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

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COURT DECISIONS: 2010

For earlier or subsequent periods, go to the   COURT DECISIONS   link on the left for the calendar year in which you are interested.



Cardone v Interstate Drywall
December 30, 2010 NYS Appellate Division, Third Department
Course of Employment: Traveling

AFFIRMED the Board’s decision (which reversed the Law Judge) finding that claimant’s injury in a motor vehicle accident did not arise out of and in the course of his employment. After claimant sought workers’ comp for injuries sustained in a motor vehicle accident that occurred while he was traveling home from work, a Law Judge ruled that claimant was an outside employee in travel status at the time of the accident and, thus, his injuries arose out of and in the course of his employment, a decision reversed by a Board panel. In Matter of Wills v Christian Nursing Registry (280 AD2d 810 [2001]), the Appellate Court cited apparent inconsistencies in Board decisions applying the “outside employee” exception to the general rule that injuries sustained while traveling to and from a place of employment are not compensable. As a result the Appellate Court remitted the matter so the Board could render a decision consistent with established precedent or provide a rational explanation for its failure to do so. In this case, the Board’s decision indicated that – prompted by the Court’s decision in Wills – it has formulated a rule whereby employees who do not permanently work at a fixed location, but nonetheless work at a particular work site for an extended period of time, such that the assigned work site is rendered a fixed location, are not to be considered outside employees. Prevailing party represented by: Jill M. Johnson of counsel to Ryan, Roach & Ryan (Kingston) for Interstate Drywall and another, respondents. Commissioners of Record: Groski, Libous, Finnegan WCB#3060-7453


Estrella v Broadway 69 Assoc.
December 30, 2010 NYS Appellate Division, Third Department
Employment: Who is

AFFIRMED the Board’s ruling that an employer-employee relationship did not exist between claimant and Broadway 69 Associate and the Board’s refusal to consider additional evidence was proper. After the claimant, a painter and handyman, was injured in 2004, he commenced a personal injury action against, among others, the owner of the building where he was injured, Broadway 69 Associates. Broadway 69 asserted an affirmative defense that claimant was its employee and that workers’ compensation benefits constituted his sole remedy against it per WCL §11 and §29(6). The issue being employer-employee relationship, a Law Judge determined that claimant was employed by the management company that maintained the building, not Broadway 69. Broadway 69 sought review and attempted to submit new evidence to the WCB regarding the distinctions between it and the management company, evidence the Board panel declined to review. Initially, Broadway 69 complained about the Board’s refusal to consider the evidence belatedly submitted by it, but the WCLJ placed the parties on notice of the many issues she was considering and, as such, the Board did not abuse its discretion in determining that the additional evidence could and should have been submitted earlier.

As for the Board’s determination that no employer-employee relationship existed between Broadway 69 and claimant, the Court agreed that substantial evidence supported the Board’s determination. Here, employees of the management company — not Broadway 69 — determined what work needed to be done, offered the work to claimant, inspected his work, paid claimant for his work and, frequently, provided or paid for his materials and equipment. Moreover, the management company’s comptroller admitted that Broadway 69 did not “have anything to do with” operating or caring for the building, and claimant worked for the management company at multiple locations. Substantial evidence thus supported the Board’s determination that Broadway 69 did not have an employer-employee relationship with claimant. Prevailing party represented by: Andrew P. Goldberg of counsel to Goldberg & Allen (Fresh Meadows) for Arthur Cornfeld, respondent and Steven Segall of counsel to Andrew M. Cuomo, Attorney General for WCB, respondent. Commissioners of Record: Firestone, Finnegan, Libous WCB#0044-1482


Horwath v BSB Inns
December 30, 2010 NYS Appellate Division, Third Department
§25-a: Reimbursement Period

REVERSED the Board’s ruling that carrier is entitled to WCL §15(8)(d) reimbursement from the Special Disability Fund. In order to obtain reimbursement from the Fund, the employer must “show that claimant had (1) a preexisting permanent impairment that hindered his job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than what would have arisen from the work-related injury by itself.” While there was no dispute that the claimant suffered from permanent pre-existing conditions, the Board determined that this was sufficient to find that the claimant suffered from a permanent pre-existing impairment for the purposes of WCL 15-8(d). However, while all the doctors who examined claimant on behalf of the employer did note the prior injuries, none offered an opinion as to whether any of those injuries constituted an actual or likely hindrance to employability. The Court then wrote, “Indeed, no evidence, either medical or otherwise, was submitted to show that those prior injuries had any ongoing effect on claimant’s employment potential. Given the employer’s failure to meet its burden on this issue — and, indeed, the Board’s failure to make any explicit findings with regard to it – the Board’s decision is not supported by substantial evidence in the record and must be reversed.” Prevailing party represented by: Jill B. Singer f counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Firestone, Higgins, Paprocki WCB#5990-1975


Linz v Maine Endwell School Dist
December 30, 2010 NYS Appellate Division, Third Department
§25-a: True Closing

AFFIRMED the Board’s ruling that WCL §25-a is inapplicable to claimant’s award of workers’ compensation benefits as the sole issue was whether the claimant’s doctor’s 2007 report was properly construed as an application to reopen. Both parties conceded that claimant’s case was closed in 2004 when a Law Judge made an SLU, authorized further symptomatic medical treatment ,and indicated that no further action was planned. After the employer applied to shift liability to the Special Fund for Reopened Cases in 2008, the Board denied the application, finding that the case had previously been reopened by an August 2007 medical report filed by claimant’s treating orthopedist, Daniel Federowicz. The Court wrote, “A medical report may constitute an application to reopen if it does not merely indicate continued disability and treatment, but rather places the Board on notice of a change in a claimant’s. Here, Federowicz’s report indicated that claimant’s condition had changed and significantly worsened – it stated that claimant had recently twisted her knee in a way that gave rise to significant pain, that an X ray had revealed progressive osteoarthritis in the knee, and that Federowicz suspected ‘a degenerative meniscal tear and extension of meniscal tear’ and requested authorization to perform an MRI. Substantial evidence thus supports the Board’s determination that the report constituted an application to reopen and that, as such, this case was reopened within seven years of claimant’s 2001 injury. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Ferrara, Bell, Higgins WCB#9010-4142


Maqsood v McRoberts Protective Agcy
December 30, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling which denied the pro-se claimant’s application for reconsideration or full Board review. After claimant placed his claim for benefits resulting from an assault at work, both the Law Judge and Board panel denied the claim, finding that there was no medical evidence to support a causal relationship between claimant’s work and his alleged cardiac condition. As the Court’s analysis on this issue was “confined to whether such denial was an abuse of discretion or arbitrary and capricious“, the Court, in affirming the Board, found that the claimant did not demonstrate a material change in his condition or present evidence that was previously unavailable; moreover, the record revealed that the Board fully considered all of the relevant issues in its initial decision. Prevailing party represented by: Mark Kolber of counsel to Foley, Smit, O’Boyle & Weisman (NYC) for McRoberts Protective Agency and another, respondents. Commissioners of Record: Libous - as Vice Chairman, she alone usually signs all denials of Full Board Reviews. WCB# 0043-5093


Balint v Coxsackie Corr Facility
December 30, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s ruling that the claimant voluntarily withdrew from the labor market, a reversal of the Law Judge’s decision. After his case for work-related inquiries from sitting on a chair which then collapsed, the claimant, a correction lieutenant, performed his regular duties for well over a year following the accident without restriction after his accident, missingd minimal time from work aside from that required for medical appointments. At that time he felt that he could no longer do his work properly, retired, and successfully applied for service retirement benefits, leaving his separate application for performance of duty disability retirement benefits unresolved at the time of his retirement. While the Board found that the claimant had sustained a permanent mild partial disability, it also found that he had voluntarily retired and was not entitled to those benefits. The claimant conceded that the decision to retire was his alone and that he had not been medically advised to do so. Both his doctor and the IME concluded that he could have continued working in his capacity as a lieutenant. It was noted that (1) he found full-time employment elsewhere less than four months after retiring and (2) he submitted no evidence to demonstrate that his disability played a role in his decision to accept a lower paying job after retiring, thus prompting the Court to affirm the Board’s decision. Prevailing party represented by: Edward Obertubbesing of counsel to Gregory J. Allen, State Insurance Fund for Coxsackie Correctional Facility and another, respondents. Commissioners of Record: Libous, Paprocki, Ferrara WCB#5080-1821


Grabinsky v First At Nursing
December 23, 2010 NYS Appellate Division, Third Department 2010-12-23
§15(8) Reimbursement Special Fund

REVERSED the Board’s ruling that the employer’s workers’ compensation carrier is entitled to reimbursement from the Special Disability Fund(SDF). After the claimant’s case was established and awards made, the carrier asserted that claimant suffered from a variety of preexisting infirmities that contributed to her disability and sought reimbursement from the SDF pursuant to WCL §15(8)(d). In reversing the Board’s decision the Court found that “while claimant was diagnosed with a number of medical conditions prior to sustaining her work-related injury, the employer did not establish that any of these preexisting conditions hindered, or was likely to hinder, claimant’s job potential (WCL §15[8][b).” While acknowledging her prior medical conditions, claimant testified that she was working full time with no restrictions on the date she was injured. Medical reports in the record are similarly silent in this regard. “Accordingly, inasmuch as such a showing [that any of these preexisting conditions hindered, or was likely to hinder, claimant’s job potential ] is a prerequisite to reimbursement, the Board’s decision is not supported by substantial evidence and it must be reversed.” Prevailing party represented by: Mark A. Sioni of counsel to Walsh & Hacker (Albany) for First At Nursing Services and another, respondents. Commissioners of Records: Ferrara, Finnegan, Foster-Colbert


Zamora v New York Neurologic
December 23, 2010 NYS Appellate Division, Third Department 2010-12-23
Voluntary Withdrawal

[ED. NOTE:]The split decision makes this an important case as it further clarifies what determines if there is voluntary withdrawal from the labor market. And although the Justices disagreed by a 3-2 margin on which side of the gray line this claimant sits, the two decisions highlight important indicia. Unfortunately, neither the Court’s decision nor the WC Board’s underlying MOD give sufficient detail concerning the records of the carrier’s doctor, the interpretations of whose records appear to be the key to both the majority and dissenting opinions.

REVERSED, with a 3-2 split, the Board’s ruling which found that the claimant had voluntarily withdrawn from the labor market, the Board panel’s decision reversing the Law Judge. The claim for the 2003 injury was established and the claimant was ultimately found to suffer from a permanent partial disability. After leaving her employment in 2007, the carrier questioned whether she had voluntarily withdrawn from the labor market. A Law Judge concluded that she had not but the Board panel, although agreeing the departure was not a voluntary withdrawal, held that her subsequent efforts to find work were insufficient to establish an attachment to the labor market and suspended benefits as of August 2008.

MAJORITY DECISION: As the parties did not take issue with the finding that claimant did not voluntarily withdraw from the workforce when she left her job in 2007, an inference arose that subsequent loss of wages was attributable to her disability, making it incumbent upon the employer “to rebut the inference of causation or prove that the reduction in employment was solely due to factors unrelated to the disability”. This inference arises regardless of whether the Board’s finding of involuntary withdrawal from the labor market was caused by retirement or, as here, simply a failure to return to work. While a claimant’s failure to look for work may be relevant in challenging a claimant’s continued right to benefits in these situations, such evidence, standing alone, is insufficient to rebut the inference. Indeed, the employer must show “that the failure to seek employment was the sole cause of the subsequent reduction”. The Court noted that the claimant not only sought work after leaving employment but found it on two occasions, only to discover that her disability prevented her from performing her new duties. As the employer produced nothing to show that any inadequacies in claimant’s job search were the sole cause of her continued unemployment, substantial evidence did not support the Board’s determination.

DISSENTING OPINION: There is a distinction between those cases where a claimant has involuntarily retired and other cases where a claimant has involuntarily withdrawn but has not retired. That distinction centers on when the inference that the claimant’s subsequent loss of wages was attributable to his or her disability applies. It is important to note that, where, as here, ‘a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions’. Only after the non-retired claimant has met that burden does the inference arise that the subsequent loss of or reduction in wages, if any, was caused by the permanent partial disability. To hold otherwise would mean, for practical purposes, that a claimant with a permanent partial disability who has involuntarily withdrawn from his or her particular employment but has not retired from the work force has no obligation to minimize the loss or reduction in earnings by searching for work within their medical limitations, and results in an unfettered entitlement to compensation. Inasmuch as the record herein does not establish that claimant remained attached to the labor market by searching for employment within her medical restrictions, we would affirm the decision of the Board.

Prevailing party represented by: Robert E. Grey of counsel to Grey & Grey (Farmingdale) for appellant. Commissioners of Records: Ferrara, Henry, Paprocki


Wojciechowski v First Cardinal
December 23, 2010 NYS Appellate Division, Third Department 2010-12-23
§ 29: NUNC PRO TUNC

REVERSED an order of the Supreme Court (Rensselaer County) which denied petitioners’ application for approval, nunc pro tunc, of a personal injury settlement in a proceeding pursuant to WCL §29(5). Petitioner was injured in a work-related motor vehicle accident for which he received workers’ comp benefits and he (together with his spouse) also commenced a third-party negligence action against the other vehicle’s driver, settling in August 2007 for the full policy amount of $50,000. However, petitioners did not obtain the consent of the workers’ comp carrier as required by WCL §29(5) and, as a result, the carrier was permitted to suspend payments to Wojciechowski in May 2008 at which time petitioners, unsuccessfully sought nunc pro tunc judicial approval of the settlement. Here, Supreme Court found, and respondents agree, that two of the three issues to be considered in granting nunc pro tunc, existed here as the settlement was reasonable and that the carrier was not prejudiced by the delay. As to the remaining issue pertaining to the reason for the delay, the Appellate Court determined that, with reasonableness of the settlement and lack of prejudice clearly established, reasons similar to those set forth here have been found in the cases cited supporting this application to be sufficient to permit nunc pro tunc relief, concluding that the petition should have been granted. Prevailing party represented by: Brian E. Donohue, Troy, for appellants.


Pavone v Advance Auto Parts
December 16, 2010 NYS Appellate Division, Third Department
Accident vs Disease

AFFIRMED the Board’s ruling that the claimant sustained a causally related occupational disease, thus reversing the Law Judge’s decision. Claimant alleged that he had sustained a back injury as a result of lifting and loading while working as a delivery person. After the Law Judge disallowed the claim, a Board panel reversed that decision. Whenever, in a case such as this, that there is conflicting testimony, the Court accords deference to the Board’s credibility determinations and its resolution of conflicting evidence. However, in this case, even the physician who performed the independent medical examination concluded that claimant’s back injury was causally related to his employment. Thus, considering “the unanimous opinion of the experts on the issue of causation,” which was consistent with the evidence in the record, the Court found the Board’s determination to be supported by substantial evidence. Prevailing party represented by: Michael A. O’Connor of counsel to Connors & Ferris(Rochester) for James Pavone, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Board, respondent. Commissioners of Records: Firestone, Higgins, Finnegan WCB #7080 4842


Monteiro v Rasraj Foods
December 14, 2010 NYS Appellate Division, Second Department
§ 11: Jurisdiction

In this case, the plaintiff sought a motion to overturn a lower court’s ruling that her action to recover damages for personal injuries, must defer to the Workers’ Compensation Board of the State of New York, as to whether she was the defendant’s employee at the time of her alleged accident, whether she was injured in the course of her employment with the defendant, and whether the defendant provided the appropriate worker’s compensation insurance coverage for her, and stayed the action pending determination of these issues. The Court determined that, “since ‘primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is inappropriate for the courts to express views with respect thereto pending determination by the board.” Where, as here, the existence of an employer-employee relationship presents a question of fact, that question is properly resolved in the first instance by the Board, as is the question of whether the alleged injury was sustained in the course of employment Accordingly, the Supreme Court properly referred the action to the Board for a determination as to whether the plaintiff was an employee of the defendant at the time of the alleged accident and whether the accident occurred in the course of the plaintiff’s employment with the defendant. Whether the defendant provided the appropriate workers’ compensation insurance coverage for the plaintiff, however, is ‘a question of law for the court to resolve’. Thus, the Supreme Court should not have referred that issue to the Board. Instead, the Supreme Court should itself determine that issue in the event that the Board finds that the plaintiff was employed by the defendant and that her alleged accident occurred in the course of her employment with the defendant.


