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

2014 COURT DECISIONS

Concerning
The NYS Workers Compensation Board

To search other years, click on the date:   2015  prior  2013    2012    2011    2010    2009    2008


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

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


Hearing Transcript

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


Hearing Transcript

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

PENDING CASES

APPELLATE COURT, THIRD DEPARTMENT

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

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

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

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

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

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

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

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

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

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

? Prior Week's Posting ?


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

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

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


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

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


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

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

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

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

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

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

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

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

[3B252-7867]

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

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

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


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

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

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

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


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

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

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

| — — SEPTEMBER 2013 — — |


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

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

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


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

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


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

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

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

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

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


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

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

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

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

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

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

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


DECEMBER 2014 

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

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

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

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

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

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

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

Connolly v Covanta Energy
    December 31, 2014    NYS Appellate Division, Third Department
    1140...Accident vs Disease            4C315-8003
    ♦7253...Insubstantial Evidence

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

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

The Court, in finding there was insufficient evidence to establish the claimant sustained an occupational disease, ruled that “claimant has not demonstrated that his contraction of allergic bronchopulmonary aspergillosis was attributable to a distinctive aspect of his job as a maintenance mechanic and/or planner. Given the commonality of the aspergillus fungus, as acknowledged by both medical experts, claimant could have been exposed to it anywhere at any time. Moreover, to the extent that the mold may have been present in claimant's work environment, it was not a condition specific to claimant's job.No attorney was listed for the Prevailing Party.

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


Cruz v City of NYC Dept Child Servs
    December 31, 2014    NYS Appellate Division, Third Department
    3160...§29: 3rd Party/MVA liens        4C315-8002

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

The Court noted that the “dispositive question presented on this appeal is whether that part of the schedule loss of use award associated with claimant's 9.4 weeks of lost time falls within this category, despite the fact that it was initially labeled as payment for “ ‘temporary total disability’.” The employer contends that this portion of the SLU award corresponds to claimant's actual lost time and that the offset provisions apply because the $550 weekly portion of the award exceeded the $2,000 per month threshold and represented earnings during the first 9.4 weeks (see Insurance Law § 5102 [a] [2]). However, "[t]he weekly rate and number of weeks in the schedule are merely the measure by which an award is calculated" and, "although a decision by a Law Judge or the Board lists the award as covering certain dates, liability for a schedule award arises as of the date of the accident and 'payment of the schedule award is not allocable to any particular period of disability.'" Here, regardless of how the award was labeled, claimant received only 46.8 weeks of compensation; that is, the total amount to which she was entitled for a 15% schedule loss of use award under Workers' Compensation Law § 15 (3) (a). Inasmuch as claimant received only a schedule loss of use award, the award is not allocable to any particular time period, and the fact that the monthly rate of the award exceeded the $2,000 threshold in Insurance Law § 5102 (a) (2) is irrelevant to the employer's right of offset. Prevailing Party represented by: Patrick M. Convoy of counsel to Polska, Shouldice & Rosen (Rockville Centre) for Tiffany Cruz, and Iris Steel of counsel to the NYS Attorney General, for WCB.
Email the Insider with your comments and questions on this case.

Lleshi v DAG Hammarskjold Tower
    December 31, 2014    NYS Appellate Division, Third Department
    5130...§114-a: Fraud
    7050...Procedure: Denial FBR           4C315-8001  
         
AFFIRMED the Boards decisions which (1) ruled claimant did not violate WCL §114-a and (2) denied the employer’s application for full Board review (FBR). A Law Judge agreed with the employer that the claimant misrepresented his lack of work activities while receiving benefits for a work-related back injury in 2005, thus violating §114-a; a Board panel reversed that decision, resulting in this appeal and a request for FBR.

