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

2013 COURT DECISIONS

Concerning
The NYS Workers Compensation Board
link on the left

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|— — DECEMBER  2013 — — |

Sandell v Frito Lay
    ♦December 26, 2013    NYS Appellate Division, Third Department
    1030...Causal Relationship: PFME, et al  [3C263-7896]

AFFIRMED the Board’s ruling that claimant sustained a work-related occupational disease and awarded benefits. After working for the employer — a plant that produces corn, potato and grain-based snacks — for approximately 12 years, claimant stopped working in March 2010 because he was experiencing acute respiratory problems that he claimed were caused by workplace exposure to, among other things, a variety of chemicals and seasonings. After claimant was eventually diagnosed with the pulmonary condition of chronic hypersensitivity pneumonitis, a Law Judge established the claim for a causally-related occupational illness and awarded benefits.

By precedent, "claimant was required to establish a recognizable link between his condition and a distinctive feature of his occupation . . . through the submission of competent medical evidence." The Board credited the medical evidence from claimant's board-certified pulmonologist who testified with a reasonable degree of medical certainty that the "’most probable cause’ of claimant's condition was his prolonged workplace exposure to chemicals and seasonings.” And, when the employer’s expert recommended further testing to attempt to determine the exact cause and definitively rule out all other possible sources, the claimant’s expert testified that further testing would be of limited value because existing medical tests were not precise enough to identify the exact substance causing the condition. In addition to finding sufficient exposure to hazardous substances known to cause acute and chronic lung and upper respiratory health effects, the Board noted that medical records showed that “claimant's condition waxed and waned depending upon the amount of time he spent at work." The Court noted that “claimant's failure to identify the specific allergen or contaminant responsible for his or her ailments is [not] fatal to the underlying claim" Thus, wrote the Court, "[a]ccording proper deference to the Board's resolution of conflicting medical evidence and evaluation of witness credibility, we find the Board's conclusion to be supported by substantial evidence and decline to disturb it." Prevailing party represented by: Donya Fernandez of counsel to NYS Attorney General for Workers' Compensation Board, respondent.

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West v Titan Express
    ♦December 26, 2013    NYS Appellate Division, Third Department
    3050...Medical Variances              [3C262-7895]
ABEYED the Board’s decision which denied claimant's request for a medical variance. In a case established for a 1995 back-related injury established as a permanent total disability, reasonable treatment was authorized. The Special Fund for Reopened Cases (Fund) approved several treatments but, in January 2012, denied the request on the ground that the treatments were inconsistent with the WCB Medical Treatment Guidelines and the opinion of the independent medical examiner. Although a Law Judge concluded that a variance from the Guidelines was appropriate and authorized further injections, a Board panel reversed, “finding that a variance is not required for repeat injections when they are linked to subjective and objective improvements that materially affect a claimant's condition, but that here, claimant's physician had failed to sufficiently document the requisite improvements.” Then in April 2013, during the pendency of this appeal, the Board issued a new decision which stated that the variance should have been denied “because claimant's physician (1) did not demonstrate that injections were medically necessary to maintain his level of functionality” and (2) “had failed to demonstrate that alternative treatments were inappropriate.

This Court did not learn that the April 2013 decision had been rendered until after the arguments upon this appeal were completed. There are unaddressed issues arising from these unusual procedural circumstances, specifically including the extent of the Board's continuing jurisdiction to render the April 2013 decision, and whether this appeal has been rendered moot. We thus direct the parties to submit briefs on these issues, during which time the appeal will be held in abeyance.”

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Banton v NYC Dept of Corrections
Wolfe v NYC Dept. of Corrections
Toledo v Admin for Children Servs

    ♦December 19, 2013    NYS Appellate Division, Third Department
    7016...§114-a(3) Unreasonable Appeal Penalty    [3C261-7892/3/4]

The Insider: At this time, I do not know for a fact the name of the attorney in question. Once I have it, it will be added to this summary. While there are certain differences in the grounds for the appeal and the Court’s final ruling, essentially, all three cases deal with the same subject: an unreasonable request for a change in venue followed by the Board’s imposition of a penalty against the attorney.

AFFIRMED, in all three cases, the Board’s imposition of a §114-a(3)(ii) penalty against the claimant attorney for seeking a review (change of venue) without reasonable grounds.

In each of the above three cases, the claimant was a resident of the City of New York and the employee of an agency/department of the City of New York. Yet, claimants’ counsel requested a change of venue to White Plains, apparently more convenient for the attorney. In Wolfe and Banton,

Claimant thereafter "request[ed]," on a form provided by counsel, that all hearings in his case occur at a hearing site in the City of White Plains, Westchester County, asserting that his "request MUST BE GRANTED" due to a purported "Board Rule 10.01 (1) (c)."

The Law Judge found no reasonable ground had been established for a change of venue. “Additionally, noting that ‘Board Ru Prevailing Party represented by: (in Wolfe and in Banton) Benjamin C. Roth of counsel to Corporation Counsel, New York City for New York City Department of Corrections, respondent, (in Toledo); Jared Bretas of counsel to Corporation Counsel, New York City for New York City Administration for Children Services, respondent; and, in all three, Steven Segall of counsel to Attorney General, New York State for Workers' Compensation Board, respondent.

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Bin Wang v De Ding Zheng
     ♦December 19, 2013    NYS Appellate Division, Third Department
    7010...§23: Late/Interlocutory/Frivolous Appeal                      [3C261-7891]
REVERSED the Board’s ruling that the employer's application for review was untimely because there was no appeal in the record that had the date referenced in the Board’s denial. The employer submitted three appeals (in 2010 on July 22 and August 10, and in 2011 on July 26) addressing a variety of issues, citing 12 NYCRR 300.14 among others. The Court then noted that, “the Board admits in its brief — without explanation — that it ‘overlooked’ the employer's July 26, 2011 request. Based on the employer's concession in his briefs and at oral argument that he was not attempting to appeal the WCLJ's decision or relying on WCL §23, but was attempting to reopen the claim pursuant to 12 NYCRR 300.14, the Board need only address these narrow arguments when it considers the employer's applications upon remittal.Prevailing Argument presented by William R. Stoltz of counsel to Wang Law Office (Flushing) for appellant.

The Insider: It is interesting to note that the Memorandum of Decision which was written by a lawyer in the ARD, then ‘read’ by three commissioners, and, most important, ‘review’ by staff in the Office of the General Counsel when the case was submitted to the 3rd Dept, did not notice that the MoD referenced a date of an appeal that did not exist. But then again, I have noted in the past that such careful ‘reading’ is not in the ‘scope of employment’ at the Board.

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VanAusdle v NYC Police Dept

    ♦December 19, 2013    NYS Appellate Division, Third Department
    7010...§23: Late/Interlocutory/Frivolous Appeal                        [3C261-7890]
REVERSED the Board’s ruling that the employer's application for review was untimely. Claimant ‘purportedly sustained’ an injury in 1994 and a controverted claim was closed in 1995 due to a lack of prima facie medical evidence. After the claim was reopened in 2001 upon submission of medical evidence, a Law Judge in June 2011 established the claim “finding that the employer waived its defenses by failing to appear at a hearing”. The employed filed a September 2011 review arguing that the Board lacked jurisdiction over the claim pursuant to WCL §123, which the Board denied finding the review untimely per §23 and 12 NYCRR 300.13. The Court agreed with the employer’s contention that “Board's refusal to consider a nonwaivable, albeit untimely, jurisdictional issue regarding Workers' Compensation Law § 123 constituted an abuse of discretion.” "The general rule is that lack of jurisdiction to render a judgment or determination may be asserted at any time . . ." The Court summarized its rejection of the Board decision, writing that, “Given the age of the claim here and the fact that it was marked closed in 1995, the employer plausibly argues that the Board lacked jurisdiction to reopen the present claim. The Board abused its discretion in refusing to consider the employer's untimely application for review under these circumstances, and we remit this matter so that the Board may address the merits of that application and determine if the claim had been truly closed in 1995.” Prevailing Argument presented by Paul M. Zaragoza of counsel to Corporation Counsel, New York City for appellant.
        
The Insider: Once again, it seems that the writer at the ARD, the panel of three commissioners and, most importantly, ‘review’ by staff in the Office of the General Counsel when the case was submitted to the 3rd Dept, either (1) did not notice that the was a “1" in front of “23" so that they read §123 as §23 or (2) they were unaware of the difference between §23 and §123. Also interesting is that the appeal was filed in September 2011 and the Board’s ruling issued in December. So maybe it takes a year for the Board to get ‘it’ right. But then again, the prior case, Bin Wang v De Ding Zheng took 9 months for a decision.

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Auqui v Seven Thirty One Ltd          
    ♦December 10, 2013    NYS Court of Appeals
    3005...§11: Jurisdiction          [3C260-7890]
In a case whose importance is emphasized by the 10 amici curiae who appeared at the Court of Appeals, the Court ruled that, in this case, the determination of the Workers' Compensation Board, a finding that plaintiff had no further causally-related disability and had no further need for treatment, was not sufficient to be considered collateral estoppel.

Jose Verdugo was injured in 2003 and a WC case was established for head, neck, and back injuries, as well as post-traumatic stress disorder and depression. As of January 24, 2006, a WC  Law Judge found that Verdugo no longer suffered any disability and terminated his benefits. A Board panel affirmed but allowed further medical treatment thereafter for post-traumatic stress disorder. In April 2009, the defendants in the instant personal injury{**20 NY3d at 1037} action moved to preclude plaintiffs from relitigating the duration of his work-related injury on the grounds that the issue was already fully litigated and decided in the WC administrative proceeding. While the motion was pending in Supreme Court, the plaintiffs' attorney commenced a separate Mental Hygiene Law article 81 proceeding to appoint a guardian for Jose Verdugo. This proceeding was uncontested and a guardian was appointed.

In denying the civil litigation, the Supreme Court ruled that “The determination of the WCB should be given preclusive effect as to the duration of plaintiff's disability, relevant to lost earnings and compensation for medical expenses. . . . We also find that plaintiffs had a full and fair opportunity to litigate the issue of ongoing disability in the 2006 WC proceedings. . . .  Plaintiffs attempt to use the guardianship order in this appeal to buttress the contention that Jose Verdugo is still disabled and argue that such an order raises an issue of fact as to the duration of his disability. We disagree. The issue of plaintiff's{**20 NY3d at 1038} incapacity was not opposed at the guardianship


In this decision, the Court of Appeals essentially determined that

"Here, defendants have failed to meet their burden of establishing that the issue decided in the workers' compensation proceeding was identical to that presented in this negligence action. The focus of the Workers Compensation law, plainly, is on a claimant's ability to perform the duties of his or her employment.

By contrast, a negligence action is much broader in scope.  It is intended to make an injured party whole for the enduring consequences of his or her injury -- including, as relevant here, lost income and future medical expenses.  Necessarily, then, the negligence action is focused on the larger question of the impact of the injury over the course of plaintiff's lifetime.  Although there is some degree of overlap between the issues being determined in the two proceedings, based on the scope and focus of each type of action, it cannot be said that the issues are identical.

We stress that this holding should not be read to impair the general rule that the determinations of administrative agencies are entitled to collateral estoppel effect. That rule is well-settled and should continue to be applied where, unlike here, there is identity of issue between the prior administrative proceeding and the subsequent litigation."

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Scalo v CD Perry & Sons             
   ♦ December 12, 2013    NYS Appellate Division, Third Department
    7050...Procedure: Denial FBR          [3C260-7889]

The Insider: On June 25, 2015, the Third Department upheld the Board's decision to deny the review, this time by a panel of three commissioners.

REVERSED AND REMANDED back to the Board its denial of a Full Board Review on the grounds that the denial of the Full Board Review was not procedurally legal.

The Insider: This is an issue I raised in May 26, 2009 in my COMMENTARY “Judicial Economy vs Judicial Integrity” and in my book, Behind The Closed Doors. I questioned the legality of requests for Full Board Review being denied after review by only one member of the Board, the Vice Chairman. And it is the Vice Chair who deals with FBR’s, even if it is the Chair’s name that is on the document itself. In a practice started by Vice Chair Sweet, under current Vice Chair Frances Libous, the number of request for Full Board Review (FBR) that were accepted by the Board when I was there dropped about 20% to 25%. In effect, Libous can make the arbitrary decision that a request for a FBR should be rejected. By the same token, although there may be very legitimate grounds for denying a FBR, Libous also has the ability to put one forward. And it should be obvious that Vice Chair Libous, whose husband is the ranking Majority Leader of the State Senate, will not have too many civil servants or appointed staff disagree with her. In effect, until this ruling, Libous has essentially had the sole discretion as to whether a FBR should go forward or not. And I can assure you, after having served on the Board with her for as many years as I did, legal reasoning was not the major factor in all her decisions.

The Court wrote, “Applications for Board review are to be considered by a panel of at least three members and may not be decided by the chair, or any other single member of the Board, alone. The record before us provides no indication that the application for reconsideration and/or full Board review was considered by a three-member panel. Rather, the decision appears to have been made solely by the chair 'on behalf of the Board.' Accordingly, this matter must be remitted to the Board for proper consideration of the application by a panel of the Board consisting of not less than three members.Prevailing Party represented by Edward Obertubbesing of counsel to the State Insurance Fund for appellants.

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Cerda v NY Racing Assn                          
    ♦December 12, 2013    NYS Appellate Division, Third Department
    1040...Causal Relationship: Stress          [3C260-7888]
AFFIRMED the Board’s ruling that the pro-se claimant did not suffer causally related stress and disallowed her claim. Claimant, an ID manger at a race track, after expressing concern regarding the legality of granting credentials to individuals with possible immigration issues, found her employer’s response inadequate, and resigned her job. One year later she filed her WC case, contending that the situation “led to stress, anxiety and depression." The Law Judge and a subsequent Board panel denied the claim. Not only did the employer take no action against the claimant from raising the issue, but it informed her that it was the employer’s responsibility to check the status whereas her responsibility was to make sure that person entering had the approved ID. "The Board ultimately determined that claimant failed to establish that her stress was greater than that which would have been experienced by her peers. . . .  Therefore, notwithstanding proof in the record that could support a contrary result, we find substantial evidence to support the Board's determination that claimant did not suffer a compensable injury." Prevailing party represented by Lauren M. Bilasz of counsel to Weiss, Wexler & Wornow (New York City) for New York Racing Association and another, respondents.

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Jones v UEF
   ♦December 12, 2013 NYS Appellate Division, Third Department
    3030...Employment: Who is or dual      [3C260-7887]
AFFIRMED Board’s ruling that Erie County was not liable under WCL §56. Erie County, after a storm in 2006 damaged trees in areas owned it, signed an agreement with American Site Developers (ASD) to cut and move the trees. ASD subcontracted the work to Ray Debris Removal who subcontracted the work to Rhonda Hartley Construction (RHC), the claimant’s employer. As the result of the claimant’s fall from a tree resulting in an established WC claim, the Law Judge determined that RHC, Ray, and American were uninsured for workers' comp, thereby imposing liability for claimant's benefits and medical expenses upon the Uninsured Employers' Fund (UEF). UEF then appealed, primarily contending that the County should be liable as an owner of timber pursuant to WCL §56. After setting aside the issue of ‘timber’ versus ‘storm-damaged trees’, the Court wrote that “the record makes clear that the County did not have a contract with RHC for the branch-removal work. Absent the requisite contractual relationship, liability may not be imposed upon the County under WCL §56." Prevailing party represented by Richard L. Holstein of counsel to Hamberger & Weiss (Buffalo) for Erie County Department of Public Works, respondent.

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Stratton v NYS Comptroller
     ♦December 12, 2013    NYS Appellate Division, Third Department
    1120...Course of Employment: Egress/Ingress
    7050...Procedure: Denial FBR             [3C260-7886]
AFFIRMED the Boards ruling that (1) the slip and fall occurred out of and in the course of employment and (2) denied the carrier’s  request for full Board review (FBR). Claimant who is employed by the Comptroller, slipped and broker her ankle while walking through a state-owner parking lot on her way to work. A Board panel, reversing a Law Judge, found that because the employer approved her application to park in that lot, gave her a hang tag to display in her vehicle's window, and deducted a parking fee from her biweekly paycheck, there was sufficient “physical proximity to his or her work site as to establish a relationship between the accident and the employment.”[Several citation are noted.] As the for carrier’s request for a FBR, the Board determined that the request included evidence was not tendered at the time of the hearing, a decision the Court found neither “arbitrary or capricious or an abuse of discretion.” Prevailing Party represented by Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent.

