from the class of ‘outside’ workers. The Insider  While there was no discussion of the length of time during which he was assigned to work at the site, it was clear that it was not a single day or even a weekly assignment. Prevailing party represented by: Renee E. Heitger of counsel to Hamberger & Weiss (Buffalo) for Fagan, Inc. and another, respondents Commissioners of Record: Foster, Finnegan, Higgins WCB #8070 9498


Copak v Our Lady of Victory
March 24, 2011 NYS Appellate Division, Third Department
§ 15(8) Reimbursement Special Fund

AFFIRMED the Board’s ruling which discharged the Special Disability Fund (SDF) from liability under WCL §15(8). 13 years after the injured worker’s claim was established, the carrier filed a C-250 form in October 1996, applying for reimbursement from the Special Disability Fund. After a 20% schedule loss of use of claimant's right arm was awarded in March 1997, a Law Judge ruled that the carrier's application for reimbursement was untimely, the SDF was discharged and case closed. The case was reopened in 2000 when the claimant was awarded further benefits; in 2002, to include neck and thoracic outlet syndrome; and, in September 2004, for classification as a permanent partial disability. In 2009, the carrier filed an RFA-2 form, requesting relief from liability, arguing that, pursuant to WCL §15(8)(f), the 2004 classification upon reopening rendered their 1996 C-250 application for reimbursement from the SDF timely. A Law Judge, affirmed by a Board panel, denied the request. In its affirmance, the Court reasoned that the carrier failed to file the forms.

In its review, the Court wrote that “we cannot say that the Board's conclusion that the carrier is not entitled to reimbursement as it failed to file a timely C-250 form was an irrational interpretation of Workers' Compensation Law § 15 (8) (f). Inasmuch as there is an exclusive procedure for submitting a claim for reimbursement on reopened cases, it is not unreasonable here to require the carrier to file a timely claim for reimbursement subsequent to the reopening of the case, but prior to the permanency determination upon the reopening. Clearly, the carrier could have filed a new or amended C-250 form between the reopening of the case in 2000 and the permanency determination in 2004, but failed to do so. The fact that an untimely application for reimbursement had been filed prior to the 1997 closing and the initial finding of permanency does not, in our view, satisfy the specific statutory requirement regarding reimbursement claims being filed prior to the permanency determination in reopened cases.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee (Albany) for Special Disability Fund. Commissioners of Record: Ferrara, Foster, Libous WCB #8940 2760

Pinter v Louis Kennedy Trucking
March 24, 2011 NYS Appellate Division, Third Department
§ 15(8) Reimbursement Special Fund

AFFIRMED the Board’s ruling that discharged the Special Disability Fund (SDF) from liability under WCL §15(8). After the claimant, a truck driver who injured his back in 2002, was eventually found to have sustained a permanent partial disability, the carrier sought reimbursement from the SDF pursuant to WCL §15(8)(d), a request denied by a Board panel. The Court wrote that the Board correctly determined that the employer had not met the first prong of the test of §15(8) that the employer was required to "show that the claimant had a preexisting permanent impairment that hindered job potential, a subsequent injury arising out of and in the course of employment, and a permanent disability caused by both conditions materially and substantially greater than what would have been caused by the work-related injury alone." Although claimant did suffer a back injury in 1990, he testified that the injury only required limited medical treatment, worked without restriction, and played sports during that period, testimony supported by this medical records and a doctor who conducted an independent medical examination. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee (Albany) for Special Disability Fund. Commissioners of Record: Ferrara, Foster, Libous WCB #3030 2950


Hester v Homemakers Upstate
March 24, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s ruling that claimant voluntarily withdrew from the labor market. In 2006, claimant, a home health aid, sustained work-related hip and back injuries to her right hip and back, injuries eventually found to constitute a permanent partial disability. At a later hearing, a Law Judge found claimant remained attached to the labor market, a decision reversed by a Board panel. The Court wrote, “In determining that claimant had sustained a permanent partial disability, the Law Judge credited the opinion of a physician who examined claimant, reviewed her medical records and found that she could return to work with restrictions. Claimant did not appeal to the Board from that determination, and . . . accordingly, she was obliged ‘to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions’ in order to receive continuing workers' compensation benefits. In that regard, claimant admitted that she had not looked for work since her injury and did not plan on doing so in the future. Substantial evidence to support the Board's determination that she had voluntarily withdrawn from the labor market. Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for Homemakers Upstate Group, respondent. Commissioners of Record: Ferrara, Finnegan, Libous WCB #8070 0088

Lavigne v Peru CSD
March 24, 2011 NYS Appellate Division, Third Department
§ 28: time bar

AFFIRMED the Board’s ruling that found the claim was time barred by WCL §28. Claimant, a teaching assistant, was injured on January 3, 2003 when she suddenly fell to the classroom floor. Although no one witnessed the incident, the principal heard the claimant fall. The school nurse was notified who applied an ice pack and checked claimant's blood pressure and pulse rate, taking claimant to the nurse's office until paramedics arrived to transport her to the hospital. Claimant applied for workers' comp in August 2005. A Law Judge found that the medical treatment provided by the employer on site in 2003 waived the two-year filing requirement of §28. A Board panel majority affirmed, with Commissioner Paprocki dissenting, thus forcing a Full Board Review which resulted in the decision being reversed and the claim disallowed.

The Court noted that two-year time limitation can be waived if the employer or its carrier provides an advance payment of compensation in the form of wages or medical treatment in recognition of liability. Although, as relevant here, "[a] furnishing of medical services by the employer sufficient to constitute an advance payment of compensation can be made out from first-aid treatment rendered at the time of the accident" the medical services "must have been performed in a manner to imply acknowledgment or recognition of liability on the part of the employer." In this case those at the school who offered medical aid were only concerned with claimant's well-being that day and did not consider whether her injuries were work-related. Inasmuch as there was no evidence that the first aid administered to claimant by the principal and the nurse was in recognition of any employer liability for the injuries, the Court found no reason to disturb the Board’s disallowance of the claim. [ED. NOTE:]This was a real stretch by the Board panel in so much as, had the school nurse and other official failed to offer any aid, their actions would have been described with a surfeit of negative adjectives. To rule that any medical aid given to an injured or ill employee at the place of business is an acknowledgment of a work-related claim is nothing more than an attempt to make workers’ compensation a ‘safety net’ well beyond the intent of the WCL. Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for Peru Central School District and another, respondents. Commissioners of Record: Groski, Paprocki (dissent), Libous WCB #5051 1477


Siliverdis v Sea Breeze Servs
March 24, 2011 NYS Appellate Division, Third Department
Course of Employment: in and out of
Procedure: Denial Full Board Review

AFFIRMEDthe Board’s rulings (1) that claimant's injury did not arise out of and in the course of his employment, and (2) which denied claimant's application for full Board review. Contending he suffered injuries of an alleged accident while working as a carpenter and being struck by a forklift, the injured worker had his claim, controverted by the carrier, established by a Law Judge. A Board panel reversed this, finding that claimant was not present at the work site on the day of the alleged accident, subsequently denying claimant's request for full Board review. (1) Here, in disallowing the claim, contrary to petitioner's testimony that he was at the job site and was injured on the day in question, the forklift operator and general supervisor for the employer testified that he did not believe that claimant worked that day, he had no recollection of striking anyone with the forklift and there were no reports of accidents on the job site that day. In addition, testimony from the union shop steward supported the employer’s contention as did the pay stubs submitted by the claimant himself. The Court agreed that there was substantial evidence to support the Board's decision that claimant's injuries did not arise out of his employment. (2) The claimant’s request for Full Board review was based on his submission of “a handwritten, unverified statement that was alleged to have been written by claimant's coworker who purportedly gave claimant a ride from the job site to obtain medical assistance on the day of the accident” ... information which should have been available at the time of the original hearing. The Court found that the Board’s denial of a review, based on this submission was neither an abuse of discretion nor an arbitrary or capricious act. Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for Sea Breeze Svcs and another, respondents. Commissioners of Record: Ferrara, Bell, Finnegan WCB #4070 7922


Ortiz v Martin Viette Nurseries
March 24, 2011 NYS Appellate Division, Third Department
§ 23: Interlocutory Appeal

DISMISSED AS INTERLOCUTORY the carrier’s appeal of a decision which precluded an independent medical examination report and related deposition testimony submitted by the employer's workers' compensation carrier. When further casually related benefits were held in abeyance, the carrier submitted an independent medical examination report and deposition testimony of its medical expert, Sanford Wert, in which he opined that claimant had no further causally related disability. Although a Law Judge denied claimant's request to preclude consideration of Wert's report and testimony and determined that claimant had no further causally related disability, a Board panel rescinded the Judge’s decision, finding that the report and testimony should be precluded for not complying with WCL §137 and 12 NYCRR 300.2. The Board restored the matter to the calendar for a determination of whether claimant suffers from a further causally related disability, without consideration of Wert's report or testimony. In repose to the carrier’s appeal, the Court wrote, “The Board's decision which is now on appeal — which rescinded the WCLJ's original decision and remanded the matter to the WCLJ for a new determination on the issues — is interlocutory in nature and does not dispose of all the substantive issues nor reach legal threshold issues which may be determinative of the claim. Inasmuch as this nonfinal decision is reviewable upon an appeal of the Board's final determination, this appeal must be dismissed". Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for Workers' Compensation Board, respondent Commissioners of Record: Bargnesi, Higgins, Foster WCB #0001 4913