Ceccato v Outokumpu Am Brass
December 9, 2010 NYS Appellate Division, Third Department
§23 Late Appeal

AFFIRMED the Board’s ruling that the pro-se application for review of a Law Judge’s decision was untimely per WCL §23. Following a March 2009 hearing, a Law Judge issued a decision, filed March 10, 2009; claimant’s application for review of this decision was denied by the Workers’ Compensation Board as untimely, per WCL §23 and 12 NYCRR 300.13[a]. WCL § 23 provides that a party seeking review of a WCLJ decision must file an application for review with the Board within 30 days of the filing of the decision. Here, claimant’s application, filed 42 days after the filing of the WCLJ’s decision, was indeed untimely. Claimant alleged in his application that the delay in filing was due to the fact that he was laboring under the misapprehension that the 30-day limitations period referred to business days, rather than calendar days. Despite the circumstances and the short delay, we simply cannot say that the Board abused its discretion in denying the application as untimely. For many years, the commissioners and the legal staff often ignored the 30 days or had several definitions of it. [ED. NOTE:]For many years, the commissioners and the legal staff often ignored the 30 days or had several definitions of it. A few of us fought to make the 30 rule clear and to make sure it was applied every time. It seem our efforts were successful as a review of 15 Board panel decisions dating back to June 2010 show that every appeal received in 31 days or more was denied. Prevailing party represented by: Cory L. Loudenslager of counsel to Hamberger & Weiss(Buffalo) for Outokumpu American Brass and another, respondents. Commissioners of Records: Bargnesi, Bell, Paprocki


McClam v American Axle
December 9, 2010 NYS Appellate Division, Third Department
Interlocutory Appeal

DISMISSED an appeal from a Board ruling which found that apportionment of claimant’s workers’ compensation award be deferred pending a finding of permanency. While working for CF Motorfreight, claimant suffered a right should injury in 1997, resulting in a 12% SLU for his right arm. While working for American Axle & Manufacturing in 2000, claimant again injured his right shoulder, resulting in another established comp claim. American Axle requested reduction of its payments following an IME physician Dr. Pastore, who recommended apportionment of claimant’s comp awards. In March 2003, a Law Judge concluded that an apportionment of 75% to the claim on the 1997 injury and 25% to the claim on the 2000 injury was “established for medical treatment” and that apportionment for permanency may be appropriate in the future. After a Law Judge ruled in 2008 for apportionment with regard to medical treatment only, and held the issue of apportionment of indemnity benefits in abeyance pending a finding of permanency, American Axle appealed. A Board panel then, despite noting that its 2003 decision did not limit apportionment to medical treatment, determined that any apportionment here, for either medical or indemnity benefits, should be deferred until a finding of permanency is made. The case was thus continued without fixing apportionment percentages. American Axle appeals. The Court dismissed the appeal, writing that “Board decisions ‘which neither decide all substantive issues nor involve a threshold legal issue’ are not appealable.” The Court then added, “Dismissal of this appeal will further the policy goal of avoiding piecemeal review of issues in workers’ compensation cases, without depriving the parties of the ability to appeal the apportionment percentages once they are finally determined.” Prevailing party represented by: Jared L. Garlipp of counsel to Williams & Williams (Buffalo) for CF Motorfreight and another, respondents. Commissioners of Records: Bargnesi, Libous, Finnegan.


Prescott v Town of Lake Luzerne
December 2, 2010 NYS Appellate Division, Third Department
§13-b Medical Bills: Who Pays
Disability: Further Causally Related/Compensation
Medical Exams: Appointments
Procedure: Denial Full Board Review

In this case the Court AFFIRMED the Board on three issues and REVERSED on one issue. It affirmed the Board’s decisions which (1) precluded of the introduction of an independent medical examination report as untimely, (2) ruled that claimant had sustained a work-related injury, (3) denied request for full Board review by the employer, and (4) ruled that the claimant’s subsequent surgeries were causally related to the compensable accident. But (5) it REVERSED the Board’s ruling, finding that the surgery was not authorized. On February 11, 2008, claimant fell as he was climbing down off a dump truck landing on his right buttock and experiencing significant pain; fearing that he had damaged his hip replacement,[had non work-related hip replacements — one each in 1991 and 2006.] he was taken by ambulance to the emergency room. Although the initial diagnosis at the emergency room was hip pain, imaging studies showed no obvious loosening of the hardware related to the hip prosthesis or fracture in that area. However, due to increasing pain, surgery was performed on May 8, 2008 after which the claimant’s surgeon detailed why the fall created bone damage and pain, thus necessitating the surgery. Several months later, claimant developed an infection attributed to the May 2008 surgery, which required a two-stage revision of his total hip replacement in November 2008 and February 2009. After precluding the employer from introducing into evidence an independent medical exam (IME) because it was not completed in a timely manner denying the employer’s request to cross-examine certain treating physicians on the basis that their reports were self-evident and did not address the causal relationship between claimant’s fall and the injury, a Law Judge found the May 2008 surgery to be causally related to claimant’s fall at work. A Board panel subsequently affirmed the preclusion of the IME, the prohibition of the cross-examinations, and awards of compensation through November 2008, and denied a request for Full Board Review. Finally, the Board affirmed the WCLJ’s determination that the two-stage hip replacement revision surgeries were a consequence of the May 2008 surgery and thus causally related to the compensable injury.

  1. In AFFIRMING the preclusion of the IME, the Court agreed that the preclusion as proper as “there is no evidence in this record that the employer took any action either to reschedule the IME for an earlier date or to adjourn the hearing.” the record showed that after the carrier, per an April 2008 hearing, arranged an IME for June 11, 2008, the carrier failed to change the date of the IME to have it ready for the expedited calendar set for May 30, 2008.
  2. In REVERSING the Board’s approval of the surgery, the Court found that the employer is not obligated to pay the cost of the initial surgery, because no request for authorization for such surgery was made. [ED. NOTE:] What was interesting is that one of the reasons the carrier sought to have the IME included was to bolster their argument that the surgery was improper, a point they won even without the IME.] Per WCL §13-a [5]; 12 NYCRR 325-1.4 [a]. A review of the record reveals no C-4 report by O’Connor (as referenced in the Board’s determination) or any other written evidence that a request for such authorization was actually made. Nor did O’Connor testify that he made a request therefor. Thus, the Board’s determination is not supported by substantial evidence and must be reversed.
  3. In AFFIRMING that the injury and subsequent surgery were causally related, the Court wrote that “[t]he Board’s determinations that claimant’s injury was caused by his fall at work and that the initial surgery was causally related to the fall are supported by substantial evidence in the record”, in particular the testimony from both the emergency room physician and O’Connor. Although there was evidence to the contrary, giving proper deference to the Board’s credibility determinations in resolving conflicting medical opinions and evidence, we discern no basis upon which to disturb its determinations as to causation.
  4. In AFFIRMING the continuation of awards after November 2008, the Court agreed with the Board that the only argument against the causal relation of lost time for the November 2008 and February 2009 surgery were the carrier’s doctor who stated that the need for the May 2008 surgery was not casually related but added, that if it was, then so were the later two surgeries.
  5. The Court AFFIRMED the Board’s denial of a full board review but does not in its decision give any explanation or clarification for this decision.

Participating Commissioners: Bell, Ferrara (2 cases), Foster-Tolbert, Henry, Higgins, Libous (2), Lower, Paprocki (3).

Prevailing party represented by: Christopher R. Lemire of counsel to Lemire Johnson (Malta) for appellant; James A. Trauring of counsel to James Trauring & Associates (Schenectady) for Jeffery T. Prescott, respondent; and Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General for WCB respondent.


Droge v Costco Price Club
November 24, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’ s ruling that the claimant voluntarily withdrew from the labor market. Originally classified in 1998 with a permanent partial disability due to a neck injury and carpal tunnel syndrome, additional hearings were held in 2003 regarding her neck, apparently the date at which she last worked. After the carrier sought a review of voluntary withdrawal from the market, the Law Judge denied the application to suspend benefits, a decision later reversed by a Board panel. The Board based its decision of voluntarily withdrawal from the labor market based in part on her testimony that, since 2003, she had not engaged in a search for employment of any kind or even discussed returning to work with any of her doctors, sufficiently substantial evidence for the Court to affirm the Board’s decision. Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Costco Price Club and another, respondents. Participating Commissioners: Lower, Bell, Paprocki.


Panarella v JP Hogan Coring
November 24, 2010 NYS Appellate Division, Third Department
Course of Employment: in and out of

AFFIRMED the Board’s ruling that claimant’s injury, from climbing over a fence, arose out of and in the course of his employment. Upon arriving at his work site at 5:00AM, as instructed by his supervisor, to expedite delivery of equipment, claimant discovered the gates to the equipment yard locked. Claimant then contacted his supervisor by telephone, regarding the situation. His supervisor told claimant that he was en route to the work site but was stopping to buy coffee first. Following continued efforts to find an open gate, claimant attempted to climb the 12-foot fence surrounding the yard. He slipped and fell into the yard, fracturing his wrist. A Law Judge, later affirmed by a Board panel, ruled that claimant’s injury arose out of and in the course of his employment. The record reflects that claimant clearly was injured as he attempted to access the work site, therefore occurring in the course of his employment. As claimant’s injury occurred in the course of his employment, he is entitled to the presumption that the injury also arose out of his employment, unless the presumption is successfully rebutted by substantial evidence to the contrary. First, there is no support in the record for the employer’s contention that claimant was involved in a purely personal act when he climbed the fence. Second, while injuries during the commission of acts specifically forbidden by the employer may be found not to be compensable, the testimony of claimant’s supervisor does not support the conclusion that claimant’s actions that day were forbidden. The supervisor further testified that claimant’s actions were the result of the assignment being extremely urgent and were in keeping with the employer’s culture regarding customer service. Prevailing party represented by: Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General for WCB, respondent. Participating Commissioners:Foster-Tolbert, Higgins, Paprocki.


Cuthbert v Panorama Windows
November 24, 2010 NYS Appellate Division, Third Department
Course of Employment: Assault

AFFIRMED the Board’s ruling that claimant sustained an injury arising out of and in the course of his employment as the result of an assault. After filing a claim for injury sustained after a coworker struck him in the head with a two-foot long piece of aluminum, a Law Judge, later affirmed by a Board panel, found that the assault stemmed from work-related differences and awarded benefits, later affirmed by a Board panel. “The test to determine the compensability of injuries sustained in an assault is whether the assault originated in work-related differences or purely from personal animosity between the combatants. This is a question of fact for the Board and, if an award is made, it must be sustained so long as there is any nexus, however slender, between the motivation for the assault and the employment.” There is no dispute that claimant and the coworker had a long history of difficulties, both having previously received written warnings and three-day suspensions from work for their offending conduct toward one another, despite several attempts by their supervisor to resolve these differences. The Court then wrote, “Thus, despite whatever personal differences claimant and the coworker may have had, based upon our review of the plant manager’s testimony, which the Board found credible, we cannot say that it erred in finding the requisite nexus between claimant’s employment and the underlying assault.” Prevailing party represented by: Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General for WCB, respondent.Participating Commissioners: Firestone, Higgins, Paprocki.


Bigelow v WPAC Prods
November 24, 2010 NYS Appellate Division, Third Department
Course of Employment: in and out of

AFFIRMED the Board’s ruling that claimant sustained a compensable injury while riding a bicycle. The Gateway Playhouse provides free temporary housing to cast and crew members working on its various productions. Claimant was hired to perform in two musicals during the summer of 2008, at which time she resided on the premises. In 2008, as was her practice throughout the summer to warm up for a rehearsal by riding her bicycle, approximately one mile from the employer’s grounds, on this ocassion claimant fell off her bike and broke her leg. The Law Judge, affirmed by a Board panel, ruled that claimant’s injury was compensable after which the carrier’s contended that claimant was not acting within the scope of her employment when the accident occurred. Claimant testified that professional actors must warm up both physically and vocally, testimony supported by that of the employer’s manager who stated that the warm up serves to prevent on-stage injuries and enhance performances, thus benefiting the theater company. Given several restrictions to warming up on ‘site’, claimant elected to warm up vocally while riding her bike, a routine practice that, according to her, was one of which the employer approved. Under these circumstances, the Court perceived no basis upon which to disturb the Board’s decision that claimant was engaged in a reasonable and work-related activity when she was injured. Finally, the Court added that the cases relied upon by the employer and carrier in their arguments are factually distinguishable. Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General for WCB, respondent and Joanne S. Agruso of counsel to Dell, Little, Trovato & Vecere (Bohemia) for Susan S. Bigelow, respondent. Participating Commissioners: Bell, Firestone, Paprocki.


Abughoush v Wings Over Syracuse
November 24, 2010 NYS Appellate Division, Third Department
3020…Coverage: Officer

AFFIRMED the Board’s ruling that the workers’ compensation insurance policy issued by Tower Insurance Company of New York covered claimant. After a work-related injury in 2007, claimant sought workers’ compensation benefits. While the carrier did not initially dispute the claim, shortly thereafter it raised an issue of coverage, specifically, that the relevant workers’ compensation insurance policy listed claimant as his employer’s corporate president and excluded him from coverage (WCL §54[6]). The Board determined that claimant was a covered employee. Claimant testified that he was a manager and not its president, a fact confirmed by the employer’s actual president. Also, the employer’s application for comp insurance, submitted through the carrier’s agent, an insurance agency, erroneously identified claimant as the employer’s president but also sought to include claimant under the terms of the policy. The agency’s representative testified that the exclusion occurred because of a clerical error and a premium for executive officer coverage was listed in application and in the policy, thus providing substantial evidence to support the Board’s findings. Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General for WCB, respondent.Participating Commissioners: Firestone, Henry, Paprocki.


Forshee v Gates Albert
November 24, 2010 NYS Appellate Division, Third Department
Apportionment: Awards

AFFIRMED the Board’s ruling that apportionment applied to claimant’s workers’ three compensation claims. He had back injuries in 1988 and 1995 after which he was classified with a permanent partial disability attributable to both. He continued to work and in 1998 entered into lump-sum settlements for both claims. After sustaining a third back injury in 2007, a Law Judge determined that claimant had a moderate to marked partial disability caused wholly by the 2007 injury after which a Board panel modified that decision by apportioning the disability, 20% to the 2007 injury and 40% each to the 1988 and 1995 injuries. The Board credited the opinion of Robert Durning, a board-certified orthopedic surgeon, who examined claimant and opined the apportionment adopted by the Board. Claimant’s treating neurosurgeon stated that claimant worked within limitations imposed following his compensable 1995 injury and that his 2007 injury only arose after new duties were imposed that “exceeded his known restriction level.” The Court wrote that since “[s]ubstantial evidence thus supports the Board’s determination that ‘claimant’s disability is in . . . part attributable to’ his prior compensable injuries”, they will not disturb it. Prevailing party represented by: Joseph P. DeCoursey of counsel to Hamberger & Weiss(Rochester) for Gates Albert, Inc. and another, respondents. Participating Commissioners: Ferrara, Higgins, Paprocki.


Haight v Con Edison
November 24, 2010 NYS Appellate Division, Third Department
SLU v PPD

AFFIRMED the Board’s ruling that claimant was entitled to permanent partial disability benefits rather than a schedule loss of use award for his shoulder injury. In separately established claims, claimant sustained injuries to his right shoulder and back, resulting in a dispute as to whether claimant should receive a schedule loss of use (SLU) award for the shoulder claim or an ongoing award of disability that included both the shoulder and back claims with the Board finding a permanent partial disability classification. While the physicians who offered opinions on the issue concluded that claimant’s shoulder injury was amenable to a SLU award, the claimant’s treating physician testified, among points, that the shoulder disability arose in part from work-related arthritis and adhesive capsulitis, conditions that support a classification under the Board’s medical guidelines. While claimant argued that not all the factors in the guidelines were present, the guidelines only “provide useful criteria” that need not be slavishly followed by the Board if its factual determination is properly supported, which the Court wrote was done in this case. Prevailing party represented by: Ralph E. Magnetti of counsel to Con Edison and another, respondents. Participating Commissioners: Finnegan, Bargnesi, Higgins.


Ceplo v The Raymond Corp.
November 24, 2010 NYS Appellate Division, Third Department
§ 15(8) C-250 Errors

AFFIRMED the Board’s ruling which discharged the Special Disability Fund (Fund) from liability under WCL §15(8) due to errors in the C-250 form. Claimant successfully applied for workers’ due to a 1998 work-related injury to her left elbow and hand. After the self-insured employer applied, in 2002, for reimbursement from the Fund on the basis of a prior injury (per WCL §15[8][d]), Board ultimately rejected the claim, finding that the C-250 claim form had been inadequately completed. Here, the C-250 form required detailed information on the previous physical impairment, including the date of injury, and whether any legal action or workers’ compensation claim arose from it. Even though the prior injury had occurred in the course of claimant’s work for the employer and an established workers’ comp claim, the only information provided about the injury was that it involved claimant’s “right wrist.” Moreover, the form wholly omitted the existence of the prior workers’ compensation claim. Inasmuch as the form’s requirements were not strictly complied with, the Court wrote that there is no question that “[t]he regulations and decisional authorities constrain us to uphold the Board’s strict adherence to the prescribed use and contents of forms for claims by carriers for reimbursement from the Special Disability Fund.” As to the several Board cases cited by the employer that excused this strict compliance, the Court found these readily distinguishable and did not compel a different result. Prevailing party represented by: Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent.


WCB v Classic Ins Agency
November 24, 2010 NYS Appellate Division, Third Department
GSITs: Replacing CRM with WCB

The Appellate Court denied a motion to appeal the order of the Supreme Court, New York County, which granted the Workers Compensation Board the right to substitute itself as the plaintiff in this action in place and stead of Compensation Risk Managers, LLC. The Court then wrote, “In any event, were we to sua sponte grant leave to appeal, we would affirm. Since, the authority to administer the Trust’s workers’ compensation claims and provide risk management services was transferred to the Workers’ Compensation Board subsequent to commencement of the instant action, the court properly substituted it as the appropriate plaintiff”.


O’Connor v NYC Bd of Ed
November 18, 2010 NYS Appellate Division, Third Department
Travel & Medical Bills: Who Pays

AFFIRMED the Board’s decision which directed that the parties document their positions with regard to claimant’s medical and transportation expenses. Claimant receives workers’ compensation benefits and has engaged in a prolonged dispute with the employer over the appropriate amount of reimbursement for his medical and travel expenses. Despite several hearings including several ‘final opportunities’, both sides failed to present any detailed documentation: the claimant to show his expenses and the carrier to show which items had been paid or formally disputed. The claimant appealed seeking to have the carrier ordered by the Board to reimburse him for all the items he submitted. The Court write that “[g]iven the muddled state of the record before us, one that has been worsened by the passage of time, claimant’s submission of new reimbursement claims and failure to document the basis for his earlier claims, all of which have played a role in the employer’s difficulty in auditing the claims as a whole, we cannot say that the Board erred in directing the parties to set out their positions in detail so that meaningful review of them can be made.” Prevailing party represented by: Julian L. Kalkstein of counsel to Michael A. Cardozo, Corporation Counsel, NYC for NYC Bd of Education, respondent.