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Korthals v Valu Home Ctrs

   ♦ December 5, 2013    NYS Appellate Division, Third Department
    3140...§25-a: True Closing
REVERSED the Board by finding that liability did not transfer per §25-a to the Special Fund. As the result of an August 2003 back injury, claimant was awarded workers' comp benefits for the period from August 2003 to December 2003, and no further action was planned. After she injured her back again in 2009, working for Spectrum Human Services, a new claim was file and established. An IME then apportioned 50% to the 2009 injury, 25% to the 2003 injury, and 25% to two earlier, non-work related motor vehicle accidents. In 2011, after claimant had surgery and Spectrum’s carrier raised the issue of apportionment, Valu’s carrier sought to sought to shift liability for the 2003 claim to the Special Fund for Reopened Cases and was successful when the Board found that there had been no request to reopen the 2003 claim. The Court reversed on the grounds that, because medical report apportioning 25% liability to the 2003 claim was submitted in 2009, within seven years of the 2003 injury date, “the Board's determination that there had not been a request to reopen the 2003 claim within seven years of the underlying injury is not supported by substantial evidence.”  Prevailing Party represented by: Jill B. Singer of counsel to the Special Funds, respondent.

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White v Con Ed

    ♦December 5, 2013    NYS Appellate Division, Third Department
    3140...§25-a: True Closing
REVERSED the Board’s decision which incorrectly transferred liability per §25-a to the Special Fund. For a  2003 knee injury, claimant in 2005 was awarded a 10% schedule loss of use, with no further action plan. After a 2005 work-related neck and back injury, claimant sought to include a consequential right knee injury. In 2009, a Law Judge directed that the 2003 claim be "open[ed]" and travel with the 2005 claim. Claimant subsequently withdrew his claim regarding the consequential knee injury, and was found to have sustained a permanent partial disability in the 2005 claim. When, in 2011 claimant requested his SLU be increased to 30%, the self-insured employer (SEI) sought to have liability shifted to the Special Fund. The Board, after determining the right knee treatment occasioned by the 2005 injury did not constitute a reopening of the 2003 client, shifted liability for §25–a. The Court determined that the Board, by failing to consider the argument of the Special Fund that the 2009 decision which authorized knee surgery and directed 2003 claim be reopened, barred shifting of liability per §25-a. The Board's decision was remanded to the Board to consider the Fund’s argument. Prevailing Party represented by: Jill B. Singer of counsel to the Special Funds, respondent.

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Estate of Velasquez v NGA Constr

   ♦ December 5, 2013    NYS Appellate Division, Third Department
    3025...Out-of-State Coverage
AFFIRMED the Boards ruling that the contractor’s carrier, Continental Indemnity Company was liable rather than the subcontractor’s carrier, New Jersey Casualty (NJC) as the NJC’s did not have a proper NYS endorsement. The Board, through Subject No. 046-198, issued July 12, 2007, clarified that requirement by explaining that "all out-of-state employers with employees working in New York State will be required to carry a full, statutory New York State workers' compensation insurance policy" which was further defined as "one where New York is listed in Item 3A on the Information Page of the employers' workers' compensation insurance policy."  NJC policy listed only New Jersey in the policy informaiton page, although the policy also incorporates, a "New Jersey Limited Other States Insurance Endorsement" but this endorsement does not apply when the employer is "by virtue of the nature of [its] operations in [a state not listed in Item 3A], required by that state's law to have obtained separate workers' compensation insurance coverage." Since the policy did not list NYS in Item 3A, the subcontractor was required to obtain “a full, statutory New York State workers' compensation insurance policy" that listed New York in Item 3A.”Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for NGA Construction Company, Inc. and another, respondents.

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NYS WCB v Marsh USA

    ♦October 16, 2013    Commercial Division
    GSIT

The Insider: The [Line #] in the following summary refer to the line numbers which I have added to the left side of the 13-page PDF attachment of the Court's ruling. 
The NYS WCB, in a matter involving the group self-insured trust The Builders' Self-Insurance Trust ("Trust"), sued six trustees as well as the group administer Marsh U.S.A., Inc. ("Marsh").

The actions against the trustees included Breach of Contract and Fraud. [Line #155] Trustee LaRocque’s motion for dismissal was accepted for lack of personal jurisdiction as he was improperly served with process at his former residential address.[#179] The  Board did not oppose this motion. Trustee Greene’s motion to dismiss was accepted as the statute of limitations had run on both claims asserted against him, claims made more than six years after the WCB’s filing of those claims. [#209]The issue of a breach of contract has been accepted on the basis that these acts occurred within six years of the filing. The Court rejected these Trustees' argument that the cause of action for breach of contract was merely a disguised claim for breach of fiduciary duty that is subject an expired three-year statute-of-limitations. [#221] The issue of fraud was accepted as the remaining Trustees had not demonstrated their entitlement to dismissal of the fraud claim as barred by the six-year limitations period of CPLR 213 (8), even without regard to application of the two-year discovery rule. [#253] While the fraud claim was dismissed [#321], the Court ruled that the Board’s “claim for damages is viable so long as the alleged breaches of contract contributed in some part to the deficit.” [#363] And, finally, as to their claim that the Board does not have standing/capacity to maintain claims on behalf of the Trust, the Court found “The broad authority of the WCB to ‘assume administration’ of the Trust plainly carries with it the power to prosecute litigation as the successor-in-interest to the Trust.”[#266]

The actions against Marsh [#366] included Breach of Contract were partially dismissed due to the statute of limitations and the terms of the Consent Agreement between the parties, except of some limitations regarding some of Marsh’s actions after the date of the Consent Agreement.[#426]. The second cause of action against Marsh, claiming unjust enrichment for services it did not perform and/or inadequately performed under the Agreements stands as Marsh had failed to demonstrate its entitlement to dismissal of the claim, with some limitations therein.
 [3B259-7882]

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|— — NOVEMBER  2013 — — |

Dixon v Almar Plumbing

    ♦November 27, 2013    NYS Appellate Division, Third Department
    No Causual Relationship and Lack of Notice

AFFIRMED the Board’s ruling that claimant did not sustain a compensable injury and denied his claim for workers' compensation benefits. Claimant allegedly injured his back while working on Thursday, September 22, 2011. Claimant did not report to work the following day and was laid off at the close of business on Monday, September 26, 2011. Claimant was aware — prior to sustaining his purported injury — that a general layoff was imminent and testified that, following this event, his coworkers — including the alleged witness to his injury — "scattered." Subsequent to the claimant filing for WC benefits in November 2011, the  carrier controverted the claim contending that claimant failed to provide timely notice and did not sustain a work-related injury. Although a Law Judge excused the late notice and established the claim, a Board panel reversed, disallowing the claim.

Although the failure to provide noted per WCL §18  may be excused upon a finding by the Board that "notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced", resolution of this issue lies within the Board's sound discretion, which found this claim was filed too late.  The record contains conflicting proof as to, among other things, the manner in which the injury allegedly occurred and whether the claimed accident was witnessed by another coworker. Based upon the inconsistencies between claimant's testimony regarding his work activities both before and after the accident, how the injury occurred, whether or not there were witnesses, and after the alleged accident as well as the lack of contemporaneous medical records, the Board found that claimant's testimony "was not credible" and disallowed the claim. Given claimant's delay in reporting the injury, as well as his inconsistent testimony regarding the severity of his injury and his efforts to seek medical treatment, the Court could not say that claimant met his "burden of demonstrating that the employer was not prejudiced [there]by" Prevailing party represented by David L. Wecker of counsel for Almar Plumbing and another, respondents
.[3B259-7881]

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Beth V v NYS Off of Child & Family
     ♦November 19, 2013 NYS Court of Appeals
     §29(4) 

AFFIRMED, with one dissent, the Appellate Court’s and the Board’s ruling that the carrier can take a credit under WCL §29(4) against the settlement proceeds of a civil rights lawsuit brought by a recipient of worker's compensation benefits against her employer and coemployees for injuries arising from the same incident. While working at a secure juvenile detention facility operated by the NYS Office of Children & Family Services, claimant was attacked, raped, and kidnapped by one of the residents, resulting in a claim established for injuries to her back, head, neck, left hand, right foot and teeth, as well as rape, post-traumatic stress symptoms, and consequential low back injury.

At issue was whether the proceeds of a subsequent civil rights action and settlement were considered as payment for the physical injuries and medical expenses she sustained or whether they were awarded for the "primary [claim which] was for the deprivation of her constitutional rights by virtue of the violation of her right to substantive due process." The claimant took the position“that SIF [New York State Insurance Fund] was not entitled to a credit because she sued for damages to compensate a deprivation of civil rights; that in her federal lawsuit she alleged discrimination and creation of a hostile work environment, which ‘demonstrates that such constitutional claims are in a different category from those to which WCL § 29 is normally directed [because] insofar as she was allowed to sue her employer without running afoul of WCL § 11's exclusivity provision.’” The settlement included a Paragraph Ten which made reference to the award being excluded from income tax liability pursuant to IRS Code 104(a)(2). NYSIF argued that excluding from an individual's gross income "the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness" means the award is covered by §29(4).                 

The Board, after several reviews of the file, determined that (1) the settlement itself did not allocate the settlement between the ‘deprivation of civil rights,’ et al and those expenses specifically covered by §§11 and 29(4) and (2) the reference to IRS §104(a)(2) was the only reference as to what the proceeds were for. The Court of Appeals stated that the record supplied substantial evidence to support “the Board’s conclusion that the injuries for which claimant recovered in the settlement were the same injuries for which workers' compensation benefits were awarded." The 17-page AFFIRMANCE and the 3-page DISSENT go into detail regrading their reasons for their respective interpretations of §29(4) as well as references to prior interpretations of the law.Prevailing party represented by Thomas A. Phillips, for respondent New York State Office of Children and Family Services and Jill B. Singer, for respondent Special Funds Conservation Committee.
 [3B257-7880]


To read the Transcript of the arguments presented before the Court of Appeals, CLICK HERE.

The Insider: It could well be that the claimant’s attorney, in order to insure that the funds were tax free to the claimant, included the §104 language without realizing what appears to be the unfortunate result of that inclusion: the determination that, since it is a tax free reimbursment, by definition it is subject to a credit under WCL §24. The attorney did testify

... and paragraph ten was very important in the sense that under the Internal Revenue Code 104 . . . if we had strictly a civil rights claim, the award could potentially be taxable.  If there is a claim for violation of civil rights and the person has some physical injury, then you can allocate the recovery entirely towards section 104, which is a non-taxable provision for pain and suffering.

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Pengal v Chloe Foods Corp
     ♦November 14, 2013   NYS Appellate Division, Third Department
     Causal Relationship
 
AFFIRMED the Board’s ruling that claimant's stroke was not a causally related disability. In 2008, claimant, a truck driver, suffered a stroke while at work and thereafter applied for workers' comp benefits. The Law Judge, affirmed by a Board panel, determined that there was no causal relationship between claimant's stroke and his employment, denying the claim. The Court noted that, since the stroke occurred while the claimant was at work, the statutory presumption is that his stroke arose out of and in the course of employment, unless the carrier can prove otherwise. Not only did the carrier’s witness state the claimant’s stroke was unrelated to his job but listed a number of the claimant’s preexisting conditions which combined to put claimant "at extreme risk for a stroke." On the other hand, the claimant’s medical expert concluded the stoke was due to job related exertion and fatigue but was “ unaware of certain of claimant's preexisting conditions that he testified may be predisposing factors for a stroke” as well as the fact that the morning of the incident, before coming to work, claimant reported certain medical conditionw that were typical of a possible stroke. The Court then concluded the that Board’s  determination that there was no causal relationship between claimant's stroke and his employment is supported by substantial evidence and will not be disturbed. Prevailing Party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Chloe Foods Corporation and another, respondents. [3B256-7880]

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Caezza v Via Health
    ♦November 14, 2013   NYS Appellate Division, Third Departmen
    §28: time bar

AFFIRMED the Board’s ruing that the consequential injury was not time-barred by §28 and that claimant was property classified as having a permanent total disability (PTD). Sometime after the claimant’s 2002 back injury claim was established, the Board amended the claim to include right knee and hip injuries, cauda equina syndrome and incontinence and then later added consequential left knee injury, and found the claimant to have a PTD. Because the record demonstrated that her knee problems were exacerbated by her back injury and difficulties walking, the Court agreed with the Board’s determination that (1) the that the left knee injury was a consequence of her original injuries and (2) the date for the §28 time bar for the knee injury did not start at the date of the original underlying injury. As to her degree of disability, the Court accepted the Board’s findings, based on the Board explanation of their reliance upon the workers' compensation guidelines in rendering that opinion. Prevailing Party represented by: Jill B. Singer of counsel to the Special Funds and Michelle Caezza, respondent pro se. [3B256-7879]

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Hinovic v Greenstar Coop Mkt
     ♦November 14, 2013   NYS Appellate Division, Third Department
     §23: Late Appeal

AFFIRMED the Board’s decision, due to claimant's late appeal, to continue the pro-se claimant’s benefits at a temporary rate. The Court noted that the claimant did not appeal from the Law Judge ruling until almost two months after it was filed and, in the absence of any indication that a lack of appropriate notice of the Board's decision caused that delay, claimant's appeal is untimely and must be dismissed. Prevailing Party represented by: Jason M. Carlton of counsel to Gitto & Niefer (Binghamton) for Greenstar Cooperative Market and another, respondents. [3B256-7877]

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Okslen Acupuncture v Lawsky
    ♦November 12, 2013   NYS Supreme Court New York County
     §13-b Medical Bills: Who Pays

 The Insider: For those who may wish to challenge the Worker Compensation Board’s authority to set rates for medical procedures, it appears that the Supreme Court (albeit not the State’s high Court) may have put that matter to rest.

The Petitioner unsuccessfully argued that the Superintendent of Insurance, after consulting with the Commissioner of Health and the Chairman of the Workers' Compensation Board, did not have the legal authority to establish schedules of authorized payment for services not covered by the schedules already promulgated by the Workers' Compensation Board.  Petitioner contends that Insurance Law 5108(b must be invalidated as the statute was an unlawful delegation of legislative power to the Superintendent inasmuch as it gave him unfettered discretion in establishing fee schedules for services not covered by the schedules already promulgated by the Workers' Compensation Board.

The Court disagreed, writing that. Insurance Law § 301, in relevant part, provides: "[t]he superintendent shall have the power to prescribe and from time to time withdraw or amend, in writing, regulations, not inconsistent with the provisions of this chapter. . . . "  While the legislative power of this State shall be vested in the Senate and the Assembly' and that Legislature cannot pass on its law-making functions to other bodies, . . .  it is now well settled that "[t]he Legislature may constitutionally delegate rule-making authority to an administrative agency . . . [even] if it furnishes the agency with . . a broad outline within which to act" ; “mean that Insurance Law § 301 provides a constitutionally adequate standard to govern the Superintendent's discretionary authority to promulgate regulations implementing and interpreting the Insurance Law, including Insurance Law § 5108(b). [3B256-7876]

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Amer Home Assur v Highrise Constr
      November 12, 2013   NYS Appellate Division, First Department
      Policy Status

Although the New York County Supreme Court found that the refusal of the Workers' Compensation Board (WCB) to consider proof of the cancellation of the subject construction insurance policy was entitled to res judicata effect as to whether plaintiff was liable to Highrise under the policy, The Appellate Court found res judicata inapplicable. The Appellate Court found that, the Workers' Compensation Law Judge's decision was not "on the merits" as to whether the subject policy had actually been cancelled prior to the date of the decedent's accident. Rather, the Law Judge precluded plaintiff from introducing evidence on the cancellation issue due to its failure to appear at one of the scheduled hearings. Nor is the doctrine of collateral estoppel applicable in this case. The issue of cancellation of the policy or whether plaintiff had a duty to defend or indemnify Highrise in the underlying action was never actually litigated before the WCB. Accordingly the Appellate Court unanimously reversed the Supreme Court’s order. [3B256-7875]

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Bednarek v Caring Prof
     November 7, 2013 NYS Appellate Division, Third Department
     1100…Course of Employment: in and out of
AFFIRMED
 the Board’s ruling that claimant’s injury sustained in transit between two outside jobs arose out of and in the course of her employment. Employed as a home attendant for the elderly and, on the day in question, working two shifts with different clients, she fell and was injured while walking from the first client’s residence to the second client’s residence. After the Law Judge established the case, a split Board panel affirmed the decision, subsequently supported by a Full Board Decision. Substantial evidence supported the Board’s determination that she “became an outside employee when [s]he left” one work site and proceeded to another. Prevailing partyrepresented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent.
 
[3B255-7874]

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Mallette v Flatterys

    November 7, 2013 NYS Appellate Division, Third Department
    3170…§13-b Medical Bills: Who Pays

AFFIRMED the Board’s ruling that claimant’s need for artificial disc replacement surgery was causally related to the compensable accident. Starting in 2007 with treatment for a non-work-related disc herniation, in 2008 claimant had microdiscectomy surgery. When that did not work, her treating doctor recommended an artificial disc replacement procedure (hereinafter ADRP) in 2009. However, claimant’s private health insurance carrier did not approve the ADRP. After a March 2010 fall through a trap door at work caused additional back injuries, her WC claim was established for injuries to, among other things, her lower back. Her neurosurgeon then requested authorization from the WC carrier for the ADRP which was approved by a Law Judge who concluded that the need for the ADRP was due both to a preexisting condition and causally related to claimant’s work accident, apportionable 50% to each. However, a Board panel modified that decision finding the WC carrier 100% responsible, without prejudice to further consideration of apportionment after a finding of permanency has been made.