Cucinella v NYC Transit Auth
March 24, 2011 NYS Appellate Division, Third Department
.§ 23: Moot Appeal

DISMISSED AS MOOT the pro se claimant’s appeal regarding a finding of WCL §114-a fraud. He sought and received a Full Board Review of an October 31, 2008 Board panel decision which affirmed the Law Judge’s ruling finding §114-a fraud and assessing a mandatory penalty. The Full Board modified that decision, this making this particular appeal moot. Unfortunately for the claimant, the Full Board’s modification, in addition to affirming the §114-a finding and the mandatory penalty, added a discretionary penalty. Prevailing party represented by: Theresa E. Wolinskiof counsel to Foley, Smit, O'Boyle & Weisman (NYC), for NYC Transit Authority, respondent. Commissioners of Record: Bargnesi, Libous, Paprocki WCB #0001 9995


Bouyea v McLane Northeast
March 17, 2011 NYS Appellate Division, Third Department
ATF Compensation

AFFIRMED the Board’s ruling that directed the carrier to make a deposit into the Aggregate Trust Fund per WCL §27(2). In this very short opinion, the Court referenced its earlier decisions in Matter of Parkhurst v United Rentals Aerial Equip., Inc., 75 AD3d 702, 704-705 [2010], and Matter of Collins v Dukes Plumbing & Sewer Serv., Inc., 75 AD3d 697, 698-702 [2010], both of which, along with the Matter of Raynor v Landmark Chrysler, 75 AD3d 697 have been accepted for argument by the New York State Court of Appeals, thus joining a long list of cases on the legality of all the Board’s decision regarding mandatory payments into the Aggregate Trust Fund. To read The Insider's summary of these decisions when they were first issued on July 10, 2010, click here. Prevailing party represented by: Carol Fisher of counsel to the New York State Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #9010 0584


Amacio v Tully Construction
March 10, 2011 NYS Appellate Division, Third Department
§ 29: MVA liens
Procedure: Denial Full Board Review

AFFIRMED the Board’s rulings which (1) suspended claimant's workers' compensation benefits pending proof that the employer's carrier consented to the settlement of claimant's 3rd party action, and (2) denied claimant's request for reconsideration and/or full Board review.

After a 1998 work-related injury and an award of compensation, claimant brought a 3rd party negligence action resulting in a settlement of $800,000 in June 2000. In October 2000, a Law Judge found that claimant was permanently partially disabled, set his average weekly wage and determined that the comp carrier had waived its lien of $71,000. Claimant continued thereafter to receive $400 per week for several years. In 2008, the employer's current workers' compensation carrier sought to offset claimant's comp benefits against his 3rd party recovery. Both parties were requested to produce evidence regarding whether the former carrier had waived its right to offset the 3rd party recovery. Following a hearing, a WCLJ found that the former carrier had waived its right and directed the current carrier to continue paying compensation benefits. On review, a Board panel found that there was insufficient evidence that the lien and the right to offset benefits had been waived, rescinded the Law Judge’s decision and suspended benefit payments pending the production of evidence demonstrating the former carrier's consent. The Board subsequently denied claimant's application for reconsideration and/or full Board review, and these appeals ensued. [This portion of the appeal was denied as the claimant failed to raise any issue with respect to this separate appeal.]

First, the Court rejected the claimant's contention that the doctrine of laches bars the current carrier from challenging the question of consent because the former carrier raised a lack of consent to the settlement back in August 2000 and claimant, directed to submit proof of such consent, failed to do so.

As to the merits, there must exist either the written consent of the carrier to the settlement or a compromise order from the court in which the 3rd party action is or was pending. The burden is on the claimant to establish that consent. Claimant relies on the transcript of the settlement agreement, during which the defendant, the State of New York, agreed to the $800,000 amount, indicating that it was authorized to consent to claimant receiving that sum and also continuing to receive workers' comp benefits. But neither the employer nor the former carrier was a party to that action, nor were they present when the settlement was placed on the record, and there is no evidence that either consented in writing to its terms or gave authority to the 3rd party defendant to confer such consent. Moreover, although the transcript reflects that claimant's attorney had spoken to the former carrier and was informed of the exact amount of its workers' compensation lien, there is no evidence that the former carrier agreed to waive the lien.

"The question of whether a settlement was procured with the proper consent of the carrier is a factual issue for the Board to determine. Absent any proof in the record that the employer or carrier either consented to the settlement agreement or to waiving the lien, or that claimant sought judicial approval of the settlement, [the Court founds] no reason to disturb the Board's decision." Prevailing party represented by: Sean J. McKinley of counsel to Vecchione, Vecchione & O'Conner (Garden City) for Tully Construction and another, respondents. Commissioners of Record: Groski, Bell, Finnegan WCB #0982 7881


Choto v Consolidated Lumber
March 10, 2011 NYS Appellate Division, Third Department
Employment: Who is

REVERSED the Board’s ruling by determining that an employer-employee relationship did not exist between claimant and Consolidated Lumber Transport Inc. Six months after his April 2006 accident in which claimant, owner-operator of a truck and trailer, fell off the top of a loaded flatbed trailer, suffering multiple injuries, he submitted a workers' comp claim that listed as his employer Consolidated Lumber — for which claimant hauled lumber pursuant to a lease agreement. Following hearings to determine employer-employee relationship, a Law Judge, later affirmed by a Board panel, found that an employment relationship had been established. The Court wrote, “Whether an employee-employer relationship exists is a determination to be made by the Board and it will not be disturbed if supported by substantial evidence. Factors relevant to that determination include the right to control the claimant's work, the method of payment, the right to discharge, the furnishing of equipment and the nature of the work, and no single factor is dispositive.

Initially, central to its finding that claimant was an employee, the Board found that he could only work for other carriers if the lease agreement with Consolidated was canceled. However, that finding is contradicted by the record. Additionally, this fact and other indicia used by the Board to support its conclusion are mandated by federal regulations and, thus, should not be found to be dispositive of an employee-employer relationship. The record demonstrates that claimant owned, operated, maintained and repaired his own truck and trailer; provided his own equipment, including the straps, tarps and chains used to secure a load; paid for his own liability, bobtail and cargo insurance; covered all of his own expenses, including fuel, fuel taxes and tolls; and he took breaks at his own discretion. Furthermore, claimant was issued an IRS 1099 form and indicated on his tax returns that he was self-employed, taking the commensurate deductions. In addition, the lease could be terminated by either party with 24 hours written notice. Finally, pursuant to the lease, claimant was paid 87% of the adjusted gross revenue of the loads he carried and, to a large extent, claimant determined how many and what loads he chose to carry for Consolidated. Prevailing party represented by: Anthony J. Centone of counsel to Anthony J. Centone, P.C. (White Plains) for appellant. Commissioners of Record: Bargnesi, Bell, Higgins WCB #2060 7356 The Insider On March 9, 2010, a Board panel affirmed a Law Judge’s decision denying the employer’s appeal on various medical evidentiary issues.


Rondon v Manhattan & Bronx Transit
March 10, 2011 NYS Appellate Division, Third Department
§ 23: Interlocutory Appeal

AFFIRMED the Board’s ruling that the record was properly closed. Claimant, a bus driver, injured in 2007, testified that she did not work in any capacity from January to August 2007 and, as such, workers' comp benefits were awarded for that period. The employer then sought to disqualify claimant from receiving benefits pursuant to WCL §114-a, asserting that it had evidence demonstrating that she had worked during that period. After initially declining to allow the employer's video footage into evidence unless authenticated by the investigator who shot it, and adjourning the hearing to hear that testimony, the Law Judge refused to admit footage that had been filmed by an investigator who did not testify and closed the record. Upon administrative review, a Board panel ruled that the missing investigator's testimony was necessary to authenticate the video footage but the employer did not appeal from the Judge’s initial ruling that the footage be authenticated and failed to identify and produce all of its investigators to testify despite being given sufficient opportunity to do so. The Board panel accordingly determined that the record was properly closed and remitted for the WCLJ to determine whether claimant should be disqualified from receiving benefits. In affirming the Board, the Court wrote, “The Board's decision is an interlocutory one that ‘neither disposes of all substantive issues nor reaches a potentially dispositive threshold legal issue’ and, accordingly, this appeal must be dismissed. A final determination by the Board on the merits is forthcoming, and the employer's arguments may be reviewed upon an appeal from that decision.” Prevailing party represented by: Estelle Kraushar of counsel to the New York State Attorney General for Workers' Compensation Board, respondent.