Collins vs Duke Plumbing
Raynor v Landmark Chrysler
November 17, 2010 Court of Appeals
Aggregate Trust Fund

3rd Dept. App. Div. order of 7/1/10; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; Workers’ compensation - aggregate trust fund - mandatory lump-sum payment of present value of nonschedule permanent partial disability (ppd) awards made on or after July 1, 2007 - challenge to 2007 amendment to workers’ compensation law §27(2) (L 2007, ch 6, § 46) - applicability to award made after July 1, 2007 where injuries are sustained before the March 31, 2007 effective date of amendment capping the number of weeks for which a claimant can receive PPD benefits - constitutional challenges to the 2007 amendment based upon the taking, contracts, due process and equal protection clauses of the federal constitution - claim that computation of the present value of a lump-sum payment of uncapped ppd award is speculative and therefore improper; App. Div. affirmed a 5/7/09 Workers’ Compensation Board decision that directed the employer’s workers’ compensation carrier to make a deposit into the aggregate trust fund pursuant to WCL §27(2).


Waldheim v Hudson Sheet Metal
November 10, 2010 NYS Appellate Division, Third Department
Causal Relationship: Was there?

RESCINDED and sent back for reconsideration the Board’s ruling that claimant did not sustain a causally related occupational disease. After 40 years as a sheet metal worker and 10 years after first noticing pain in his hands, the claimant in April 2001 had electrodiagnostic testing performed which revealed evidence of bilateral carpal tunnel syndrome. Five months later, he submitted his claim for occupational disease which resulted in hearings (no medical testimony was taken) after which a law judge, affirmed by a Board panel, ruled there was insufficient evidence to establish a causal relationship. In its review of the evidence, the Court found substantial inconsistencies in the medical reports of two orthopedic surgeons who examined the claimant such that “[g]iven such apparent inconsistencies, these reports cannot serve as the basis for the Board’s decision.” The Court also noted that “while the record includes reports from several other physicians who diagnosed claimant with bilateral carpal tunnel syndrome, the Board either rejected such opinions or found them to be similarly ambiguous”. As a result the Court wrote that the credited opinions did not constitute sufficiently substantial evidence to support the Board’s decision. Therefore, they remitted the case back to the Board for clarification of the expert medical opinions while acknowledging the final result may ultimately be the same. Prevailing party represented by: Joel M. Gluck , New York City, for appellant.


Norcross v Camden Cent. School
November 10, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

REVERSED the Board’s ruling that liability shifted to the Special Fund for Reopened Cases (Fund) pursuant to WCL §25-a, inasmuch as the Board has not provided a rational basis here for departing from its own precedent. Although the claimant’s work-related injury occurred in 2001, there were no awards for compensable lost time or wage replacement and her last documented medical treatment was in 2003. In 2008, the carrier filed an RFA-2 form requesting relief from liability under §25-a. A Law Judge, later affirmed by a Board panel, shifted liability to the Fund. The Court, however, agreed with the Fund’s contention that the Board failed to follow its own precedent. In citing several Board panel and Appellate Court decisions, the Court added that “[w]hen an agency makes a determination that is contrary to its prior decisions on similar facts, it must set forth a rational explanation for doing so or such determination will be deemed arbitrary and capricious.” Specifically, the Board has determined claims may be reopened for the purpose of shifting liability pursuant to §25-a upon, among other things, “the carrier’s filing a request on form RFA-2 to shift liability to Special Funds in cases where there is proof that further medical or indemnity benefits are payable”. Here, the carrier’s request to reopen the claim was not supported by any proof that further medical or indemnity benefits are payable. (Matter of Del Labs, 2009 WL 193434, *6, 2009 NY Wrk Comp LEXIS 4054, *16 [WCB No. 29408739, Jan. 14, 2009]) The Board’s subsequent shifting of liability to the Special Fund based upon such a request runs contrary to several previous Board decisions in which Board concluded, pursuant to its determination in Del Labs, that a carrier’s request to reopen a claim for the purpose of shifting liability under §25-a, with no current liability and no proof that further medical or indemnity payments were payable, did not form a proper basis to reopen the claim (id.). Significantly, subsequent Board decisions have also found that such unsupported requests by the carrier[Editor’s emphasis] based only upon the passage of the statutory time limits, did not form a basis for reopening the claim for the purpose of shifting liability to the Special Fund. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent.


Maguire v United Parcel Serv.
November 10, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

REVERSED the Board’s ruling that liability shifted to the Special Fund for Reopened Cases (Fund) pursuant to WCL §25-a. After claimant injured his back in April 2001, his employer filed a C-2 form with the Board. Claimant had not missed any work as a result of the injury, but had continuously received medical treatment for the injury that has been voluntarily paid for by the carrier. In June 2008, carrier requested that the case be indexed, filing a C-699, albeit not disputing liability but declining to make payments to claimant given the lack of more than seven days of lost time. After the carrier then sought to shift liability to the Fund, the Board granted that application, holding that the claim had been deemed closed at an unspecified point prior to the carrier’s application for the claim to be indexed. While the seven and three year time limits under §25-a had been met here, the Special Fund argued that the claim was never closed given claimant’s ongoing medical treatment. The Court agreed that the carrier’s voluntary payment of claimant’s medical expenses constituted the informal opening of the present claim and, since the claimant did not miss time from work due to the injury, the claim would thereafter be deemed closed when the carrier ceased paying those medical expenses. Thus, it reversed the Board, writing that “[t]here is no indication that the carrier stopped doing so prior to seeking the formal indexing of this claim. . .” Prevailing party represented by: Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation Committee.


Stranahan v Camp Adirondack
November 10, 2010 NYS Appellate Division, Third Department
§ 25-a: Advance Compensation

RESCINDED and sent back for reconsideration the Board’s ruling that liability shifted to the Special Fund for Reopened Cases (Fund) pursuant to WCL §25-a. After claimant sustained a work-related injury to his back and left knee in 1992 for which he received compensation benefits for a short time, a second claim was established when claimant injured his left knee in 2000, and he successfully sought disability retirement benefits. Claimant subsequently underwent a knee replacement and, in 2008, sought additional benefits, arguing that his disability arose in part from the 1992 injury, prompting the carrier to shift liability for that claim to the Fund, an application granted by the Board. The Fund asserted that claimant’s continuing receipt of disability retirement benefits constituted advance payments of compensation within the three-year period.

The Court wrote that “[r]etirement benefits that can be awarded only on the basis of an occupational disability . . . must be considered payments of compensation” for purposes of Workers’ Compensation Law § 25-a, while those “result[ing] solely from a finding of disability regardless of its cause are not advance payments of compensation. While this claimant received a type of disability retirement benefit that requires the underlying disability to be work-related only if an applicant has less than 10 years of service credit at the time the application for benefits is filed, the current record makes it impossible to discern whether claimant had over 10 years of service credit. Accordingly, the Board’s finding that his receipt of disability retirement benefits was not predicated upon his occupational disability is not supported by substantial evidence, and this matter must be remitted for further development of the record.” Prevailing party represented by: Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation Committee.


Searfoss v Anchor Glass Container
November 10, 2010 NYS Appellate Division, Third Department
§ 25-a: Reimbursement Period

RESCINDED and sent back for reconsideration the Board’s ruling which discharged the Special Disability Fund (Fund) from liability upon the ground that the claim for reimbursement was not timely filed. Although claimant promptly filed his claim and sought medical treatment after being injured in 2000, he did not miss work until 2005, with his claim indexed as of July 2005. In February 2006, the carrier filed a C-250 form applying for reimbursement from the Fund. Although a Law Judge ruled that the application for reimbursement was timely, a Board panel reversed. In its reversal and recision the Court wrote that although the employer argued that the Fund’s application for review was untimely and should be rejected, the Board did not address the issue in its decision such that its failure to make any findings on the issue require reversal.

Remittal is further required for the Board to make necessary findings with regard to the merits. In order to obtain reimbursement from the Fund, an employer or carrier must file a form C-250 “prior to the final determination that the resulting disability is permanent, but in no case more than [104] weeks after the date of disability or death or [52] weeks after the date that a claim for compensation is filed with the chair, whichever is later” (WCL §15[8][f]. The employer argued that its form C-250 was timely filed under either measurement whereas the Board determined that its application had been filed more than 104 weeks after the date of disability. The Board did not, however, determine when the underlying workers’ compensation claim was filed or if the employer timely applied for reimbursement under the alternate measure. As any review of that issue would accordingly be “premised upon speculation rather than upon the controlling substantial evidence standard,” the Board must address that issue. Prevailing party represented by: Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation Committee.


Kucuk v Hickey Freeman
November 4, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal
Disability: Further Causally Related/Compensation
Total Industrial Disability

AFFIRMED the Board’s rulings that (1) claimant did not sustain a total industrial disability, (2) claimant did voluntarily withdraw from the labor market and (3) benefits were properly suspended. Claimant, a seamstress, immigrated from Turkey in 1979 and began working for the employer doing repetitive handwork. In 1990, after sustaining injuries in the course of her employment and receiving workers’ comp, she returned to work, continuing with repetitive handwork despite ongoing problems with her hands, wrists, thumbs and elbows, as well as pain in her arms and shoulders. In 2004, she sustained work-related injuries to her right arm and shoulder and stopped working upon the recommendation of her orthopedic surgeon. Her claim for workers comp was established, benefits awarded through November 2004, and liability for the 1990 claim was transferred to the Special Fund for Reopened Cases per WCL §25-a. After a Law Judge found mild to moderate disability in December 2007, additional hearings were held and the claimant was found to have a permanent partial disability, but was not entitled to further benefits because she did not maintain an attachment to the labor market, a decision affirmed by a Board panel which in December 2009 found that claimant did not have a total industrial disability and that she voluntarily withdrew from the labor market by failing to search for work within her medical restrictions.

In addressing the issue of total industrial disability, the Court found several factors supporting the Board decision. The doctors essentially agreed that claimant could return to work with restrictions, that her disabilities, based on the videos, were not total or even as severe as she had lead her doctors to believe. After rehabilitation counseling, the record revealed that she failed to participate in free English classes provided by the employer and was resistant to job retraining, raising the inference that claimant was unwilling to perform other work as opposed to being unable to do so. Thus, the Court agreed the Board’s determination that claimant was not totally industrially disabled was supported by substantial evidence.

In addressing the issue of voluntary withdrawal from the labor market, the Court agreed with the Board’s determination that all of the medical evidence indicated that claimant was capable of working in a sedentary job or light duty job, albeit not involving repetitive handwork, jobs not available from her employer. Claimant’s attorney conceded that claimant had not looked for work since the time she left her employment. Although claimant testified that she looked for work at other places, the Board was free to discount her testimony in this regard, particularly in light of the fact that she was unable to identify those jobs or the dates that she searched for such work. Given the minimal nature of claimant’s attempts to find a job within her medical restrictions, and the absence of any evidence that her inability to obtain employment was caused by or related to her permanent partial disability, the Board’s determination that claimant failed to maintain an attachment to the labor market was supported by substantial evidence.

And in another key issue relating to the suspension of claimant’s benefits, “[O]ur cases dealing with the issue of whether the failure to look for work constitutes a withdrawal from the labor market subsequent to an involuntary retirement are inapplicable where, as here, the Board has not previously determined the issue of whether a claimant with a permanent partial disability has withdrawn from the labor market” Rather, “[t]he threshold issue to be determined by the Board is whether claimant’s permanent partial disability caused or contributed to her loss of wages. At that step of the analysis, the failure to look for work is a relevant factor to be considered. Here, because claimant’s withdrawal was found to be voluntary at the first step of the analysis, the Board was not required to proceed any further.” Prevailing party represented by: Jacklyn M. Penna of counsel to Buckner & Kourofsky (Rochester) for Hickey Freeman Company, and another, respondents and Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation Committee


Pena v Alize II
October 28, 2010 NYS Appellate Division, Third Department
§18 notice to employer
Course of Employment: in and out of

AFFIRMED the Board’s ruling that claimant sustained a compensable injury and awarded benefits. Claimant applied for workers’ comp benefits in June 2008, alleging that she injured her leg, hip and back in a fall that occurred during the course of her employment in April 2008. The employer contended that (1) claimant did not provide timely notice of the incident leading to her injuries and, in any event, (2) claimant’s inability to work stemmed from a preexisting back condition. A Board panel affirmed the Law Judge’s establishing the claim and awarding benefits.

With regard to notice, claimant testified that a coworker witnessed her fall. An owner of the employer acknowledged being apprised of a telephone call from claimant’s husband [May 8, 2008] indicating that claimant “had been injured and it was because of her having fallen,” facts also noted in the employer’s application for Board review. Accordingly, “as the sufficiency of a claimant’s oral notice is a matter within the exclusive province of the Board, [the Court concluded] that substantial evidence supports the Board’s factual determination that claimant adequately notified her employer of her injuries.”

Turning next to causation, although the Court supported the Board’s authority to determine the sufficiency of the evidence, since the claimant’s physician and the independent medical examiner opined that the injuries underlying the instant claim were caused by claimant’s fall in April 2008, there was substantial evidence to support the Board’s decision. Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent.


Lee v Arnan Dev. Corp.
October 28, 2010 NYS Appellate Division, Third Department
exclusive remedy - closely held corporations

The Supreme Court denied defendant’s motion for summary judgment dismissing the complaint. The Appellate Court affirmed the lower Court’s ruling that there was sufficient separation between two jointly owned firms such that a personal injury suit against one of the firms is not barred by WCL §11.

Plaintiff Anthony Lee (hereinafter plaintiff) was hired by Otsego Ready Mix (hereinafter the employer) as a cement truck operator. Following a delivery to Oneonta Block Company, he began to clean out the truck’s chutes in the area where he had previously been directed to do so after completing deliveries to Oneonta when he suffered an injury. Lee commenced this action against defendant, doing business as Oneonta, alleging, among other things, negligence. Initially, defendant asserts that it is the alter ego of the employer and, therefore, plaintiffs are barred from recovering because workers’ compensation is their exclusive remedy (see WCL §11).

Contrary to defendant’s argument, however, the record does not establish that contention. Significantly, “[c]losely associated corporations, even ones that share directors and officers, will not be considered alter egos of each other if they were formed for different purposes, neither is a subsidiary of the other, their finances are not integrated, assets are not commingled, and the principals treat the two entities as separate and distinct.” Here, it is undisputed that defendant and the employer are owned by the same individual, Robert Harlem, who testified at his deposition that he is the owner, president and sole officer of five different entities, including the employer and Oneonta. While it appears that each entity may have utilized goods and services from the others at certain times and, for instance, purchased joint workers’ compensation coverage, the record shows that the companies were not subsidiaries of one another and were each formed for distinct purposes. For example, the employer produces and delivers concrete, while Oneonta produces masonry products which happen to utilize concrete from the employer. Furthermore, each company maintained its own office space in separate locations and Harlem made clear that the employer’s payroll and bank account were separate from the other entities. Nor was there evidence of a joint venture.


Miranda v Norstar Bldg. Corp.
October 28, 2010 NYS Appellate Division, Third Department
§ 11: Grave Injury Definition

(1) Cross appeals from an order of the Supreme Court which, among other things, denied a motion by defendant Pinnacle Roofing, Inc. for summary judgment on its indemnity claims against third-party defendant, and (2) appeal from an order of said court, which, among other things, upon reargument, granted plaintiff’s motion for partial summary judgment on the issue of liability pursuant to Labor Law §240(1).

Plaintiff sustained a traumatic brain injury when he fell approximately 30 feet from a roof while working on a construction project in the City of Albany after which this action commenced for which the defendants, among others, are the general contractor, Norstar Building Corporation (hereinafter NBC); the project manager, Norstar Development USA, L.P. (hereinafter NDLP); Albany Housing Authority, which oversaw the project; and the roofing subcontractor, Pinnacle Roofing. NBC, NDLP and the Albany Housing Authority (hereinafter collectively referred to as the Norstar defendants) and Pinnacle then commenced a third-party action against plaintiff’s employer, John Russo.

In response to one of the many issues being controverted, Russo contended that Supreme Court should have dismissed common-law indemnification claims by the Norstar defendants and Pinnacle because plaintiff did not sustain a “grave injury” within the meaning of WCL §11, which prohibits noncontractual third-party indemnification claims against employers except in the case of such an injury. The Norstar defendants and Pinnacle contend that plaintiff’s grave injury was proven as a matter of law. As relevant here, a grave injury is “an acquired injury to the brain caused by an external physical force resulting in permanent total disability” (WCL §11), a standard that requires a showing that the injured worker is not employable “in any capacity“. Both sides presented substantial medical evidence supporting their positions as to whether or not the claimant suffered a “grave injury“. The Court ruled that the grave injury issue is not resolved by the guardianship order, plaintiff’s eligibility for Social Security disability benefits, or by a determination of the Workers’ Compensation Board that he is permanently and totally disabled. Generally, “the determination of one administrative agency is not binding on another agency considering the same question under a different statute“. While such determinations have been found sufficient to raise questions of fact as to whether a grave injury has occurred, they are not dispositive. Thus, Supreme Court properly found issues of fact precluding summary judgment for any party on this issue.

[ED. NOTE:]While this Court stated that the findings of the Workers Compensation Board are not dispositive on this issue (“grave injury”), the Court of Appeals only two weeks ago in the Matter of People v McKinnon [pages 3-4] used the Board’s definition of “facial disfigurement” in making its ruling. I must assume therefore that the determination as to whether or not to use the Board’s definitions of types of injuries depends on whether you’re buyin’ or sellin’.