Here, the record reflected that, prior to the accident, claimant was working full time in a physically demanding job without restrictions, in spite of the fact that she had been treated for back pain for several years and was recommended in 2008for a ADRP. Following the 2010 accident, her lower back pain worsened to the point where she could no longer work. Claimant’s pain management physician, her chiropractor, her physician, and her surgeon all opined that her preexisting condition was aggravated by her fall and that, following her fall, she suffered from a causally-related total temporary disability. The Court concluded “We will uphold the Board’s determination of causal relationship if it is supported by substantial evidence.” And, in this case, it is. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. [3B255-7873]


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Good v Brutus

    ♦November 7, 2013 NYS Appellate Division, Third Department
   3182…§44 App’t Dust Diseases

AFFIRMED the Board’s decision which denied the carrier’s request for WCL §44 apportionment among claimant’s prior employers. Beginning in 1966, claimant performed secretarial services for various employers, starting as a clerk for the current employer in 2002. In 2004, claimant sought medical treatment and was diagnosed with carpal tunnel syndrome. In 2007 she filed a WC claim which was established for occupational disease of the left wrist, with a date of disablement of October 1, 2007, and the claim was subsequently amended to include bilateral elbows and right carpal tunnel syndrome. IN 2010 after she was awarded an SLU of 25% for her left hand, the employer sought apportionment of responsibility for liability of the claim with claimant’s two most recent prior employers, covering the years between 1987 and 2002, a claim rejected by the Board. The record showed that (1) prior to 2004, after she started work for her current employer, claimant did not seek or receive medical treatment and (2) there was no medical evidence as to when claimant contracted her condition. The Court concluded, “the Board’s determination that claimant did not contract her condition while working for a previous employer is supported by substantial evidence and will not be disturbed.” Prevailing party represented by: Paul A. Carbonaro, Auburn, for Jeanne Good, respondent and Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent. [YM255-7872]

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— — OCTOBER 2013 — — |

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

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


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

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

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

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Riccelli Ent v NYS WCB
     ♦Ocotber 23, 2013
     3195...Self-Insured Trusts

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

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

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

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Hroncich v Con Edison
    ♦ October 15, 2013 NYS Court of Appeals
     3070....Apportionment: Death
Link to Formal Court Transcript

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

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

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

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

The Insider: The statement in this case regarding the responsibility of the State Legislature rather than the courts to make law is reaffirmed rather bluntly in the Matter of People v Herne (a non-WC case) issued by the Franklin Country Court October 15, 2013 (link here): “Whether this result is good law or bad law is not for the Court to discern. Whether any change in the law is called for remains within the sound discretion of the Legislature.” This is a point on which both Pigott and his colleagues agree although they do so from opposite sides of the fence.[3B252-7867]

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Dow v Silver Constr 
     ♦October 17, 2013 NYS Appellate Division, Third Department 
     7050...Procedure: Denial FBR

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

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

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

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

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

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


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| — — SEPTEMBER 2013 — — |

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

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

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


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

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

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NYS WCB v Hamilton Wharton Group

     ♦August 30, 2013 NYS Supreme Court
     3185...§50(5): Assessments & GSITs

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

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

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

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

 


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

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

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

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

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

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

The Insider For the record, the issue was his hypothetical return to his home country and nothing to do with his immigration status in terms of his level of compensation.


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| — — AUGUST 2013 — — |


NYS WCB v Consolidated Risk Servs
August 26, 2013 Supreme Court, Albany County
GSITs «»3185...§50(5): Assessments & GSITs

In this case the NYS WCB, on behalf of itself and three of the Trusts whose management had become the responsibility of the Board, sued (1) the trustees, (2) the trust managers personally (Martin Rakoff & David Bramwell), the trusts’ management company and its several successor firms, (3) an insurance broker, and (4) an actuary. But as you will read below and in the case itself, the only losers in this case, barely mentioned in the proceeding are the small business who were members of these trusts, authorized, approved, and supposedly supervised by the NYS WCB.

The actual text of the decision runs 25 pages, the other pages being lists of nine parties, 70 papers considered, and 14 footnotes. The second page of the attached PDF is my outline of the various motions and complaints brought by each of the parties with a Line # to assist you in locating that subject matter.

The issue of Statute of Limitations was raised as a defense and the Court has determined that there are two different definitions of time limits that it has to consider: three years and six years, depending on the legal issue. The final decisions on all these issues rests on the Court’s interpretation of fiduciary responsibility, contractual obligations, and implied indemnification, with each defendant’s legal right differing on each issue.

In summary, sufficient complaints were accepted by the Court against all parties, except two trustees, that litigation on all the basic issues of Breach of Fiduciary Duty and Contract, Implied Indemnification, Fraud, and Deception will continue. And one can assume that this will take another five to ten years, by which time all those individuals at the NYS WCB who also breached their fiduciary duty and had a breach of contract (as employees paid to do oversight of the trusts) will have long moved on and will be collecting their pensions without a care to the havoc they have created for the small business owners of the State of New York without whom many of these attorneys would not have had jobs
.
[38245-7859]


Avellini v Beloten
August 1, 2013 Supreme Court, New York County
Article 78 «»7140...Article 78

The State Supreme Court, in an Article 78 hearing, found that the NYS Workers Compensation Board violated due process when Chairman Robert Beloten suspended Doctor petitioner’s participation in the Workers’ Compensation Program and prevents him from treating workers for their work-related injuries or illnesses. The petitioner successfully argued that, contrary to the Board’s’s motion, New York County was the proper venue for the litigation. And the petitioner successfully argued that the appeal was timely as the original Board decision was was more consistent with a notification of the commencement of an investigation by the Board with an interim sanction than with a final and binding determination.” The Court ordered that the cross-motion is denied in its entirety, and the respondent shall have 20 days from service of a copy of this decision and order with notice of entry to file its answer, and petitioner shall serve any reply five days thereafter. [38244]-7858

The Insider: It will be interesting to see if any of the other 50+ doctor suspensions and revocations announced by the Board in the last few weeks will all be able to survive such judicial scrutiny.

Also, for those who do not know, Beloten is Robert Beloten, the Board Chairman.


| — — JULY 2013 — — |

Kigin v NYS WCB
♦July 18, 2013 NYS Appellate Division, Third Department
Medical Variances «»3050...Medical Variances

AFFIRMED, in a split decision, the Board’s ruling in denying a claimant’s request for a medical variance.

The Insider: This heavily footnoted 18-page decision from the Appellate Court, Third Department, addresses several questions raised by the claimant’s attorney as to the Board’s authority to set and enforce Medical Treatment Guidelines: the Board’s right to define the interpretation of the 2007 and 2013 amendments to the WCL. As such, this case may be the most important decision to come down from the Appellate Court this year.

Appeal from a decision of the Workers' Compensation Board, filed February 9, 2012, which denied claimant's request for a medical variance. In 1996, claimant was in a work-related automobile accident in which she sustained several injuries, receiving workers comp until she returned to work full time in 1998. Medical coverage was provided for a wide variety tests, studies, treatments, and therapies for her ongoing neck and back pain as prescribed by several treating physicians. In 2006, liability for the claim was transferred per §25-a to the Special Fund for Reopened Cases and she was classified as having a permanent partial disability. Since 2006, Andrea Coladner, board certified in physical medicine and rehabilitation, has been claimant's treating physician. At Coladner's request, the Fund authorized and paid for the foregoing treatments up until early 2011, including acupuncture (three times per week for six weeks) to treat and decrease an exacerbation of cervical pain and to increase her range of motion and circulation.

Among the reform revisions, enacted in 2007, the Legislature amended WCL §13-a(5) by directing that the WCB "shall issue and maintain a list of pre-authorized procedures under this section." A task force, comprised of medical professionals appointed by the impacted parties, formulated the Medical Treatment Guidelines (MTG) which were incorporated by reference into the regulations and adopted a preauthorized specific procedure list for many commonly performed medical tests and services including duration of such service. The regulations set forth a variance procedure pursuant to which medical treatment providers may request approval for medical care or testing for injured workers that is not preapproved as medically necessary in the Guidelines, or for authorized treatment in excess of the scope or duration authorized, upon a showing that the treatment is appropriate and medically necessary.

In March 2011, Coladner filed an MG-2 form requesting a variance for additional acupuncture treatments in excess of the Guideline allowance. Peter Chue, at the Fund's behest, a physician board certified in physical medicine and rehabilitation and certified in acupuncture, after conducting an independent medical exam and a review of her medical records, determined that there was a lack of objective findings to support claimant's subjective complaints and that further acupuncture treatments were not medically necessary. The Fund denied the variance request, a denial affirmed by a Law Judge and a Board panel on appeal.

In rejecting the claimant’s first argument that the Board lacked the authority to promulgate the regulations and the incorporated Guidelines, which she contends are not consistent with the enabling legislation and the workers' compensation statutory scheme, the Court wrote “The Board is broadly charged with the responsibility and power to administer and enforce the Workers' Compensation Law and regulations, to regulate treatment and determine all claims for benefits or compensation for work-related injuries, and to ‘adopt reasonable rules consistent with and supplemental to the provisions of this chapter,’ while the chair may adopt reasonable consistent regulations. . . . Here, as part of its workers' compensation reform package, the Legislature expressly authorized the Board to ‘issue and maintain a list of pre-authorized procedures under this section’ (§13-a[5]), which the Board accomplished by promulgating the subject regulations and incorporated Guidelines. ... We find that the Legislature expressly delegated to the Board the authority and obligation to promulgate the regulations (and incorporated Guidelines). . .. Further, we determine that the Board acted lawfully, as the regulations and incorporated Guidelines are "consistent with and supplemental to" the provision of the Workers' Compensation Law and statutory scheme.” It added that “although employers are required to pay for medical [care] for employees who sustain causally related injuries ‘for such period as the nature of the injury or the process of recovery may require’, ...medical necessity and appropriateness (hereinafter medical necessity) have always been prerequisites to an employer's obligation, and the denial of payment for medical care has been upheld where it is ‘duplicative, excessive or inappropriate for the claimed injury, and accordingly of no benefit to the [injured worker].’ "

The Court also disagreed with the claimant’s second argument that the variance procedure conflicts with provisions of the WCL, impermissibly shifting the burden to treating providers to demonstrate medical necessity. We find nothing in the statutes themselves, or in the case law interpreting the statutes, that compels or even supports the conclusion that, prior to the legislative reform, the ultimate burden of proof on contested issues of medical necessity and appropriateness of medical care rested with the employer/carrier.” In Footnote #7, the Court noted that the automatic imposition of the burden of proof on the employer/carrier does not exist when the issues of medical necessity and appropriateness were contested but only to the employer's well-established and unchanged obligation to rebut the presumption contained in WCL§22(1) that an accident that occurs in the course of employment is presumed to arise out of the employment. Hence, “When a medical treatment provider wishes to provide care that falls outside of the Guidelines, the provider must make a showing that the ‘variance is appropriate for the claimant and medically necessary’ (12 NYCRR 324.3 [a] [2]).

The Court then added, Under the reform legislation, the very purpose behind the Legislature empowering the Board to ‘issue and maintain a list of pre-authorized procedures’ (WCL §13-a[5]) was to preordain that the listed medical care is medically necessary for the conditions indicated and those not included are not medically necessary. ... That is, while prior to the Guidelines it was incumbent upon the employer/carrier to challenge the medical necessity for requested care, by contrast, the Guidelines establish in advance the necessity of medical care and its parameters. Given that threshold predetermination of no medical necessity for care falling outside the Guidelines, it would be illogical to then further require ? as an initial matter ? the employer/carrier to disprove ? on a case-by-case basis ? the medical necessity of care falling outside the Guidelines, as the Board has already made that standardized threshold determination by excluding that care from the list. The very purpose for the promulgation of the Guidelines is to decide medical necessity in advance, to bind employers/carriers to the Guidelines and allow them to rely on it, and to require medical providers to make a preliminary showing ? pursuant to the variance procedure ? of medical necessity in order to obtain a case-by-case review of their request for treatment falling outside the Guidelines. Thus, the imposition of a burden of proof on providers/claimants for care outside the Guidelines is not improper.

Claimant’s additional contentions that (1) the Guidelines deprived her of due process of law, (2) the regulations and Guidelines unfairly diminish the medical care to which she is entitled, and (3) the Guidelines were misapplied to her variance request on the theory that she is being treated for chronic pain and the Guidelines address only acute care were all rejected with detailed explanations by the Court.

In summary the Court wrote,

 

“the wisdom or efficacy of the reform measures and, as such, are better addressed to the Legislature. . .”

 

McCarthy, J. (dissenting). While Justice McCarthy agreed with the majority that the WCB has authority to promulgate reasonable rules and regulations, including to compile a list of preauthorized Medical Treatment Guidelines, among the reasons for dissent, he wrote I cannot agree with the majority's overreaching conclusion that medical treatments falling outside the Guidelines are predetermined and presumed not to be medically necessary. I find no support for the majority's position that they were intended to create a preordained and exhaustive list of medically necessary treatments, thereby rendering all non-listed treatments presumptively not medically necessary and creating a presumption that the employers/carriers could ‘rely on’ in fulfilling their statutory obligation to provide medical care to injured claimants. Moreover, the procedure specified in the regulations for requesting a variance from those Guidelines conflicts with the statutory scheme. The Workers' Compensation Law presumes that the contents of medical and surgical reports introduced by claimants shall constitute prima facie evidence of facts of the matter contained and the burden is on the employer/carrier to demonstrate that any award is improper. By contrast, the regulations provide that a variance request for treatment outside the Guidelines may be denied ‘on the basis that the [t]reating [m]edical [p]rovider did not meet the burden of proof that a variance is appropriate for the claimant and medically necessary."

Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent, and Jill B. Singer of counsel to the Special Funds. [37240-7857]


Weaver v DiNapoli

July 18, 2013 NYS Appellate Division, Third Department
Disability: Further Causally Related/Comp «»5030...Disability: Further Causally Related/Comp

AFFIRMED a determination of respondent NYS Comptroller which denied petitioner's application for disability retirement benefits. In this case, detailed in the Court’s opinion, once again the fact that an individual has been deemed by the WCB to have a permanent disability, does not automatically mean that these same injuries/disabilities qualify that person for disability retirement benefits under Retirement and Social Security Law article 15. The medical reports used in these proceedings must stand on their own; the formal conclusions of the WCB do not stand although the same reports may be used in evidence. [37240-7856]


Aska v United Jewish Appeal
July 11, 2013 NYS Appellate Division, Third Department
§25: Late payment penalty «»7050...§25: Late payment penalty

AFFIRMED the Board’s imposition of a 20% late payment penalty as well as its denial of reconsideration and/or full Board review. After a claim was established, the injured worker commenced a third-party action which was settled with the consent of the employer's workers' compensation carrier in 2008. IN 2010, the claimant and carrier stipulated to an SLU with credits to the carrier and the disability benefit’s carrier. After the carrier failed to make times payment, the penalty, per §25(3)(f) and (2), was assessed and the carrier's subsequent request for reconsideration and/or full Board review was denied. The carrier does not dispute the application of a 20% penalty based upon its late payment of the award, maintaining that it was entitled to take a credit against the award for prior payments of benefits. The Court noted that “It is clear from the binding stipulation and Law Judge decision of February 2010 that, after the credits and reimbursements specified, claimant was to receive $9,377.11, less counsel fees of $1,400, for a total of $7,977.11. "Not only was there nothing in the record to indicate that the $7,977.11 would be reduced further but the carrier was reimbursed, per its request for its prior payments of compensation from claimant's third-party recovery, satisfying the carrier's lien and "erasing these payments." Inasmuch as the underlying decision was supported by substantial evidence, the Court concluded that the Board's denial of the request for reconsideration and/or full Board review was not arbitrary and capricious or otherwise an abuse of discretion. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. [37240-7855]


Borgal v Rochester-Genesee RTA
July 11, 2013 NYS Appellate Division, Third Department
§114-a: Fraud «»5130...§114-a: Fraud

AFFIRMED the Board’s ruling that claimant did not violate WCL § 114-a (Fraud). Although claimant suffered work-related injuries in January 2009, he continued working until July 2009, when he underwent surgery to his left shoulder. Benefits were awarded from the date of surgery forward, on a total temporary disability basis. Subsequently, claimant began experiencing increased pain, and an MRI performed in August 2010 revealed a retearing of the rotator cuff. At a hearing held in June 2010, the self-insured employer unsuccessfully contented the claimant had violated §114-a by misrepresenting a material fact on two questionnaires stating that he did not work following his 2009 shoulder surgery, misrepresentation evidenced by claimant's testimony and the surveillance videos regarding his renovation of a residential property, which the employer argues constituted work. The employer also argued that claimant misrepresented the degree of his disability to his physician, as allegedly evidenced by claimant's ability to perform various physical activities.