Smith v Albany County Sheriff's Dept
March 3, 2011 NYS Appellate Division, Third Department
Untimely defense per 12 NYCRR 300.38(f)(4)
Course of Employment: in and out of

AFFIRMED the Board rulings that (1) claimant suffered from depression and anxiety due to harassment at his work place and (2) carrier filed untimely prehearing conference statement in violation of 12 NYCRR 300.38(f)(1). After the claimant applied for workers' comp, the carrier controverted the claim. However. after the carrier submitted an untimely prehearing conference statement in violation of 12 NYCRR 300.38(f)(1), the Law Judge found that the employer waived all defenses to the claim pursuant to 12 NYCRR 300.38(f)(4) and, upon review of claimant's medical records, established an occupational injury. In rejecting the carrier’s contention that the regulation imposing a waiver of defenses for failure to timely file a prehearing conference statement conflicts with WCL §25, the Court wrote that it will uphold a regulation "if it has a rational basis and is not unreasonable, arbitrary, capricious or contrary to the statute under which it [is] promulgated. . . . In our view, the challenged regulation, which provides for the waiver of defenses for the unexcused filing of an untimely statement (see 12 NYCRR 300.38 [f] [4]), is not in conflict with the statute. Rather, it facilitates the stated purpose of a conference which is, among other things, to simplify and limit factual and legal issues (see WCL §25[2-a][b][iii]). It also supplements the purpose of the conference and promotes the overall statutory framework designed to provide speedy redress to injured workers. Furthermore, the employer has not demonstrated how this regulation impinged on its due process rights.

As to the medical issue, the medical reports submitted by claimant were considered and found to be sufficient to establish a claim for work-related stress and that the accompanying threats and harassment from inmates and staff which caused the injury were greater than that experienced by others working in similar capacities (see WCL §2[7]). Prevailing party represented by: George P. Ferro of counsel to Law Firm of Alex C. Dell (Albany) for Raymond C. Smith, respondent and Steven Segall of counsel to the New York State Attorney General, for Workers' Compensation Board. Commissioners of Record: Ferrara, Foster-Tolbert, Libous WCB #0005 5311


Quagliata v Starbucks Coffee
March 3, 2011 NYS Appellate Division, Third Department
untimely defense per 12 NYCRR 300.38(f)(4)

AFFIRMED the Board ruling that carrier filed untimely prehearing conference statement in violation of 12 NYCRR 300.38(f)(1). After the claimant applied for workers' comp alleging a repetitive occupational injury to his neck and arms, the carrier controverted the claim. However, after the carrier submitted an untimely prehearing conference statement in violation of 12 NYCRR 300.38 (f) (1), the Law Judge found that the employer waived all defenses to the claim pursuant to 12 NYCRR 300.38 (f) (4) and, upon review of claimant's medical records, established an occupational injury. In rejecting the carrier’s contention that the regulation imposing a waiver of defenses for failure to timely file a prehearing conference statement conflicts with WCL §25, the Court write that it will uphold a regulation "if it has a rational basis and is not unreasonable, arbitrary, capricious or contrary to the statute under which it [is] promulgated. . . . In our view, the challenged regulation, which provides for the waiver of defenses for the unexcused filing of an untimely statement (see 12 NYCRR 300.38 [f] [4]), is not in conflict with the statute. Rather, it facilitates the stated purpose of a conference which is, among other things, to simplify and limit factual and legal issues (see WCL §25[2-a][b][iii]). It also supplements the purpose of the conference and promotes the overall statutory framework designed to provide speedy redress to injured workers. (See Matter of Smith v Albany County Sheriff's Dept. decided today and cited above). Furthermore, the employer has not demonstrated how this regulation impinged on its due process rights.” The Court also denied the carrier’s appeal on the medical issue stating that not only was the record sufficiently developed through the submission of claimant's medical records, but the carrier never appealed that decision to the Board and no direct appeal to the Court lies from a decision of a WCLJ. Prevailing party represented by: Alexander Osborne of counsel to Connors & Ferris (Rochester) for Terry Quagliata and Iris A. Steel of counsel to the New York State Attorney General, for Workers' Compensation Board. Commissioners of Record: Ferrara, Foster-Tolbert, Finnegan WCB #G004-6809


Albano v Waldbaum
March 3, 2011 NYS Appellate Division, Third Department
Course of Employment: in and out of
Procedure: Denial Full Board Review

AFFIRMED the Board’s rulings that (1) claimant suffered a causally related injury and (2) denied the application for reconsideration or full Board review (FBR). In 1996, claimant sustained compensable injuries, a claim shifted the claim to the Special Fund for Reopened Cases in June 2009. Then in April 2009, claimant again applied for workers' comp claiming that in January 2009, he had suffered new injuries. At hearing in which the employer was denied an opportunity to cross-examine claimant's physicians, a work-related injury to claimant's neck was established, a decision affirmed by the Board panel which also denied the employer's application for reconsideration or full Board review. The employer's sole argument on appeal is that the Board erred in denying its request to cross-examine claimant's physicians as to why their reports regarding their treatment of claimant made no reference to the January 2009 accident. [The Court noted that since the carried failed to raise any issue with respect to its separate appeal of the Board's denial for FBR, the Court felt that appeal to be abandoned.] However, that failure to reference the 2009 accident was fully developed at the hearing and was not an issue in this proceeding. Moreover, although the initial reports of claimant's physicians made no reference to the 2009 injury, their content is not inconsistent with claimant's testimony regarding what transpired at the time of his accident and the employer was permitted to cross-examine claimant about the incident as well as his conversations with these physicians when they treated him. Both the Court and Board noted there appeared to be no dispute among these experts that claimant’s "complaints from January 12, 2009 and the history coordinate with the problems with the neck and shoulder and relate to that [2009] incident." Even the carrier’s orthopedic surgeon arrived at a similar conclusion. The Court then wrote that, “Accordingly, we find that the Board did not err in denying the employer's request for an opportunity to cross-examine claimant's physicians.” Prevailing party represented by: Sherman, Federman, Sambur & McIntyre (Bay Shore) for Vincent Albano, respondent;; Iris A. Steel f counsel to the New York State Attorney General, for Workers' Compensation Board; and Jill B. Singer for Steven Licht, Special Funds Conservation Committee, respondent. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #0002 7654

—— FEBRUARY 2011 ——

Kwadzogah v NYC Health-Hosp
February 24, 2011 NYS Appellate Division, Third Department

§ 28: time bar v. constructive notice

AFFIRMED the Board’s ruling that the employer had waived the statute of limitations defense of WCL §28. After sustaining an injury on July 29, 2006, claimant did not lose time from work and did not file a workers comp claim until June 2008, filing her claim on July 30, 2008 – one day after the expiration of the two year limitations period of WCL §28. When the employer alleged the claim was time-barred, a Law Judge determined that the employer had waived the limitations defense by making payments of compensation to claimant with an acknowledgment of liability. An employer waives the limitations defense by making payments of compensation to a claimant in the form of wages, medical treatment or other compensable expenses that carry a "recognition or acknowledgment of liability under the WCL."

The employer filed a C-669 September 22, 2006 indicating that it was not disputing the claimant's work-related injury of July 29, 2006. In the fall of 2008, the employer filed a C-11 form reporting that the claimant sustained lost time from employment, commencing on June 20, 2008, due to her work-related injury of July 29, 2006 and received payment during her absence from work for the period from June 20, 2008 to September 16, 2008. Finally, the employer did not file a notice of controversy which it was required to do within 25 days of the Board's mailing of the notice of indexing if it intended to contest the claim per WCL §25[2][b]. The foregoing actions of the employer provided substantial evidence to support the Board's determination that the employer waived the statute of limitations defense by making payments of compensation to claimant with an acknowledgment of liability. Prevailing party represented by: Estelle Kraushar of counsel to the NYS Attorney General for Workers' Compensation Board, respondent. Commissioners of Records: Foster-Tolbert, Paprocki, Higgins WCB 0083-3248

—— JANUARY 2011 ——


Baxter v TG Peppe
February 17, 2011 NYS Appellate Division, Third Department
Course of Employment: Lunch Break

AFFIRMED the Board’s ruling that claimant, injured on his ‘lunch break’, did not sustain an accidental injury in the course of his employment and denied his claim for workers' compensation benefits. Claimant fractured his leg after he slipped on a sidewalk when he and his coworker stopped to get something to eat at a bakery while on their way back to the employer's office at the end of a work day. The claimant testified that his partner pulled over to let him out of the employer's van, and that he slipped on debris, fell and broke his left ankle. A Law Judge determined that the injury was not compensable because it occurred while claimant was on an unpaid lunch break and disallowed the claim. In affirming the Board, the Court cited prior decisions which had ruled that “‘Lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.’ Here, substantial evidence supports the Board's determination that claimant and his coworker had discretion regarding the timing and location of their lunchtime break and that the employer did not derive any benefit from their decision to take their lunch break when they did or otherwise retain authority or control over them during that time." [Court Footnote: It is notable that the stop at the bakery is repeatedly referred to as a "lunch break" during the hearing and claimant made no objection to such classification.] Prevailing party represented by: Janis M. Riekstins of counsel to State Insurance Fund for T.G. Peppe, Inc. and another, respondents. Commissioners of Records: Firestone, Higgins, Paprocki WCB #0000-1476