Rodriguez v Reicon Group
October 21, 2010 NYS Appellate Division, Third Department
Jones Act (LHWCA)

AFFIRMED the Board’s ruling that, for a claimant covered by the Longshore and Harbor Workers’ Compensation Act [hereinafter LHWCA]), the Board had concurrent jurisdiction. After the claimant, a dock builder, was injured when he slipped while stepping from a pier onto a barge, he applied for benefits under the WCL. The carrier indicated that claimant had been receiving payments under LHWCA and asserted that the applicability of the LHWCA precluded the WCB from exercising jurisdiction over the claim. A Law Judge, affirmed by a Board panel, determined that the Board has concurrent jurisdiction over claims that also fall within the jurisdiction of the LHWCA, and continued the case. WCL §113 provides, in relevant part, that WCL benefits may be awarded for injuries subject to the admiralty or other federal laws only where the claimant, the employer and the insurance carrier waive their federal rights and remedies. The Court, in supporting the Board’s decision, then wrote “Here, however, the parties need not avail themselves of the permissive empowerment of WCL §113 in order for the Board to act, since there is concurrent jurisdiction among state WCLs and the LHWCA over claims arising from land-based injuries compensable under the LHWCA. Thus, because the WCL covers claimant’s work (see WCL §3) and the LHWCA does not preempt, but rather supplements, state workers’ compensation remedies, the Board already possessed jurisdiction over claimant’s claim and resort to WCL§113 is unnecessary in order to empower the Board to act.” Finally, in light of the employer’s previous awards under the LHWCA, the Court noted that “there is no danger of double recovery under concurrent jurisdiction since employers’ awards under one compensation scheme would be credited against any recovery under the second scheme“. Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent and Nicholas K. Rupwani of counsel to Joseph A. Romano (NYC) for Manuel A. Rodriguez, respondent.


German v Target Corporation
October 21, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s ruling that claimant voluntarily withdrew from the labor market. In March 2006, claimant sustained a work-related injury while working as a cleaner in one of the employer’s stores, then sustained further injury while getting on an examination table for an IME evaluation. Following a hearing, a Law Judge determined that claimant was permanently partially markedly disabled and awarded benefits. While the Board panel agreed with the finding of disability, it found that claimant voluntarily withdrew from the labor market, thus losing her entitlement to receive benefits past the date of her November 2008 hearing. Because the claimant testified that she had not worked since the day of her accident and admitted that she had made no attempt to look for work, the Board determined that claimant had not “demonstrate[d] attachment to the labor market with evidence of a search for employment within medical restrictions.” The Court added, “Claimant’s contention that she was entitled to a presumption that her earning capacity was reduced by her disability is misplaced as the cases upon which she relies involve situations where the threshold finding of involuntary separation had already been made. Prevailing party represented by: Patrick M. Conroy of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Target Corporation and another, respondents.


Enriquez V Home Lawn Car
October 21, 2010 NYS Appellate Division, Third Department
Course of Employment: in and out of
Procedure: Denial Full Board Review

AFFIRMED the Board’s (1) ruling that claimant’s injury arose out of and in the course of his employment and (2) its denial of a request by Home Lawn Care for reconsideration and/or full Board review. At the same time, the Court did REVERSE the Board on a WCL §25(2)(sanction. Claimant filed a claim for benefits after he was injured when he fell off a ladder while doing work for Home Lawn Care. A Law Judge, later confirmed by a Board panel, determined that an employer-employee relationship existed between claimant and Home Lawn Care and that the injury arose out of and in the course of his employment. The Board also determined that, since Home Lawn Care failed to submit a timely notice of controversy pursuant to §25(2)(b), it was precluded from contending that claimant was not an employee, did not sustain an accidental injury, and that the injury did not arise out of employment. The Board subsequently denied an application for reconsideration and/or full Board review.

Initially, inasmuch as there was no evidence that a notice of indexing was ever mailed to Home Lawn Care, a fact conceded by the Board on appeal, the Court found that the Board erred in finding a violation of §25(2)(b).

In supporting the Board’s determination that an employer-employee relationship existed, the Court’s decision listed the many indicia, confirmed by both the claimant and the employer, that were used by the Board in its decision: Home Lawn Care had employed the claimant for several years, told claimant where to work each day, supplied the equipment to perform the work, and claimant drove Home Lawn Care’s truck to the work locations and wore a shirt with Home Lawn Care’s name on it. As to Home Lawn Care argument that claimant was performing an act that was strictly forbidden [working while on the ladder], thus outside the scope of his employment, when he fell off the ladder, the Court, according appropriate deference to the Board’s credibility determinations, agreed with the Board’s determination to accept the claimant’s version of events. Prevailing party represented by: Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent.


Proulx v Burnett Process 13
Jenks v Deluxe Check Printing Division 12
Garcia v Wings Digital Corporation 11
Martin v Anchor Glass Container 10

October 14, 2010 NYS Appellate Division, Third Department
Aggregate Trust Fund

AFFIRMED four decisions from the Board which directed each of the employers’ workers’ comp carriers to make a deposit into the aggregate trust fund (ATF) pursuant to WCL §27(2) for claimants injured after March 13, 2007 but not classified until after June 30,2007. The 2007 amendment to §15(3)(w) places a cap on the number of weeks for which a claimant can receive that subdivision’s non-schedule permanent partial disability (hereinafter PPD) benefits, but the cap on benefits only applies when a claimant’s injury arises out of an accident occurring after March 13, 2007 — the effective date of the amendment. Thus, as relevant here, PPD awards based on accidents occurring prior to March 13, 2007 remain uncapped. The 2007 amendment to §27(2), meanwhile, requires that any PPD award under §15(3)(w)) made on or after July 1, 2007 be paid into the ATF.

The carriers contended that this group of claimants qualified for uncapped PPD’s such that the mandatory deposit provisions of that amendment were improperly applied retroactively to claimants’ injuries because those injuries were sustained before the amendment’s effective date. The carriers also argued that mandating lump-sum payment of claimants’ uncapped PPD awards is improper because the actual amounts of their future benefits are inherently speculative. One carrier likewise asserted that §27(2) violates its constitutional equal protection rights. Ultimately, the Board found the language of §27(2) as amended to be unambiguous and to evince a clear intent to require payment into the ATF of all §15(3) (w) awards made after July 1, 2007, regardless of the date of injury.

In affirming the Board, the Court noted that it had already addressed the constitutionality issues in its May 27, 2010 decision in Collins v Dukes Plumbing and the issue of retroactive payment in Parkhurst v United Rentals Aerial Equip., also May 27, 2010. The carriers’ contention that the Board’s calculation of a claimant’s future benefits — as it pertains to a mandatory deposit based on an uncapped PPD award — is inherently speculative or arbitrary and capricious is similarly unavailing. “While the future benefits to which claimants will be entitled may increase or decrease depending on a number of variables, those variables are omitted from the calculation by the Legislature’s policy decision to use present value.” Moreover, the Board’s calculations cannot be said to be arbitrary or capricious because it is legislatively mandated to compute the present values of claimants’ awards. Prevailing party represented by: Carol Fischer of counsel of counsel to respondent Andrew M. Cuomo, Attorney General, for WCB.


Johnson v Via Taxi, Inc.
October 14, 2010 NYS Appellate Division, Third Department
Coverage: Is there a Policy

AFFIRMED the Board’s rulings that (1) the employer did not have workers’ compensation insurance coverage on the date of claimant’s accident, and (2) the uninsured employer was subject to penalties pursuant to WCL §26-a. Claimant applied for workers’ comp benefits for a March 31, 2007 work-related injury. The State Insurance Fund (SIF) disputed that the employer right to coverage on that date because, per WCL §93, it had denied the employer’s application for insurance two months earlier. After a Board panel reversed the Law Judge’s decision that SIF had improperly denied the employer’s application and was liable for the claim, the the Board assessed penalties on the employer pursuant to WCL §26-a. WCL §93(c) authorizes a carrier to refuse to insure any employer whose previous coverage by them was canceled due to nonpayment of a premium, until the outstanding balance on the premium is paid.

Here, the employer’s original policy with SIF was canceled in 2003 based on unpaid premiums. The employer still had an outstanding balance when it reapplied for coverage in December 2006 and, on January 16, 2007, the Board informed the employer that it could not issue a new policy and the employer would have to submit a new application once its debt was satisfied. While the employer’s account paid the outstanding balance in early March 2007, the employer did not submit a new application until May 2007, and the resultant policy incepted on that date, such that the employer lacked coverage on March 31, 2007. Because the employer acknowledged receiving invoices from SIF in 2003 that it failed to pay and admitted its awareness of SIF’s refusal to provide coverage in January 2007, the employer cannot be said to have lacked knowledge of the real facts or reasonably believed that it was covered on the date of claimant’s accident. Thus, the penalties per WCL §26-a are appropriate. Prevailing party represented by: Katherine Mason-Horowitz of counsel to Gregory J. Allen, SIF, for SIF and another, respondents


Gentile v Sovereign Motor Cars
October 14, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling that denied claimant’s application for reconsideration and/or full Board review of a prior decision ruling that decedent’s death was not causally related to a work-related injury. In 1994, Jay Gentile (hereinafter decedent) suffered a work-related injury to his neck and was awarded workers’ compensation benefits. After he died in 2002 with the cause of death determined to be atherosclerotic heart disease, claimant, decedent’s wife, unsuccessfully applied for death benefits and the Law Judge closed the case, a decision affirmed by a Board panel. No appeal from that decision was taken. Thereafter, claimant applied for and was denied reconsideration and/or full Board review. As claimant only appeals the denial of her application for reconsideration and/or full Board review, The Court stated that its own review is limited to whether the Board’s denial of the application was arbitrary or capricious or otherwise constituted an abuse of discretion. A review of claimant’s application reveals that she reargued the issues of causal and/or consequential relationship and introduced addition evidence which the Court found was previously available. The Court, in affirming the Board, concluded that “we cannot conclude that the Board’s denial of claimant’s application for reconsideration and/or full Board review was arbitrary, capricious or an abuse of discretion. Prevailing party represented by: Janis M. Riekstins of counsel to Gregory J. Allen, State Insurance Fund for Sovereign Motor Cars and another, respondents Click here to read the full court decision of the NYS Appellate Division…


Caballero v Fabco Enters.
October 14, 2010 NYS Appellate Division, Third Department
Causal Relationship: Was there
Legal Malpractice

AFFIRMED the Board’s ruling that claimant did not sustain an accident in the course of her employment and denied her workers’ comp benefits. Claimant applied for workers’ comp benefits in February 2008, alleging that she sustained work-related back injuries in June 2007. Although a Law Judge credited claimant’s testimony that a compensable accident occurred and awarded, a Board Panel reversed and disallowed the claim. Whether a compensable accident occurred presents a question of fact for the Board, and the resolution thereof will be upheld if supported by substantial evidence. Not only did the witnesses she called to support her accident, deny such an event took place, but contrary to her testimony that she missed work immediately after the accident, he employment records indicate that she did not miss any work but, rather, worked for several days after the alleged accident, the incident is not referred to in either her resignation letter to the employer or contemporaneous medical records. The Court agreed with the Board’s determinating that the lack of substantial evidence supported the Board’s disallowance of the claim. To the extent that claimant also questions whether she received the effective assistance of counsel, we need only “note that the right to the effective assistance of counsel does not extend to administrative proceedings, except in narrowly defined circumstances not involved here.” Prevailing party represented by: Kelly A. O’Neill of counsel to Gregory J. Allen, State Insurance Fund for Fabco Enterprises and another, respondents. Click here to read the full court decision of the NYS Appellate Division…


O’Rourke v Consolidated Edison
October 14, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s ruling that claimant voluntarily removed himself from the labor market. Claimant, due to a work-related injury to his right knee in January 2006, was awarded workers’ comp benefits. Although he returned to work two days later, he had total right knee replacement surgery in May 2006, returning to light duty work in July 2006. In September 2006, he was placed on permanent restriction from his position as a mechanic and the employer started him on a job training program, which claimant failed. On March 12, 2007, after he was informed that there was no longer a budgeted position available for him, he took regular retirement with over 35 years of service. After claimant raised the issue of consequential injuries to his other knee and back, the employer raised the issue of voluntary removal from the labor market. A Law Judge allowed the consequential injuries and ruled he had involuntarily withdrawn from the labor market, awarding benefits from March 12, 2007 to July 31, 2008. A Board panel reversed, finding voluntary withdrawal from the labor market and rescinded the post-retirement compensation benefits.

Both the carrier’s and claimant’s medical experts testified he was able to perform light duty/sedentary work although claimant’s second doctor assessed claimant as being totally permanently disabled. Claimant testified, however, that he had performed light duty work for the employer for 40 hours per week without a problem for eight months prior to his retirement and that he could have remained working in that capacity had the employer continued the position. Claimant also testified that he was able to exercise regularly, do some household chores, and drive a car. In light of claimant’s admitted physical abilities, and the expert opinions concerning claimant’s ability to do sedentary work, the Court agreed that the Board acted within its discretion in rejecting a finding of total permanent disability. Based upon his admission to not seeking employment after his retirement and the lack of evidence that his failure to find employment was based on his disability, the Court agreed that the finding of voluntary withdrawal was supported by substantial evidence as was the conclusion that the record is devoid of proof of a causally related loss of earnings. Prevailing party represented by: Sean J. McKinley of counsel to Vecchione, Vecchione & Connors (Garden City Park) for Con Ed and another, respondents. Click here to read the full court decision of the NYS Appellate Division…


Dicob v AMF Bowling, Inc
October 14, 2010 NYS Appellate Division, Third Department
§25-a: True Closing

RESCINDED and sent back for reconsideration the Board’s ruling that liability shifted to the Special Fund for Reopened Cases pursuant to WCL §25-a. Claimant, after sustaining a work-related back injury in 1995, was awarded workers’ comp benefits, with the last payment made in November 1995. Claimant again sustained compensable injuries to his back while working for the same employer in both January 1999 and June 1999. (All three were with different carriers.) In May 2002 the case was closed with no further action planned “without prejudice to apportionment.” In July 2004, the 1995 claim was reopened to travel with the June 1999 claim (closed in 2008 with a §32) regarding the issue of apportionment. In September 2004, the 1995 claim was closed without prejudice to WCL §25-a. In 2008, the carrier for the 1995 claim filed a request for further action on the claim, arguing that liability should shift to the Special Fund for Reopened Cases after which a Law Judge found no compensable lost time on the 1995 claim from May 2002 to the date of the hearing and shifted liability to the Fund pursuant to §25-a, decisions affirmed by a Board panel, finding that the case was closed with no further unresolved issues due to the lack of medical evidence supporting apportionment and the fact that none of the carriers had raised the issue. The Board found, citing prior cases, that the issue of apportionment “was raised and has been pending without resolution” since the date that the claim was closed without prejudice to apportionment. Here, the Court determined that, faced with similar facts, the Board found that the case was truly closed with no further proceedings contemplated. Therefore, inasmuch as the Board failed to adequately explain its departure from prior Board precedent, the Court remitted the case to the Board for further proceedings. Prevailing party represented by: Jill B. Waldman of counsel to Steven Licht, Special Funds Conservation for appellant Click here to read the full court decision of the NYS Appellate Division…


Mearns v Sunoco, Inc
October 14, 2010 NYS Appellate Division, Third Department
Disability: Degree of or R/E

AFFIRMED the Board’s ruling that claimant sustained a permanent total disability. Claimant, an assistant manager at a convenience store, was called in to work at approximately 3:00 A.M. on October 22, 2006 following a break-in on the premises. At one point, she was accused by a policeman of stealing a flashlight apparently left behind by one of the officers. After claimant denied taking the flashlight, she was physically accosted by the officer, held against her will and handcuffed. Immediately following the incident, claimant began experiencing panic attacks, having nightmares and became reluctant to leave her home for fear of “run[ning] into the cops.” Claimant ceased working on November 15, 2006 and her subsequent claim for workers comp benefits was established for psychological injuries and she was ultimately ruled to be permanently totally disabled. Although claimant’s physician reported that claimant sustained a permanent partial disability because he could not find an adequate definition of total psychological disability within the NYS WCB’s 1996 Medical Guidelines, he testified that claimant was totally disabled and “not psychologically capable of returning to work”, a conclusion similar to that of the carrier’s independent medical examiner. To the extent that a third physician reached a contrary conclusion, the Board was empowered to resolve the conflicting medical evidence in claimant’s favor. Accordingly, the Board’s decision is supported by substantial evidence and we find no basis upon which to disturb it. Prevailing party represented by: Nira T. Kermisch (Sudbury, Massachusetts) for Melody Mearns, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General for WCB Click here to read the full court decision of the NYS Appellate Division…


Smith v Cornell Univ.
October 7, 2010 NYS Appellate Division, Third Department
Causal Relationship: Death by Suicide

AFFIRMED the Board’s ruling that the death by suicide of claimant’s decedent was causally related to his employment. Decedent committed suicide in 2007, allegedly as a consequence of his 2001 work related injury established for a variety of ailments, one of which included consequential depression; he also had a 2000 work related injury. The claimant, his wife, asserted that his suicide arose from the injuries, chronic pain, and depression, a position accepted by both the Law Judge and the Board Panel. The Court agreed that “Workers’ compensation death benefits may be awarded for a suicide if it ‘result[ed] from insanity, brain derangement or a pattern of mental deterioration caused by work-related injury.’ Depression can constitute such a brain derangement, but claimant bore the burden of submitting competent medical proof that causally connected decedent’s depression, his suicide, and the 2001 accident.” Not only did the claimant’s treating psychiatrist essentially support the causality, but the carrier’s own expert “examiner agreed that decedent’s disability and pain contributed to his depression and suicide.” Although the carrier asserted that other factors contributed to the suicide, the Court again agreed with the Board that “A compensable accident need only be a contributing cause of a resulting mental injury, however, and the Board appropriately found that a sufficient causal relationship existed between the 2001 accident and decedent’s depression and suicide.” Prevailing party represented by: Anna Dmitriev of counsel to Coughlin & Gerhard (Binghamton) for Brenda T. Smith and Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General for the WCB.Click here to read the full court decision of the NYS Appellate Division…


