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NEWS FOR
THIS WEEK

December 31, 2015
Thursday

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

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

Week
#367

Issue
#1

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

COURT DECISIONS: 2008

The posting of DECISIONS started in November. For subsequent periods, go to the   COURT DECISIONS   link on the left for the calendar year in which you are interested. Links were deleted when this page weas moved fror the prior web host; if you need any links, contact TheInsider@InsideWorkersCompNY.com

 


December 31, 2008 Appellate Division 3rd Judicial Department
Bonner V Brownell Steel

 Prevailing party represented by: Theresa Wolinksi of counsel to Foley, Smit, O’Boyle & Weisman (Hauppauge) for Brownell Steel, Inc and another, respondents

Affirmed the WCB and the law judge decision that (1) the claimant had no further causally-related disability (FCRD) and (2) the claimant did not establish a consequential psychiatric disability.  Regarding both issues, the Court affirmed the Board’s discretion to resolve conflicting medical opinions. As to the consequential disability, the Court affirmed the Board’s decision to preclude some of the claimant’s medical evidence submitted with the appeal to the Board as it was never presented to the law judge, per 12 NYCRR 300.13 [e] [1] [iii]. Issues: FCRD, Procedural Issued not raised before the appeal. 

Young v Pentax Precision Instrument Corp.

Prevailing party represented by:  Lawrence Komsky (Cedarhurst) for Pentax Precision Instrument Corporation and another, respondents

Affirmed the WCB and law judge denial of an accidental injury allegedly due to anxiety and stress from repeated episodes of harassment. The Court affirmed the Board’s discretion to resolve conflicting medical opinions. WCL §2(7) was not cited in the Court’s 3-page decision. Issue: Causal relationship.

Early & Verizon v Special Fund For Reopened Cases

Prevailing party represented by: John Oliver of counsel to Sullivan, Keenan, Oliver & Violando (Albany) for Verizon (New York Telephone Company) and another, respondents

Affirmed the WCB which ruled that the liability shifted to the Special Fund for Reopened Cases pursuant to WCL §25a. The Board determined that the last compensation for this 1992 injury was paid in 1996 after a finding of a 10% SLU although in December 2004 the claimant successfully appealed on the issue of wage reimbursement (see the Matter of Staruch v NY Telephone 277 AD2d 830, 833 [2000]). The Board ruled that the December 2004 date was the true closing of the case even though surgery was performed on the claimant in 2005. Issue: §25-a true closing 

December 24, 2008 Appellate Division 3rd Judicial Department
Zucker v Port Authority of NY & NJ

Prevailing party represented by: David Faber of counsel to Cherry, Edson & Kelly (Hempstead) for Zucker v Port Authority of NY & NJ

Affirmed the WCB decision, which reversed the law judge, that claimant’s filing of a claim in 1996 for post traumatic stress disorder resulting from the 1993 bombing of the Word trade Center was time-barred under WCL §28. According to the record, (1) there had been no lost time prior to the 1996 claim and (2) there was no prior payment for medical treatment related to the claim. As a result there was no advance payment of compensation or medical treatment which would have waived the two-year §28 time limit. The simultaneous filing for smoke inhalation was not controverted by the employer but no benefits were awarded as the claimant did not have any related lost time or continuing treatment. Issue: §28 time bar.  

Giello v Providence Fire District

Prevailing parties represented by: Michael Joseph of counsel to James Trauring & Assoc (Schenectady) for Giello and Steven Segall of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB

Affirmed the WCB decision that WCL §114-a Fraud is inapplicable to Volunteer Firefighters’ Benefit Law (VFBL) §10. The WCB modified the law judge’s decision as the law judge rejected the employer’s contention as untimely; the WCB said it was timely but inapplicable. The Court ruled that contrary to the employer’s contention, when the Legislature in 1996 added §114-a, no such amendment was made to the VFBL. The Court stated that §114-a “unambiguously limits the application of the outlined penalties to wage replacement benefits awarded pursuant to WCL §15. If the legislature had intended WCL §114-a to apply to wage replacement, generally, it could have employed less restrictive language.” Issues: §114a Fraud, VFBL.  

December 18, 2008 Appellate Division 3rd Judicial Department

Cronk v Lyndaker Excavating

Prevailing parties represented by: Robert E. Geyer of counsel to Wolff, Goodrich & Goldman (Syracuse) for Lyndaker Excavating.

Affirmed the decision of the WCB, who reversed the law judge, that claimant’s February 2006 injuries were not work-related. The WCB stated that the record reflected two key facts: none of the claimant’s medical reports for the first few months (April and May 2006, even after he filed his claim) had any mention of the work-related nature of his injury and the claimant’s own practitioner testified to his inability to find causal relationship. Therefore the Board determined, and the court agreed, that it had the discretion to reverse the law judge and disallow the claim. Issue: Causal Relationship. 