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

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

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

Email the Insider with your comments and questions on this case.
Pankiw v Eastman Kodak
    December 31, 2014    NYS Appellate Division, Third Department
    3140...§25-a: True Closing                   4C315-8000

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

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

Upon remittal, the Board found claimant's yearly occupational health exams and diagnostic tests dating back to 1990 were, for the most part, unremarkable except for an indication that his pulmonary function was abnormal and that he had hypertension. It concluded that the record contained little evidence concerning the medical impairments suffered by claimant prior to his work at the WTC s Moreover, the employer's sick leave records disclose that, prior to working at the WTC site, claimant did not miss any significant time from work as a result of the aforementioned medical impairments. Notably, the record is devoid of proof concerning the impact of claimant's preexisting impairments on his general employability. According, the Court determined substantial evidence supports the Board's finding and find no reason to disturb the Board's decision. Prevailing Party represented by: Jill Singer of counsel to the Special Funds.
Email the Insider with your comments and questions on this case.  
Mejia v Drake Group
    December 24, 2014    NYS Appellate Division, Third Department
    7025...Untimely Submissions/Defenses     4C314-7998
    ♦7260...Procedure: Failed to address all issues
REVERSED, in a split decision, the Board’s decision which, among other things, denied a request by the employer to rehear or reopen claimant's workers' comp claim. After claimant filed for benefits alleging injuries sustained when he fell down stairs at employer’s building, employer controverted liability, asserting that claimant was not an employee and that no work-related accident had occurred. After the employer discovered that, following the alleged accident, claimant received treatment under an alias for the injuries he sustained, the employer requested that claimant produce all medical records under that alias, or any other, pertaining to his treatment for the alleged workplace injury. Despite the employer's repeated arguments concerning the relevancy of such medical records and medical authorizations to obtain them, the Law Judge denied the requests and established the claim. When the employer then applied for a reopening and/or a rehearing per 12 NYCRR 300.14, seeking discovery of the additional medical records under claimant's purported alias, the Board denied the application, concluding that any additional medical records sought would not be probative of the relevant issues.

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

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

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

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

Pinot v Straight Line Construction
    December 24, 2014    NYS Appellate Division, Third Department    
    6320...Coverage     4C314-7995

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

Email the Insider with your comments and questions on this case.
Poverelli v Nabisco-Kraft
    December 18, 2014    NYS Appellate Division, Third Department
    1135...Causal Relationship: Aggravation or New       4C313-7994

AFFIRMED the Board’s ruling that claimant did not sustain causally related consequential injuries. As the result of a 1986 work-related back injury, claimant was awarded comp benefits. In 2008 as a result of pain radiating pain through her lower extremities including her knees, she asserted a consequential bilateral knee injury. After a Law Judge found insufficient medical evidence to establish a claim, her appeal to the Board was denied and her attorney was “assessed a penalty for seeking review without reasonable grounds.” Not only did an IME find this “was not causally related to claimant's prior compensable injury”, her own doctor stated, it would be "'very hard . . . to speculate' as to whether claimant's bilateral knee pain was causally related to her prior work-related accident.” The Court then wrote, “In light of such testimony, the Board's finding of no causal relationship is supported by substantial evidence as is its decision to impose a monetary penalty (per WCL §114-a[3][ii]) upon claimant's counsel for pursuing Board review ‘without reasonable grounds.’" Prevailing Party represented by: James U. Cavanagh of counsel to Cherry, Edson & Kelly (Tarrytown) for Nabisco/Kraft Company and another, respondents.
Email the Insider with your comments and questions on this case. 

Diaz v Kleinknecht Elec
    December 18, 2014    NYS Appellate Division, Third Department
    5085...Date of Disablement    4C313-7993
AFFIRMED the Board’s decision to change claimant's date of disablement, resulting in an earlier and lower AWW. Injured in 2001, claimant first sought medical treatment in April 2003 and continued to work until March 2011. The filing of his claim [Ed.Note: no date given in the decision] was controverted by the employer and was subject to alternative dispute resolution, per WCL §25(2-c). The arbitrator classified claimant with a permanent total disability, date of disablement as March 2011 (date last worked), and established that claimant was entitled to the maximum weekly rate of $739.83. In January 2013, the arbitrator, after hearing arguments, rescinded his decision, finding the date of disablement to be the date of claimant's first medical treatment in April 2003, which reduced claimant's weekly award to the maximum allowed in 2003, $400 per week.