Claimant testified that, for the past eight years, he had been engaged in buying residential real estate property, renovating it and then selling it for a profit. Claimant stated that the majority of the renovation work was completed by family members and hired contractors, admitting to participating in various activities on the property, such as carrying out small items of trash, doing touch-up scraping and painting, light carpentry work and installing two lights in the garage. These facts were not contradicted by the employer’s videos, primarily showing claimant undertaking only light errands and tasks not directly related to the renovation. The claimant’s doctor “had determined that claimant was totally disabled from performing his job duties as a bus driver, but not totally disabled from all activities. Similarly, claimant's physical therapist opined in September 2009 that claimant was cleared ‘for all normal household activities that don't require extreme reaching, quick unguarded movement or heavy lifting.’ In fact, the employer's medical expert concluded , after conducting an independent medical examination of claimant, reviewing his medical records and watching the surveillance videos ? that claimant had not misrepresented himself regarding his activities and physical capabilities.” The Court then wrote that “the Board's determination that claimant did not violate Workers' Compensation Law § 114-a is supported by substantial evidence and will not be disturbed.Prevailing party represented by: Holly L. Schoenborn of counsel to Lewis & Lewis (Buffalo) for John Borgal, respondent, and Linda Clarke of counsel to the NYS Attorney General, for WCB, respondent. [37240-7854]


Casale v City of Rye
July 11, 2013 NYS Appellate Division, Third Department
Legal Fees «»7100...Legal Fees

AFFIRMED the Board’s ruling that claimant's counsel fee award was a lien against any future payments of compensation. After a police officer’s case was established for a work-related injury, the employer did not controvert the claim and paid claimant full wages during the period of his disability, for which it sought reimbursement from its workers' comp carrier. The Board, without holding hearings, directed the workers' compensation carrier to reimburse the employer for the period of July 2010 to September 2010. Shortly thereafter, the same day that the claimant's counsel filed a request for fees, the carrier made full reimbursement to the employer. Ultimately, a Board panel granted claimant's counsel a $750 fee as a lien on any future awards made. Claimant appealed, asserting that the counsel fee award should have been made immediately payable by the carrier as an overpayment. The Court noted, “[T]here is nothing in the record establishing that the carrier received notice of the counsel fee request before it made full reimbursement to the employer.” Hence, the Court affirmed the Board on this issue as it has done so many times in the past, writing, “Counsel fees in conjunction with a workers' compensation claim may be attached as a lien to ‘any compensation awarded,' and the fact that a balance is not currently owing to a claimant does not preclude an award of fees made payable as a lien against future awards.” Prevailing party represented by: Tommasino S. Conte of counsel to State Insurance Fund for City of Rye and another, respondents. [37240-7853]


Rodriguez v C&S Wholesale
July 3, 2013 NYS Appellate Division, Third Department
§120: Discrimination «»5115...§120: Discrimination

AFFIRMED the Board’s ruling that claimant was discharged discriminatorally by the employer in violation of WCL §120. Claimant’s 90-day trial period of employment consisted , in part, of operating a motorized pallet jack to move the heavy pallets throughout the warehouse. He was both trained to use this equipment pursuant to the employer's safety guidelines and also signed a "Trainee Attendance/Safety Policy" acknowledging, among other things, that "if [he was] injured in a preventable accident within [the] first 90 day probationary period, [he would] automatically forfeit [his] right to work" for the employer. One week before the 90-day trial ended, he was injured operating a pallet jack. He immediately reported the incident to the employer, sought medical treatment, and remained out of work for a few days. Upon returning to work, claimant was notified that his employment had been terminated pursuant to the terms of the 90-day policy because the employer had determined that “his injury was preventable — specifically, that such injury was caused by claimant's unsafe operation of the pallet jack in violation of the employer's safety rule.” Claimant thereafter filed a workers comp claim and, additionally, filed a §120 discrimination complaint against the employer contending that he had been terminated in retaliation for seeking workers' compensation benefits

The finding of discrimination was based in part on the fact that, per the employer’s guidelines and testimony from employer's director of training and development, those probationary employees whose accidents resulted in no injury to themselves would have the infraction noted in the employee's file and other penalties, including suspension and lost pay, could be imposed.It was found that probationary workers who were injured in work-related accidents and potentially could seek workers' compensation benefits would be terminated.The policy effectively categorizes probationary employees into two groups: those who violate safety rules but are not injured, and those who violate safety rules and are injured — with only the latter group automatically forfeiting their right to work for the employer. Such a policy dissuades those probationary employees who are injured in the course of their employment and wish to remain employed from reporting their injury and pursuing workers' compensation benefits, which, in turn, runs counter to the Legislature's intended purpose of insuring that employees can exercise their rights under the compensation statutes 'without fear that doing so may endanger the continuity of [their] employment.'" The employer's remaining contentions were examined and found to be lacking in merit. Prevailing party represented by: Linda Clarke of counsel to the NYS Attorney General, for WCB, respondent [37237-7852]


Surianello v Con Ed
July 3, 2013 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund «»3110...§15(8) Reimbursement Special Fund

REVERSED the Board’s ruling by finding that the employer is entitled to §15(8)(d) reimbursement from the Special Disability Fund. Claimant worked for the employer as an electrical construction mechanic for 20 years when, in September 2001, he was assigned to various locations at the WTC site, where he worked for approximately six weeks. In November 2002, claimant began to experience breathing difficulties and successfully filed a claim for comp benefits in February 2003 based upon a diagnosis of emphysema. The employer then made a claim for reimbursement per §15(8)(d) from the Fund, citing, impairment to claimant's lungs as a previous physical impairment, based on May 2001 medical reports. Claimant thereafter returned to restricted duty, then full duty but, ultimately, ceased working altogether in November 2003. In march 2007, he filed a work comp claim for interstitial lung disease which was established in April 2009 upon the medical opinions of Drs. Friedman and Schacter that premised the cause of claimant's lung disease on both his WTC site exposure and his prior work for the employer. After the employer sought the Fund’s reimbursement due to claimant's preexisting lung disease, the Board concluded that claimant's disabling lung disease was solely caused by his work exposure at the WTC site and denied the employer's application.

Contrary to the Board’s position, the Court noted that the only medical evidence concerning the cause of claimant's interstitial lung disease and his resulting disability came from Friedman and Schacter. Not only was there is no medical evidence present here to support the Board's conclusion that claimant's disability was solely caused by his WTC site exposure, Friedman expanded on his assessment, opining that claimant's preexisting restrictive lung disease made him more susceptible to other work-related industrial exposures and, as a result, there was an acute exacerbation of his preexisting condition that resulted in lower functionality than claimant would have experienced from his WTC site exposure alone.Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Carle Place) and Steven M. Scotti, Consolidated Edison Company (NYC) for appellants. [37237-7851]

| — — JUNE 2013 — — |


Auqui v. Seven Thirty One Limited
June 27, 2013 Court of Appeals
Collateral Estoppel «»9998_Collateral Estoppel

MOTIONS ACCEPTED FOR RE-ARGUMENT

A case, with nine sets of brief amicus curiae, is seeking reargument before the Court of Appeals as to whether the motion court erred in according collateral estoppel effect in a civil case to the determination of the Workers' Compensation Law Judge that plaintiff's post-January 24, 2006 disability was not causally related to his December 24, 2003 accident.

Split decisions issued April 5, 2011 the Appellate Division First Department found that the determination that workers' compensation coverage would terminate as of a certain date for plaintiff's injuries is not, nor could it be, a definitive determination as to whether plaintiff's documented and continuing injuries were proximately caused by defendants' actions. the Court determined that "While factual issues necessarily decided in an administrative proceeding may have collateral estoppel effect, it is well settled that 'an administrative agency's final conclusion, characterized as an ultimate fact or mixed question of fact and law, is not entitled to preclusive effect.'" The dissenting opinion, which was longer than the majority opinion, posited that the majority was wrong on several counts.

On February 14, 2013, The Court of Appeals, also with a split decision, reversed the Appellate Court, finding that "The determination of the WCB should be given preclusive effect as to the duration of plaintiff's disability, relevant to lost earnings and compensation for medical expenses. The issue of continuing benefits before the administrative agency necessarily turned upon whether Jose Verdugo had an ongoing disability after a certain date, which is a question of fact, as distinguished from a legal conclusion and a conclusion of mixed law and fact."

On June 27, 2013, the Court of Appeals calendar shows that in the matter of Maria Auqui, &c., et al., Respondents, v. Seven Thirty One Limited Partnership, et al., Appellants, motions by both the plaintiffs and defendants for reargument granted and case set down for a future session of the Court.

In addition, motions for leave to appear and/or file a brief amicus curiae on the motions for reargument herein granted and the affirmation were accepted as filed by (1) New York Committee for Occupational Safety and Health, (2) Injured Workers Bar Association, (3) New York State AFL-CIO, et al., (4) y New York State Bar Association, (5) Workers Injury Law & Advocacy Group, (6) The Center for Popular Democracy, (7) New York State Trial Lawyers Association, (8) Make the Road New York et al.,and (9) The Black Institute. Judges Rivera and Abdus-Salaam took no part in any of these motions. [36236-7850]


Brittain v NYS Ins Dept
June 27, 2013 NYS Appellate Division, Third Department
Causal Relationship: Stress «»1040...Causal Relationship: Stress

AFFIRMED, with a split decision, the Board’s ruling that claimant’s stress fell within the provisions of WCL §2(7). Claimant was reimbursed by her employer incurred for her required and frequent travel between her office and New York City. After an investigation by the Inspector General regarding claimant's travel and determined that she had committed no wrongdoing, the matter to the Comptroller to assess the tax implications of the employer's travel reimbursement practices which ruled that to correct the employer's reimbursement practices that violated Internal Revenue Service rules — claimant should be deemed to have earned over $100,000 in additional income. While there was no dispute that claimant incurred a psychic injury upon learning of the Comptroller's findings, the issue was whether she qualified for workers' comp benefits. The Board rejected the carrier argument that her claim was barred by §2(7) and this appeal ensued. The Court’s majority felt that her stress was the a result of a review of the employer's reimbursement practices. Inasmuch as that audit was not "aimed at" claimant, substantial evidence supports the Board's determination that her resulting mental injury was not the direct consequence of a disciplinary action or work evaluation.”

The Dissent argued that the Controller’s action was not a review of the travel policy but the result of, the underlying investigation which was initiated in response to a specific — albeit anonymous — complaint lodged with respect to claimant and her work-related travel. The dissent added, [N]onetheless am of the view that claimant's resulting workers' compensation claim has its genesis in — and is the "direct consequence" of — 'a lawful personnel decision involving a disciplinary action . . . taken in good faith by the employer.'" Prevailing party represented by: Kimberly I. Gould of counsel to Erwin, McCane & Daly (Albany) for Bernadette Brittain and Iris A. Steel of counsel to the NYS Attorney General, for WCB. [36236-7849]


Cartuccio v NYS Dept of Corr
June 13, 2013 NYS Appellate Division, Third Department
§114-a: Fraud «»5130...§114-a: Fraud

AFFIRMED the Board’s ruling that the claimant violated WCL § 114-a, permanently disqualifying him from receiving future wage replacement benefits. Claimant received a permanent partial disability in 2001 due to work-related stress symptoms. After the carrier alleged that claimant had knowingly misrepresented his activities as a licensed horse trainer, a Law Judge agreed that claimant had committed fraud by claiming that his activities were no more than a therapeutic hobby. Despite a record of extensive activity at the Monticello Raceway, claimant repeatedly reported to the employer that he had not engaged in any paid or unpaid work since his injury. The Court noted that, Although claimant testified that the carrier's staff advised him that he would not have to report his horse training as work if he earned less than $10,000 a year doing it, the Board credited the testimony of the carrier's witnesses that they did not give him any such advice and, instead, they urged him to consult with his attorney about the effect his activity would have on his workers' compensation benefits.” Prevailing party represented by: Mark A. Kenyon of counsel to the NY State Insurance Fund for NYS Dept of Corr and another, respondents. [36234-7848]


Morelli v Tops Mkts
June 13, 2013 NYS Appellate Division, Third Department
Fraud «»5130...§114-a: Fraud

AFFIRMED Board’s ruling which precluded the carrier from offering surveillance material and related testimony into evidence. In 2011, four years after claimant suffered various work-related injuries, he sought and was awarded benefits pursuant to a temporary total disability. Immediately, the Law Judge at the request of the carrier questioned claimant as to whether he had engaged in any work activities that might affect his compensation award. After his answers [not noted in the Court’s decision], the carrier raised the issue of whether claimant had violated WCL § 114-a, requesting an opportunity to present surveillance video and the testimony of its investigator. Based on long standing precedent going back to Waldbaums Supermarket, 1997 WL 534515, [WCB No. 0901 8108, Aug. 6, 1997], the Law Judge denied the request, precluding the presentation of the video and related testimony, finding that the carrier was required to inform claimant of the existence of the video prior to claimant's testimony about his work activities. Prevailing party represented by: Alexander M. Osborne of counsel to Connors & Ferris (Rochester) for David Morelli, respondent and Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent. [36234-7847]

The Insider My personal CaseNotes handbook included the information that, in DeMarco v. Millbrook Equestrian Center, 287 A.D.2d 916, 732 N.Y.S.2d 121 (3rd Dept. 2001), the Court expressly ruled that disclosure provisions contained in CPLR 3101(I) and corresponding case law do not apply to Workers' Compensation Board proceedings, as WCL §118 specifically states that the Board is not bound by technical or formal rules of evidence or procedure.


Faulk v Rockaway One
June 11, 2013 NYS Appellate Division, First Department
§11: Jurisdiction «»3005...§11: Jurisdiction

Ruled that this action against defendant to recover for injuries sustained by plaintiff, an emplyee of Pelican, in the course of his employment is barred by WCL § 11. The Court found that that plaintiff was its special employees supported by a fair interpretation of the evidence adduced at the hearing: plaintiff, although paid by Pelican, worked under the direct supervision and control of defendant, with defendant possessing the plenary right to have plaintiff discharged, to dictate his work hours, wages, vacation schedule, work assignments, award severance and vacation pay. Rockaway issued the uniforms, supplies and the access cards to the buildings, and supervised and evaluated plaintiff's work. Evidence showed that the payroll checks made out by Pelican for the claimant’s salary were administratively charged to Rockaway's account by Pelican [36234-7846]


Antrobus v Bernhow Realty
June 12, 2013 NYS Appellate Division, Second Department
§11: Jurisdiction «»3005...§11: Jurisdiction

DENIED alleged employer’s motion to dismiss an action to recover damages for personal injuries as the alleged employer failed to show the evidence supports the exclusivity provisions of the WCL §11. The plaintiff allegedly was injured while working for his employer inside the warehouse they leased from the defendant. After the plaintiff applied for and received workers comp benefits, he and his wife commenced this action to recover damages against the landlord. The Court ruled that the defendant landlord failed to make a prima facie showing of its entitlement to judgment as a matter of law by establishing that it was an alter ego of, or engaged in a joint venture with the employer. [36234-7845]


Schroeder v US Foodservice
June 6, 2013 NYS Appellate Division, Third Department
§25-a: Advance Compensation «»3120...§25-a: Advance Compensation

AFFIRMED the Board’s ruling, by determining that WCL §25-a is not applicable. After a 2003 back injury, claimant was award comp benefits, returning to work the next month. The case was closed, although claimant received symptomatic medical treatment through his retirement in 2009. When in 2010 the employer sought to shift benefits to the Fund per §25-a, the Fund sought further development of the record which did not include either an affidavit or testimony by claimant with respect to whether claimant had received any advance payments from his employer that could prevent the shifting of liability to the Fund. The Board found that there was no evidentiary basis for the Fund's argument that advance payments may have been made, finding §25-a liability.

The Court noted that “Whether an advance payment of compensation was made to the claimant is a factual issue for the Board to resolve and, ‘its determination . . . , if supported by substantial evidence in the record as a whole, will not be disturbed.’” Medical records indicated that, while the claimant did work, he was disabled from regular duty. Since the claimant did not testify or submit an affidavit regarding whether he performed lighter duties and, if so, whether he received full wages, the Court found that, "in the absence of any proof . . . the Board could not assess whether an advance payment was made for the purposes of determining the applicability of Workers' Compensation Law § 25-a,” returning the matter for further development of the record with respect to this issue. Prevailing party represented by: Jill B. Singer of counsel to the Special Fund for Reopened Cases, respondent [36233-7844]

The Insider: It is interesting to note that neither the carrier nor the Board submitted a brief in its defense nor did they appear at the Appellate Court hearings. What an unmitigated, inexcusable waste of time and money and an insult to the already overburdened Court system when the Board could easily have issued a Full Board Review sending the case back for further review when the Motion to Appeal at the Court was first received by the Board.