Hadzaj v Harvard Cleaning Service
October 7, 2010 NYS Appellate Division, Third Department
§114-a: Fraud

AFFIRMED the Board’s ruling that the claimant violated WCL § 114-a and disqualified him from receiving benefits subsequent to May 19, 2005. Claimant, due to a 2000 work-related injury, was classified as totally disabled and awarded compensation beginning on August 7, 2001, the date on which claimant testified was the last day he performed any work. But in 2005, after the carrier contended that claimant had been performing work for other employers which was inconsistent with his ongoing claim of total disability, it was found that he had worked full time as a superintendent in one building and full time as a janitor in two other buildings beyond that date, evidence supported by the property managers and his own income tax returns. The Board ruled that claimant knowingly made material misrepresentations by failing to report income that he earned while claiming and being paid as a total disability. Accordingly, the Board imposed mandatory and discretionary penalties pursuant to Workers’ Compensation Law § 114-a, resulting in claimant’s permanent disqualification from receiving any further compensation benefits for this claim as of May 19, 2005. [Editor: Apparently the date of the hearing but this is not clear in the Court’s decision.] Prevailing party represented by: David Sanua of counsel to Gorman & Rankin (NYC) for Harvard Cleaning Service and another, respondents and Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation, respondent. Click here to read the full court decision of the NYS Appellate Division…


Bushey v Schuyler Ridge
October 7, 2010 NYS Appellate Division, Third Department
§15(8)(d)

AFFIRMED the Board’s ruling which discharged the Special Disability Fund (SD Fund) from liability under WCL §15(8)(d). During proceedings in which the claimant’s claim for workers’ compensation benefits was established, and she was found to have sustained a permanent partial disability, the carrier’s IME noted that she had preexisting hypertension and opined that such contributed to the severity of her disability. The carrier thereafter sought reimbursement from the SD Fund pursuant to WCL §15(8)(d), an application which the Board rejected. In order to obtain reimbursement under WCL §15(8)(d), “an employer must show that the claimant had a preexisting permanent impairment that hindered job potential, a subsequent injury arising out of and in the course of employment, and a permanent disability caused by both conditions materially and substantially greater than what would have been caused by the work-related injury alone.” It was undisputed that the claimant’s hypertension constituted a preexisting permanent impairment which was controlled by medication and affected neither her work for the employer nor her search for other work. The carrier argued that the IME opined that her hypertension would affect her ability to find work in some “safety-sensitive” areas such as law enforcement, fire fighting and truck driving. Given the employer’s failure to show that claimant had sought, or was even qualified to, work in those areas, substantial evidence supports the Board’s finding that claimant’s hypertension did not constitute a hindrance to her employability. Prevailing party represented by: Jill B. Singer of counsel to Steven M. Licht, Special Disability Fund , respondent. Click here to read the full court decision of the NYS Appellate Division…


Wells (Commissioner of Labor)
October 7, 2010 NYS Appellate Division, Third Department
Employee or Independent Contractor

Editor: While the Workers Compensation Board was not a party in this case, the Courts affirmance of the Department of Labor’s definition of an employee versus independent contractor should be of value to those in the workers compensation system who face this question.]

Appeals from two decisions of the Unemployment Insurance Appeal Board (UIA Board) ruled that Madison Consulting was liable for additional unemployment insurance contributions on remuneration paid to claimant. Madison provided management and consulting services to businesses, retaining the claimant and other like individuals to assist in such activities. Although claimant and these individuals entered into independent consulting agreements with Madison, after claimant stopped working for Madison, he filed a claim for unemployment insurance benefits. Following proceedings, the UIA Board concluded that claimant and other similarly situated individuals who provided consulting services were employees and awarded unemployment insurance benefits.

According to the record, Madison’s contract precludes the claimant from otherwise working for Madison’s client companies or partners during the term of the assignment and for one year thereafter, requires a client confidentiality agreement and entitles him to reimbursement of certain business expenses. In order to obtain payment, claimant was required to complete a time sheet provided by Madison to be submitted at times it directed. In addition, although Madison did not provide formal training, it supplied claimant with informational booklets on its clients’ policies and procedures, had a representative conduct site visits to periodically meet with the consultants and responded to client complaints about consultants’ work. As it does with the Workers Compensation Board (WCB), the Appellate Court wrote that the existence of an employment relationship is a factual issue for the UIA Board to resolve and its determination will be upheld if supported by substantial evidence. Where professionals are involved, the relevant inquiry is “whether the purported employer retains overall control of important aspects of the services performed.” This Court has acknowledged that “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 an employment relationship.” As substantial evidence supports the Board’s decision, the Court declined to disturb it, notwithstanding evidence in the record that would support a contrary conclusion.Click here to read the full court decision of the NYS Appellate Division…


Paivanas v Resource Center
October 7, 2010 NYS Appellate Division, Third Department
Denial of Full Board Review

AFFIRMED the Board’s ruling which denied claimant’s application for full Board review. Claimant applied for workers’ compensation benefits alleging that she developed chronic fatigue syndrome as the result of occupational stress as a coordinator who arranged care for developmentally disabled individuals. The Board ultimately determined that no causal link existed between claimant’s work-related stress and her condition. Claimant did not appeal the Board’s decision, instead applying for full Board review which the Board denied. Inasmuch as claimant only appealed from the denial of her request for full Board review, the Court was limited to assessing whether the Board’s denial of that application was an abuse of discretion or arbitrary and capricious. As claimant did not provide previously unavailable documentation that would warrant reconsideration of her claim, the Court wrote that it did not find that the Board’s denial of her application was either arbitrary and capricious or an abuse of discretion. Prevailing party represented by: Kevin Doering of counsel to Hamberger & Weiss (Buffalo) for The Resource Center and another, respondents. Click here to read the full court decision of the NYS Appellate Division…


Fallon v Syracuse City School Dist
October 7, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal

There were three issues appealed in this case. Two, one by each party, related to the Board’s denial of a full board review on specific issues on which they did not prevail; those appeals were deemed abandoned by the Appellate Court inasmuch as none of the parties addressed in their appeal to the Court the appealed-from decisions denying their applications for full Board review.

On the third issue, the Court AFFIRMED the Board’s ruling that the claimant had involuntarily retired. After suffering from an work-related injury in 2005, the claimant retired in 2006 contending that her condition, an established permanent partial disability, had contributed to her decision to retire. Initially the Board found that the claimant had voluntarily withdrawn from the labor market but then rescinded that decision and determined that, while claimant’s decision to retire was related to her disability, the medical evidence did not support a finding of permanent partial disability, and suspended her benefits beyond the period when she was demonstrably disabled. The Court determined that, contrary to claimant’s argument, the Board was free to assess the duration and severity of her disability notwithstanding the failure of the employer and its third-party administrator to raise that issue in its application for Board review. The medical evidence from both the claimant’s and carrier’s doctors was equivocal such that the Court agreed with the Board that, given this equivocal evidence, the Board could properly determine that claimant failed to establish the existence of a permanent partial disability. Similarly, substantial evidence supports the Board’s finding that claimant involuntarily retired in that her “disability caused or contributed to the decision to retire.” Click here to read the full court decision of the NYS Appellate Division…


Jimerson v NYC Police Dept
September 30, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal

REVERSED the Board’s ruling that the claimant voluntarily removed herself from the labor market. Claimant, a senior administrative aide, applied for benefits in May 2002 claiming injuries to her hands, neck and back due to repetitive movement associated with her employment. A work-related injury to the neck and back was ultimately established, which was later amended to include bilateral carpal tunnel syndrome. Despite frequent medical absences from 2002 to 2004, she continued to work for the employer until March 25, 2005, contending at that point that her injuries prevented her from completing her work-related duties, ultimately filing on the basis that she was now totally. After the Law Judge determined that claimant had voluntarily removed herself from the labor market and denied her additional workers’ compensation benefits, the Board panel modified the prior awards but affirmed the determination that claimant had voluntarily removed herself from the labor market. In reversing the Board, the Court did not find substantial evidence to support the Board’s determination that claimant voluntarily withdrew from the labor market on March 25, 2005. Although the Board found that claimant “was able to perform her regular job duties without restriction on a full-time basis until removing herself from the labor market,” there is a complete absence of evidence to support such finding. In fact, there is substantial evidence to the contrary. Based upon this evidence, and the lack of any evidence to indicate an alternative reason for claimant’s decision to discontinue working, the Court concluded that the Board’s determination that claimant’s disability did not contribute to her withdrawal from the labor market was not supported by substantial evidence. Prevailing party represented by: Joel M. Gluck, New York City, for Jimerson Click here to read the full court decision of the NYS Appellate Division…


Liguori v Beloten
September 30, 2010 NYS Appellate Division, Third Department
Article 78

AFFIRMED Chairman Beloten’s decision, thus reversing a decision of the Albany Supreme Court, which removed Dr. James M. Liguori, a board-certified neurologist, from a list of eligible providers, after he pled guilty to professional misconduct. Thereafter, he was advised that, pursuant to WCL §13-d(5), the Chairman of the WCB removed him from the list of providers authorized to render care and treatment to individuals who had suffered work-related injuries. When his request for reconsideration and/or administrative review was denied, he commenced a CPLR article 78 proceeding seeking to annul the underlying determination. Supreme Court granted the petition, finding that the Chair failed to adequately explain the basis for petitioner’s removal from the list of authorized providers and remitted the matter for further proceedings, in repose to which the Chairman issued a more detailed decision. After filing another Auricle 78, the Supreme Court rueld for Liquid, stating that the Chairman’s determination was arbitrary and capricious, ordering that he immediately be restored to the list of eligible providers. The Appellate Court stated “Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law.” The in reversing the Supreme Court’s decisions, the Appellate Court added, “Upon our review of the Chair’s June 2009 determination and the record as a whole, we cannot say that the penalty imposed constitutes an abuse of discretion as a matter of law.” Prevailing party represented by: Victor Paladino of counsel to Andrew M. Cuomo, Attorney General for the WCB Click here to read the full court decision of the NYS Appellate Division…


Aides At Home v State of NY Workers’ Comp Bd.
August 5, 2010 NYS Appellate Division, Third Department
ATF Compensation for Failed Trust

AFFIRMED a lower court order dismissing petitioner’s application to review a determination of respondent Workers’ Compensation Board imposing a deficit assessment against the petitioner as a member of an underfunded workers’ compensation group self-insured trust.

Petitioner was a member of the New York State Health Care Facilities Workers’ Compensation Trust (hereinafter the Trust) from September 1, 1997 through October 14, 2000. In August 2006, the Board terminated the Trust due to severe underfunding, assumed the administration and distribution of the Trust’s assets and liabilities, and in March 2008, issued a deficit assessment to each current and former Trust member, including petitioner, to cover the costs of fulfilling the Trust’s workers comp claims. Petitioner commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, dismissed by the Albany County Supreme Court March 23, 2009, challenging the Board’s assessment, claiming inter alia that the Board did not have the statutory or regulatory authority to impose the assessment and that the assessment was arbitrary and capricious and violated petitioner’s due process rights, a challenge dismissed by the Albany County Supreme Court on March 23, 2009.

Initially, the Appellate Court’s review of the Board’s determination was is limited to whether it “was affected by an error of law or was arbitrary and capricious or an abuse of discretion“. Or if “the construction given statutes and regulations by the agency responsible for their administration will, if not irrational or unreasonable, be upheld“. Although petitioner was not a member of the Trust when the assessment was levied, petitioner nevertheless remained jointly and severally liable for the liabilities of the Trust that were incurred during petitioner’s membership until such time that those liabilities were satisfied (see WCL §50 [3-a] [former (2), (3)]). [Court Note: WCL §50(3-a)(3) was amended in 2008 to clarify that a member of a group self-insured trust remains jointly and severally liable for unpaid claims that accrued during the period of membership even after the member leaves the trust (see L 2008, ch 139, § 1)]. A key fact supporting the Board’s appropriate interpretation of the statute was that the petitioner, upon joining the Trust, accepted this statutory mandate which was explicitly articulated in the trust and indemnity agreements along with a provision that petitioner was liable for its share of a deficiency assessment “for any Trust year or part thereof that [it] participated in the Trust,” which language the Board reasonably construed as meaning that petitioner could be assessed for the Trust deficiency as of 2000. As to the amount of the assessment, petitioner was held to be responsible only for deficiencies incurred during its membership, amounts supported by detailed actuarial analysis. Prevailing party represented by: Owen Demuth of counsel to Andrew M. Cuomo, Attorney General for respondents.Click here to read the full court decision of the NYS Appellate Division…


Hilbrandt v Village of Red Hook
July 29, 2010 NYS Appellate Division, Third Department
§ 28: time bar

AFFIRMED the Board’s ruling that claimant’s application for workers’ comp benefits was time-barred by WCL §28. Claimant, working as a volunteer emergency medical technician, was injured on August 26, 2005 causing her to fall on her back and side. Her workers’ comp claim, was initially established for a left ankle and leg injury and later for consequential injuries to her right shoulder.

In April 2008, claimant was first treated for an injury to her right hip and, based upon the report of her treating physician, sought to amend her claim to include a consequential right hip injury. The Law Judge, affirmed by a Board Panel, dismissed the claim for right hip injury as time-barred pursuant to WCL §28. Claimant contends this claim is governed by the Volunteer Firefighters’ Benefit Law (VFBL), which implements a separate and distinct statute of limitations per VFBL §41. The Court wrote that “This issue, however, is unpreserved for our review due to claimant’s failure to raise it before the Judge or the Board. In any event, while we agree that VFBL §41, rather than WCL §28, should have been applied in this case, we would nonetheless find that claimant’s claim for right hip injury, as presented to the Board, is time-barred under either statute.” In addition, both the Board and the Court rejected the claimant’s contention that the hip injury was consequential rather than directly resulting from the accident, based on (1) claimant’s testimony that she began noticing hip pain as early as November or December 2005, but “just kept going with the pain” and did not seek treatment for that condition until April 2008 and (2) claimant’s treating physician concluded that the hip injury was a direct result of the August 2005. Prevailing party represented by: Glenn M. Forman of counsel to Gregory J. Allen, NYSIF, for Village of Red Hook and another, respondents. Click here to read the full court decision of the NYS Appellate Division…


Wooding v Nestle USA, Inc
July 29, 2010 NYS Appellate Division, Third Department
Disability: Industrial v SLU

AFFIRMED the Board’s ruling that claimant did not have a total industrial disability. Claimant suffered an injury to his left arm performing manual labor in 2003. Later confirmed by a Board panel, the Law Judge found that claimant had sustained a schedule loss of use to his arm and not, as he claimed, total industrial disability. Whether a claimant sustained a total industrial disability is a question of fact, and the Board’s resolution thereof will be upheld if supported by substantial evidence. While one vocational counselor opined that the claimant’s physical condition, when coupled with his age, educational background and employment history, seriously impaired his ability to find employment, the Board accepted a vocational evaluation finding incapable of forming sedentary work in fields such as sales or customer service with appropriate training. The counselor conceded that, despite his doubts as to the likelihood of claimant succeeding in retraining, success was possible. [ED. NOTE: Not addressed in this decision is the question as to what will happen if the claimant is unsuccessful in the retraining program. Would the Board then, as it should, reopen the case?] Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Nestle USA, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division…


Galanos v Nevada Utils
July 22, 2010 NYS Appellate Division, Third Department
Coverage: Opting out

AFFIRMED the Board’s ruling that the claimant was not a covered employee under the Workers’ Compensation Law, having opted out of coverage as an executive officer of the corporation. After the claim was established, the carrier requested that payments be suspended because, prior to the incident, claimant had signed a C-105.51 form opting out of workers’ compensation coverage due to her status as an executive officer in the employer corporation (WCL §54[6][d]). The claimant countered that (1) she was never an officer of the corporation, (2) the form was filed in error, and (3) since the carrier had been making payments on the claim, it should be estopped from disclaiming coverage. Both the Law Judge and the Board panel found in the employer’s favor. After admitting signing the C-105.51 notice, which stated coverage would not be provided unless and until this election was “revoked by the [employer] corporation” (WCL §54[6][d]), she admitted never revoking it. As to her claim she was not given an adequate opportunity to submit evidence at the hearing supporting her various arguments, the WCB’s decisions noted that she had two months notice of the hearings and that her employment status would be a key factor in the decision. Finally the Court agreed with the Board that, on these facts, the doctrines of laches and estoppel have no application to this proceeding and coverage was properly denied. Prevailing party represented by: Edward Obertubbesing of counsel to Gregory J. Allen, NYSIF, for Nevada Utilities and another, respondents. Click here to read the full court decision of the NYS Appellate Division…


Smallwood v Mereda Realty
July 15, 2010 NYS Appellate Division, Third Department
Employment: Dual?