Matter of Sands--Grievance Comm 10th JD
February 14, 2011 NYS Appellate Division, Second Department - Motion
Disbarment under consideration

In the Matter of Sandra Mara Sands, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Sandra Mara Sands, respondent (Attorney Registration No. 2792265), it is ordered that the respondent, Sandra Mara Sands, is immediately suspended from the practice of law in the State of New York, pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), and that the Grievance Committee for the Tenth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Sandra Mara Sands, based on the Court’s finding, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon substantial admissions she has made under oath that she committed acts of professional misconduct and other uncontroverted evidence of professional misconduct. In part, after securing a workers comp settlement via a stipulation, which was paid by the carrier directly to the claimant, a WCL §14-a penalty claim against the employer was also settled by stipulation but the scheduled payments were made not to the claimant but to the respondent, payable to "Sandra Sands and Associates, PLLC.” The investigation by the Grievance Committee for the Tenth Judicial District (hereinafter Grievance Committee) emanated from a complaint filed by the claimant alleging that the respondent converted settlement proceeds. The respondent admitted under oath before the Grievance Committee that she failed to deposit it into her IOLA account, or any other trust account, on behalf of the client. Rather, she deposited the check into her operating account, and converted the funds to pay for her personal expenses. Therefore, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against her, and the matter was referred to a Special Referee (Hon. Abraham G. Gerges, a retired Justice of the Supreme Court, Kings County) to hear and issue a report.

The Insider  Without access to the file, it would appear that the stipulation agreed to by the employer was done in front of a Workers Compensation Law Judge or Conciliator which raises the question of why it is that the Board allowed payment for an injured worker to be paid to someone other than the injured worker. If the claimant was deemed sufficiently capable to accept the settlement agreed to under the stipulation with the employer’s carrier, why not for the employer’s payments as well?


Coneo v Washington Hgts. HO Church
February 17, 2011 NYS Appellate Division, First Department
Employment: Who is

AFFIRMED an order of the Bronx County Supreme Court which, inter alia, granted defendant Washington Heights Hellenic Orthodox Church, Inc.'s (WHHOC) motions for a directed verdict and/or judgment notwithstanding the verdict to the extent of setting aside the jury verdict insofar as it included a finding that denied WHHOC's Workers' Compensation defense, i.e., that plaintiff's employer was not the alter ego of WHHOC, and directed a new trial on that issue, unanimously modified, on the law, judgment directed in favor of defendant as to the Workers' Compensation defense, the complaint dismissed, and otherwise affirmed. The trial evidence established that the school, where plaintiff worked at the time of his injury, was the alter ego of WHHOC. Specifically, WHHOC, through its governing board (i.e., the Parish Council), exercised domination and control over the school, completely controlling its day-to-day functions including its decision making and finances. WHHOC owned the properties on which the school and St. Spyridon Church were situated. Moreover, the school and Spyridon Church were not separate legal entities, but rather, in effect, were unincorporated divisions of WHHOC that functioned in accordance with WHHOC's directives. Given such proof of an alter ego relationship, the plaintiff can be deemed an employee of WHHOC, which would afford WHHOC a complete defense to the plaintiff's negligence action under WCL §11, thereby warranting dismissal of his claims.

The Insider This case highlights the need for non-profits, religious institutions in particular, to be sure that their workers compensation insurance covers all their related ‘business’ activities, lest they find themselves in civil court.


Fischer v Kaleida Health
February 10, 2011 NYS Appellate Division, Third Department
Course of Employment

AFFIRMED the Board’s decision that claimant, while on a lunch break, sustained an accidental injury arising out of and in the course of her employment. Employed as a visiting nurse, seeing several patients each day, on July 22, 2007 she had no visits scheduled between 1:30 P.M. and 3:30 P.M. and elected to get lunch at an outdoor festival. Returning to her vehicle after lunch, she fell breaking her arm. After applying for workers' comp, a Law Judge found that the injury arose out of and in the course of her employment and established the claim. A Board panel, with one dissent, affirmed, as did a Full Board Review.

The Court noted that “[t]he employer and carrier concede that claimant was an ‘outside employee’ entitled to expanded workers' compensation coverage and that it was ‘reasonable and customary for [her] to have obtained a meal’ between assignments.” But the carrier argued that travel to the festival for lunch was so unreasonable as to constitute a disqualifying deviation from her employment, which presented a factual issue for the Board to resolve. But the board determined that the festival was not a significant departure from claimant's route to her next appointment and, while the gap between appointments exceeded claimant's allotted time for lunch, she was paid after her lunch break even if she had no scheduled appointments and carried her beeper should any work arise, providing sufficiently substantial evidence for the Court to support the Board's determination that claimant's dining at the festival did not constitute a disqualifying deviation from her employment. Prevailing party represented by: Estelle Kraushar of counsel to Eric T. Schneiderman, Attorney General for WCB Commissioners of Records: Firestone, Higgins, Bargnesi (Dissent) WCB #8070-8261


Grasso v Brewster Cent. School Dist.
February 10, 2011 NYS Appellate Division, Third Department
Legal Fees

AFFIRMED the Board’s decision which approved lower than requested legal fees. After claimant had his claim accepted, a stipulation was reached for a 23.75% schedule loss of use and $3200 in legal fees to the claimant’s attorney. Thereafter claim was amended for additional site and the parties again stipulated, this time to a 58.75% schedule loss of use of the claimant’s attorney seeking $11,000. The Law Judge, later affirmed by a Board panel, reduced the fee to $6500. In affirming the Board, the Court wrote that “[o]ur review of the record reveals that the Board considered the extent of the services rendered by counsel and that the claim was settled by stipulation without extensive litigation when making its determination. Under these circumstances, we cannot conclude that the amount awarded was an abuse of the Board's discretion, and its determination will not be disturbed." Prevailing party : The Board’s legal representative was not listed in the decision. Commissioners of Records: Bargnesi Higgins, Foster WCB #3070-1479


Hayes v Nassau County Police Dept.
February 10, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s ruling that claimant voluntarily removed himself from the labor market. Claimant, a police officer, sustained work-related injuries in 1991 and 2000 automobile accidents, and he retired in 2002. On February 19, 2009, the Court reversed an earlier Board decision that the claimant voluntarily withdrew from the labor market because the Board failed to take into account the testimony of the claimant’s treating orthopedic surgeon, Peter Llesniewski. After the case was returned by the Court, the same Board panel reviewed the Law Judge decision as well as testimony of the claimant's doctor and again found that the claimant voluntarily withdrew from the labor market but this time based on the doctor’s testimony as well as the claimant’s actions. On this second review of the case, again brought on appeal by the claimant, the Court agreed that the Board’s more thorough review warranted an affirmance, indicating that, while some evidence exists to support a different conclusion, the Board's decision that claimant's injuries did not contribute to his decision to retire is supported by substantial evidence and will not be disturbed. Prevailing party represented by: Sean J. McKinley of counsel to Vecchione, Vecchione & Connors (Garden City) for Nassau County Police Department, respondent and Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation Committee, respondent.Commissioners of Records: Firestone, Finnegan, Paprocki WCB #2920-1817


York-Gunning v St. John's Hosp.
February 10, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s ruling that claimant did not voluntarily withdraw from the labor market. After suffering a left hand injury in 2003, claimant returned to work shortly but stopped working in 2005. She was found to suffer from carpal tunnel syndrome that was causally linked to her hand injury. As claimant remained capable of working in some capacity, the carrier argued that she had voluntarily removed herself from the labor market. A Law judge, supported by a Board panel, disagreed, finding no voluntary withdrawal. The Board’s finding of no voluntary withdrawal will be sustained if supported by substantial evidence in the record. The claimant remained on the employer's payroll and would have returned to her job, but has been advised that no light duty assignments are available. Instead, she was referred to and has met with officials at the Office of Vocational and Educational Services for Individuals with Disabilities to discuss job options. Her involvement with that office is ongoing, although it has been slowed by administrative problems beyond her control. Moreover, the Board accurately observed that the carrier caused delays in claimant undergoing a necessary functional capacity evaluation. While claimant's treating hand surgeon has repeatedly requested that this evaluation occur, the carrier did not respond to those requests despite being directed to do so, instead scheduling the evaluation at a distant facility of its own choosing. Under these circumstances, the Court found that substantial evidence supports the Board's finding that claimant did not voluntarily withdraw from the labor market. Prevailing party represented by: Iris A. Steel of counsel to Eric T. Schneiderman, Attorney General for WCB


McFadden v NYC Dept. of Correction
February 10, 2011 NYS Appellate Division, Third Department
Reimbursement §25[4][a]