Ballou v Southworth-Milton
June 6, 2013 NYS Appellate Division, Third Department
Voluntary Withdrawal «»5110...Voluntary Withdrawal

AFFIRMED the Board’s ruling that claimant had involuntarily retired. In February 2010, claimant, working for the employer for more than 26 years, was injured when a pipe on a cooling system broke, spraying claimant with scalding hot water, causing second degree burns to his face, ear, neck, chest and stomach. Attempting to get away, claimant tripped and fell, tearing a muscle in his arm and striking his head, suffering post-concussion syndrome. After returning to work May 2010 with restrictions, claimant felt that he could no longer safely perform his duties, retiring that same month, and then sought workers' comp. The carrier’s contention that the claimant’s retirement was a voluntary withdrawal from the labor market was rejected by the Board.

"While causation may be inferred, the inference does not rise to the level of a presumption in the claimant's favor." Here, claimant offered direct evidence to establish that his disability was the cause of his continuing reduced earnings, including his new limited job responsibilities, and the "employer's notice of retirement which stated that claimant would be rehired ‘with some reservation’ due to ‘risk of injury’." The Court then added, “As the Court of Appeals held in Matter of Zamora v New York Neurologic Assoc, when a finding is made that a claimant has involuntarily withdrawn from the labor market, . . . we find [no] merit to the carrier's claim that Zamora requires the Board to make a distinction between temporary and permanent disabilities when determining whether a retirement is voluntary or involuntary. Prevailing party represented by: William W. Crossett IV of counsel to Meggesto, Crossett & Valerino (Syracuse) for Douglas Ballou, respondent and Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent. [36233-7843]

| — — MAY 2013 — — |

Cameron v Crooked Lake House
May 30, 2013, 2013 NYS Appellate Division, Third Department
Disability: Degree of or RE

October 15, 2013 - Court of Appeals: Motion for leave to appeal by the carrier on the issue of causally related loss of earning capacity denied.

AFFIRMED the Board’s ruling that claimant had sustained a causally related loss of earning capacity. After a 2007 injury, claimant successfully applied for workers' comp benefits. In October 2010, a Law Judge, after several reviews affirmed by a Board panel, classified claimant as having sustained a marked (75%) permanent partial disability and a 75% loss of wage-earning capacity per WCL §15[3][w]) and the claimant raised this appeal. The Court wrote that, “Inasmuch as claimant has not worked since sustaining his partial disability, the Board is authorized to ‘fix such wage earning capacity as shall be reasonable . . . having due regard to the nature of his injury and his physical impairment.’ In fixing that capacity, the Board relies upon various factors, including ‘the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, [and] claimant's age’." The Court, as is usual in these cases, deferred to the Board’s assessment. Prevailing party represented by: Michael D. Violando of counsel to Sullivan, Keenan, Oliver & Violando (Albany) for Crooked Lake House and another, respondents.[35232-7841]


The Insider: The Court decision does not indicate what alternative decision was sought by the claimant.

Willard v O-At-Ka Milk Prods Coop
May 21, 2013 NYS Appellate Division, Third Department
§114-a: Fraud

AFFIRMED the Board’s ruing that the claimant did not commit WCL §114-a fraud. During her application for benefits as the result of a January 2009 fall causing injuries to her neck, back, head, shoulder and knee, the employer raised an issue as to whether claimant violated §114-a by failing to disclose that she was involved in a motor vehicle accident in 2007 and had thereafter complained of neck pain. Although a Law Judge agreed there was a violation, a Board panel reversed. The Court found that substantial evidence supported the Board decision in as much as the claimant testified that (1) she was asked only about surgeries, not accidents, (2) the pain was temporary, and (3) the medical record showed that there was no residual medical condition or work restrictions from the 2007 event. Prevailing party represented by: Alexander M. Osborne of counsel to Connors & Ferris (Rochester) for Amy Willard, respondent and Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent. [35232-7840]


Jaindl v Robert Green Chev-Olds

May 30, 2013 NYS Appellate Division, Third Department
Interlocutory Appeal

DISMISSED THE APPEAL as the Board’s decision was interlocutory and neither disposed of all substantive issues nor addressed a dispositive legal issue. Prevailing party represented by: Mark Lewis Schulman (Monticello) for Michael A. Jaindl and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. [35232-7839]


Dickinson v Cape Vincent VFD

May 23, 2013 NYS Appellate Division, Third Department
VFBL

AFFIRMED the Board’s ruing that claimant, decedent’s mother, was entitled to dependency benefits pursuant to Volunteer Firefighters' Benefit Law §7(46). Claimant applied for death benefits/support payments for herself and decedent's younger brother after decedent was shot and killed by a patient in the course of his work as a volunteer firefighter/emergency medical technician. A Law Judge agreed with her position that they were "dependent upon the deceased at the time of" his death per VFBL §7. "The issue of dependency is a factual one for the Board to resolve and, if supported by substantial evidence, its decision will not be disturbed." The Court wrote that the record was clear that, for various reasons, claimant and decedent’s stepfather provided no income and his younger brother provided very little, decedent worked two jobs and was the primary breadwinner for the family, devoting a substantial portion of his income to paying family expenses. The Board found that, due to his death, the family “was significantly affected when such contributions ceased”, properly finding "that the loss of . . . decedent's financial contribution had an adverse or detrimental effect on the claimant and decedent's brother.Prevailing party represented by: Daniel S. Dickinson III (Watertown) for Marsha Dickinson, respondent and Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent. [35231-7838]


McCluskey v Certified Moving

May 21, 2013 NYS Appellate Division, Third Department
Causal Relationship: PFME, et al

AFFIRMED the Board’s ruling that claimant sustained a work-related back injury. Claimant, who was employed by a moving and storage company, contended that he had injured himself while moving a heavy credenza. Ultimately, a Law Judge found that claimant had sustained a work-related back injury as the result of an accident that occurred on February 15, 2010, although a Board panel, in its affirmance, changed the date to February 13, 2010. Although the employer attempted to call into question the recollection of claimant and his coworkers as to the date upon which the accident occurred, the Board panel agreed that "the precise date of claimant's injury is not dispositive of any of the issues in the case," medical records and coworkers testimony supported claimant’s contention that his back injury was causally connected to that incident. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. [35231-7837]


Pawlitz-Delgaizo v Comm Gen Hosp

May 21, 2013 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board’s decision that the carrier is not entitled to §15(8)(d) reimbursement from the Special Disability Fund (Fund). Subsequent to the claimant being awarded comp for work-related injuries to her head, back and pelvis sustained in October 1998, the carrier sought §15(8)(d) reimbursement from the Fund. Although a Law Judge found §15(8)(d) applied the Board reversed, later amending the decision, reaching the same conclusion, but adding certain facts and analysis. As noted in the Court’s ruling, the basis for this decision was that, While the carrier's expert did offer an opinion that claimant's low back spondylolisthesis and migraine conditions could pose a hinderance to employability, this opinion was based upon generalities and speculation. Notably, the expert did not examine claimant and the available medical records did not reflect that claimant was subject to any restrictions or that these conditions presented any hinderance to her ability to work. Claimant testified that she was not under any restrictions, she was treated with medication for these conditions on an as-needed basis and the medications were effective. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds [35231-7836]

Denman v Cobblers Rest
May 16, 2013 NYS Appellate Division, Third Department
§114-a: Fraud

AFFIRMED the Board’s ruling that claimant had violated WCL §114-a. As the result of a 2003 injury, claimant was awarded benefits at a total disability rate. A law Judge, after hearing, testimony. and seeing videotapes, concluded that “although claimant was totally disabled, she nevertheless had misrepresented her disabilities in an effort to influence determinations made in connection with her claim”, thus violating §114-a. The record revealed that claimant had purposefully testified, and exhibited such when visiting the Board: a substantial degree of immobility as contrasted with her videotaped behavior when shopping and driving. Although the IME suggested he would change his opinion from total disability to a moderate, partial disability, neither the Law Judge nor the Board did so, but did decide a discretionary penalty was warranted as the record established “that claimant had attempted to misrepresent her condition to influence the determination regarding benefits.” Prevailing party represented by: Mark A. Kenyon of counsel to State Insurance Fund for Cobbler's Restaurant and another, respondents and Jill B. Singer of counsel to the Special Funds Conservation Committee. [35230-7835]

Fatima v MTA Bridges & Tunnels
May 16, 2013 NYS Appellate Division, Third Department
Causal Relationship: Death

AFFIRMED the Board’s ruling that the death of claimant's husband was not causally related to his employment. After a maintenance crew, of which the claimant's husband (hereinafter decedent) was a member, was called in to work overtime on a weekend, the crew assessed the situation and returned to the maintenance facility to gather their tools and wait for the rest of the crew to arrive. While waiting there, decedent went alone to the locker room where, approximately 20 minutes later, he was found unconscious. He later died. A Law Judge denied death benefits on the ground that decedent's death was not causally related to his employment. The death certificate determined the cause of death to be arteriosclerotic cardiovascular disease, a condition according to the employer’s medical which is typically caused by factors such as hypertension, elevated cholesterol levels, and tobacco use, and not related to decedent's work activity. “The expert further testified that he had personally examined decedent in connection with an earlier workers' compensation claim and found him to be hypertensive, and the record reflects that decedent failed to obtain treatment for that condition. While there was testimony that strenuous activity could increase the risk that a person with preexisting arteriosclerotic heart disease might suffer a cardiovascular incident, there is no evidence that decedent was engaged in any physical activity at the time of his demise. Inasmuch as there is substantial evidence in the record to support the Board's decision that decedent's death was not causally linked to his employment, we [the Third Dept] decline to disturb it.Prevailing party represented by: Sarah Thomas of counsel to Jones Jones (New York City) for MTA Bridges and Tunnels and another, respondents. [35230-7834]


Mazzaferro v Fast Track Structures
May 16, 2013 NYS Appellate Division, Third Department
Procedure: Denial FBR

AFFIRMED Board’s denial of pro-se claimant's request for reconsideration and/or full Board review. Years after claimant’s case for a work-related hernia was established and benefits awarded, claimant sought to amend his claim to include a testicular infarction as a consequential injury, which was denied by a Law Judge. Claimant's subsequent application for reconsideration and/or full Board review was denied. The Court wrote that, “Inasmuch as claimant has appealed only from the Board's denial of his request for reconsideration and/or full Board review, the merits of the underlying decision are not properly before us.” The Court agreed with the Board that the claimant did not demonstrate a material change in his condition or present evidence that was previously unavailable. Prevailing party represented by: Jacklyn M. Penna of counsel to Buckner & Kourofsky (Rochester) for Fast Track Structures and another, respondents [35230-7833]

Rolleri v Mastic Beach Ambulance
May 16, 2013 NYS Appellate Division, Third Department
Causal Relationship: Was there?

AFFIRMED the Board’s ruling that the pro-se claimant did not sustain a compensable accident allegedly caused by a slip and fall on black ice in his driveway while responding, as a volunteer emergency medical technician, to an emergency call, causing injuries to his neck and left leg. A Law Judge disallowed the claim, finding that claimant lacked credibility and had failed to establish a compensable accident. Not only did the claimant not file for his January 2010 accident until May 2010, claiming that is when he found out it was compensable, the Court noted that “there was a sharp contrast in the medical records as to the source of claimant's injuries before and after the submission of his claim. The initial records, made contemporaneous with claimant's emergency room visit and treatment by his primary care physician and an orthopedist, list various causes for his injuries but, significantly, make no mention of a slip and fall accident” until after the submission of his claim. In addition, claimant reported, prior to the January 2010 incident, that he had a history of neck pain from an earlier automobile accident, something he denied after placing his claim. The Court determined that the totality of the evidence supported the Board’s decision. Prevailing party represented by: Alisa A. Ammerman of counsel to State Insurance Fund for Mastic Beach Ambulance Company,and another, respondents. [35230-7833]

Tawil v Fallsburg CSD
May 16, 2013 NYS Appellate Division, Third Department
Disability: Further Causally Related/Comp

AFFIRMED the Board’s decision that claimant was not entitled to further workers' comp benefits. Although the claimant, a school principal, had suffered work-related injuries in November 2008 that rendered him temporarily totally disabled and did file an undisputed claim, he did not receive benefits as he continued to be paid his salary by the employer. In February 2009, shortly after receiving a letter notifying him that he had been denied tenure, he submitted a letter of resignation, effective June 30, 2009, the last day of the school year. Claimant never returned to work for the employer, but thereafter secured a teaching position in Florida at a substantially reduced salary, beginning in October 2009. When in July 2009, claimant sought to begin receiving workers' comp benefits, a Law Judge awarded continuing benefits as of June 30, 2009, a decision reversed by a Board panel which concluded that “claimant ceased working for reasons unrelated to his disability and failed to demonstrate that his reduction in earnings was causally related to his compensable injuries. . .” “Claimant testified that, during his job search subsequent to resignation, he applied and interviewed for a school principal position that was no different than the job he performed for the employer. Claimant further testified that he had not informed that prospective employer ? or any other during the course of his search ? about restrictions due to his disability. Further, claimant opined that it was rather difficult to secure a position in education in New York, which ultimately led him to accept a teaching position in Florida, where it was easier to obtain employment. Thus, claimant's own testimony established that his reduction in earnings was not caused, even in part, by his disability, but rather by other economic factors; thus, we [The Third Dept] decline to disturb the Board's decision .”. Prevailing party represented by: Christine Morehouse of counsel to Davis & Venturini (Hicksville) for Fallsburg Central School District, respondent [35230-7831]

Hosler v Smallman
May 9, 2013, 2013 NYS Appellate Division, Third Department
Interlocutory Appeal

APPEAL WAS DISMISSED when employer and their carrier appealed the Board’s decision to restore the case for further development of the record. Alleging that he suffered a back injury after falling off a roof, claimant argued that he was employed as a full-time seasonal handyman/laborer the Smallmans who disputed that claimant was their employee. Their homeowner's insurance carrier, New York Central Mutual Insurance Company (hereinafter NYCMIC), gave notice that it was accepting the claim and taking the position that claimant was covered through the residence employees endorsement contained in the Smallmans' homeowner's insurance policy. After a Law Judge found that claimant was a covered employee, the Uninsured Employers' Fund's sought a review. Ultimately, the Board rescinded the Law Judge decision, remitting the matter for further development of the record on that issue, prompting this appeal. The Court found that the Board’s decision "was interlocutory and did not dispose of all of the substantive issues or reach a potentially dispositive threshold legal issue and, thus, is not appealable. . . . To the extent that it is argued that the Board is barred from considering the issue of covered employment as a result of NYCMIC's acceptance of coverage during the hearing before the [Judge], we are not persuaded. Even assuming, arguendo, that NYCMIC's acceptance of coverage was uncontested and constituted a valid stipulation as contemplated by 12 NYCRR 300.5 (b),[it is beyond cavil that even an otherwise valid stipulation is subject to final review by the Board, which has the power to disregard it if it so chooses.Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.[35229-7830]

Murray Bresky Cons v NY Comp Mgrs
May 9, 2013, 2013 NYS Appellate Division, Third Department
GSITs

DENIED most of the motions by the defendant GSIT administrators/managers for summary judgement thus requiring them to defend themselves against possible financial responsibility for payments assessed and paid by a trust member due to the trusts insolvency as the result of under-funding. Plaintiff joined the Manufacturing Self-Insurance Trust in 2001 as an employer member. The Trust was established by a 1997 Agreement and Declaration of Trust, and continued by successive trust agreements dated in 1997 (marked revised in 2000) and 2001, all signed by various trustees of the Board of Trustees (hereinafter the Board) on which the trust agreements conferred all responsibility for the Trust's management, operation and administration. In 1997 (and again in 2001 and 2006), the Board entered into service agreements with defendant New York Compensation Manager's Inc. (hereinafter NYCM) to be the fund administrator and to supervise and manage the day-to-day operations of the trust.

When the Trust was dissolved in 2006 by the WCB due to insufficient funding, the WCB sued the plaintiff to collect the under funding with the plaintiff agreeing to pay $1.2 million as its pro rata share of the deficits. Plaintiff commenced this action in 2011 against NYCM and certain alleged former trustees, defendants — James F. Trombino, D. Scott Jaquith and James E. Ransom (hereinafter collectively referred to as the trustee defendants) —, asserting causes of action for, among others, breach of contract, breach of fiduciary duties, and common-law indemnification. Trombino moved to dismiss the complaint based upon statutes of limitations and failure to state a cause of action. Jaquith and Ransom, after joinder of issue, moved for summary judgment on the same grounds.