Richter v Ramistain Systems   #504774

Prevailing party represented by: Estelle Krausher of the Office of Andrew Cuomo, Attorney General New York State, for the WCB.

Affirmed the decision of the WCB and the law judge that Zurich American (for Ramistain) failed to preserve its right to future offsets against claimant’s net recovery in a third-party action pursuant to WCL §29 (4). Zurich, also the liability carrier in that action, waived its rights at the settlement hearing. When payment was made to the claimant two years later, Zurich for the first time stated it was preserving these offset rights; it then refused to reimburse any of the claimant’s new medical expenses. Based on the earlier waiver at the settlement hearing and facts relating to constructive knowledge of the settlement by Zurich’s WC department, the Court affirmed the WCB and law judge decision. Issue: §29 (4) liens  Click here to read the full decision…

December 11, 2008 Appellate Division 3rd Judicial Department

Peterson v Faculty Student Association

Prevailing parties represented by: George Panebianco of Lewis & Lewis (Jamestown) for the Faculty Student Association and Steven Segall of the Office of Andrew Cuomo, the Attorney General of the State of New York, for the Workers’ Compensation Board.

Affirmed the decision of the WCB and the law judge that apportionment of medical expenses between the work-related injury of April 2005 was not sufficiently related to a 1992 non-work related automobile accident and two 1995 work-related accident to warrant apportionment of medical expenses. The carrier argued that “since the claimant’s own physician concluded that the current accident was only 15% responsible for the need for a total knee replacement, it should only be required to pay that percentage of the total cost of the medical procedure.” The Court disagreed, concurring with the Board “that the claimant’s preexisting condition ‘was not disabling for workers’ compensation purposes,’ adding that ‘while her knee was at times symptomatic, she was not disabled. Moreover this case does not involve a schedule loss of use.” The Board’s “determination that the apportionment is not appropriate enjoys ample support in the record.” 

Reece v City of New York

Prevailing parties represented by: Mordecai Newman for Michael Cardozo, Corporation Counsel for the City of New York, respondent.

Affirmed the decision of the WCB that the claimant’s wage loss was unrelated to her compensable injury.The key issue was whether or not the claimant failed to provide up-to-date medical evidence of her continuing inability to return to work. The period of time at issue started the effective date the claimant was fired by her employer for failing to supply any up-to-date medical evidence support her claim of a continuing disability. The Court affirmed the law judge’s determination, affirmed by the Board, that the claimant did in fact fail to timely submit any medical evidence to support her allegation. The Court also rejected claimant’s additional assertion that her due process rights were violated.

December 4, 2008 Appellate Division 3rd Judicial Department

Beers v Jump Start Advanced Academics

Prevailing parties represented by:  Stanley A Tomkeil III of Tomkiel & Tomkeil (New York City) for Gary Beers and Estelle Kraushar of the Office of Andrew Cuomo, Attorney General of the State of New York, for the Workers’ Compensation Board.

Affirmed the decision of the WCB that the carrier, who failed to appear to a hearing in which the case was established, was not denied due process when they argued that they never got the notice, which was mailed to the address they had registered with the Board. Per 12 NYCRR 300.10 (b), the Court also denied the carrier’s claim that they were denied due process when the law judge did not adjourn the hearing or attempt to contact the carrier. And, finally, the Court noted that the carrier’s challenge of specific findings in the law judge’s decision are unpreserved inasmuch as they were not raised in the carrier’s application for appeal to the Board. 

Bentvena v City & Suburban

Prevailing party represented by:  Iris Steel of the Office of Andrew Cuomo, Attorney General of the State of New York, for the Workers’ Compensation Board.

Affirmed the decision of the Board, which reversed the law judge, determining that the claimant did not voluntarily withdraw from the labor market. The claimant’s doctor submitted medical evidence that the claimant could only work 5 hours a day and that the employer’s offer of three eight-hour days was not consistent with this report. 

Barth v Hanson Aggregates

Prevailing party represented by:  John Hvozda of Falge & McClean (North Syracuse) for Hanson Aggregates, Inc.

 

Affirmed the decision of the Board and law judge that the claimant’s death was not work-related. A major issue of contention was whether or not the medical report of the employer’s doctor was filed timely per 12 NYCRR 3.002 (d) (12) after both the Board and the law judge ruled it was timely. Although the claimant was not formally served with a copy of the medical report, they did have access to it for six months prior to the hearing and used it to cross-examine the employer’s doctor. The Court also affirmed that §21 [1] relating to unwitnessed deaths did not apply because the decedent’s collapse was witnessed by a coworker. 