AFFIRMED the Board’s ruling that a general employment relationship existed between claimant and Pueblo Nuevo Associates. Claimant, the superintendent of a building owned by Pueblo Nuevo and managed by Mereda Realty Corporation, who sustained injuries while providing maintenance at the site, received comp benefits and also commenced an action in Supreme Court against both firms. After a Board Panel modified a Law Judge ruling (claimant was an employee of Mereda) finding that claimant was a general employee of Pueblo and a special employee of Mereda, each responsible for 50%, claimant appealed, contending there was no employment relationship with Pueblo. The Board noted that although Mereda hired claimant, Pueblo retained the authority to fire him. Although his day-to-day activities were directed by Mereda, part of his compensation included a rent-free apartment in Pueblo’s building and his paychecks were from Pueblo’s general payroll bank account, checks noting that they were from Mereda as agent for Pueblo. Added to other indicia, the Court affirmed the Board’s decisions, writing that the existence of an employer-employee relationship, even if there is a written agreement indicating otherwise, is one for the Board to resolve and “its determination in that regard must be upheld if supported by substantial evidence, even if other evidence in the record could have supported a contrary conclusion.” Prevailing party represented by: Rudolph Rosa DiSant of counsel to Gregory J. Allen, NYSIF for Pueblo Nuevo Assoc and another, respondents. Click here to read the full court decision of the NYS Appellate Division…


Poulton v Martec Indus
July 8, 2010 NYS Appellate Division, Third Department
Injury: new or aggravated

REVERSED the Board’s ruling that claimant aggravated a prior injury and awarded workers’ compensation benefits. Claimant, who applied for benefits alleging that he injured his back at work on June 7, 2006, had his claim controverted as he had sustained back injuries in 1998 and 2000 while working for a prior employer; claimant did not apply for workers’ comp benefits in 1998 but the 2000 incident resulted in an established WC claim. The Law Judge, affirmed by a Panel, awarded benefits, concluding that the 2006 incident constituted “an accidental work related aggravation of prior neck and back injuries.” The appeal asserted that the June 7, 2006 incident did not cause a new disability. The Appellate Court determined that “Under the circumstances, ‘the proper inquiry is whether claimant’s employment acted upon [a] preexisting condition in such a way as to cause a disability which did not previously exist’” and concluded it did not, thus reversing the Board.

[ED. NOTE: December 23, 2010: It is interesting to note that the Board panel (Firestone, Bell, Higgins) made their decision, according to the MoD, on the basis of the medical record of the June 7, 2006 incident and ignored all references to the testimony regarding the claimant’s plan, prior to that date, to retire on disability due to his acknowledged pre-existing back problems.]

Claimant testified that he had experienced the same type of back pain ‘every day’ since 1998. On June 2, 2006, claimant scheduled a June 8, 2006 appointment with his treating physician — who had been seeing claimant for his back problems on a monthly basis — to discuss his desire to cease working [Court’s footnote FN2: While scheduling the appointment, claimant informed personnel in his physician’s office that he had increasing back pain and that it had become hard for him to function at work. On June 6, 2006, claimant contacted his physician’s office again and reiterated his desire to discuss going out on disability. We note, in addition, that claimant made no reference to the June 7, 2006 work-related incident on an application for disability benefits that he completed on June 9, 2006.] “At that appointment, claimant made no mention of an incident at work the prior day and, following the examination, claimant’s physician concluded that claimant was disabled and unable to work ‘[b]ecause of his old injuries and his continued decline.’ … Furthermore, claimant’s supervisor testified that claimant regularly complained of back pain and that, before June 2006, claimant stated that he might stop working and seek permanent disability benefits as a result of a back injury sustained at his former job. Finally, a second physician who examined claimant opined that he suffered from degenerative disc disease and that his disability was caused primarily by preexisting problems.” Prevailing party represented by: Jacklyn M. Penna of counsel to Buckner & Kourofsky (Rochester) for appellants. Click here to read the full court decision of the NYS Appellate Division…


Parkhurst v United Rentals**
Lloyd v Kelly
Robinson v Gould Pumps**
Collins v Dukes Plumbing*
Earle v Batavia Nursing Home*
Raynor v Landmark Chrysler* **

July 1, 2010 NYS Appellate Division, Third Department
** EDITOR’s NOTE: Court of Appeals decided October 26, 2010 that Motion Decision Motion for leave to appeal granted.
* EDITOR’s NOTE: The decision issued in Collins, Earle, and Raynor are identical almost word for word with the exception that in the latter three cases, a constitutional issue was raised. See notes below.

AFFIRMED the Board’s ruling, in these six cases, that the Board’s mandating payment, per WCL §27(2), to the aggregate trust fund (ATF) does apply retroactively to claimants’ injuries even if they were sustained before the amendments effective date. In affirming the Board’s decision, the Court also rejected the carriers’ argument that mandating lump-sum payment of claimants’ uncapped PPD awards is improper because the actual amounts of their future benefits are unpredictable and there is no reliable way to calculate their present values.In each of these cases, claimants’ injuries were classified as a PPD with benefits awarded under §15(3)(w). These PPD awards, however, were not capped because claimants’ injuries all preceded the effective date of the amendment. Because each of these uncapped PPD awards was made after July 1, 2007, the private insurance carriers for claimants’ employers were ordered to make a lump-sum payment of the present value of the award into the ATF pursuant to the amendment to §27(2). The full Board found the language of §27(2) as amended to be unambiguous and to evince a clear intent to require payment into the ATF of all §15(3)(w) awards made after July 1, 2007 regardless of the date of injury.The Court wrote that “We do not view these cases as presenting an issue of the retroactive application of the amendment to §27(2).” They then followed with their interpretation of the statute and and legislative intent, including in their decision, “Here, the plain language of the statutes and the legislative history of their amendments persuades us that the inclusion of a reference to §15(3)(w) in §27(2) was intended to expand the types of awards to which the latter’s mandatory payment provision applies rather than to restrict it to awards that are capped by the amendment to §15(3)(w) . … Nor do the principles of statutory construction permit us to imply the limitation suggested by the carriers. Where, as here, “a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.

The Court also explained its rejection of the carriers’ contention that the Board’s computation of the present value of each claimant’s award is speculative or arbitrary and capricious because the tables used cannot accurately predict the amount or duration of an uncapped award.

[ED. NOTE:]The following is the Court’s response to the constitutional issues discussed the Matters of Collins, Earle, and Raynor.

As for the constitutional arguments made by two of the carriers, “we are not persuaded that the Board’s application of amended Workers’ Compensation Law §27(2) violates the Taking Clause of the Fifth Amendment of the US Constitution. To determine whether there has been a compensable taking of private property for public use, we weigh the economic impact of the challenged statute on the carriers, the extent to which it has interfered with their distinct investment-backed expectations and the character of the governmental action involved. Here, the carriers do not claim that the amendment has increased the amount of compensation owed to claimants, and they offer no evidence of an unexpected additional expense other than administration fees, “a necessary consequence of the . . . regulatory scheme.

The argument that the amendment violates the Contract Clause of US Constitution, article I, § 10 also is unpersuasive because their existing insurance contracts already had to account for the possibility of a discretionary direction to pay awards into the ATF. We are similarly unpersuaded that §27(2) violates the carriers’ equal protection rights under the 14th Amendment. To the extent that the carriers also contend that the mandatory deposit violates their substantive due process rights, they have not demonstrated that they were deprived of a protected property interest and “that the governmental action was wholly without legal justification.” Prevailing party represented by: In Parkhurst et al, Diana R. H. Winters and, in Collins et al, Karen Schoen both of counsel to Andrew M. Cuomo, Attorney General for respondent (WCB) Click here to read the full court decision in Parkhurst et al and here for Collins et al


Held v NYS WCB
June 17, 2010 NYS Appellate Division, 3rd Department, Motion Decision
§ 50(5) Assessments

ORDERED that the the motion is granted, without costs, and without prejudice to a motion to vacate the stay in the event appellants-respondents do not file a record and brief on or before August 2, 2010. William Held Jr., as Chair of Contractors Compensation Trust, et al., group self-insured trusts (hereinafter GSITs), commenced that earlier proceeding to annul certain assessments levied against them by respondent New York State Workers’ Compensation Board.


Visic v O’Nero & Sons Constr
June 24, 2010 NYS Appellate Division, Third Department
Disability: Degree of
Decision Inadequately/Poorly Written

In part AFFIRMED the Board’s ruling that the pro-se claimant has a marked permanent partial disability rather than a total disability but ‘CORRECTED’ the Board for reopening an issue (AWW) not being controverted. Following two surgeries necessitated by a 2000 injury to his back, the claimant was classified in 2004 with a permanent partial disability.After the case was reopened in 2007 based on a C-27 from claimant’s doctor opining a total disability, a Law Judge determined that there was no total disability but a marked permanent as previously determined and the parties stipulated as to AWW. On review, the Board agreed with all Law Judge on the Degree of Disability but remitted the matter back to the Judge to reconsider average weekly wage.

The Board relied on the medical reports of physicians Edward Simmons, who performed claimant’s surgery in 2004, and Jerry Tracy whereas the claimants testifying physicians gave conflicting testimony and the doctor who supplied the C-27 did not base his opinion on the Board’s Medical Guidelines of June 1996. In summary, the Court, while knowledge and conflicting medical information found that the Board’s decision was adequately supported. However, in returning the case to the Judge to reconsider the AWW, the Court noted the parties reached a stipulation on the AWW. “Inasmuch as a timely appeal was not filed on that decision, and given the absence of circumstances justifying revisiting the issue, the decision is final and binding per WCL §23.” Prevailing party represented by: Thomas P. Etzel of counsel to Gregory J. Allen, State Insurance Fund for O’Nero & Sons Construction Company and another, respondents. Click here to read the full court decision of the NYS Appellate Division…



Perez v Licea
Moreno v Licea
June 24, 2010 NYS Appellate Division, Third Department
Employment: Who is
Procedure: Denial Full Board Review
EDITOR’s NOTE: Court of Appeals October 19, 2010: Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.

AFFIRMED the Board’s rulings in these two related cases which (1) determined that an employer-employee relationship existed and (2) which denied claimants’ requests for reconsideration or full Board review. In 2006,Edelman, as the owner and sole officer of 2180 Realty Corporation, asked Luis Licea to perform maintenance work on his company’s building. Licea requested that Edgar Ruano Perez and Jorge Moreno, claimants and appellants in these two cases, assist him shortly after which all three sustained injuries in an explosion while work was being performed. After hearings were held to determine whether claimants were employees of Licea or 2180 Realty, a Law Judge ruled Licea the general employer liable for 75% and 2180 Realty special employer liable for 25%. After both claimants and Rochdale Insurance Company (2180 Realty’s workers’ comp carrier) sought review of that decision,the Board affirmed the Law Judge and denied both parties’ requests for full Board review or reconsideration.

The Board’s factual determination that a general employee of one employer is a special employee of another must be upheld if it is supported by substantial evidence. While no single factor is dispositive, “it has been held that the key to the determination is who controls and directs the manner, details and ultimate result of the employee’s work.” Licea testified that Edelman instructed him to employ additional workers such that the two claimants and Licea were doing so when the explosion occurred. Both Edelman and Licea testified as to their conversation regarding their relationships with the two claimants to investigators for the NYC Fire Department as well as adding additional information in their testimony before the Board, information the Board used to make it determination. In supporting the Board, the Court wrote, “To the extent that evidence in the record might support a different result, we note only that ‘the Board was entitled to resolve the conflicting evidence based upon its assessment of the witnesses’ credibility and the reasonable inferences drawn therefrom.’”

The Court addressed the denial for reconsideration or full Board review in a footnote: “Although claimant[s] and Rochdale have each appealed from the Board’s underlying decision, only claimants have appealed from the Board’s denial of request for full Board review or reconsideration; however, claimants’ appeals from that denial are deemed abandoned as they did not raise any issues with respect thereto in the brief on appeal.” Prevailing party represented in both cases by: Amy L. Fenno of counsel to O’Connor Redd (White Plains) for 2180 Realty Corporation, respondent and Kim Stuart Swidler, Uninsured Employers’ Fund, Albany, for Uninsured Employers’ Fund, respondent. Click here to read the full court decision in Perez v Licea… and Click here to read the full court decision in Moreno v Licea…


Grill v Fashion Inst. of Tech
June 24, 2010 NYS Appellate Division, Third Department
§ 15(8)(e) 2nd Injury Fund
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling (1) that because claimant did not have a ‘dust disease’, WCL §15(8)(ee) did not apply and (2) which denied the application of the employer and its third-party administrator for full Board review. After the claim was established for a compensable occupational disease (interstitial pulmonary fibrosis and lung disease) the question thereafter arose as to whether the condition constituted a dust disease entitling the employer to reimbursement from the Special Disability Fund (Fund) per WCL§15 [8] [ee]), the Board determined that it did not.

Whether a condition constitutes a dust disease within the ambit of WCL §15(8) (ee) depends “upon the pathological distinction between pneumoconiosis (diseases caused by the inhalation of dust particles which affect the parenchyma, or essential functioning aspects, of the lungs) and those diseases which affect the pleura, or lining, of the lungs. If a lung disorder arises from pneumoconiosis, it is properly viewed as a dust. Here, claimant’s treating pulmonologist determined that she suffered from pneumonitis arising from her exposure to aerosolized paint, but did not find that she had pneumoconiosis. As the Board was free to credit that opinion over the equivocal diagnosis of pneumoconiosis rendered by another physician, we are satisfied that substantial evidence supports its decision.”

In a footnote the Court ruled, “Inasmuch as the employer fails to raise any issue with respect to its separate appeal from the Board’s denial of its application for full Board review, we deem that appeal to have been abandoned.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division…


Stojanov v Eastman Kodak
June 17, 2010 NYS Appellate Division, 3rd Department, Motion Decision
§ 23: Late or Interlocutory Appeal

ORDERED that the motion for reargument or, in the alternative, for permission to appeal to the Court of Appeals is granted. In the original decision issued April 1, 2010, the Court rescinded and sent back for reconsideration the Board’s ruling that claimant’s applications for review were untimely per WCL because the applications were not received by the Board within 30 days. However, in explaining its rescission in April 2010, the Court noted that, “In Matter of McLaughlin v Saga Corp. (242 AD2d 393, 394 [1997]), this Court concluded that the mailing of an application for Board review within the 30-day limitation period “was sufficient to satisfy the time limitation of Workers’ Compensation Law § 23. Subsequently, the Board promulgated the current version of 12 NYCRR 300.13 (a), which provides that an ‘application is deemed filed with the [B]oard on the date of actual receipt of such application by the [B]oard’ (emphasis added). This amendment is obviously at odds with this Court’s holding in McLaughlin and, as such, violates the rule that ‘[a] court’s affirmance or reversal of an administrative body’s interpretation of its governing statute becomes binding on the agency.’ Therefore, the Court reversed the Board stating that the Board could not promulgate administrative regulation that was inconsistent with this Court’s interpretation of WCL §23, remaining the case back to the Board for further proceedings on the original issue raised by the claimant.” Click here to read the full court decision of the NYS Appellate Division…


Len v NYS
June 17, 2010 NYS Appellate Division, Third Department
§11: Jurisdiction

AFFIRMED an order of the Court of Claims which, among other things, granted defendants’ motion to dismiss the claim and/or for summary judgment dismissing the claim.

On December 7, 2006, decedent tragically fell to his death from one of the movable dams used by his employer New York State Canal Corporation, the chief lock operator for the Green Island Bridge in the City of Troy, Rensselaer County. The decedent’s estate commenced this action against the Corporation, defendant State of New York and defendant New York State Thruway Authority alleging both wrongful death and conscious pain and suffering.

Asserting, among other things, that these claims are barred by the exclusivity provision of WCL §11, defendants moved to dismiss the action and/or for summary judgment. Conceding only that his claims against the Corporation are barred, claimant otherwise opposed the motion and cross-moved to amend his claim as against the State and the Authority to allege Labor Law violations. The Court of Claims granted defendants’ motion, holding that the claims against the Authority, by virtue of its parent-subsidiary relationship with the Corporation, were barred by the exclusivity provision of WCL §11. Key to this decision was the Court’s determination as to whether the Authority should be deemed decedent’s employer for workers’ compensation purposes. Although the standard for finding an alter ego relationship is high, requiring “direct intervention by the parent in the management of the subsidiary to such an extent that ‘the subsidiary’s paraphernalia of incorporation, directors and officers’ are completely ignored”, here the Court found that the Corporation is but an arm of the Authority, justifying a finding that the Corporation is the Authority’s alter ego.The Court concluded that “this evidence of shared purpose, intermingling of finances and unity of management is sufficient, on this record, to uphold the Court of Claims’ finding that, for the purposes of canal operations, the Authority is indistinguishable from the Corporation and, as a result, is entitled to assert the exclusivity provisions of the WCL.”

With respect to his claims against the State and the claimant assertion that he should have been permitted to amend the complaint to include claims under Labor Law § 240 (1) and § 241 (6), the Court reviewed the specifics of the appeal and agreed that the Court of Claims properly found that claimant’s proposed claims under Labor Law § 240 (1) and § 241 (6) lack merit. The Appellate Court then added, “In light of this conclusion, we need not address the State’s proposed alternative ground of affirmance, namely that it is also entitled to assert the defense of workers’ compensation. Finally, we reject claimant’s alternative argument that the granting of the State’s summary judgment motion was premature (see CPLR 3212 [f]). Claimant ‘has failed to identify any evidence that might . . . [be] developed if additional discovery [is conducted] that would . . . serve[] to bar [the Court of Claims] order granting the State’s motion’.” Prevailing party represented by: Kathleen M. Treasure of counsel to Andrew M. Cuomo, Attorney General for respondents. Click here to read the full court decision of the NYS Appellate Division…


Brown v NYC Dept Corrections
June 17, 2010 NYS Appellate Division, Third Department
Causal Relationship:Heart Condition

AFFIRMED the Board’s ruling that claimant did not sustain a causally related injury and denied his claim for workers’ compensation benefits. laimant’s lightheadedness at work in 1999 was determined to be due to cardiomyopathy. Absent from work for several months, he applied a claim for workers’ comp, arguing that work-related stress led to hypertension which, in turn, triggered the cardiomyopathy, a claim the Board denied, finding that he had not established a causal link between job stress and his cardiac condition.