While some of the motions were granted as time-barred, others portions of the motion to dismiss were denied, including those claiming common-law indemnification. The plaintiff, in essence, posited that although it, as a member of the Trust, was responsible for paying any under assessment, the defendant, as administrators and managers of the trust, had a responsibility to ensure that employer contribution rates and trust reserves were adequate to pay trust expenses and obligations and that new members met underwriting guidelines as well as (1) allowing NYCM to mismanage the trust and usurp trustee responsibilities, (2) allowing conflicts of interest, and (3) generally failing to perform the duties entrusted to them. Further, plaintiff alleged that the trustee defendants' mismanagement allowed or caused the trust to become insolvent, compelling plaintiff as an employer member to fulfill its contractual and statutory obligation to pay the Workers' Compensation Board its share of the trust's fund reserve deficit, amounts for which the trustee defendants were responsible. [35229-7829]

Morgan Fuel & Htg v Lexington Ins
May 1, 2013 NYS Appellate Division, Second Department
§50(5): Assessments & GSITs

AFFIRMED the lower court’s order that defendants Lexington Insurance Company and New Hampshire Insurance Company [the Insurers] are not obligated to provide coverage to, defend, and indemnify the plaintiff for claims made by the NYS WCB arising out of the plaintiff's former membership in the Transportation Industry Workers' Compensation Trust. When the State had sought to recover from the plaintiff its pro rata share of the deficiency allegedly due to mismanagement of the fund, the plaintiff seeks insurance coverage for the Board's claims. The lower Court was found to have properly granted summary judgement for the Insurers on the grounds that their policies did not provide coverage to the plaintiff for the Board's claims against it. The insurance applies only to "bodily injury" which "is caused by an occurrence.'" Here, the plaintiff's liability arises from its membership in the Trust, and the alleged subsequent mismanagement of the Trust, not from any "bodily injury" caused by an "occurrence" The Appellate Court added that the agreement to enter into the Trust does not constitute an "insured contract" under the policies The insurance excludes from coverage "[a]ny obligation of the insured under a workers compensation, disability benefits or unemployment compensation law or any similar law." The Trust agreement is an obligation of the plaintiff under the Workers' Compensation Law, and is therefore excluded from coverage. [35228-7828]

The Insider Noted more succinctly than have done I in the past, one reader wrote “As the WC law Section 50 states, the Chairman and the assigned Advisory Committee were to review and examine the GSITs and continue to obtain the securities, irrevocable letters of credit or cash of such self-insurer on deposit with the Chairman. the Chairman and Advisory Committee failed to perform from 1997 forward.” That the Legislature shifts the financial burden around with bonds and special assessments does not resolve the issue of taking action against those at the WCB whose specific job functions entailed the oversight responsibilities. If it is the people I think it is (and most are still there), their incompetence warrants some action, lest they continue to mismanage other key areas of Board responsibility.

| — — APRIL 2013 — — |

Steuber v Home Props
April 25, 2013, NYS Appellate Division, Third Department
Consequential

AFFIRMED the Board’s ruling that claimant did not suffer a consequential injury to his thoracic spine. Claimant’s March 2010 injury to his back, left knee, and left hip was established. While claimant had degenerative changes throughout his spine, he further injured his lumbar spine as a result of the initial accident, resulting in thoracic spine surgery in 2011. Carrier’s objection to paying for this surgery was upheld by a Law Judge as well as the Board on appeal. There was no dispute that claimant had a degenerative condition in his thoracic spine that did not become symptomatic as a result of the initial accident. There was conflicting testimony as to whether later falls, consequential to the initial injury, caused the thoracic spine to become injured. As is their reasoning in similar cases, the Court opined that, “the Board credited the examiner's opinion and, deferring to that assessment of credibility, we find substantial evidence in the record to support the determination.” Prevailing party represented by: Amy Levitt of counsel to Fischer Brothers (NYC) for Home Properties and another, respondents. [34227-7827]

Health Acquis v Program Risk Mgt
April 24, 2013 NYS Appellate Division, Second Department
GSIT's

REVERSED the lower court by allowing members of an insolvent group self-insured trust to sue the trust's managers, auditors, and actuarial advisors to recover damages for professional negligence and negligent misrepresentation. The plaintiffs all joined the Health Care Provider Self-Insurance Trust (hereinafter the trust), a now-terminated New York State Workers' Compensation "group self-insurance trust" established to provide group self-insurance for health care providers (per WCL §50). The defendants Program Risk Management, Inc., PRM Claims Services, Inc., and John Conroy provided third-party administration services and claims services for the trust. The defendant DeChants, Fuglein & Johnson, LLP (hereinafter DFJ), a public accounting firm, provided certain services to the trust beginning in or prior to 1998. The defendant SGRisk, LLC (hereinafter SGRisk), an actuarial firm, provided services to the trust beginning in 1994. Subsequent to the WCB finding the trust insolvent, the WCB assessed the plaintiffs for certain trust deficiencies. The plaintiffs brought this action, inter alia, to recover damages for professional negligence and negligent misrepresentation, alleging, among other things, that the defendants hid from them the true financial condition of the trust and the plaintiffs' liability risks as members of the trust. After reviewing several motions by both sides, the Appellate Court ultimately determined that “the complaint states viable causes of action to recover damages for negligent misrepresentation and for professional negligence.” The Court then explained in detail why accountants and actuaries, in addition to the trust managers, had certain legal responsibilities to the members of the trust. [2B202-7826]

The Insider: As I read the following reasoning in the above, I pondered as to whether the work ‘Board’ could be inserted in place of ‘Actuary’:

Because an actuary is not required to be licensed, is not regulated, and is not subject to a State-created disciplinary system, an actuary is not a "professional" for purposes of a malpractice cause of action. Nevertheless, an actuary, possessing special knowledge, can be held liable for the negligent performance of its services. Thus, the complaint sufficiently alleges a cause of action against SGRisk [the actuary] on a theory of common-law negligence, and should not have been dismissed.

Brown v B&W Elec Contrs

April 18, 2013 NYS Appellate Division, Third Department
§114-a: Fraud

AFFIRMED the Board’s ruling that claimant committed §114-a Fraud, disqualifying him from receiving future wage replacement benefits. Claimant, an electrician, injured while driving to work in 1998, was classified as permanently partially disabled and awarded ongoing payments of $400 a week. The carrier thereafter sought to disqualify him from receiving benefits per §114-a, alleging that he had knowingly misrepresented both his work status and the degree of disability. The WCB agreed, both rescinding benefits paid from November 2009 onward, and disqualifying claimant from future benefits. “Claimant informed the carrier that he had not ‘engaged in any work activity,’ and testified that he had not worked for pay beyond using his tractor to help a neighbor grade his driveway. Other evidence indicated, however, that he worked by purchasing the contents of abandoned self-storage units and reselling them, and that he further performed a variety of excavation and construction work.” The Court agreed with the finding of §114-a and wrote that the “discretionary penalty of disqualifying him from receiving future benefits was appropriate.”. Prevailing party represented by: William R. Hartman of counsel to the State Insurance Fund for B & W Electrical Contractors and another, respondents. [34226-7825]

Camby v System Frgt

April 18, 2013 NYS Appellate Division, Third Department
Accident vs Disease

AFFIRMED the Board’s ruling that the claimant sustained a work-related occupational disease. Claimant was employed to drive a tractor-trailer, driving 50-60 hours a week, responsible for long-haul trips that sometimes required driving 11 hours a day. Claimant stated that, during the week of April 4, 2010, he was required to drive in two extensive traffic jams that required him to repeatedly push down on the clutch for lengthy time periods to keep the truck from shutting off, resulting in pain in his low back, left hip and left leg. Claimant relayed the situation to his supervisor, who assigned him to a different vehicle. As the pain continued to worsen, claimant sought medical attention and, in July 2010, his treating orthopedist opined that claimant was suffering from a temporary total disability and directed that he cease working. An MRI of claimant's back revealed two disc herniations as well as nerve root irritation. Based on these injuries the Board made a finding of occupational disease. The Court noted that, “The carrier's contentions chiefly involve challenges to the Board's credibility determinations as to claimant and his medical providers. But not only is the Board “the sole and final judge of witness credibility,” the record showed that there was both sufficient medical information as to the medical condition and testimony supporting a relationship between claimant’s work activities and his injuries. Although the IME found no causal relationship, the Court stated that the Board may “draw any reasonable inference from the evidence contained in the record, and this Court will not interfere with the Board's resolution of conflicting facts even if the evidence rejected by the Board would have supported a contrary conclusion.”. Prevailing party represented by: Gregory R. Gilbert of counsel to Amdursky, Pelky, Fennell & Wallen (Oswego) for Roger Camby and Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent.[34226-7824]

Rankin v Half Hollow Hills CSD

April 18, 2013 NYS Appellate Division, Third Department
§18 notice to employer

AFFIRMED the Board’s ruling which excused the claimant from providing timely written notice of her accident per WCL §18. Claimant alleged that she sustained a work-related injury in November 2007 and applied for workers' comp benefits in March 2008. The employer argued that claimant had not provided written notice of the accident within 30 days after its occurrence, per §18 and legal precedent, the Board found the appropriate oral notice had been give and established the claim. Claimant testified that she verbally informed the bus dispatcher of the accident shortly after it occurred, a person whom her employer confirmed was one of several parties to whom to give such notice, and then “perhaps the next day", gave oral notice to her supervisor. The Board accepted her testimony on these two points and the Court determined that, “inasmuch the sufficiency of a claimant's oral notice is a matter within the exclusive province of the Board," the Board decision was supported by substantial evidence. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. [34226-7823]

Bob v Cohen

April 16, 2013 NYS Appellate Division, First Department
Legal Fees

REVERSED the lower court’s ruling, thus denying the injured worker the right to litigate his workers compensation attorney’s award of legal fees. Although the case was dismissed on procedural grounds, the Appellate Court wrote, “On the merits, defendants were entitled to dismissal of this legal malpractice action commenced by their former client on res judicata grounds. The Workers Compensation Board's award of legal fees to defendants, imposed as a lien against the ultimate award of compensation to plaintiff (WCL §24), precludes plaintiff's present claim that defendants represented him negligently, a claim that could have been raised in opposition to defendants' fee application.[34226-7822]

 Abreu v Wel-Made Enters

April 17, 2013 NYS Appellate Division, Second Department
Employment: Who is

REVERSED the lower court, by finding that WCL did not prohibit a civil suit to recover damages for personal injuries as the defendant failed to prove it had any employment relationship with the injured worker. Because the protection against lawsuits brought by injured workers which is afforded to employers by WCL §§ 11 and 29(6) extends to special employers, an injured person who elects to receive workers comp benefits from their general employer is barred from maintaining a personal injury action against his or her special employer. “The determination of special employment status is usually a question of fact and may only be made as a ‘matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact.’” In this case, the defendant failed to make a prima facie showing that the plaintiff was its special employee nor that it was an alter ego of the plaintiff's employer. Also, the defendant failed to make a prima facie showing that it lacked notice of the allegedly defective platform and railings where the injuries occurred. [34226-7821]

Pena v Automatic Data Processing

April 17, 2013 NYS Appellate Division, Third Department
Employment: Who is

REVERSED the lower court, by finding that the jury did have the right to determine that there was no employer/employee or special employer relation between the injured worker and ADP. Because the protection against lawsuits brought by injured workers which is afforded to employers by WCL §§ 11 and 29(6) extends to special employers, an injured person who elects to receive workers comp benefits from their general employer is barred from maintaining a personal injury action against his or her special employer. “The determination of special employment status is usually a question of fact and may only be made as a ‘matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact.’” The jury's determination that a special employment relationship did not exist between the defendant and the plaintiff Pedro Pena was supported by a fair interpretation of the evidence. “Accordingly, the Supreme Court erred in granting that branch of the defendant's motion which was pursuant to CPLR 4404(a) to set aside the jury verdict finding that the injured plaintiff was not a special employee of the defendant as contrary to the weight of the evidence and for a new trial.” Pena v Automatic Data Processing [34226-7820]

D'Addio v Peter Annis

April 4, 2013 NYS Appellate Division, Third Department
§23: Late Appeal

AFFIRMED the Board’s ruling that carrier’s application for review of a Law Judge's decision was untimely. Some time after the case for causally related death was established, the Law Judge filed a decision in July 2010 directing that the carrier deposit "an amount equal to the present value of all unpaid benefits . . ." into the aggregate trust fund (ATF) per WCL §27. There is no indication that either the employer or the carrier sought review thereof by the Board. In September 2010, the carrier requested further action with respect to modification of decedent's average weekly wage, following which the Law Judge issued a decision in December 2010 – again directing that the carrier make the required deposit into the ATF. The carrier sought review of the December 2010 decision, contending – for the first time – that a deposit into the ATF was unwarranted and inappropriate. The July 2010 decision clearly directed the carrier to make the ATF deposit and there is nothing in the record to suggest that the carrier sought review of that decision within the required 30-day period. Although the December 2010 decision also made reference to the required ATF deposit, that reference did not operate to extend the carrier's time in which to appeal the Law Judge’s July 2010 directive. The Court also found that although, as noted by the carrier, the Board has on prior occasions elected to entertain untimely applications in the interest of justice, “the Board's exercise of such power is an inherently discretionary act,” there was no abuse of discretion in this case. No prevailing party was listed in the Court's printed decision. [34224-7819]

City of Pittsburgh & UPMC/Benefit Mgt Services v [Penn] WC Appeal Bd

March 25, 2013 Pennsylvania, Supreme Court - Western District
Voluntary Withdrawal

AFFIRMED the Pennsylvania’s Workers Compensation Board of Appeals which ruled that the claimant had not voluntarily withdrawn from the labor market. This 28 page decision, which took 17 months to be issued, details all the indicia Pennsylvania’s highest court felt was necessary to review in order to make the determination regarding the cause claimant’s non-return to the labor market. In this case, claimant, a member of the police force, was given light duty after her injury limited her ability to return to her pre-injury time-of-injury position. Sometime later, the City eliminated that position and any possible position for her within the department. The claimant filed for disability, while unsuccessfully finding other employment within her restrictions. The City felt that, by her accepting the disability pension, claimant had retired, leading the City to stop the disability compensation. The Court looked at what it termed a “totality of the circumstances” standard:

In order to show that efforts to return a claimant to the workforce would be unavailing because the claimant has retired, the employer must show, by the totality of the circumstances, that the claimant has chosen not to return to the workforce. Circumstances that could support a holding that a claimant has retired include: (1) where there is no dispute that the claimant retired; (2) the claimant's acceptance of a retirement pension; or (3) the claimant's acceptance of a pension and refusal of suitable employment within her restrictions.

After a review of all the facts in the case and what the Court felt was the intent of the underlying workers compensation law in Pennsylvania, the Court unanimously affirmed the Board’s ruling in favor of the claimant. [34224-7818]

 


 | — — MARCH 2013 — — |

Bleakley v Verizon
M
arch 28, 2013 NYS Appellate Division, Third Department
Legal Fees

Appeal rendered moot on issue of awarding legal fees with no money moving. The Board had originally ruled since there is no money currently moving to the claimant and no employer reimbursement, there is no source of funds to which an attorney's lien can presently attach. However the Board (through a Full Board review?) later reversed itself and awarded the fee. [33223-7817]

The Insider: A COMMENTARY on this last minute change of heart/mind by the Board details the possible implications regarding the Board’s process of decision making and appeal review.

Howard v Stature Elec
March 28, 2013, 2013 Court of Appeals
§114-a: Fraud & Alford Plea

AFFIRMED the Board’s ruling1 and the Appellate Court’s 2010 decision that a claimant's Alford plea is not automatically given preclusive effect in a subsequent workers' compensation proceeding. The Court noted that an Alford plea may generally be used for the same purposes as any other conviction and that, like any other guilty plea, it may be used as a predicate for civil and criminal penalties. But, two factors determine whether preclusive effect should be given: First, whether the identical issue was necessarily decided in the prior action or proceeding and is decisive of the present action, and second, whether the party who is attempting to relitigate the issue had a full and fair opportunity to contest it in the prior action or proceeding. The facts showed that the claimant made his plea without any allocution as to the facts underlying it. “Here, the plea colloquy preceding claimant's insurance fraud conviction included no reference to the facts underlying the conviction, so it is impossible to conclude that the conviction was based upon the same circumstances alleged to be fraudulent in the workers' compensation proceeding. SIF therefore failed to meet its burden of proving identity of issue. As a result, the plea did not prohibit claimant from challenging the workers' compensation violation alleged.” Prevailing party represented by: Christine A. Scofield (Syracuse) for appellant. [33223-7816]

 ¹Although it is not noted in the Court of Appeals decision, the Board had originally found the Alford plea to be sufficient for a finding of §114-a but the Third Department reversed the Board in 2010 and returned it for reconsideration. After Third Department 2010 remand, the Board had a hearing on the issue of §114-a and found that claimant was not guilty of misrepresentation.

Town of Amherst v Hilger
March 22, 2013, 2013 NYS Appellate Division, Fourth Department
999__Misc

The Insider: This case is posted only as it show the length some people will go to ‘get even’.