Ewing v YMCA and the Special Fund for Reopened Cases

Prevailing party represented by:  Jeremy B. Davis for the State Insurance Fund (New York City) for the YMCA and itself.

Affirmed the Board’s decision, after reopening the case, to find that liability has shifted to the SFCC per §25-a. The SFCC argued that an earlier letter from the claimant raised the issue at hand prior to the time limits. The Court and the Board disagreed.

November 26, 2008 Appellate Division 3rd Judicial Department

Kim Boni-Phillips v Oliver

Prevailing parties represented by:  James E. Duffy of counsel to Silverman, Silverman & Seligman (Schenectady) for Kim Boni-Phillips and Iris Steel of the Office of Andrew Cuomo, Attorney General of the State of New York, for the Workers’ Compensation Board.

Rescinded the decision of WCB and the law judge, both of whom ruled that the death of the claimant’s decedent was causally related to his employment. The Court stated that although WCL §21 (1) presumption lies with the claimant in an unwitnessed or unexplained death claim. The employer may rebut this presumption which the Court felt was done by the employer’s submission of extensive medical evidence. Since the Board and the law judge made their decision solely on the basis of §21 (1) and did not consider the rebuttal evidence, the Court sent it back for reconsideration of the facts.

Pereni Corporation v Thomas Victor II and Steel Style, Inc<

Prevailing parties represented by:  Lawrence D. Lissauer of counsel to Finkelstein & Partners (Newburgh) for Thomas Victor II and Iris Steel of the Office of Andrew Cuomo, Attorney General of the State of New York, for the Workers’ Compensation Board.

Affirmed the WCB that Steel Style was the sole employer, that Perini (the appellant) had no relationship to the claimant who was an employee of Steel Style but was injured helping Perini unload a delivery to Steel Style. Also affirmed the WCB’s discretion in refusing to consider Perini’s untimely reply and sur-rebuttal per 12 NYCRR 300.13 [e] [2].

November 20, 2008 Appellate Division 3rd Judicial Department
Mary Scodary v Marie Serritella

Prevailing party presented by:  John F. Clennan (Ronkonkoma) for Mary Scodary.

Reversed the WCB and the law judge. The Court found that the medical reports submitted by the claimant did qualify as Prima Facia Medical Evidence for consequential depression even though her treatment with a psychologist was not based upon a referral from an authorized physician pursuant to WCL §13-m (2) (a). This is the second time that Court has made this decision. On December 20, 2007 in the Matter of Van Dam v New Paltz Cent. School Dist., 46 AD3d at 1195, the Court similarly reversed the WCB and law judge on the same facts and issue. 

Note: Based on a number of comments received on this case, a more detailed discussion of this case can be found in Opinions & Reports, December 12, 2008

November 13, 2008  Appellate Division 3rd Judicial Department

John Fortunato v Opus III VII Corporation

Prevailing party presented by:  Leonard Feld of counsel to Vecchione, Vecchione & Connors (Williston Park) for Opus III IV and other respondents.

Affirmed the WCB Panel which reversed the law judge. The Court agreed that the claimant failed to prove notice due to his failure to timely file a claim with his employer after the allegedly work-related MVA, that the claim was not credible, and that the Board had the right to reject his request for a Full Board Review.  

Michelle Laverghetta v Tug Edge Diary

Prevailing party represented by: Estelle Kraushar of the Office of Andrew Cuomo, Attorney General of the State of New York, for the respondents.

Affirmed the WCB Panel and the law judge that the carrier had no right to suspend payments, regardless of any medical report they had, until the issue was ruled upon by the WCB. Penalties were also affirmed. (12 NYCRR 300.23 [b] [2])

Scott North v New Venture Gear

Prevailing party represented by: Robert Geyer of counsel to Wolff, Goodrich & Goldman (Syracuse) for New Venture and other respondents.

Affirmed the WCB Panel and the law judge that the claimant had refused a light duty job and failed to show any attempt to reattach to the labor market, warranting suspension of benefits. The Court also refused to hear the claimant’s appeal of involuntary withdrawal from the labor market because this was not raised before the Board. (12 NYCRR 300.13 [e] [1] [iii]) 

November 6, 2008  Appellate Division 3rd Judicial Department

 

Diane White v Steve Herman

Affirmed the WCB Panel decision to allow carrier to reopen the case of a claimant with a permanent partial disability because of their failure to return certain forms submitted by the carrier periodically to the claimant. (12 NYCRR 300.14 [a] [3] and WCL §123)  

Cheryl Robideau v Van Rensselaer Manor

Affirmed the WCB Panel and the law judge that the claimant qualified for continuing benefits because she had to take a job with her employer that, due to her injuries, paid less money.