AFFIRMED the Board’s ruling that the employer is entitled to reimbursement for certain benefits paid to claimant per WCL §25[4][a]. Claimant, a correction officer, suffered a work-related injury leading to a schedule loss of use award. A Law Judge declined to grant the self-insured employer reimbursement out of the award for wages paid to claimant while she was absent from work, opining that the employer had failed to file a request for that relief (see WCL §25[4][a]). But a Board panel disagreed, awarding reimbursement. Claimant, conceding that the employer filed a claim for reimbursement, argued that the Board's separate determination as to the reimbursement amount is unsupported by substantial evidence in the record. The record contains the previously established average weekly wage, however, as well as forms documenting the amount of time missed by claimant due to her injury and her salary. Moreover, claimant was subject to a collective bargaining agreement that afforded her unlimited sick leave with pay, and no basis existed for reducing the reimbursement amount sought. Prevailing party represented by: Elina Druker of counsel to Michael A. Cardozo, Corporation Counsel, New York City for NYC Dept of Correction, respondent. Commissioners of Records: Bargnesi, Libous, Bell WCB #0007-5925


Mendoza v Dolgetta
February 10, 2011 NYS Appellate Division, Third Department
Employment: Who is

AFFIRMED the Board’s ruling that claimant was an employee of Joseph Dolgetta. After being injured at work, claimant applied for workers comp, listing A & J Distributor as his employer. A Law Judge employer-employee relationship between claimant and Joseph Dolgetta, trading as A & J Distributora decision affirmed by a Board panel. Claimant testified that he asked Dolgetta for a job. Dolgetta spoke to him about being a delivery driver and on the next morning picked claimant up to accompany Dolgetta to the meat market and on the delivery route. Claimant testified that Dolgetta told him what his weekly work schedule would be and, at the end of the day, paid him $100. Claimant testified that on the next Sunday, he called Dolgetta, who stated that he would not hire claimant. However, when claimant reiterated his need for a job, Dolgetta told claimant that he would pick him up the next morning. On Monday, claimant rode with Dolgetta to the meat market where, according to claimant, he helped both Dolgetta and Dolgetta's son load meat into the vans before he fell. In rebuttal, Dolgetta testified that he had no intention of hiring claimant, that he never discussed a work schedule or salary with him, and that he only offered to take him to the meat market on Monday to give him an opportunity to speak with other potential employers. Dolgetta further testified that the money he gave claimant on Friday was not payment for work performed, but was intended to help claimant recover his repossessed vehicle. This contradictory testimony created a credibility issue within the Board's authority to resolve Notwithstanding the evidence to the contrary, substantial evidence supports the Board's finding that an employer-employee relationship existed here. Prevailing party: The Board’s legal representative was not listed in the decision. Commissioners of Records: Firestone, Libous, Henry WCB #0063-6689


O'Neil v City of Albany Police Dept.
February 10, 2011 NYS Appellate Division, Third Department
Course of Employment

AFFIRMED the Board’s ruling that claimant's injury did not arise out of and in the course of her employment. Approximately 15 minutes before being present at the daily required roll call, the claimant, a police officer, injured her back reaching across the front seat of her personal vehicle, which was parked on a public street, to retrieve a bag filled with personal and work-related items. Claimant's subsequent application for workers' was denied by a Law Judge, a decision affirmed by a Board panel. In general, accidents that occur outside of work hours and in public areas away from the workplace are not compensable. An exception to this rule exists in a "gray area" near the work site; the test of compensability then becomes "whether the accident happened as an incident and risk of employment." . . . “Notably, the Board in the exercise of its fact-finding powers has the authority to make a discretionary determination of the risks attendant to employment under the particular circumstances of a case." Here, claimant maintains that her injury was work-related because the contents of her bag included a police radio, handcuffs and Penal Law books, all of which she needed to perform her duties as a police officer. Claimant acknowledged, however, that she was not required to bring such equipment home and could have left these things in a locker at work. Moreover, claimant stated that her bag also contained cans of soda, her lunch, spare clothing and a variety of other personal items. Finally, claimant testified that she was not considered on duty until the moment she entered the police station. In light of the foregoing, the Court found that substantial evidence supported the Board's factual finding that claimant's accident did not occur as an incident or risk of her employment. Prevailing party represented by: Sean F. Nicolette of counsel to Walsh and Hacker (Albany) for City of Albany and another, respondents Commissioners of Records: Ferrara, Bell, Bargnesi WCB #5080-4883#


Messina v Hudson News Co
February 10, 2011 NYS Appellate Division, Third Department
Aggregate Trust Fund

AFFIRMED the Board’s ruling which directed the carrier to make a deposit into the aggregate trust fund pursuant to WCL §27(2). Claimant sustained his injury in 2004, and classified with a marked permanent partial disability in 2009. As his injury predated a 2007 amendment to WCL §15(3)(w), there is no "cap on the number of weeks for which [he] can receive that subdivision's non-schedule permanent partial disability . . . benefits." As the award itself was made on or after July 1, 2007, the Board found that §27(2) required that the carrier pay the award's full amount into the aggregate trust. In affirming the Board the Court wrote, “We affirm. We have previously considered and rejected the majority of the challenges made by the employer and carrier to the relevant provisions of the WCL. Notwithstanding the urging of the carrier, we do not discern any relevant factual distinctions between those earlier cases and the present one. Prevailing party represented by: Justin S. Teff of counsel to the Law Office of Ralph M. Kirk (Kingston) for Anthony P. Messina, respondent, and Carol Fischer of counsel to Eric T. Schneiderman, Attorney General for WCB.Commissioners of Records: Bargnesi, Higgins, Foster WCB #3040-7630


Hardy v Trico
Salgy v Halsted Communications

February 10, 2011 NYS Appellate Division, Third Department
Aggregate Trust Fund

AFFIRMED the Board’s rulings in two cases which directed each of the employers' workers' compensation carriers to make a deposit into the aggregate trust fund pursuant to WCL §27(2). See Messina v Hudson News (above) for the reasoning behind the Court’s decision. Prevailing party represented by: Carol Fischer of counsel to Eric T. Schneiderman, Attorney General for WCB Commissioners of Records: in Hardy v Trico: Ferrara, Firestone, Paprocki (Dissent) WCB#8030-2853 and in Salgy v Halsted: Bargnesi, Higgins, Finnegan WCB #8060-9343

The Insider  Paprocki’s dissent in Hardy & Trico was one of 80 dissents she authored on cases on this issue, changing her opinion on this matter on those decisions presented to her for review and for her signature as of April 1, 2009.


NYS WCB v 26-28 Maple Ave
January 27, 2011 NYS Appellate Division, Third Department
Group Self-Insured Trusts

REVERSED that part of an order of the Supreme Court in Albany County which partially denied third-party defendant's motion to dismiss the third-party complaint, an insurance broker who signed up firms for participation in a group self-insured trust.

Defendants, members of the Manufacturing Self-Insurance Trust (hereinafter MSIT) were informed by the Board that the group self-insured trust was operating with a significant deficit, did not meet financial standards, and could not be restored to financial stability. After the Board then resumed control of the trust, it commenced this action to recover a multimillion dollar fund reserve deficit from numerous former MSIT members, including Hudon, alleged to be jointly and severally liable for a portion of the total sum claimed. Hudon thereafter commenced a third-party action against its insurance broker/agent, third-party defendant, Scalzo, Zogby & Wittig, Inc. (hereinafter SZW), asserting, among other causes of action, the violation of General Business Law §349 (GBL). GBL §349 declares unlawful "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state" (GBL §349 [a]) and grants a private right of action to any person injured by such acts or practices (see GBL §349 [h]), among other acts. Defendants allege that SZW engaged in deceptive or misleading conduct by claiming that membership in MSIT would result in "significant savings" while failing to advise of the risk of exposure to joint and several liability. In addition, the third-party complaint further failed to sufficiently allege that SZW had committed a deceptive or misleading act. To meet this objective standard, a representation or omission must be "likely to mislead a reasonable consumer acting reasonably under the circumstances".

The potential for joint and several liability inherent in membership in a workers' compensation group self-insured trust is mandated by statute (see WCL §50[3-a]; Matter of Aides At Home, Inc. v State of N.Y. Workers' Compensation Bd., 76 AD3d 727 , 728 [2010]). Thus, Hudon could reasonably have obtained this information from another source. Moreover, upon joining MSIT, Hudon's officers executed participation agreements acknowledging, among other things, that Hudon would be jointly and severally liable for all participants' workers' compensation obligations during its membership and that it might be required to pay additional amounts to meet these obligations. [No representative of SZW signed the participation agreements, and the record does not indicate whether the agreements were furnished by SZW or by some other entity.] Thus, affording a liberal construction to the third-party complaint, accepting its allegations as true, and according the benefit of every favorable inference to Hudon , no claim pursuant to GBL §349 was stated, and SZW's motion to dismiss the claim pursuant to CPLR 3211 (a) (7) should have been granted.