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

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

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

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

Email the Insider with your comments and questions on this case. 
Kalkbrenner v Accord Corp
    December 18, 2014    NYS Appellate Division, Third Department
    7050...Procedure: Denial FBR     4C313-7992
AFFIRMED the Board’s decision to deny pro-se claimant's request for reconsideration and/or full Board review. Claimant sought to amend her workers' comp claim to include consequential arachnoiditis, allegedly suffered as a result of the spinal anesthesia injection administered during the surgery for her work-related knee surgery. After a Law Judge denied the claim based on the lack of credible medical evidence, the claimant unsuccessfully applied for full Board review and/or reconsideration. As claimant only appealed the Board's denial of her request for full Board review, the merits of the underlying decision were  not properly before the Court. The Court then “decline[d] to disturb the Board's decision, as the record reflected that the Board considered all of the relevant material in rendering its decision, and claimant did not establish a material change in her condition or present evidence that previously was unavailable.” Prevailing Party represented by: Jaclyn M. Penna of counsel to Buckner & Kourofsky (Rochester) for Accord Corporation, respondent.
Email the Insider with your comments and questions on this case. 
Manka v Goodyear Tire
    December 4, 2014    NYS Appellate Division, Third Department
    1020...Causal Relationship: Death              4C311-7991
AFFIRMED that the Board’s ruling that the death of claimant's husband was causally related to his employment. During the deceased’s early employment with his employer of 16 years, his duties included testing samples of ortho-toluidine, which is known to cause bladder cancer. Decedent was diagnosed in 2007 with ureteral cancer and died from the disease in 2008 after which his widow filed for workers comp benefits. A Law Judge credited claimant’s expert regarding causation and found out that he had died as a result of an occupational disease. The employer argued that, although there are studies linking ortho-toluidine exposure to the bladder cancer, there are no established links of such exposure to ureteral cancer and, thus, claimant failed to establish causation.

One of the claimant’s medical experts, Dr Steven Markowitz, acknowledged that while there are no studies which link ortho-toluidine to ureteral cancer, which is very rare, he (1) pointed to scientific literature concluding that the suspected occupational causes of ureteral cancer were similar to the causes established for bladder cancer and (2) noted that decedent did not smoke or have any other known risk factor for ureteral cancer. He found the link between ortho-toluidine exposure and ureteral cancer to be "highly plausible" and opined to a reasonable degree of certainty that decedent's cancer stemmed from such exposure. The Court affirmed the Board, noting that “While the employer's experts disagreed with Markowitz and a different conclusion by the Board would have been reasonable, substantial evidence nonetheless supported the Board's determination." Prevailing Party represented by: Dennis P. Harlow of counsel to Lipsitz & Ponterio (Buffalo) for Sarah Manka and Steven Segall of counsel to the NYS Attorney General for the WCB.
Email the Insider with your comments and questions on this case. 

Monaha n v Founders Pavilion
    December4, 2014    NYS Appellate Division, Third Department
    5250...Aggregate Trust Fund     4C311-7990
AFFIRMED the Board’s ruling that the carrier had to make a deposit into the aggregate trust fund (ATF) even though the claimant had died but rejected the Board’s imposition of a frivolous appeal penalty. A Law Judge directed the carrier to make a deposit into the ATF in 2009 but rejected the Board’s imposition of a frivolous appeal penalty. The carrier appealed, during which time the claimant died from causes unrelated to the underlying injury. The carrier then requested that the decisions directing it to make a lump-sum payment to the ATF be rescinded because of claimant's death. The Board upheld the decision by a 2 to 1 vote. Because there was a dissent, the carrier was entitled to and sought full Board review.