Stephen A Danussi v Chateaugy A.S.A.C.T.C.

Affirmed the WCB Panel and the law judge that the claimant, who had worked up to the date of his retire, voluntarily withdraw from the labor market, even though he was, post-retirement, found to have a permanent partial disability. 

Samantha Hyland, on behalf of Jerrel Corley, as surviving child of Walter Corley, Jr, deceased

Affirmed the WCB Panel to deny the employer’s request for review due to the application for review being late.(WCL §23)   

Juan Long v. Liberty Mutual Insurance Company & Buffalo Destroyers

Affirmed the WCB Panel that claimant, allegedly an employee for both the Destroyers and Source One was an employee of the Destroyers, whose carrier was Liberty Mutual. The Panel modified the law judge decision which found dual employment.

The Appellate Division, First Department   10/21/2008
Silverman  v Reisman, Abramson

The Appellate Division, First Department, affirmed the Order of the Supreme Court, New York County, in an action for legal malpractice arising out of defendants’ representation of plaintiff in a workers’ compensation proceeding, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without cost.  

Supreme Court, Erie County 10/16/2008
Scheer v. New York State Ins. Fund

In what appears to be a case of first impression, the Erie County Supreme Court has declined to apply the equitable considerations outlined in the United States Supreme Court Medicaid-lien case Arkansas Dept. Of Health and Human Servs. v Ahlborn (547 US 268 [2006]) to set (a) the amount of the workers’ compensation lien to be enforced against the proceeds of settlement of the injured employee’s tort or personal injury action, and (b) of the workers’ compensation carrier’s obligation to make future compensation payments to the injured employee, instead following the methodology set forth by the New York Court of Appeals in Matter of Kelly v State Insurance Fund (60 NY2d 131 [1983]) and Burns v Varriale (9 NY3d 207 [2007]). 

November 5, 2008  Civil Court Of The City Of New York, Kings County

Allstate Social Work a/a/o the Jocelyns v Utica Mut. Ins. Co.

Prevailing party represented by: Bruno, Berbino & Soriano (Melville) for Utica Mutual Insurance

The Court granted the motion for summary judgment requested by Utica Mutual to dismiss Allstate’s complaint which argued that the assignors claim should not be dismissed for their failure to appear at two allegedly improperly scheduled IME exams due to the defective nature of the notices sent them for the appointments. The Court ruled that the affidavits submitted by defendant are sufficient to establish that defendant’s initial IME requests, its follow-up IME requests and its denial of claim were mailed pursuant to a standard office practice and procedure, and that the assignors’ failed to appear for the IMEs. While this was not a Workers’ Compensation case,  it is important to note, including in the many citations in the decision by this Court, how many other jurisdictions hold to the standard that a failure to appear for medical examination scheduled by the carrier can have severe consequences for the injured party. Issue: Medical exams.

December 17, 2008 Supreme Court of the State of New York, County of Kings

Nwankwo v City of New York & NYC Police Dept & Reilly

Prevailing Parties represented by: Stacey Mondschein of the Office of Corporation Counsel for the City of New York

The claimant, injured in a motor vehicle accident (MVA) driven by NYC Police Officer Reilly, pursued a claim against the City in the Supreme Court and on March 8, 2008 was granted a motion requiring the City to preserve certain evidence in its possession, pending further review of the case. At a Workers’ Comp hearing on May 15, 2008, Nwankwo’s won his claim that the injury was work-related and both compensation and medical payments were paid as of June 6, 2008. The City then cross-moved for an order granting leave to amend their answer pursuant to CPLR §3025 to assert an affirmative defense that Nwankwo’s action is barred by The Workers’ Compensation Law and for dismissal of the complaint pursuant to CPLR §3211 or, in the alternative, granting summary judgment pursuant to CPLR §3212. Upon review of the record the Court granted the cross-motion and the motion to dismiss.  On December 17, 2008, the Court granted the cross-motion  and the motions requested by the City, stating that “the City’s motion for leave to amend the answer to assert a defense that the action is barred by Workers Compensation Law is granted”. 

October 23, 2008 Florida Supreme Court

Murray v. Mariner Health No. SC07-244 (Fla. 10/23/2008) (Fla., 2008)

The Florida Supreme Court has ruled that workers’ compensation clients are entitled to recover “reasonable fees” for attorney services rather than being limited by the statutory formula of a percentage of benefits. “Reasonable fees” in this context could include payment of hourly charges at a prevailing market rate. Issue: Legal Fees There are three links for this case which are the formal decision, an excellent analysis from Sedgewick CMS, and an article from the South Florida Business Journal.