Claimant suggests that the manifestation of his condition at work gave rise to a presumption that it arose out of and in the course of his employment. But as he failed to raise this issue before the Board, the Court ruled that “it is accordingly unpreserved for our review.” Nonetheless the Court reviewed the medical evidence submitted by the claimant and the carrier noting that an impartial cardiologist who examined the claimant at the Board’s request found no causal link between claimant’s work and his cardiac distress. The Court, in referencing several medical reports supporting the Board’s decision, did note that the “medical proof provides substantial evidence to support the Board’s decision, notwithstanding the fact that other evidence in the record could support a contrary result.Prevailing party represented by: John Sweeney of counsel to Michael A. Cardozo, Corporation Counsel, NYC for NYC Department of Correction, respondent. Click here to read the full court decision of the NYS Appellate Division…


Dupuis & Frito Lay v SFCC
June 17, 2010 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board’s ruling that the employer’s workers’ compensation carrier is entitled to reimbursement from the Special Disability Fund per WCL §15(8)(d). After the claimant’s claim for a work-related knee injury was established and he received workers comp benefits, the employer’s carrier sought reimbursement from the Fund asserting the claimant’s diabetes, among other pre-existing conditions, had contributed to his disability, an argument with which the Board agreed. In order to obtain reimbursement under WCL§15(8)(d), the carrier was obliged to show that claimant had (1) a preexisting permanent impairment that hindered his job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than what would have arisen from the work-related injury by itself. The Court, in referencing several medical reports supporting the board’s decision, did note that the “medical proof provides substantial evidence to support the Board’s decision, notwithstanding the fact that other evidence in the record could support a contrary result. Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for Frito Lay and another, respondents. Click here to read the full court decision of the NYS Appellate Division…


Kaja v Siller Bros
June 10, 2010, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

ISSUED A SPLIT DECISION on the Board’s ruling which denied pro-se claimant’s application for reconsideration and/or full Board review. Claimant, whose left thumb was severed in May 2003 and later reattached, had his case closed in August 2004 with an award for 75% schedule loss of use of his left thumb. In August 2004, the WCLJ, based upon a report from claimant’s orthopedist, found prima facie medical evidence of a consequential neck injury related to the 2003 incident and continued the case. However, following the submission of medical reports and a hearing in 2008, the Law Judge determined that claimant failed to establish a consequential neck injury. As to the additional claim for further causally related disability to claimant’s thumb, the Law Judge also denied relief, noting that an October 2004 independent medical report from the workers’ compensation carrier’s consultant, Joseph Fulco, had only found, at that time, left thumb disability “of a moderate partial rate.” After all the decisions were affirmed by a Board panel, claimant applied for reconsideration and/or full Board review which was denied.

As the claimant’s appeal dealt with the denial for reconsideration and/or full Board review and not the underlying decision, the Court limited its review to the denial, resulting in a “split” decision. The Court agreed with the Board regarding the neck, ruling no new evidence was presented justifying a modification of prior decision.

However, regarding the thumb, the Court found that a new independent medical report of January 2009 from the carrier’s consultant opined that claimant has “a 100% schedule loss of use of the left thumb.” The Curt then wrote, “Here, given the circumstance that, among other things, the report by the impartial specialist describing a change in condition was generated at the request of the carrier and expeditiously presented to the Board, we cannot agree with the Board’s ruling that claimant’s application should be denied on the basis that ‘[n]o new evidence has been offered which could not have been produced earlier.’ Accordingly, we deem it appropriate to remit the matter to the Board for further proceedings related to that issue. Prevailing party represented by: Since this was a split decision, no one had the prevailing argument but kudos to EDIP KAJA, the pro se appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Sulecki v City of New York
June 3, 2010 NYS Appellate Division, First Department
Course of Employment: Egress/Ingress

REVERSED the Order, Supreme Court, New York County (Karen S. Smith, J.), entered February 2, 2009, which denied the municipal defendants’ motion to amend their answer to assert the defenses of workers’ compensation and collateral estoppel. In its decision the Court wrote, “Plaintiff, an engineer employed by the New York City Department of Design and Construction, was injured after tripping on a sidewalk adjoining a City-owned building while on his way to a work-related meeting. The Workers’ Compensation Law provides the exclusive remedy where, as here, the employer and the landowner are essentially the same party and the plaintiff is injured while performing his job No exception should be made simply because plaintiff’s injury did not occur at the location of the work-related meeting. Accordingly, the motion for leave to amend the answer should have been granted and the complaint dismissed as against the municipal defendants.” Click here to read the full court decision of the NYS Appellate Division, Third Department….


Keles v Santos [Cleaning]
May 27, 2010 NYS Appellate Division, Third Department
Employment: Who is

AFFIRMED the Board’s ruling that claimant was not an employee of Augusto B. Santos and denied his claim for workers’ compensation benefits. Claimant, employed by Plymouth Beef Company, was allegedly injured at the facility prior to the start of his scheduled shift with Plymouth, thus seeking workers’ comp benefits. He claimed that his early presence at the facility was due to inspection work he performed for Santos, the proprietor of the business that cleaned the facility. A Law Judge, later affirmed by a Board Panel, disallowed the claim, finding that no employer-employee relationship existed between claimant and Santos. Although the claimant at one time worked for Santos, the relationship ended months before the injury. Nonetheless as part of his job at Plymouth, he was required to interact with employees of Santos. The Court wrote, “While claimant testified that he felt morally obliged to continue performing the safety inspections which he had done for Santos even though Santos no longer needed his services, that gratuitous work, absent other indicia suggesting an employer-employee relationship, and the fact that substantial evidence supports the Board’s determination we affirm the decision not to award workers’ compensation benefits.” Prevailing party represented by: Daniel Becker of counsel to Gregory J. Allen, State Insurance Fund for Augusto B. Santos and another, respondents and Patrick M. Conroy of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Plymouth Beef Company and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Turner v Jaquith Indus
May 27, 2010 NYS Appellate Division, Third Department
Disability: Further Causally Related

AFFIRMED the Board’s ruling that claimant had no further causally related disability. Claimant, a machine operator, began experiencing respiratory problems after being exposed to toxic fumes in the course of his employment in July 1997 resulting in losing three weeks of work and an established comp claim involving his lungs and airways. He returned to work in August 1997 but in the summer of 2006, he was again exposed to fumes causing breathing difficulty. Subsequent to a diagnosed of asthma and chronic obstructive pulmonary disease, he submitted a second claim for benefits. A Law Judge, later affrimed by a Board Panel, authorized awards for February 16, 2007 to June 8, 2007, but found no futher causally related disability beyond June 2007. While the claimant’s and carrier’s medical providers submitted opposong opinions, the Court, as its normal position on such controversies, wrote, “[I]t is within the Board’s discretion to determine witness credibility and resolve conflicting medical opinions. . . . inasmuch as the resolution of conflicting medical opinions is within the Board’s province and both of the latter opinions constitute substantial evidence supporting the Board’s determination, we decline to disturb it.Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent and Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for PMA Insurance Group, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Clark v Suny Upstate Med. [SFCC]
May 27, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

AFFIRMED the Board’s ruling that the award of workers’ compensation benefits be paid by the Special Fund for Reopened Cases. Claimant injured her back while working for the employer in 1994, initially paid for compensable lost time which came to an end in March 1977 when a Law Judge authorized treatment and closed the case. Further work-related injuries in 2001 and 2003 also resulted in the payment of workers’ comp benefits, beginning in 2003. The 1994 claim was reopened in 2004, when a hearing was held to determine, among other things, whether apportionment between the various claims was appropriate at which time the. The Special Fund for Reopened Cases (Fund) was then placed on notice that it may be required to assume liability for the 1994 claim per WCL §25-a.

Although on the face of the record, both of the times limits under §25-a (three years and seven years) were satisfied in this case, the Fund argued that the employer’s workers’ compensation carrier voluntarily paid benefits it knew were attributable to the 1994 claim in the three years prior to reopening. The carrier received the November 2003 report of an orthopedic surgeon who examined claimant and opined that the 1994 accident was partially responsible for her ongoing disability. Although the carrier did subsequently pay benefits under both the 2001 and 2003 claims, it also raised the issue that the Fund may be liable for any portion attributable to the 1994 claim, and the Fund was notified of its potential liability (see WCL §25[1][f]). The Court then wrote, “As substantial evidence in the record thus supports a finding that the carrier did not voluntarily assume liability for payments attributable to the 1994 claim, the Board appropriately followed the spirit and purpose of WCL §25-a to shift liability of that stale claim to the Fund.Prevailing party represented by: Susan B. Marris of counsel to Gregory J. Allen, State Insurance for SUNY Upstate Medical Center and another, respondents Click here to read the full court decision of the NYS Appellate Division, Third Department….


Monteleone v Town of N. Castle
May 27, 2010 NYS Appellate Division, Third Department
§ 25(4)[a] Reimbursement

AFFIRMED the Board’s ruling that the employer was entitled to reimbursement for wages paid to claimant during the period of disability. After suffering a 2005 inury, claimant ultimately negotiated a 25% schedule loss of use encompassing 78 weeks of compensation. As claimant had been paid full wages for 46 days due ot his injury, the agreement also called for the employer to be reimbursed $11,380 of the total $31,200 award per §25(4)[a]. After a Law Judge approved the stipulation, the claimant requested that the amount of the employer’s reimbursement be modified because approximately eight days of claimant’s vacation and sick leave accruals had allegedly been deducted during those 46 days. Although the Law Judge agreed with the claimant and reduced the amount of the employer’s reimbursement, a Board panel reversed and affirmed the original reimbursement of $11,380. Here the Court noted that “pursuant to a collective bargaining agreement governing claimant’s employment, the employer was required to pay claimant’s full wages, without deducting any of claimant’s leave accruals, for the initial six months of any lost time arising from a compensable injury. Inasmuch as the instant record does not support claimant’s assertion that the employer did otherwise, the Board properly concluded that reimbursement of $11,380 to the employer would not create a disproportionate result in its favor.Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for Town of North Castle and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Bran v Wimpish
May 20, 2010 NYS Appellate Division, Third Department
Employment: Who is
§14: Average Weekly Wage

AFFIRMED the Board’s ruling that claimant was an employee of Ralph Wimpish but REVERSED the Board’s ruling on the average weekly wage.

After sustaining injuries on February 12, 2008 when he fell from a ladder while working in the apartment owned by Ralph Wimpish, the injured workers claim was established after a Law Judge found an employer-employee relationship and set the claimant’s average weekly wage at $620, decisions affirmed by a Board Panel. The Appellate Court noted that, “Wimbish hired the claimant in the parking lot of a home improvement store, provided daily transportation between the store and the worksite and instructed the claimant on what work needed to be done. . . . Wimbish paid claimant in cash at the end of each workday and supplied him with equipment, including spackle, spackling tools and a ladder.” Citing prior case law, the Court added, “The existence of an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its finding must be upheld if supported by substantial evidence. . . . In our view, the record contains substantial evidence supporting the Board’s determination that an employer-employee relationship existed between claimant and Wimbish, notwithstanding evidence in the record that could support a contrary result.

However, the Court did find merit in Wimbish’s contention that the Board’s calculation of claimant’s average weekly wage at $620 was improper and return this particular matter to the Board for further proceedings. Prevailing party represented by: John F. Clennan, Ronkonkoma, for appellant, on the issue of average weekly wage and Iris A Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent on the issue of employee/employer relationship. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Catapano v Jaw
May 20, 2010 NYS Appellate Division, Third Department
§ 29: MVA liens

RESCINDED and sent back for reconsideration the Board’s ruling that the Special Disability Fund’s consent to a third-party settlement was not required. Claimant suffered injuries in an accident at work, and this workers’ compensation claim was established in 1996. The employer’s workers’ compensation carrier then filed a notice of claim for reimbursement out of the Special Disability Fund and, in 2000, the Fund was found liable for reimbursement pursuant to Workers’ Compensation Law §15(8)(d). Shortly thereafter, claimant settled a personal injury action arising out of the accident, and the carrier (State Insurance Fund) gave its consent to the settlement, waived its lien on the proceeds, and took a credit against claimant’s net recovery (WCL §29[4],[5). The Fund’s consent to the settlement was not sought and, as a result, it refused to reimburse payments of deficiency compensation made by the carrier. The Board ultimately held that the Fund’s consent was not required, and the Fund appealed.

While the Board is free to alter a course previously set out in its decisions, it must set forth its reasons for doing so, and the Board’s failure to do so renders its decision arbitrary and capricious. The Board had previously held that where the Fund has been found liable for reimbursement to the carrier under WCL §15 (8)(d), the carrier waives its right to that reimbursement if it does not obtain the Fund’s consent to a settlement (see Matter of Care Diagnostic Laboratory, 2006 WL 832793, *2, 2006 NY Wrk Comp LEXIS 2612, *4 [WCB No. 29317021, March 28, 2006]; see e.g. Matter of Brigotta Farmland, 2006 WL 1064007, *2-4, 2006 NY Wrk Comp LEXIS 3343, *5-10 [WCB No. 80213739, April 18, 2006]). Indeed, the carrier here readily admits that the cited precedent does not support the Board’s present holding, but nonetheless argues that the prior cases were wrongly decided. However, as that prior precedent was not addressed in any way in the Board’s decision, the Court remitted this matter back to the Board for further proceedings.Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Bush v Montgomery Ward
May 13, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

AFFIRMED the Board’s ruling that WCL § 25-a is inapplicable to claimant’s award of workers’ compensation benefits. Although claimant was injured at work in June 1978 and awarded compensation benefits, it appears that claimant did not receive awards for her injury after 1981; however, most of the records associated with her original claim were destroyed that year in a fire at the Binghamton office of the Board and the record contains no evidence indicating that the issue of permanency was resolved.

Accordingly, when claimant sought to reopen her claim in 2006, hearings held to determine the applicability of WCL §25-a lacked the benefit of documentation regarding the manner in which earlier proceedings were resolved. Claimant stated that her claim had never been closed and that she had worked in a light duty capacity since her injury. Medical reports submitted in April 1979 and April 2006 indicate that she was capable of performing only light duty work. Additionally, in 2008, her treating physician opined that claimant had suffered a 15% to 20% schedule loss of use of her right knee. Following the hearings, a Law Judge, affirmed by a Board panel, ruled that the claim was never truly closed and discharged the Special Fund for Reopened Cases from liability. The Court then ruled that “substantial evidence support[ed] the Board’s determination that, because further proceedings were contemplated to establish the extent of her disability, claimant’s case was not truly closed”. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Thomas v Crucible Materials
May 13, 2010 NYS Appellate Division, Third Department
§ 15(6) Reopening by claimant

AFFIRMED the Board’s ruling which denied claimant’s application to reopen his workers’ compensation claim. In 2002 claimant suffered injuries to his right shoulder, underwent surgery to repair a massive tear in his right rotator cuff, which was not successful. At a November 25, 2003 hearing, claimant agreed to accept his doctor’s opinion regarding schedule loss of use (SLU), was classified with a 70% schedule loss of use of his right arm, awarded benefits, and the case was closed.

In 2007, claimant resumed treatment for his injury, then successfully applied to reopen his claim based on recent medical reports indicating that his medical condition had worsened since the 2003 classification. The Law Judge found sufficient medical evidence of a change of condition, rescinded the 2003 SLU determination, reclassified claimant with a permanent total disability from 2003 onward, and modified claimant’s award accordingly. Upon appeal, a Board panel reversed, concluding that claimant failed to show that his condition changed to such an extent that a reopening of his prior classification was justified.

The Board’s decision as to whether to reopen a case per WCL §15(6) is a matter committed to the Board’s discretion and will not be disturbed on appeal absent an abuse of discretion. Furthermore, it is for the Board to resolve conflicting medical evidence and, in so doing, it “may selectively adopt or reject portions of a medical expert’s testimony“. The Court agreed with the Board that there was no “meaningful distinction between Smallman’s preclassification and postclassification medical narratives. . . . Despite the existence of other medical evidence in the record to support a contrary result, we find that the foregoing constitutes substantial evidence in support of the Board’s conclusion that claimant did not establish a sufficient change in his medical condition warranting a reopening of his 2003.” Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Crucible Materials Corporation and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Yarleque v Sally Lou
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s denial of claimant’s two requests for reconsideration or full Board review. Having worked for the employer for less than four months in 1996, claimant submitted in June 2000 two applications for benefits allegedly arising out of that employment — one for carpal tunnel syndrome and the second for back, neck and shoulder injuries. Although the carrier argued that both were time-barred pursuant to WCL §28, the Law Judge found the claims timely and established both. A Board panel reversed the Law Judge per §28. The claimant then requested and was denied full Board review on both cases, hence the appeal to the Appellate Court. The Court wrote,“In that regard, the grounds for seeking review or reconsideration are narrow; the movant must generally show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination”.

In this case, the Board in its underlying decision concluded that claimant’s CTS was an occupational disease for which the latest possible date of disablement was November 1, 1996, when claimant stopped working, thus making her claim untimely. As for the second claim,the Board found that her admission in the footnote of her brief confirms that she knew that those injuries were work-related no later than December 21, 1996 together with the evidence that claimant stopped working on November 1, 1996 because of her injuries, amply support the Board’s decision that both claims involved occupational diseases and were filed beyond the two-year period. Prevailing party represented by: Jeremy B. Davis of counsel to Gregory J. Allen, State Insurance Fund for Sally Lou, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Barone v Interstate Maintenance
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling which denied the employer’s request for reconsideration and/or full Board review. Although the main issue in this case was jurisdiction as the claimant, an employee of a New York firm, was injured in 1993 while making deliveries in New Jersey, the appeal is based on the Board’s denial of a review on the basis that the case was dormant for 10 years, until the employer and its president applied for reconsideration and/or full Board review of the Board’s 1996 decision finding subject matter jurisdiction. The Court wrote, “the employer failed to demonstrate the existence of any newly discovered evidence, a material change in condition or that the Board improperly failed to consider the issues raised before it. Furthermore, the employer failed to make its application ‘within a reasonable time after [it] . . . had knowledge of the facts constituting the grounds upon which such application [was] made’ (12 NYCRR 300.14 [b]). Accordingly, we cannot say that the Board abused its discretion in denying the employer’s request for reconsideration and/or full Board. . . .Finally, we note that the employer’s arguments regarding personal jurisdiction and allegedly improper conduct of Travelers were not raised before the Board in the application for reconsideration and/or full Board review and, thus, are unpreserved for our review.. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Carlineo v Snelling & Snelling
May 6, 2010 NYS Appellate Division, Third Department
Procedure: Due Process

AFFIRMED the Board’s ruling which returned a case for development of the record on the issue of general/special employment. Claimant was employed by Snelling, a temporary employment agency, and was injured in a car accident for the owner of the car (Michael Comstock) to whom he been assigned as a laborer, providing services to Fortuna Energy.