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

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

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

Email the Insider with your comments and questions on this case. 
NOVEMBER 2014
Cohen v NYS WCB
    November 26, 2014    NYS Appellate Division, Third Department
    7140...Article 78       4B310-7989
    ♦7260...Procedure: Failed to address all issues
REVERSED the Supreme Court’s decision which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's request to be authorized as a workers' compensation health care provider. Cohen, a licensed doctor of osteopathy, applied for authorization to provide medical care to injured workers pursuant to WCL §13-b. In denying the application, The Board noted that the Department of Health's Office of Professional Medical Conduct had imposed a "non-disciplinary order of conditions on [petitioner's] license to practice medicine effective March 23, 2009," determining that, "[b]ased on the information contained in the order of conditions, . . . [petitioner's] application is hereby disapproved," without further elaboration.

The Appellate Court determined that the discretionary determination, made without a hearing, was arbitrary and capricious as the Board refers to an administrative order that, by its terms, did not constitute an admission to or finding of misconduct, is no longer in effect, did not include any factual findings with regard to petitioner's capabilities as a physician. The Court then write that “neither respondent's reference to the order nor our review of the terms of the order permits us to conduct a meaningful review of respondent's determination to disapprove petitioner's request to be authorized as a workers' compensation health care provider." The matter remitted for reconsideration. Prevailing Party represented by: Douglas M. Nadjari of counsel to Ruskin Moscou Faltischek (Uniondale).
Email the Insider with your comments and questions on this case. 

Kigin v NYS WCB
    November 20, 2014    NYS Court of Appeals
    3170...§13-b Medical Bills: Who Pays   [4B310-7988]
AFFIRMED, in a 5-4 decision, that the Workers' Compensation Board did not exceed its statutory authority when it promulgated portions of the "Medical Treatment Guidelines" (see 12 NYCRR 324.2 [a]-[f]).

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

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

A few points warrant serious consideration:

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

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

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

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

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

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

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

In February 2013, Bast moved to compel the WCB to file a satisfaction piece against that judgment on the basis that the judgment had been satisfied by payments made to WCB by the Special Disability Fund (hereinafter SDF) pursuant to WCL §15(8). The Supreme Court denied Bast's motion and determined that the judgment could only be satisfied by payments made by Bast Hatfield or the Trust and, thus, the judgment had not been satisfied.  The Third Dept was unpersuaded by Bast's contention that the payment by the SDF to the WCB served to satisfy the judgment obtained against Bast.  Accordingly, th Third Dept found that the WCB's judgment was not satisfied by reimbursement payments made by the SDF. Prevailing Party represented by: Scott T. Harms, NYS WCB, Schenectady, for respondent.
Email the Insider with your comments and questions on this case.

Bonilla v Country Rotisserie
    November 13, 2014    NYS Appellate Division, Third Department    
    3197...Policy Cancellation & Terms     [4B308-7985]
AFFIRMED the Board’s decision that the employer's workers' compensation policy was properly canceled. After a claim was placed for a November 2010 work related injury, the carrier controverted the claim on the grounds that the employer's policy had been canceled in August 2010 due to failure of the employer to pay the premiums. Although a Law Judge held the carrier liable per WCL §54(5), a Board panel reversed that ruling, finding the policy had been properly cancelled.

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

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

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

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

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

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

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

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


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

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

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

Claimant worked for the Division of Human Rights as the Deputy Commissioner for Division Initiated Investigations and Complaints, a nontenured position, serving at the discretion of the Commissioner of Human Rights as well as the Governor. When he applied for unemployment insurance benefits when his employment ended, Labor determined that, because his base period employment was in a major nontenured policymaking or advisory position, it was excluded under Labor Law § 565(2) (e). Although a Law Judge overruled that decision, the Unemployment Insurance Appeal Board rescinded the Judge’s ruling and the claimant was ultimately deemed ineligible.
 