The main issue under appeals arose when the former owners (Arthur Hilger and Sally Bisher) of the employer (McGonigle and Hill Roofing, Inc. - M & H) , after M&H filed for bankruptcy, refused to assign to seek insurance coverage from nonparty New York State Insurance Fund (SIF), M & H's insurer, with respect to a judgment plaintiff Town of Amherst (Town) has against M & H. There was also no dispute that SIF has not paid the Town judgment on behalf of M & H only because of defendants' intractable refusal to request that SIF satisfy that judgment. For the reasons set forth below, plaintiffs commenced this action against defendants and defendant. While discovery did not establish a motive for the Hilgers' refusal to seek coverage from SIF, at the oral argument of this appeal, defendants' attorney indicated that their recalcitrance was borne of "animosity" toward the Town. [33223-7815]

Boaro v Kings Park Psychiatric
March 21, 2013 NYS Appellate Division, Third Department
Causal Relationship: Death

AFFIRMED the Board's ruling that decedent's death was not causally related. Claimant's husband (hereinafter decedent), who sustained two work-related heart attacks in 1982 and 1986 that rendered him permanently totally disabled, died in October 2010, at the age of 77, 24 years after he suffered the second work-related heart attack. After claimant filed for WC death benefits, the Board disallowed the claim. The Curt cited its oft stated ruling that “[t]he resolution of conflicting medical opinions, particularly as they relate to causation, is within the exclusive province of the Board, and its decision will not be disturbed when supported by substantial evidence, ..even while there was some medical evidence in the record that may support a contrary conclusion.” In this case, the Board accepted the opinion of carrier’s cardiologist who reported that the decedent’s death was caused by atherosclerosis, a slowly progressing disease based on underlying genetic factors, that was exacerbated by decedent's smoking and hypertension. Also following his heart attacks, decedent had a normally functioning heart, and there is no medical research to suggest that heart attacks hasten the progression of heart disease.Prevailing party represented by: Alisa A. Ammerman of counsel to the NY State Insurance Fund for Kings Park Psychiatric Center and another, respondents. [33222-7814]

Riley v P&V Sadowski Constr
March 21, 2013 NYS Appellate Division, Third Department
§123 Stale Claims

REVERSED the Board by finding that the reopening of the case was not barred by WCL §123, based on evidence in the file contradicting the Board's fact finding. After receiving an SLU for a 1990 right knee injury and following a 2003 injury, claimant’s condition worsened such that, in September 2008, a Law Judge found that the claim was reopened, effective August 2006, shifting liability to the Special Fund for Reopened Cases (Fund). In 2009 right knee replacement surgery was authorized. When claimant sought further benefits after undergoing the January 2011 surgery, the Fund argued that the claim had been truly closed in April 2009 following authorization for the surgery and that any additional awards would be untimely pursuant to WCL §123. Although a Law Judge found otherwise, a Board panel reversed the Law Judge and barred the claim.

The §123 statutory bar only applies if the claimant's case was truly closed, a factual issue for the Board that depends upon whether "further proceedings, such as the submission of additional medical evidence, were contemplated" at the time of the purported closing, i.e. “contemplated, not whether they were actually planned.” Not only was the Board’s “bare summary conclusion” that the closing was April 6, 2009 and that no further action was contemplated lacking any factual support, the Board's decision “is arguably contradicted by the record.” The decision in April stated that the matter was "[p]ending outcome of surgery on right knee. No further action is planned by the Board at this time,", the Court noted that, two months prior, the Law Judge, in authorizing surgery, continued the cases "to make awards in accordance with this decision, subject to any credits." In explaining its reversal of the Board (and support for the original Law Judge decision), the Court opined that “ the Board's conclusion that no further proceedings were contemplated in April 2009 when surgery was authorized is dubious and, more importantly, is completely lacking in any record support,” and accordingly must be reversed. Prevailing party represented by: Laurence Naviasky of counsel to Hoffman & Naviasky (Schenectady) for appellant. [33222-7813]

Hartman v Tops Mkt
February 21, 2013 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board's ruling that the carrier is not entitled to §15(8) reimbursement from the Special Fund (Fund) . As the result work-related back injuries in 2007, claimant was awarded comp benefits. After learning that claimant suffered from preexisting hypertension and bilateral degenerative joint disease of the knees, the carrier applied for reimbursement from the Fund per §15(8)(d). After a Law Judge found entitlement to reimbursement based on the preexisting knee condition, a Board panel reversed and found no applicability. Claimant testified her knee condition caused her only intermittent pain, was treated with over-the-counter or prescription pain medicine, she continued to work without any restrictions or accommodations, and her knee condition did not cause any lost time from work. As the carrier’s expert could not “state that the preexisting condition hindered claimant's employment,” the Court found that substantial evidence supported the Board's decision. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee. [33222-7812]

Rodriguez v Metal Cladding
March 21, 2013 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board's ruling that the carrier's filing for WCL §15(8) was timely– the sole issue in this appeal. After the claimant’s case was established and he was awarded workers' comp benefits, the carrier successfully sought §15(8) reimbursement from the Special Disability Fund (Fund) after a Law Judge found that the carrier's application was timely. §15(8)(f) provides that, "in the event of the reopening of a case theretofore closed, [a claim for reimbursement must be filed] no later than the determination of permanency". The Fund argued that this clause is inapplicable because the case was never truly closed. Substantial evidence supported the Board's factual determination that the case was closed in August 2005 when the Law Judge found that there was no prima facie medical evidence and marked the case "no further action”. The Court affirmed the Board agreeing that the carrier first filed a C-250 form seeking reimbursement from the Fund in January 2010, which was after the reopening of the case and prior to the finding of permanency. Prevailing party represented by: John A. Terzulli of counsel to Hamberger & Weiss (Buffalo) for Metal Cladding, Inc. and another, respondents. [33222-7811]

Schworm v Frito Lay
March 21, 2013 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board’s ruling that the carrier is entitled to §15(8) reimbursement from the Special Disability Fund (Fund). Claimant sustained a fractured vertebrae in March 2003, receiving workers' comp for six months, after which he returned to work. Subsequently, the carrier filed a claim for reimbursement from the Fund for, as relevant here, a right knee injury that claimant had sustained approximately 20 years earlier in a non work-related motorcycle accident. In March 2007, claimant suffered another back injury while working for a different employer resulting in his ongoing disability being apportioned 32.5% to his 2003 claim and 67.5% to his 2007 claim. Following proceedings relative to the carrier's claim for reimbursement from the Fund, a Law Judge held that claimant's right knee injury constituted a permanent physical impairment that entitled the carrier to reimbursement.

Here, the carrier submitted evidence that claimant’s right knee had limited range of motion as compared_8b-final-cover-html-see-my-white.jpg with his left knee and, had it been subject to a workers comp claim, claimant would have had permanent impairment equal to a 35% schedule loss of use which “represented a hindrance to his employment as it would limit certain activities, such as repetitive squatting, kneeling and climbing.” The carrier’s physician added that claimant's permanent disability due to all conditions is materially and substantially greater than would have resulted from the 2003 back injury alone. “Thus, despite contrary evidence in the record - including claimant's testimony that, upon returning to work after his knee injury, he never again lost time or required medication as a result of that injury - [the Court found] that the Board's decision is supported by substantial evidence.” Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Troy) for Frito Lay, Inc. and another, respondents. [33222-7810]

Swanko v Darlind Constr
March 21, 2013 NYS Appellate Division, Third Department
§44 App’t Dust Diseases

AFFIRMED the Board's ruling that WCL §44 apportionment did not apply as injury was caused by an accident, not an occupational disease. In 2005, after working many years, injuries to claimant's hips, knees, shoulders and wrists caused him to stop working and to file a claim for workers' comp, asserting that repetitive trauma sustained in connection with his employment caused the disabling injuries. After the carrier controverted the claim, a Law Judge established the claim as an accidental injury due to repetitive trauma. The Judge also determined that, as this was an accident and not an occupational disease claim, WCL §44 apportionment did not apply, a decision now being appealed by the carrier who argued that the claim should have been classified as an occupational disease, not an accident. Although the Court found this argument was not properly before the Court inasmuch as no appeal from the Law Judge's determination of this issue was taken, the Court found that the record contained substantial evidence supporting the determination classifying the claim as an accident. Prevailing parties represented by: Theresa E. Wolinski of counsel to Foley, Smith, O'Boyle & Weisman (Hauppauge) for Yonkers Contracting Company, William T. Burke of counsel to Cherry, Edson & Kelly (Tarrytown) for American Zurich Insurance Company, Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for Sciullo Construction, and Jeremy Buchalski of counsel to Vecchione, Vecchione & Connors (Garden City Park) for St. Paul Travelers, [33222-7809]

Bailey v Ben Ciccone
M
arch 14, 2013 NYS Appellate Division, Third Department
Consequential

AFFIRMED the Board’s ruling that claimant's motor neuron disease was consequential to his established claim for Lyme disease. After Claimant was bitten by a tick while working, he was subsequently diagnosed with Lyme disease in July 2008. When claimant began to experience upper body muscle weakness and forced to cease working, the carrier accepted a workers comp claim, paying the claimant benefits. After the claimant's progressive muscle weakness worsened despite several courses of antibiotics, ultimately rendering him permanently totally disabled, the carrier asserted insufficient medical evidence that claimant's disability continued to be related to his Lyme disease. After several hearings and medical testimony, a Law Judge, amended the claim to include consequential motor neuron disease, as well as consequential anxiety and stress disorder. Claimant presented the testimony of his treating doctor, neurologist, and psychiatrist all of whom stated that his disabilities were the consequence of his Lyme Disease whereas the carrier presented the opinions of several neurologists who could not state with certainty that claimant's Lyme disease was the cause of his motor neuron disease. Citing the legal theory that the resolution of conflicting medical opinions, particularly with regard to the issue of causation, is within the exclusive province of the Board, the Court agreed that the Board's determination to be supported by substantial evidence.Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. [33221-7808]

Mason v Glens Falls Ready Mix
M
arch 14, 2013 NYS Appellate Division, Third Department
Failure to follow legal procedure

REVERSED the Board’s ruling, finding that the Board committed several procedural errors. Although the claimant sustained an injury in 2009 that he immediately reported to the employer, he had no lost time and sought no immediate medical treatment. He first sought treatment in November 2010, ceased work on December 15, 2010 due to disability, undergoing surgery January 5, 2011. The following day, claimant submitted a claim for disability benefits that indicated that the disability was not the result of an injury arising out of and in the course of his employment. On January 28, 2011, he filed his workers comp claim. The carrier filed form C-669 in April 2011, indicating that the claim was not being disputed, but also raised the issues of whether (1) the disability was causally related, (2) he was currently out of work due to unrelated reasons, and (3) he had sustained a new injury.

Notwithstanding the carrier's objections, it paid several medical bills associated with claimant's treatment, including the bill for his surgery. After a June 2011 hearing, when the carrier questioned the causal relationship between the 2009 injury and claimant's current disability and requested further development of the record, a Law Judge denied that request, awarding benefits for the period subsequent to his surgery 2011 surgery and continuing. Carrier’s appeal was denied for several reason including that the carrier's request to further develop the record was untimely.

Inasmuch as the carrier had raised several issues that were unresolved, it was clear upon the carrier's initial request to the WCLJ that the testimonies of both claimant and his medical provider were essential to the development of the case. The Court stated “it was an abuse of discretion for the WCLJ to deny the carrier's timely request to further develop the record.”

Although the Board held that the carrier is estopped from contesting liability because it erroneously paid for certain medical bills, the Board cited no authority for its holding. The Court added, “Indeed, we have unequivocally held that, while an advance payment of compensation in the form of covered medical bills precludes a defense based upon the statute of limitations, it does not foreclose a carrier from asserting other defenses and, thus, will not give rise to estoppel where the elements have not been otherwise established.”

The Board’s finding that the carrier failed to timely deny claimant's request for authorization of surgery in violation of WCL §13-a(5) and NYCRR 325-1.4(a)(6), the Board's determination is inapposite. The record showed the claimant had surgery nearly three weeks before he submitted his claim and, therefore, an authorization for surgery was never requested of the carrier. Prevailing party represented by: Edward Obertubbesing of counsel to the NY State Insurance Fund for for appellants. [33221-7807]

Minichelli v Maine-Endwell CSD
M
arch 14, 2013 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board's ruling that employer is not entitled to §15(8) reimbursement from the Special Disability Fund (Fund). Claimant was awarded workers' compensation benefits for an injury and resulting permanent disability to due to a 2000 accident. After the carrier sought reimbursement from the Fund per WCL §15(8), a Law Judge determined that the carrier was not entitled to reimbursement, noting the determination was made without prejudice. In affirming the Law Judge on appeal, a Board panel modified the determination to reflect that it was made with prejudice. Although the claimant did have a number of pre-existing medical conditions, there was no evidence that these conditions hindered or were likely to hinder claimant's job potential. The medical records and claimant testimony showed her preexisting conditions were adequately controlled by medication, she was working full time with no restrictions and she had not missed time from work due to the preexisting conditions. Since the failed to show that her preexisting permanent condition hindered her job potential, the Court found the Board's decision denying reimbursement was supported by substantial evidence. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund.[33221-7806]

Perez v Mondial Tiles
March 14, 2013 NYS Appellate Division, Third Department
Causal Relationship: PFME, et al

AFFIRMED Board's ruling that claimant suffered a work-related injury, reversing the Law Judge’s decision. On March 5, 2007, claimant, working for the employer as a laborer, experienced dizziness and saw lights while straining to carry heavy marble up a flight of stairs. He went to the hospital later that day complaining of headaches and blurry vision. In July 2007, he underwent a craniotomy to relieve pressure from a blood clot and had a shunt placed in his head. Returning to work on light duty, claimant ceased working in November 2007, filing a workers' comp claim. Although a Law Judge found that a work-related accident had occurred of which the employer had notice but that claimant failed to establish a causal relationship, a Board panel reversed, finding that a causal relationship had been established. The Court found that the record demonstrates that claimant experienced dizziness on March 5, 2007 while lifting a heavy object at work which caused him to visit the hospital later that day and be absent from work thereafter. While all the claimant’s medical providers stated that claimant's injuries were causally related to his work accident, the carrier failed to produce any conflicting medical evidence. Thus, the Court found “that the Board's decision is supported by substantial evidence.” Prevailing party represented by: Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent. [33221-7805]

Williams v Lloyd Gunther El Serv
   ♦March 14, 2013 NYS Appellate Division, Third Department
    §29: 3rd Party/MVA liens
    Capricious & Arbitrary       [33221-7804]

The Insider: The Board reissued a decision in this case, supporting its intital ruling, and on May 22, 2014, the modified decsion was reversed by the Thrid Department.

REVERSED Board’s ruling on when a carrier can start to take credit for a 3rd party settlement, writing that the Board has not provided a rational explanation for departing from its prior precedent. The Board ruled that the carrier may not begin taking a credit from a successful third-party action until the date on which claimant received the recovery. After claim for 2003 accident was established, claimant successfully filed a personal injury claim and the comp carrier consented to the settlement. Then the carrier notified the WCB that it had suspended payments to claimant on October 1, 2010 pursuant to the settlement. A Law Judge found that the carrier's credit against claimant's third-party recovery commenced on October 5, 2010, the date claimant actually received the settlement.

In situations such as this, where a workers' comp carrier consents to a recovery in a third-party negligence action, the carrier may be granted a lien on the proceeds of the recovery equal to the amount of benefits already paid, as well as a credit for any future benefits owed the claimant until the proceeds of the recovery are exhausted. Although there is no reference in the statute as to when the credit shall commence , the Board generally considers the day that a claimant actually collects the recovery as the date upon which a carrier's credit commences.

The Board has, however, allowed a carrier to begin taking the credit on the date that it consented to the settlement, provided that its consent letter reflected a clear understanding by both parties that no further payments would be made by the carrier unless or until the credit was exhausted. Here, the Board did not base its determination upon an assessment of the terms expressed in the carrier's consent letter. Rather, the Board found that, since the carrier was not also the carrier that was liable in claimant's third-party action, the carrier could not begin taking its credit until the date that claimant received his settlement.

Although the Board cited precedent in its decision, the Court explained why the cited precedents did not support the Board's holding and wrote “Inasmuch as the Board has not provided a rational explanation for departing from its prior precedent in determining when a carrier's credit pursuant to WCL §29(4) commences, the decision must be reversed.” Prevailing party represented by: Daniel S. Becker of counsel to the NY State Insurance Fund for appellants.

| — — FEBRUARY 2013 — — |

Coleman v Compass Group Chartwells.
February 28, 2013 NYS Appellate Division, Third Department
§32

AFFIRMED the Board’s decision which, after determining that §32 covered §120 ‘compensation’, declined to approve a §32 settlement agreement between the parties. Claimant had filed a discrimination claim after she (successfully) filed a workers comp claim for work-related injury. She and the employer decided to settle this discrimination issue and submitted the §32 agreement to a Law Judge along with a form entitled "Satisfaction of Decision and Discontinuance with Prejudice." After the Judge refused to approve the agreement because it did not comport with the procedural requirements of WCL §32, the parties then submitted a redrafted agreement. However, when the parties appeared before the Judge and the claimant stated that she no longer consented to the terms of the agreement, the Judge refused to approve the agreement.