Falkouski v City of Rensselaer
January 27, 2011 NYS Appellate Division, Third Department
Volunteer Firefighters' Benefit Law

AFFIRMED the Board’s ruling that the decedent, who died while performing the duties of a firefighter, was an employee and not a volunteer, thus not subject to death benefits pursuant to the provisions of the Volunteer Firefighters' Benefit Law, thus reversing the Law Judge’s earlier decision. The decedent had a part-time paid position as an assistant fire chief and he was also a member of one of the several volunteer fire companies. A review of the facts, as determined by a Board panel and confirmed by the Appellate Court, found that at the time of the incident in question, the decedent was acting in his capacity as an assistance fire chief in a supervisory capacity rather than acting as a member of a volunteer fire department, citing several indicia to support that conclusion. Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for City of Rensselaer Fire Department and another, respondents. Commissioners of Records: Firestone, Henry, Bell WCB F506-0047 and 5050-2795


Garti v The Salvation Army
January 27, 2011 NYS Appellate Division, Third Department
Prima Facie

AFFIRMED the Board’s ruling by DISMISSING an appeal on the issue that the Board refused to review a determination that claimant had submitted prima facie medical evidence. The carrier controverted the claimant's allegation that she sustained a work-related injury while moving a couch. At a prehearing conference, a Law Judge found that prima facie medical evidence of an injury had been submitted, setting a hearing to determine, among other things, causal relationship. The employer sought Board review, arguing that claimant had not submitted prima facie medical evidence. The Board refused, pointing out that a finding of prima facie medical evidence after a prehearing conference "is an evidentiary determination that the case may proceed and is interlocutory and is not reviewable by the Board" (12 NYCRR 300.38 [g] [3] [I]), further finding that the application for review was frivolous and had been brought for the purpose of delay, and imposed a penalty upon the carrier. The employer appealed, arguing that 12 NYCRR 300.38 (g) (3) (i) prevented it from exercising its right to appeal to the Board as provided by WCL §23 and that it was improperly penalized for its decision to appeal. Claimant responded that the present appeal to the Court was taken from an interlocutory decision and must be dismissed, and the Court agreed.

Based on the Matter of Frozen, 2008 WL 4180772, *1 [WCB No. 20706664, Aug. 29, 2008]), the Board defined prima facie medical evidence to mean any "medical report referencing an injury”, jettisoning the requirement that such evidence draw a causal link between the injury and the claimant's employment and adopted 12 NYCRR 300.38 (g) to cast the issue as an interlocutory one (WCL §25 [2-a] [a]; see 12 NYCRR 300.1 [a] [9]). The Court added that a regulation will be upheld if it "has a rational basis and is not unreasonable, arbitrary, capricious or contrary to the statute under which it was promulgated," and the employer failed to meet its burden of showing the absence of any reason for the promulgation of 12 NYCRR 300.38 (g). As the Board pointed out in its decision, 12 NYCRR 300.38 (g) does not prevent review of the prima facie medical evidence issue, but only requires that it be addressed after the claim is finally determined. Instead, the regulation is reasonably designed to "speed resolution of compensation claims," a purpose supported by applicable statutory authority. While "the question of appealability of a [B]oard decision is ultimately one for this [C]ourt to pass upon", the changes to the Law and the Board's regulatory scheme persuaded the Court that the appealed-from decision "neither resolved all substantial issues in the claim nor reached a threshold legal issue". Thus, the challenge to the penalty was also premature. [Footnote: By coincidence, the Law Judge issued a decision disallowing the claim on the same day, finding that claimant had not established that her injury was work related.] Prevailing party represented by: George P. Ferro of counsel to the Law Firm of Alex C. Dell (Albany) and Steven Segall of counsel to Eric T. Schneiderman, Attorney General for Workers' Comp Board, respondent Commissioners of Records: Ferrara, Bell, Higgins WCB #0005-2191


Plew-Jourdanais v Adirondack Heating
January 27, 2011 NYS Appellate Division, Third Department
§ 16(2-a) Dependency defined

REVERSED the Board’s ruling that decedent's disabled son was a lawful dependent of decedent and is entitled to death benefits pursuant to Workers' Compensation Law § 16 (2-a), thus awarding the claimant/widow/step-mother 100% of the benefits. After James Jourdanais Sr. (hereinafter decedent) died while at work in 2007, the claimant, decedent's wife, applied for and was awarded workers' comp death benefits. Decedent's sister and her husband are the legal guardians of decedent's disabled son, respondent James Jourdanais Jr. (born in 1983), awarded custody when he was six years old. After they placed a claim seeking a portion of decedent's death benefits, a Law Judge, affirmed by a Board panel, ruled that James was a dependent of decedent, thus entitled to 30% of decedent's average weekly wage.

While all parties agreed that James' permanent and total mental incapacity was accepted, the Court determined that the Board's determination that James was decedent's dependent and, therefore, eligible for death benefits pursuant to Workers' Compensation Law § 16 (2-a) is not supported by substantial evidence. “Here, while it is undisputed that James is not self-supporting and that decedent cared for him on some weekends and purchased some of his clothing, the record is bereft of any evidence as to the extent of such financial contributions, the extent of James' needs or the effect of the loss of decedent's contributions on James. Specifically, no proof was presented that either James or his legal guardians were dependent on decedent's contributions or that James' needs will not continue to be met by his guardians.” Prevailing party represented by: Brendan G. Quinn of counsel to Buckley, Mendleson, Criscione & Quinn (Albany), for appellant. Commissioners of Records: Bargnesi, Bell, Higgins WCB #5071-1705


Pratt v LI Jewish Medical
January 27, 2011 NYS Appellate Division, Third Department
Income from self-employment

AFFIRMED the Full Boards Review which determined which detailed expenses could be deducted from gross income to calculate claimant's reduced earnings award. The Board panel affirmed a Law Judge’s determination using a wide list of items but, after a mandatory Full Board Review (FBR), the Board accepted the dissenting opinion and eliminated from the calculation a number of previously accepted deductions. After sustaining a work-related injury in January 1999, her claim was established with an AWW of $788.34 and she was classified as having a permanent partial disability with a weekly rate of $389.17. After she set up a subchapter S corporation in June 2009 to run a psychotherapy business, the carrier sought review (and a decrease) of the rate of the reduced earnings award based on claimant's income from her business.

The primary dispute distilled to what expense deductions from gross income were proper under the circumstances. Claimant had minimized or reduced to zero the corporation's net earnings (and thus her income) for many of the years in dispute by taking sundry deductions which a Law Judge found were necessary expenses for purposes of computing claimant's reduced earnings award. A Board panel articulated the "necessary/mandatory" versus "optional/elective" expenses standard, with a majority determining that all the expenses claimed by claimant were necessary in light of the nature of her business. The dissent urged that only some of the expenses fell within the "necessary/mandatory" category, a position accepted after FBR.

The Court noted that while the Board's approach in the past consistently used the fact-specific approach of analyzing the nature of a claimant's business venture and categorizing expenses as either necessary or optional, the Court itself had not previously been directly presented with a challenge to the methodology. Therefore, the Court determined that use of this methodology, bringing in outside accountants when necessary (as in this case), was similar to the Board's determinations as to which expenses are necessary to such business in order to arrive at an amount of earnings for workers' compensation purposes is analogous to the factual determination the Board makes regarding how much of a self-employed person's income is passive profit from investment rather than earnings for services. The Court summarized its decision by stating that the reasons for challenging certain expenses as optional were set forth in detail with the FBR explaining it reasoning at length. (A detailed analysis can be found at 2009 NYWCLR (LRP) LEXIS 224, *; 109 NYWCLR (LRP) 239) Prevailing party represented by: Michael H. Ruina of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for LI Island Jewish Medical and another, respondents. Commissioners of Records: Groski, Finnegan, Bell (Dissent -won FBR) WCB #0996-5536


Rodgers v NYC Fire Dept
January 27, 2011 NYS Appellate Division, Third Department
§28: time bar & Article 8-A (WTC)

REVERSED the Board’s ruling to disallow a claim as time barred under WCL §28 and RESCINDED the Board’s ruling that claim was not covered by WCL Article 8-A. On September 11, 2001 and the days that followed, claimant, a civil employee of the NYC Fire Dept., was charged with cleaning and repairing fire trucks that had responded to the scene of the terrorist attacks that had occurred at the World Trade Center. In February 2002, claimant received medical treatment for bronchitis but was ultimately diagnosed with gastroesophageal reflux, reactive airway dysfunction, apnea and posttraumatic stress disorder resulting in his filing as claim but continuing to work until his retirement in February 2007. The employer, in a C-7 form dated August 17, 2006, argued that the claim was untimely per WCL §28 because it was filed more than two years after the accident that created the conditions that caused claimant's illness. A Law Judge ruled in claimant's favor finding proper filing under WCL §8-A, with a Board panel reversing the Article 8-A finding and then finding that the claim was also barred by WCL §28.

WCL §28: While the Board dismissed this claim because it found that it was filed on November 27, 2006, well outside the two-year statutory time period per §28, this finding was at odds with record evidence before the Board indicating that the claim was filed prior to November 27, 2006, including the employer's C-7 form challenging the claim which was dated more than three months prior to when the Board's decision states that the claim was "filed." The Court wrote, "Simply stated, the record before the Board does not support its finding of a §28 bar as the matter must be remitted for further proceedings to determine the claim's actual filing date."