For purposes of determining a claimant's eligibility for unemployment insurance benefits, Labor Law §565(2)(e) excludes from employment "services rendered for a governmental entity by . . . a person in a major nontenured policymaking or advisory position." Among other aspects of his job, although claimant did not independently establish agency policy, he was involved in the process and his advice was solicited by the Commissioner. Under these circumstances, there is a rational basis for the Board's decision.
Email the Insider with your comments and questions on this case.

Gioia v Cattaraugus County Nursing
    November 6, 2014    NYS Appellate Division, Third Department
    5020...Disability: Degree of or R/E         [4B307-7980]

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

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

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

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

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

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

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

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

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

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

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

Email the Insider with your comments and questions on this case.
SEPTEMBER 2014

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

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

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

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

The Court cited its prior ruling on this subject:

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

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

Email the Insider with your comments and questions.

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

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

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

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

Email the Insider with your comments and questions.

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

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

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

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

Email the Insider with your comments and questions.

AUGUST 2014

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

Email the Insider with your comments and questions.

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

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

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

Email the Insider with your comments and questions.

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

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

Email the Insider with your comments and questions.

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

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

In affirming the Board, the Court wrote:

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

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.


|— — JULY 2014 — — |

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

Email the Insider with your comments and questions.

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

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

Winters v Advance Auto Parts
    July 3, 2014    NYS Appellate Division, Third Department
    5110...Voluntary Withdrawal            47289-7955
    ♦7254...Failure to follow procedure
REVERSED the Board’s ruling that claimant voluntarily removed himself from the labor market, finding that the Board has not adequately explained its departure from its prior precedent.

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

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

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

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions

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

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

Email the Insider with your comments and questions.


|— — JUNE 2014 — — |

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

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

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

Email the Insider with your comments and questions.

Nicpon v Zelasko Constr
    June 5, 2014    NYS Appellate Division, Third Department
    3140...§25-a: True Closing         [46287-7949]
   ♦7252...Misinterpretion of WC Law
REVERSED the Board’s ruling by finding that liability did not shift per §25-a to the Special Fund for Reopened Cases (Fund). As the result of a 2003 back injury, claimant was classified with a permanent partial disability at a tentative weekly rate of $125. In December 2008, the self-insured employer (SIE) and claimant entered into a §32 agreement whereby the SIE consented to the settlement of the third-party action for $240,000, waived its liens for both past benefits and future medical expenses, and agreed to cover future medical costs in exchange for claimant's waiver of future indemnity benefits.

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

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

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

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

Email the Insider with your comments and questions.

Hazan v WTC Volunteer Fund
    June 5, 2014    NYS Appellate Division, Third Department
    4100...WTC Cases §161 & article 8-A  [46287-7948]
    ♦7252...Misinterpretion of WC Law
REVERSED the Board by finding that the claimant was a participant in the World Trade Center rescue, thus covered by WCL article 8-A. After volunteering to work at a triage center at the Chelsea Piers on September 11, 2011, the next day the claimant “went to ground zero, found his way around the barriers, flashed his emergency medical technician card and badge to gain access to the site and attempted to search for survivors. Claimant was not registered or affiliated with any volunteer organization or agency during the course of these two days, and he did not aid in the rescue or recovery operations after September 12, 2001.

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

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

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.


|— — MAY 2014 — — |

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

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

Email the Insider with your comments and questions.

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

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

Email the Insider with your comments and questions.


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

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

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

Email the Insider with your comments and questions.


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

Email the Insider with your comments and questions.


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

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.


 

Williams v Lloyd Gunther El Serv
     May 22, 2014    NYS Appellate Division, Third Department
     3160...§29: 3rd Party/MVA liens     [45283-7939]
     ♦7252...Misinterpretion of WC Law
REVERSED, again, the Board’s ruling that the carrier may not begin taking a credit against claimant's net recovery from a third-party action until the date on which claimant received the recovery. The Court previously reversed the Board on this same issue in this case on March 14, 2013 ( (104 AD3d 1013, 1015 [2013]). After the claimant’s comp claim was established, he settled a third-party action after getting the comp carrier’s consent.