The employer's principal claim is that the requirements of §32 for Board approval of settlements do not apply to agreements involving discrimination complaints under §120 because such discrimination complaints are not claims for compensation. The Court wrote, “While we agree that claims under §120 do not seek compensation as that term is used throughout the WCL -including §32 -we are not persuaded that, as a result, §32 is inapplicable to the settlement of such claims.” Therefore, per §32, a party may withdraw approval of an agreement "within [10] days of submitting" it to the Board which occurs when the parties appear before the Board. Here, inasmuch as claimant indicated that she no longer consented to the agreement at the time it was submitted to the Board, the Law Judge properly disapproved the agreement. Prevailing party represented by: Kristina S. Heuser (Locust Valley) for Carolyn Anne Coleman, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.[32219-7803]

Held v NYS WCB
February 28, 2013 NYS Appellate Division, Third Departmen
t§50(5): Assessments & GSITs

AFFIRMED the Board in this fourth and fifth appeal on the issue of various procedures used by the NYS Workers Compensation Board to calculate assessments levied upon members of Group Self-Insured Trusts (GSITs pursuant to WCL §50(5). Among the claims that were denied in the two separate opinions issued today were (1) the GSIT’s request for discovery pursuant to CPLR 408, (2) the GSIT’s contention that the assessments were time-barred, (3) their claim that the 2008 assessments were affected by an error of law, and (4) the claim that Board failed to exhaust the Uninsured Employers' Fund (see Workers' Compensation Law § 50-a [2]). Several other arguments by the GSITs were also denied in the two detailed opinions with references to the 2011, 2010, and 2009 Appellate Court decisions. Prevailing party represented by: Paul Groenwegen of counsel to the NYS Attorney General, for WCB, respondent. [32219-7802]

State Ins Fund v Private One of NY
F
ebruary 26, 2013 NYS Appellate Division, First Department
Employment: Who is

AFFIRMED the Supreme Court’s ruling that because Private One neither had its own workers comp coverage for its leased employees now had the employee leasing company obtain a separate policy naming defendant as an additional insured, SIF properly concluded that defendant was providing the workers' compensation coverage itself and was responsible for paying the premiums. [32219-7801]

Bailey v Binghamton Precast
February 21, 2013 NYS Appellate Division, Third Department
Causal Relationship: Death

AFFIRMED the Board’s ruling that decedent's death was not causally related to his employment of 20 plus years as a truck driver and heavy equipment mechanic for the employer. Decedent, who had a preexisting heart condition, was admitted to a local hospital in September 2007, at which time he was found to be suffering from atrial fibrillation, exacerbation of congestive heart failure, morbid obesity, hypertension and hyperlipidemia, and a heart catheterization performed on November 15, 2007. Various medications were prescribed, and decedent returned to work without restrictions on November 21, 2007. On November 30, after he finished his regular shift at 3:30pm, he remained on premises to work on his personal vehicle. Although he was seen between 7:30pm and 8:00pm by the plant manager, shortly thereafter, the manager found decedent unresponsive on the garage floor and called 911. Decedent was pronounced dead later that evening. Following a claim for death benefits, the Law disallowed the claim finding that claimant (1) was not entitled to the presumption set forth in WCL §21(1) and (2) failed to demonstrate a causal relationship between decedent's death and his employment.

First, although the decedent had told his wife he was staying late “to clean the pit”, there was nothing in any record to show he was performing work for the employer at the time of his death supporting the Board's finding that decedent "cannot be considered to have been in the course of his employment at [the] time of his demise." Second, this is a case where the medical proof adduced by claimant was insufficient to establish the required causal connection between decedent's death and his employment. Medical experts from both sides determined that the ‘heavy work’ that the claimant did the day of his death most likely contributed to his death but “the physician who conducted the independent medical review issued an addendum to his report, wherein he indicated ‘a change of . . . opinion on the [issue of] causal relationship’ and stated that he no longer could ‘definitely conclude’ that a causal relationship existed between decedent's employment and his death.” And the employer testified that heaving lifting was not a normal part of the job and that due to claimant’s recent operation, "[n]obody was pushing [decedent] too hard.” The Court determined that there was substantial evidence to support the Board's finding that claimant failed to establish a causal connection between decedent's employment and his death..Prevailing party represented by: Mark A. Kenyon of counsel to State Insurance Fund for Binghamton Precast & Supply Corporation and another, respondents. [32218-7800]

Runge v National Baseball
February 21, 2013 NYS Appellate Division, Third Department
§123 Stale Claims

REVERSED the Board’s decision which dismissed claimant's 1997 workers' compensation claim as time-barred by WCL §123. After claimant was injured during an annual physical in March 1997, the carrier did not controvert the claim, but in February 1998 submitted a form C-669 indicating that payment had not begun because there was no lost time beyond seven days. Although claimant failed to appear at an April 1998 hearing and the case was closed, the carrier continued paying medical expenses into 2002. When in April 2004, claimant sought to reopen the claim by seeking authorization for a total left knee arthroplasty, the carrier put the Special Fund for Reopened Cases on notice, raising WCL §123. A Law Judge found that the case had been truly closed in April 1998, thus §123 served to bar further proceedings. Although the case had been closed in April1 998, the carrier continued to reimburse related medical expenses between December 1997 and February 2002. The Court wrote, “We have previously indicated that where a carrier voluntarily pays for causally related medical treatments during the relevant time period, it should not be permitted to then use Workers' Compensation Law § 123 with regard to such time. Accordingly, the determination must be modified by reversing so much as found that claimant's 1997 claim was barred by the application of §123.” Prevailing party represented by: Brent M. Whiting of counsel to Hinman, Howard & Kattell (Binghamton) for appellant [32218-7799]

The Insider: The Court added a footnote: “In its decision, the Board determined two separate claims of claimant, one of which this Court addressed March 15, 2012 in a companion claim (Matter of Runge v National Baseball League, 93 AD3d 1015 [2012]).” What is puzzling is that in the other claim, based on almost identical facts, the Board decided that §123 did not apply. Then again, knowing the Board, is that really so puzzling?

Bland v Gellman Brydges & Schroff
February 14, 2013 NYS Appellate Division, Third Department
Medical Variances

February 18, 2013 - Court of Appeals: Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution - see notes after this summary.

REVERSED the Board’s ruling by finding that it improperly denied the pro-se claimant’s request for a medical variance. A 1993 claim was transferred to the Special Fund for Reopened Cases (Fund) while a 2008 claim belonged to Travelers, with 50-50 apportionment. When both denied an October 2011 variance request by the claimant's treating physician, a Law Judge approved the request. But the Board panel reversed, finding (1) that the record does not establish that claimant's treating physician served upon the Board the MG-2 form requesting the variance in the same manner and on the same date that it was transmitted to the Special Fund and (2) that there was no evidence that claimant properly filed a request for review of the variance denials.

However, while both carriers concede that the MG-2 form was filed with the Board on October 14, 2011, they argued that the MG-2 form only identifies Travelers as the carrier and only references the second claim number. To the contrary, the record contains a copy of claimant's MG-2 form, which refers to both claim numbers and had a stamp recorded at the top of the page indicating that is was received by the Board via fax on October 14, 2011, the same day it was faxed to both the Special Fund and Travelers. “Further, the fact that both carriers received the variance request is made evident by their denials of that request.” Also, the Board’s own files show that the request to review a denial of the variance was filed timely, despite the Board’s position it was not. The Court thus determined that, “As a result, the Board's determination that there was "no evidence" that the variance request was served upon the Board or that claimant timely requested review of the denial is not supported by substantial evidence. ... and the variance request should not have been denied on those grounds.” Prevailing party represented by: Sharon K. Bland, appellant pro se. [32217-7798]

The Insider: In November 2012, this same claimant did lose her appeal on two other issues relating to her case, against these same carriers and attorneys. 2B206-7779

The Insider: It is interesting to note that the most recent reforms to expedite medical treatment have resulted in an 8-month delay between the date claimant asks for a variance and the date the Board makes its decision, based not on the potentially complex issue of medical need but the rather simple (to most of us) whether or not the date on the appeal was within a certain time period.

Wieneck v Bakery
February 14, 2013 NYS Appellate Division, Third Department
Latches

REVERSED the Board’s erroneous ruling that the carrier’s claim for reimbursement was not barred by the doctrine of laches. Claimant’s 1941 case was transferred to the Special Fund for Reopened Cases in 1959 while his 1952 and 1957 cases remained with Liberty Mutual Insurance Company; liability was apportioned equally among the three claims. Following his 2008 death, Liberty sought a reimbursement from the Fund for $194,876.83, representing one third of the cost of medical expenses incurred between May 1986 and August 2008. A law judge agreed with the Fund that laches applied to bar reimbursement as Liberty’s delay in seeking reimbursement prejudiced the Fund. Rejecting the laches defense altogether, the Board directed the Fund to audit expenses for which Liberty sought reimbursement, pay those expenses to which there was no objection and separately address each expense to which it objected, prompting this appeal.

The Court pointed out that “Board has applied the doctrine of laches to bar a claim for reimbursement under substantially similar circumstances (WCB No. 2882 6728, May 28, 2010). Absent an explanation for the Board's apparent departure from its precedent on this point, the Board's decision must be modified to permit the assertion of the laches defense here.”

As to the balance of the Fund’s argument, the Court stated that the Fund’s blanket objection of every bill is not proper. The bills should be audited and then, where appropriate, the Fund can object. “[W]hile laches ultimately may bar some or all of Liberty Mutual's claim for reimbursement, such a determination cannot be made until the subject audit is complete and the Special Fund has articulated specific objections (such as lost or otherwise unavailable evidence) to the bills at issue. The parties' remaining contentions, including Liberty Mutual's assertion that the instant appeal is premature, have been examined and found to be lacking in merit.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent [32217-7797]

The Insider:  The Board’s failure to look at its own prior decision, like it failure to look at the Court’s decisions, creates unnecessary pain, delay and expenses for all parties (except those at the Board responsible) as noted in this week’s COMMENTARY.

Jarovic v Icon Restoration
February 14, 2013 NYS Appellate Division, Third Departmen
t§29: 3rd Party/MVA liens

REVERSED the Board by finding that the Board improperly ruled that the carrier was entitled to a full credit against claimant's third-party settlement recovery. The Court noted that (1) this Board panel decision in February 2011 was rendered before this same Court’s decision March 31, 2011 in the Matter of Stenson v New York State Dept. of Transp and (2) the Board has since changed its position to adhere to Stenson. Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for Icon Restoration & Contracting and another, respondents.[32217-7796]

The Insider:  This case exemplifies certain administrative ‘inadequacies’ at the Board. See this week’s COMMENTARY on this issue.

| — — JANUARY 2013 — — |

Cucinella v NYC Transit Auth
January 31, 2013 NYS Appellate Division, Third Department
§114-a: Fraud

AFFIRMED the Board’s ruling that pro-se claimant violated WCL §114-a, permanently disqualifying him from receiving future wage replacement benefits. After receiving injuries in March 2000 as a bus driver, he was awarded benefits and, in July 2002, was found to be permanently partially disabled. In March 2006, the employer raised the issue of whether claimant had violated §114-a based upon its suspicions concerning possible underreported income by claimant and other questions regarding the ownership of a cleaning business allegedly operated by claimant's wife. Following the submission of relevant tax returns and some of the requested records from the wife's cleaning business, claimant ultimately admitted, among other things, that during the relevant time periods, he had been paid $200 per week by the business and was working 15 to 20 hours per week. Based on this and other facts, the Board found that the claimant “knowingly [made] a false statement or representation as to a material fact for the purpose of obtaining such benefits" and found that §114-a applied. Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O'Boyle & Weisman (Happauge) for New York City Transit Authority, respondent. [31215-7795]

The Insider: On March 24, 2011 this same Court dismissed claimant's appeal from the October 2008 decision as moot (82 AD3d 1453 [2011])

Poulton v Griffin Mfg
January 31, 2013 NYS Appellate Division, Third Department

§114-a: Fraud

AFFIRMED the Board’s ruling that claimant did not violate WCL § 114-a. Claimant, working for the self-insured employer (SIE), reported that he sustained injuries to his back in July 1998 and March 2000. Although he did not pursue workers' comp benefits for the 1998 incident, the 2000 incident resulted in a workers' comp claim established in a September 2002 decision, a decision not appealed. In 2010, the SIE filed an application seeking a reopening and rehearing of the 2000 claim contending claimant allegedly violated WCL §114-a by concealing a prior 1979 motor vehicle accident, impermissibly "linked a time barred accident" allegedly occurring in July 1999 to the 2000 incident, and gave inconsistent accounts regarding the 2000 claim. A Law Judge found no credible evidence of fraud, affirmed by the Board which then denied the application to reopen.

The Court found that “the record evinces that claimant's medical file included information pertaining to his 1979 motor vehicle accident, and Griffin acknowledged that the July 1999 accident date appearing on a few medical reports ‘was probably a typo’ meant to refer to the already-disclosed July 1998 incident.” Alleged inconsistent testimony “did no more than create ‘a credibility issue for the Board, the sole arbiter of witness credibility.’ Inasmuch as there is substantial evidence supporting the Board's decision,” the Court affirmed the Board. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. [31215-7794]

Veeder v NYS Police Dept
January 31, 2013 NYS Appellate Division, Third Department
Causal Relationship: Death

AFFIRMED the Board’s ruling that decedent's death did not arise out of and in the course of his employment. After rejecting the Board’s first denial of the claim in 2011 (86 AD3d 762 [2011]) as it was unsupported by substantial evidence in the record and remitted it for further review, the Court has now determined the Board’s new decision to be affirmable. Decedent became depressed and committed suicide shortly after the employer began investigating inconsistencies in fiber proficiency tests performed by him. His wife, the claimant, had her application for death benefits initially denied upon the ground that the employer's actions were taken in good faith and stemmed from "a lawful personnel decision involving a disciplinary action" (WCL §2(7). On review the Board found that the stress created by the investigation was not "greater than that which other similarly situated workers experienced in the normal work environment" as required by §2(7), a determination the Court now supported.Prevailing party represented by: Matthew R. Mead of Stockton, Barker & Mead of counsel to State Insurance Fund for NYS Police Department and another, respondents. [31215-7793]

LaDuke v Schenectady ComActProg
January 31, 2013 NYS Appellate Division, Third Department
§15(8)(e) 2nd Injury Fund

REVERSED the Board by finding that the employer was not entitled to reimbursement from the Special Disability Fund per §15(8)(d). Claimant sustained back and shoulder injuries in May 2002 while assisting students exiting her employer’s bus. When the employer sought reimbursement from the Fund based on claimant's preexisting diabetes and obesity, the Board agreed, finding the Fund liable. The Court reversed, finding “merit in the Fund's contention that the employer failed to demonstrate that claimant's preexisting conditions hindered her job potential. ... Examining first the issue of claimant's diabetes, the existence of that disease alone has not been held sufficient to establish a preexisting permanent condition that hinders employment for the purposes of WCL §15(8)(d). To the contrary, preexisting conditions that are controlled by medication have been found, without more, not to constitute a hindrance to employability.” Claimant stated unequivocally that she did not experience problems with her vision and that her peripheral neuropathy was not detected until June 2004. With regard to her obesity, claimant testified that she had always been heavy and it had never affected her ability to perform her job duties. In any event, claimant testified that she had never been diagnosed with a medical condition that caused her obesity, and there is no instance in which obesity, lacking a medical basis that would ensure permanency, has been found to be a preexisting condition. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. [31215-7792]

Messina v Hudson News
January 31, 2013 NYS Appellate Division, Third Department
Aggregate Trust Fund

AFFIRMED the Board’s decision which directed the carrier to make a deposit into the aggregate trust fund pursuant to WCL §27(2). The carrier appealed that decision to the Third Department with the result that the carrier was not required to make the deposit "during the pendency of an appeal to this Court from a Board decision directing such a lump-sum payment". On February 10, 2011, the Court affirmed the Board (81 AD3d 1068 [2011]. When the carrier refused to make the payment affirmed by the Third Department because it, the carrier, was appealing to the Court of Appeals, the Board again ruled the carrier had to make the deposit, prompting this appeal to the Third. But as the Court of Appeals dismissed that appeal (17 NY3d 922 [2011]), the carrier has exhausted all appeals. Thus the Third Department “concluded] that the Board properly required the employer to make a deposit into the ATF based upon this Court's prior decision, and its November 2011 decision requiring the employer to do so must be affirmed.” Prevailing party represented by: Justin S. Teff of counsel to the Law Offices of Ralph M. Kirk (Kingston ) for Anthony P. Messina, respondent. [31215-7791]

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