As for the claim under Article 8-A, the statute limits its application to claims generated by work actually performed at very specific sites whereas claimant acknowledges that much of the work he performed in connection with the World Trade Center attacks took place in Brooklyn and Queens and not at sites identified by the statute. While he contends that the exception in the statute should nevertheless apply because the fire apparatuses he cleaned and repaired at those locations came from the World Trade Center site. The Court wrote that “the statute, by its terms, limits its application to work performed at specific geographical locations. By describing these locations with such specificity, the Legislature clearly manifested an intention to limit the application of this exception to the two-year filing requirement to work actually performed at these sites.” But because the claimant did testify to being on duty during part of the relevant time period at the World Trade Center site, work performed at this location could qualify for coverage under the statutory exception. Since work performed at this location could qualify for coverage under the statutory exception and the Board did not address this issue, the Court ordered the matter be remitted to the Board for further proceedings in regard to this particular issue. Prevailing party represented by: John F. Clennan of Ronkonkoma for appellant. Commissioners of Records: Bargnesi, Bell, Finnegan WCB #0062-3867


Witkowich v SUNY
January 27, 2011 NYS Appellate Division, Third Department
Causal Relationship: Stress

AFFIRMED the Board’s ruling which barred per WCL §2(7) claimant's applications and then denied claimant's request for full Board review. Three months after claimant began serving as the Chief of University Police, he was terminated, and then filed an application for workers' comp, claiming that in the days immediately prior to his termination he had suffered a "recurrence of posttraumatic stress disorder, [irritable bowel syndrome and] anxiety" — a panic attack. Two months later he filed a second claim, alleging that the manner in which he was informed of his termination exacerbated his preexisting psychological conditions. A Law Judge, affirmed by a Board panel, denied both applications, concluding that §2(7) barred them. Although the claimant argued that he was deprived of due process in the manner in which his hearings were conducted, the Court found that he did not preserved this issue and could not raise it for the first time on appeal nor did the Court agree that the security measures implemented while these hearings were being conducted so tainted the atmosphere as to deprive claimant of due process.

Claimant also argues that the Board's determination that WCL §2(7) served to bar his claims is not supported by substantial evidence. But a mental injury, even if job related, is not compensable if it is "a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer" (WCL §2[7]). Claimant argued that the decision to terminate him was not justified or made in good faith and, as such, did not constitute "a lawful personnel decision" made by the employer.

However, the Board reviewed claimant's employment history and, in particular, took into account that the employer, prior to terminating him, had received numerous complaints alleging inappropriate behavior while he was serving as Chief of Police. As for the precautions taken by the


Lloyd v New Era Cap Co.
January 20, 2011 NYS Appellate Division, Third Department
§ 15(8) Reimbursement Special Fund
Stipulations not binding

AFFIRMED the Board’s ruling that the self-insured employer (SIE) was not entitled to reimbursement from the Special Disability Fund (Fund). As the result of a slip on ice in 2003, claimant suffered persistent low back pain that restricted his mobility and prevented him from returning to work; the Board found that he suffered a work-related injury to his lower back and tail bone, and in March 2005, based on an agreement between the employer and claimant, claimant was classified as permanently partially disabled, at the 87.5% disability rate. In 2007 the employer requested apportionment of claimant's injury between the 2003 accident and a preexisting disability caused by a 1975 gunshot wound, ultimately seeking a finding of §15(8)(d), a position denied by the Judge and a Board panel. Following a hearing on this issue in 2009, the WCLJ found that "claimant has been classified as suffering from a permanent partial disability, but the consensus of the medical evidence is of a permanent and total disability" due to the low back injury, and that WCL §15(8)(d) did not apply because “an employer will not be entitled to reimbursement under WCL §15(8)(d) if a claimant suffered a permanent total disability caused solely by a work-related accident, because necessarily the combined disability could not be greater than that caused by the work-related disability alone.

As to whether or not the Board erred in determining that claimant was permanently and totally disabled “is a factual determination within the sole province of the Board which, if based on substantial evidence, will not be disturbed". Furthermore, the Board has the broad authority to, on its own motion, "reclassify a disability upon proof that there has been a change in condition, or that the previous classification was erroneous and not in the interest of justice" (WCL §15[6-a] and §123) as the Court agreed with the Board panel and there was substantial evidence in the record to support that determination, "despite the existence of evidence that may have supported a different result".

Finally the Court added, “To the extent that claimant's permanent partial disability classification was based on an agreement by the parties, we find that this arrangement is not binding on the parties. Under 12 NYCRR 300.5 (b) (1), the "[p]arties to any claim before the [B]oard may stipulate to uncontested facts or proposed findings." Such a stipulation "is binding upon the parties where . . . a WCLJ approves it after verifying through questioning that each party has been advised of the legal effect of the agreement and has signed it voluntarily. Here, the record fails to reveal that the agreement to classify claimant as permanently partially disabled complied with the mandates of 12 NYCRR 300.5 (b) (1). There is no evidence that any such agreement was approved by the WCLJ. In any event, "consistent with the Board's jurisdiction and control over awards of compensation in the [s]tate, such [a] stipulation[] [is] subject to further review by the Board" and can even be disregarded, as has been done in this case. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Records: Firestone, Paprocki, Libous WCB #8030-3186


Fayo v Crystal Run Health
January 20, 2011 NYS Appellate Division, Third Department
Causal Relationship: Death

AFFIRMED the Board’s ruling that the death of claimant's spouse was causally related to her employment. In May 2004, Claimant's spouse (hereinafter decedent) slipped on a wet floor at work and fell, striking the back of her head on a sink, thereafter being awarded benefits for head, neck and back injuries. Her attempt to return to work was unsuccessful and she received treatment for ongoing pain and severe headaches. On April 13, 2005, decedent died from an apparent accidental heroin overdose. A Law Judge and Board panel determined that decedent's death was causally related to her employment. Death resulting from an accidental overdose taken to relieve a condition caused by a work-related accident can be compensable. "Resolution of conflicting medical opinions regarding causation is an issue vested within the province of the Board and we will not disturb its determination so long as it rests upon substantial evidence." Here, although conflicting evidence was presented, the Board credited the testimony of decedent's psychiatrist and determined that decedent's post-accident pain led to her use of cocaine and the drug abuse that resulted in her death. The court then wrote, “Substantial evidence in the record supports this determination and, in light of our limited scope of review, we affirm.” Prevailing party represented by: Estelle Kraushar of counsel to Eric T. Schneiderman, Attorney General, for Workers' Compensation Board, respondent. Commissioners of Records: Higgins, Libous, Tolbert WCB #3060-3660


Kakuriev v Home Services
January 20, 2011 NYS Appellate Division, Third Department
§ 15(8) Reimbursement Special Fund

REVERSED the Board’s ruling that the carrier is entitled to reimbursement from the Special Disability Fund (Fund). Claimant, a home health aide, was injured after falling down two stairs, suffering injuries to her knees, back and neck. As a result, claimant was determined to be mildly to moderately permanently partially disabled and awarded benefits. Thereafter, asserting that claimant had preexisting injuries to both her knees, the carrier sought reimbursement from the Fund pursuant to WCL §15(8), a position agreed to by a Law Judge and Board panel. “Although claimant had preexisting injuries to her knees as evidenced by MRIs taken just days prior to her December 2003 work-related accident, the employer offered no evidence that those injuries hindered her job potential. Significantly, when the Fund sought to have claimant testify as to whether her past injuries had proven a hindrance to her employment, the employer opposed her testimony and the Law Judge disallowed it. Thus, because the employer failed to present any evidence that claimant suffered from a preexisting permanent impairment that hindered her job potential, we find that the Board's determination was not supported by substantial evidence.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Records: Libous, Paprocki, Ferrara WCB #0040-3806


Maw v Wal-Mart
January 13, 2011 NYS Appellate Division, Third Department
§ 14(5): Wage Expectancy

AFFIRMED the Board which established claimant's wage expectancy adjustment at $450 per week, reducing the rate set by the Law Judge. Claimant, then 18 years old, injured her back after which her comp claim was established and AWW set at $226.38 based on her earnings with her employer. However, she aspired to pursue a career in professional dancing and/or choreography but, due to her injuries, was unable to continue dancing. A Law judge, after finding a permanent partial disability, amended claimant's average weekly wage to $800 per future wage expectancy (WCL §14(5)), to reflect her future wage expectancy as a dancer/choreographer, retroactive to the February 12, 2007 date of permanency. A Board panel found that claimant was not pursuing a career as a professional dancer at the time of her injury and, therefore, was not entitled to a wage expectancy rate of $800 per week, lowering it to $450 to reflect her potential earnings as a dance instructor and the facts that she had both been studying and teaching dance. [The $450 came from an analysis by the carrier detailed in the underlying Board panel decision.]