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

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

Email the Insider with your comments and questions.


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

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

Email the Insider with your comments and questions.

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

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

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.


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

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

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

Email the Insider with your comments and questions.


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

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

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

Email the Insider with your comments and questions.


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

Email the Insider with your comments and questions.

 


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

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

Email the Insider with your comments and questions.


|— — APRIL 2014 — — |

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

Email the Insider with your comments and questions.

 

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.


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

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

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

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

Email the Insider with your comments and questions.


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

Email the Insider with your comments and questions.

|— — MARCH 2014 — — |


Thurston v Con Ed
    ♦March 27, 2014    NYS Appellate Division, Third Department
    3140...§25-a: True Closing      [43725-7925]
    ♦7252...Misinterpretion of WC Law
REVERSED the Board by finding that, per §25-a, liability did shift to the Special Fund for Reopened Cases. After a 1982 work-related back injury was established and claimant classified as permanently partially disabled, claimant was paid intermittent lost time benefits covering periods between 1982 and 1999 and, in January 2000, his case was closed. In 2011 employer sought to transfer liability to  he Fund. After a Law Judge granted that request, the Board reversed finding that payments made according to the employer’s sick leave plan were “advance payment of compensation.” The Court disagreed finding that, because acknowledgment of liability by the employer is essential to the determination, "payments made pursuant to a sick leave plan regardless of cause are not advance payments of compensation. ... although he continued to lose two or three weeks of time from work per year due to his compensable injury, his wages were paid pursuant to the employer's sick leave policy, which made no distinction between time lost due to sickness or to injury.“ Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) and Steven M. Scotti, Consolidated Edison Company of N.Y.

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.


Visic v O'Nero & Sons
    March 13, 2014    NYS Appellate Division, Third Department    
    7040...§15(6) Reopening              [43273-7919]
   ♦7253...Insubstantial Evidence
REVERSED Board's ruling by finding, just as this same Court did in 2012, for the pro-se claimant. Visic successfully argued that Board, in denying his request to reopen his case, simply ignored the only medical evidence in the file, evidence which supported the claimant. Claimant, injured in 2000 and classified with a marked permanent partial disability, sought to reopen his claim in July 2010 via the submission of medical reports opining that he was now totally disabled. When the Board originally denied his application on the grounds that he had failed to submit new evidence of a change in his medical condition, this same Court reversed, finding that claimant had sought to introduce new evidence but had been denied the opportunity to do so. After accepting that evidence from the claimant’s Dr Vigna, the Board “once again denied claimant's application to reopen his claim, finding that the medical reports submitted were not meaningfully different than those that provided the basis for classifying claimant with a marked PPD.” The Court noted that while the Board has discretion on such matters, in this case the Court found that the Board’s decisions was an abuse of discretion as

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

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

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

 Email the Insider with your comments and questions.


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

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

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

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


Email the Insider with your comments and questions.

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

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

Email the Insider with your comments and questions.


 

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

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

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

Email the Insider with your comments and questions.

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

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

Email the Insider with your comments and questions.


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

Email the Insider with your comments and questions.

|— — FEBRUARY 2014 — — |

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

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

Email the Insider with your comments and questions.


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

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

Email the Insider with your comments and questions.

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

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

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

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

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

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.


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

Email the Insider with your comments and questions.

|— — JANUARY 2014 — — |

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

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

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

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

Email the Insider with your comments and questions.


 

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

Email the Insider with your comments and questions.

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

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

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

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

Email the Insider with your comments and questions.

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

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

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

Email the Insider with your comments and questions.

Clarification on Bissell vs Town of Amherst


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

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

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

Email the Insider with your comments and questions.

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

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

Email the Insider with your comments and questions.

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

Email the Insider with your comments and questions.


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

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

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


Email the Insider with your comments and questions.


To review earlier decisions, goto the NAVIGATION box on the left