While claimant asserts that the Board should have considered her potential earnings as a professional dancer and/or choreographer instead of as a dance teacher, the record supports the Board's conclusion that claimant had not substantially progressed towards attaining that goal at the time of her injury. Claimant acknowledged that her intention to establish a career in professional dancing and choreography was a long-term plan and, under these circumstances, substantial evidence supports the conclusion that such a career was both speculative and insufficiently pursued by claimant at the time of her injury. Prevailing party represented by: Kelly C. O'Connor of counsel to Smith, Sovik, Kendrick & Sugnet (Syracuse) for Wal-Mart and another, respondents. Commissioners of Records: Firestone, Paprocki, Finnegan WCB #6000-4231


Funke v Eastern Suffolk Boces
January 13, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal

REVERSED* the Board’s ruling that claimant had involuntarily retired but that subsequent lost earnings were not causally related to claimant's work-related disability. After claimant sustained a work-related injury when she was assaulted by a student in 2005, she was awarded workers' comp benefits, returning to work a month later. She retired in March 2009, but continued to work sporadically for the employer as a substitute teacher's assistant. The Board relied upon the claimant’s testimony that she returned to work as a substitute teacher's aide on an intermittent basis after retiring, signing up for work only when she felt well enough to do so, to conclude that because claimant chose the days and classes that she would work, her reduction in earnings was unrelated to her disability. The Court supported the Board's initial finding that "claimant's retirement was causally related as she was not able to continue working in the same capacity for the employer," i.e., that her retirement was involuntary. But the Court added,

Upon a finding of involuntary retirement, an inference arises that . . . earning capacity is reduced by the disability and claimant is [therefore] entitled to compensation until the inference is removed from the case. Moreover, once the withdrawal [is] found to be involuntary, . . . it become[s] inherently inconsistent to hold that a claimant is obligated to search for work within medical limitations." Thus, this Court has repeatedly "emphasize[d] that 'proof that the claimant has not sought work post-retirement, by itself, does not defeat the inference or shift the burden to claimant to show that the disability was a cause of the reduction [in earnings].'" Rather, "the workers' compensation carrier must demonstrate that something other than the disability was the sole cause of claimant's reduced earning capacity after retirement, such as age, economic conditions or other factors unrelated to the disability".

Accordingly, in the absence of any "direct and positive proof that something other than the disability was the sole cause of claimant's reduced earning capacity after retirement", The Court concluded that the decision should be reversed. Prevailing party represented by: Robert Golan of counsel to Golan & Masiakos (Mineola) for appellant. Commissioners of Records: Bargnesi, Higgins, Finnegan WCB #4051 0742


Conyers v Van Rensselaer Manor
January 13, 2011 NYS Appellate Division, Third Department
1130...Causal Relationship: Was there?
§ 18 notice to employer

AFFIRMED the Board's ruling that claimant sustained a work-related lower back injury and gave proper notice. Claimant, a housekeeper, filed a claim for workers' benefits in March 2006 asserting that she had sustained an injury at work while lifting a pail of water in February 2005. After waking up in severe pain the morning after the injury, she went to the emergency room. She apparently did not return to work for the employer and, in March 2005, took an extended leave of absence under the Family Medical Leave Act; her employment was terminated in April 2006. Although the carrier argued that she suffered an injury at home and aggravated preexisting back problems, a Law Judge concluded and a Board panel agreed that there was sufficient credible evidence to establish accident, notice and causal relationship. Claimant testified that she pulled something in her back, told coworkers about the incident, and finished her shift. The following morning, she called in sick to work, went to the emergency room for treatment, and was diagnosed with sciatica. Her two doctors testified she reported her injuries as coming from the specific work incident whereas the carrier doctor, who examined her three years later, concluded she had not been injured in the course of her employment. The Court agreed with the Board that, "[t]he proof and arguments submitted by the carrier were speculative ..." On the issue of notice, while claimant conceded that she did not give timely written notice of her injury to the employer per WCL §18, the Board credited claimant's testimony that she told her supervisor whereas the supervisor ultimately admitted that she simply had no recollection of these events, supporting the Board's conclusion that the employer had actual notice of her injury within days, excusing the lack of timely written notice. Prevailing party represented by: Bruce B. Rubin (Troy) for Rosemary Conyers, respondent and Steven Segall of counsel to Eric T. Schneiderman, Attorney General for WCB, respondent. Commissioners of Records: Ferrara, Libous, Higgins WCB #5060-3747


Carr v Cairo Fire Dist
January 6, 2011 NYS Appellate Division, Third Department
Consequential

RESCINDED and returned for proper consideration the Board’s ruling that claimant sustained consequential injuries as a result of a work-related accident. Claimant, a volunteer firefighter, was working at a firehouse when he fractured his right fifth metacarpal with an initial inability to work. While recovering, he returned to work as a house painter, apparently performing all of his work with his left hand. Several months later after he began to complain of numbness and significant pain in both hands, his physician diagnosed bilateral median nerve compression of the right wrist, left ulnar nerve compression at the elbow, and possible right ulnar nerve compression at the elbow. The employer's IME diagnosed claimant as suffering from right carpal tunnel syndrome (CTS) related to the accident and consequential mild left CTS, but a second IME found no CTS in either of claimant's wrists, after which the carrier disputed further treatment. In amending the claim to include consequential bilateral CTS and consequential left ulnar nerve compression, the Law Judge took no sworn testimony nor did he allow cross-examination of the doctors, ruling that the carrier had no right to medical testimony and neither claimant's testimony nor medical testimony was necessary, a ruling affirmed by a Board panel.

However, the Court, agreeing with the carrier that it was an error for the Law Judge to deny its request to develop the record by obtaining claimant's testimony and to cross-examine claimant's treating physician, wrote that "[E]ither the claimant or the employer or his insurance carrier may introduce witnesses . . . in compensation proceedings.” It also agreed the cross examination was appropriate as there was conflicting medical evidence between the opinions of claimant's treating physician, those set forth in the first IME report, and those set forth in the second IME report. And "Since no formal testimony was taken at the . . . hearing, denial of the request to cross-examine claimant's attending physician to explore such issues clearly prejudiced the employer." Prevailing party represented by: Matthew J. Leonardo of counsel to Sullivan, Keenan, Oliver & Violando (Albany) for appellants. Commissioners of Records: Firestone, Libous, Higgins


Coleman v Schenectady County Dept. of Social Servs
January 6, 2011 NYS Appellate Division, Third Department
Causal Relationship: Stress

RESCINDED and returned for proper consideration the Board’s ruling that claimant suffered from work-induced stress, per WCL §27(7). Claimant, a child support investigator, filed for workers' comp benefits alleging that work-related stress caused her anxiety, migraine headaches, hypertension, and insomnia. At the prehearing conference, however, the Law Judge held that the employer waived its defenses due to its failure to file a prehearing conference statement pursuant to 12 NYCRR 300.38 (f) (4). Viewing the question of whether the claim was compensable under WCL §2(7) as a defense that should have been raised in the prehearing conference statement, the Law Judge established the claim. However, the Court ruled that the claimant had the initial burden of showing that she sustained a work-related injury, even though the employer waived its defenses. To establish a claim for injury due to work-related stress, the claimant was required to show that the stress she experienced was greater than that which other similarly situated workers experienced in the normal work environment. The medical reports submitted by claimant establish that she experienced work-induced stress, but do not offer any basis upon which to conclude that she experienced greater stress than other similarly situated workers. As the determination that claimant sustained a compensable injury is not supported by substantial evidence, the matter must be remitted to the Board for further development of the record on this issue. Finally, as claimant is required to establish the compensable nature of her injury regardless of the employer's waiver of its defenses, the employer's challenge to 12 NYCRR 300.38(f)(4) is moot. Prevailing party represented by: Glenn D. Chase of counsel to Walsh & Hacker (Albany) for appellants. Commissioners of Records: Ferrara, Finnegan, Foster-Colbert


DeFayette v Verizon
January 6, 2011 NYS Appellate Division, Third Department
Disability: Further Causally Related/Compensation

RESCINDED and returned for proper consideration the Board’s ruling that the claimant is not entitled to lost time awards from November 18, 2003 to September 13, 2007. This claimant, who had three different cases, had been receiving benefits for his May 2002 injury for a short period of time. After several years when his application for continuing benefits covering the period of November 18, 2003 to September 13, 2007 was finally considered, the Law Judge, later affirmed by a Board panel denied same, stating that prior decisions had made this determination and that there was no medical evidence. In a Full Board Review issued November 3, 2010, the Board Panel (Paprocki replacing Groski) made awards for a few intermittent weeks of compensation on his two earlier comp cases but again denied awards for his 2002 injury.

The Court, in rescinding the Board’s original decision, wrote that the decision of the Board cannot be upheld

"when it is clearly based on incorrect facts or an inaccurate reading of the record". Here, the Board affirmed the Workers' Compensation Law Judge's denial of awards for compensable lost time from November 18, 2003 to September 13, 2007 purportedly based upon findings on this issue in prior decisions of the Board. Our review of the record, however, reveals no prior determinations by the Board regarding this matter. As the Board's determination is not supported by substantial evidence in the record, the decision must be reversed and the matter remitted to the Board to engage in its fact-finding role to resolve the issue.

Prevailing party represented by: George P. Ferro of counsel to Law Firm of Alex C. Dell (Albany)for appellant. Commissioners of Records: Bargnesi, Finnegan, Groski [Paprocki for Groski on the FBR]