Hearings were conducted on the claim, but before Snelling completed its examination of Comstock, a Law Judge rendered a decision finding, among other things, that, at the time of the accident, claimant did not have a general/special employment relationship with Comstock or Fortuna and that Snelling’s carrier was responsible for the payment of this claim. Snelling appealed, requesting that the hearing be reopened o that additional evidence could be submitted as to claimant’s employment status at the time of the accident. Although a Board Panel affirmed the Law Judge, a Full Board Review resulted in the case being returned to the Panel which determined that Snelling’s counsel should have been permitted to complete his examination of Comstock, and the case was sent back to a law judge for this further examination.

In its appeal to the Appellate Division, Snellng argued that the Board panel erred by restricting the hearing on remand to Comstock’s testimony and contends that it should be provided with an opportunity to present additional evidence on the employment issue from other witnesses. The Court ruled that “As the decision being appealed rescinds the original decision and remands the matter to the Law Judge for a new ruling on all issues, it is interlocutory in nature and does not dispose of all substantive issues nor reach legal threshold issues that may be determinative of the claim. As such, this decision may not be the proper subject of an appeal and this appeal must be dismissed. Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Renz v Home Depot
May 6, 2010 NYS Appellate Division, Third Department
Causal Relationship: Aggravation or New

AFFIRMED the Board’s ruling that claimant was precluded from pursuing her neck injury claim by stipulating to a schedule loss of use award to her arms. The Board found that the claimant injured her left shoulder and authorized surgery and benefits. Following a hearing at which claimant asserted consequential injuries to her right shoulder and neck, a Law Judge amended the case to include a right shoulder injury, authorized medical tests of claimant’s neck and upper extremities for diagnostic purposes, and directed the parties to submit deposition transcripts regarding the issue of whether claimant suffered a neck injury. at a March 2007 hearing before a different LJ and without the submission of depositions related to the neck injury, the parties stipulated that claimant suffered a 25% schedule loss of use of her left arm and a 20% schedule loss of use of her right arm. When the WCLJ asked if there were “[a]ny other body parts,” claimant’s counsel replied, “[n]o.” The parties’ agreement which awarded the claimant approximately $55,000 in total benefits and indicated that “[n]o further action [was] planned” in the case.

Then one month later, claimant moved to reopen the claim, seeking benefits related to her neck injury, right thumb and right ring finger. The case was referred back to the original WCLJ, before whom claimant conceded that she had agreed to forego her neck claim when she entered into the stipulation. Claimant asserted, however, that her neck condition had since deteriorated. The WCLJ noted that claimant’s neck had been symptomatic since the date of the accident and concluded, as relevant here, that the claim for the neck injury and any claims flowing from that injury were barred by the parties’ stipulation. Finding that claimant’s bilateral carpal tunnel syndrome was linked solely to her neck injury, the WCLJ determined that there was no prima facie medical evidence of carpal tunnel syndrome. The Board affirmed, concluding that claimant had not been “forthright” about her intention to pursue the neck claim at the time she entered into the stipulation, and stating that “no further claim regarding the neck may be made at this time.” The Court in its affirmance wrote, “In light of the medical guidelines, the procedural history of this case, evidence that claimant’s neck was symptomatic at the time of the stipulation and the negative response of claimant’s attorney when asked by the WCLJ whether there were ‘[a]ny other body parts,’ the Board did not act irrationally in concluding that the stipulation barred pursuit of the neck claim and denying claimant’s application to reopen the case.” Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman(Hauppauge) for Home Depot USA, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Wilson v General Mills
May 6, 2010 NYS Appellate Division, Third Department
Course of Employment: Assault

AFFIRMED the Board’s ruling that claimant’s injury arose out of and in the course of her employment due to an assault and awarded workers’ compensation benefits. Claimant filed for benefits after a coworker struck her in the face with a work tool. The Law Judge ruled. and the Board affirmed that the assault upon claimant stemmed from work-related differences finding a sufficient nexus between the assault and the employment. The Court agreed that the claimant’s testimony was supported by an affidavit that claimant filed with the Equal Employment Opportunity Commission in support of her discrimination complaint, upon which the employer and its carrier heavily rely, which could be read as suggesting that at least some of the assailant’s offensive comments and conduct stemmed from a promotion and pay raise that claimant received in 2005. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Hiser v Richmor Aviation
April 29, 2010 NYS Appellate Division, Third Department
§29(4) 3rd Party Liens

REVERSED the Board’s ruling that the employer’s workers’ compensation carrier was entitled to offset its future compensation to claimant pursuant to WCL§ 29(4), to wit, one half of a $500,000 voluntary settlement paid pursuant to a policy of insurance is subject to the workers’ compensation carrier’s lien and offset rights under WCL§ 29. [In 2008, the Court reversed the Board’s determination that rejected claimant’s application for review of a Law Judge decision as untimely (2008 NY Slip Op 04981 [52 AD3d 915]).

The undisputed facts are that the claimant’s spouse died in a crash while in the employ of Richmor Aviation even though the plane was owned by Abrams Aviation. Case is established without controversy and paid benefits to claimant and surviving children. In addition to WC benefits, Richmor offered claimant a voluntary $500,000 settlement pursuant to the terms of an insurance policy purchased by and issued to Richmor. The policy required Richmor, as the first named insured, to request payment from the insurance company. Payment was to be made irrespective of legal liability and the claimant, individually and as executor of decedent’s estate, was to execute a release of all claims against Richmor and Abram’s. The Board found that the portion of the proposed voluntary settlement payable under the policy and attributable to Abram’s”constitutes a substitute for the usual third party recovery” and is subject to the lien and offset rights of the compensation carrier provided for in Workers’ Compensation Law § 29. [The Board found that $250,000 of the $500,000 was attributable to Abram’s.] The Court, in reversing, concluded such finding is not supported by substantial evidence.

In summary the Court agreed that WCL §29 does provide for reimbursement for “whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits.” The Court noted that the Board relied on Matter of Ryan v General Elec. Co. (26 NY2d 6 [1970]) which was misplaced because the accident in Ryan was attributable to a US Navy jet whereas the parties in this case agreed that the crash was caused by “an act of mother nature.” The decision continued, “. . . there is no evidence that Abram’s caused decedent’s death or committed any wrong that contributed to his death and the Board’s decision to find Workers’ Compensation Law § 29 applicable to that portion of claimant’s voluntary settlement attributable to Abram’s, under these facts, was not supported by substantial evidence. Prevailing party represented by: James E. Buckley of counsel to Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Whiteman v Richmor Aviation
April 29, 2010 NYS Appellate Division, Third Department
§29(4) 3rd Party Liens

The current case arises from the same aircraft accident as in Matter of Hiser v Richmor Aviation, Inc. (___ AD3d ___ [decided herewith]) and involves the identical issue. For the reasons set forth in Hiser, we reverse and remit to the Workers’ Compensation Board for further proceedings. Prevailing party represented by: James E. Buckley of counsel to Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Thompson v Wiltsie Constr
April 22, 2010 NYS Appellate Division, Third Department
§ 21(4): Intoxication

AFFIRMED the Board’s ruling that claimant sustained a compensable injury and awarded workers’ compensation benefits. After the claimant filed for benefits after an injury sustained at work, the employer controverted the claim because a urine sample taken from the claimant approximately 18 hours after the incident revealed the presence of an abnormally high level of marijuana metabolites. The Court agreed with the Law Judge and Board that “the statutory presumption that the claimant’s injury was not solely caused by his intoxication” per WCL §21 (4) precludes disallowing a claim unless “all the evidence and reasonable inferences therefrom allow no other reasonable conclusion than that the intoxication intoxication is the sole cause of the claimant’s injury.” In addition, the claimant testified that while working on a lift, he removed his safety harness, climbed out of the lift, lost his balance, and fell. The Court then added “while claimant’s removal of his safety harness may have been in violation of the employer’s safety regulations, it is not a bar to his recovery of workers compensation benefits under the circumstances presented here.” Prevailing party represented by: Christopher Richmond, Oswego, for William Thompson, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Maher v NYS Div. of Budget
April 22, 2010 NYS Appellate Division, Third Department
Course of Employment: in and out of

AFFIRMED the Board’s ruling that claimant’s injury did not arise out of and in the course of her employment and denied her claim for workers’ compensation benefits, after she fell from a second story roof at a hotel while attending a training conference. After an evening of consuming several beers, claimant and two coworkers returned to the hotel where they had overnight accommodations and shortly after arriving at the suite of one of her coworkers, the claimant and two coworkers stepped onto the roof of the hotel which was accessible only via the bathroom window. Shortly thereafter, claimant placed her hands on the railings surrounding the roof, heard a loud crack, and fell to the ground below. Although the Law Judge allowed the claim, the Board reversed by concluding that “claimant deviated from her employment by climbing out onto the roof, that such action was not reasonable and, hence, claimants injury did not arise out of and in the course of her employment”. The Court summarized its decision by writing, “Based upon our review of the record as a whole, we cannot say that the Board erred in concluding that claimant’s conduct – accessing the hotel roof via the bathroom window – was unreasonable under the circumstances.Prevailing party represented by: Thomas A. Phillips of counsel to Gregory J. Allen, New York State Insurance Fund, for NYS Division of the Budget and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Lopez v 395 Brook Realty Corp.
April 22, 2010 NYS Appellate Division, Third Department
§ 23: Late or Interlocutory Appeal

AFFIRMED the Board’s ruling that the application by the employer for a review of the Law Judge decision was untimely. Two months after the Law Judge found an employer-employee relationship between the claimant and the employer and awarded benefits to the claimant, the employer filed an application review which was denied by the Board per WCL §23. The Court referenced the Board’s decision which, in turn, “noted that [the employer] failed to acknowledge at the time of the filing that the application was untimely or offer any explanation as to why the application could not have been timely filed.Under these circumstances, the Board’s denial of the application for review as untimely was not an abuse of its discretion.Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent.Click here to read the full court decision of the NYS Appellate Division, Third Department….


McLean v Amsterdam Nursing Home
April 15, 2010 NYS Appellate Division, Third Department
§ 25-a: Advance Compensation

REVERSED the Board’s ruling that liability shifted to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law §25-a. The claimant, who sustained a work-related injury in 1996 and whose case was closed in 1997 when she returned to work, applied to reopen the case in 2006. Evidence was submitted showing that the claimant was absent from work, due to her 1996 work-related injury, for numerous days from 2002 to 2005 for which she was paid. After several hearings, the Board ultimately decided liability for the claim had shifted to the Fund. The real issue was whether the payments were “[a]dvance payments that are made voluntarily, in recognition of an employer’s liability, [and] are payments of compensation” or “[w]ages paid and credited to accumulated sick leave are not payments of compensation“. In reversing the Board and affirming the Fund, the Court determined that “[i]n the absence of proof regarding the manner in which claimant was compensated for the time absent from work, the Board could not properly assess whether the employer made an advanced payment of compensation precluding a transfer of liability to the Special Fund.” Prevailing party represented by: Jennie J. Choy of counsel to Steven M. Licht, Special Funds Conservation Committee for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Zahm v National Fuel
April 15, 2010 NYS Appellate Division, Third Department
§123: Late Appeal (7 years)

REVERSED the Board’s ruling that claimant had a 20.4% schedule loss of use for binaural loss of hearing. Claimant worked for the employer in numerous capacities - first as a data entry clerk and then in various customer-related positions - for 31 years until she retired in July 2005. A preemployment hearing examination conducted in 1974 revealed that claimant had a measurable loss of hearing at that time. In August 2007, claimant filed this claim contending that she had sustained an occupational hearing loss due to long-term noise exposure “from being on the telephone for years.” The Board affirmed the Law Judge’s finding of a 20.4% schedule loss of use for binaural loss of hearing. While there was no dispute that the claimant suffered a hearing loss, the Court agreed with the employer the record as a whole fails to establish “both that claimant was exposed to injurious noise during the course of her employment and that [the medical testimoney did not support her contention that] her documented hearing loss was causally related to her employment.” The Court ended its opinion by writing “[b]ased upon our review of the record as a whole, we cannot say that her doctor’s testimony was sufficient to establish the requisite causal connection between claimant’s loss of hearing and her employment.” Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Rebeor v Moose Lodge #1280
April 8, 2010 NYS Appellate Division, Third Department
§ 25-a: no current liability

AFFIRMED the Board’s ruling that liability shifted to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law §25-a. Originally injured in 1988 and awarded a 10% schedule loss of use with less payment made in 1990, the claimant in August 2007 was denied his request for payment for additional medical treatment. The carrier sought relief under WCL §25-a debt which time a law judge authorized medical treatment and found that liability had shifted to the Special Fund.

The Court wrote “The Special Fund argues that there has been no evidence of medical treatment since 1990 and, thus, no actual liability to shift. However, liability for compensation shifts to the Special Fund when an application to reopen a case is made after a lapse of seven years from the date of the injury and a lapse of three years from the date of the last payment of compensation (see Workers’ Compensation Law §25-a. While it may be true that there was no current liability to be shifted to the Special Fund, we find no abuse of the Board’s discretion in reopening claimant’s case and determining that he has a potential claim for further medical treatment that would be the responsibility of the Special Fund. Nor are we persuaded that the Board improperly departed from its own precedent. Contrary to the Special Fund’s contention, the Board has sufficiently explained its reasons for shifting liability despite the absence of payable medical benefits in Matter of Del Labs (2009 WL 193434, *4-6 [WCB No. 2940 8739, January 14, 2009]). Although that decision postdated the Board’s decision here, it would provide the necessary explanation if we were to remit the matter as we did in Matter of Rogers v Del Labs (52 AD3d 1129 , 1130 [2008]). Prevailing party represented by: [ED.NOTE: corrected 04/10/10] Gary G. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Moose Lodge #1280 and another, respondents Click here to read the full court decision of the NYS Appellate Division, Third Department….


Wadsworth v K-Mart Corp.
April 8, 2010 NYS Appellate Division, Third Department
Course of Employment: Assault

REVERSED the Board, who in turn reversed the Law Judge, when the Board ruled that the claimant sustained an injury arising out of and in the course of her employment. Claimant’s personal vehicle was stolen while she worked as an assistant store manager. A week later, on seeing the car idling in the store’s parking lot, she approached the vehicle getting into an altercation with the driver. During the scuffle, a store employee who was acquainted with claimant’s assailant exited the store, jumped into the vehicle and began driving away. Claimant’s assailant then ran off, eventually got into the vehicle with the employee, and the two fled. Her claim for benefits based on psychological damages were disallowed by a Law Judge found that her injuries did not arise out of employment. The Board reversed finding the injuries were sufficiently related to her employment to be compensable. While the employer/carrier conceded the assault occurred in the course of employment, they rebutted the contention that the injuries arose out of her employment by submitting evidence that the assault was motivated by purely personal animosity. While noting that the Board can award benefits if “There is a nexus, however slender, between the motivation for the assault in the employment . . ., the decision must be based on such relevant evidence has a reasonable mind might accept as adequate to support a conclusion.” It seemed that although the Board used the involvement of a coworker to prove the nexus, the Court found the involvement to be peripheral and not providing a nexus. After further explanations, the Court concluded that the Board’s determination was arbitrary and should be reversed, thus supporting the Law Judge’s original determination. Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for appellants. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Kitkas v Windsor Place Corp.
April 6, 2010 NYS Appellate Division, 2nd Department
§ 11: Grave Injury

REVERSED order of the Supreme Court, Queens County which denied the second third-party defendant/third-party defendant, Boca Electric Corp. motion for summary judgment dismissing all causes of action for contribution and common-law indemnification asserted against it, on any matter relating to WCL §11. On January 22, 2003, the plaintiff was performing electrical work on a construction project in Long Island City and allegedly was injured when an electrical panel exploded. At the time of the accident, the plaintiff was employed by the second third-party defendant/third third-party defendant, Boca Electric Corp. In support of its motion for summary judgment dismissing all causes of action for contribution and common-law indemnification asserted against it, Boca met its burden of demonstrating that the plaintiff’s injuries to his right hand did not constitute a “grave injury” within the meaning of WCL §11. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Howard v Stature Electric
April 1, 2010 NYS Appellate Division, Third Department
§114-a Fraud & Alford Plea

RESCINDED and sent back for reconsideration the Board’s ruling that claimant violated Workers’ Compensation Law §114-a. Although the claimant’s original claim of a work-related injury was properly established, the claimant was subsequently indicted on various charges of fraud and a violating Worker’s Compensation Law §114. In June 2007 after entering an Alford plea to insurance fraud of the fourth degree and he was convicted and sentenced accordingly.

At a subsequent hearing, SIF asked the WCLJ to find that claimant’s plea and conviction disqualified him from receiving benefits pursuant to WCL §114-a. Although the claimant requested a hearing, the Law Judge determined that the criminal proceedings did not involve a full hearing on the merits and, thus, claimant was entitled to a hearing. SIF sought review. The Board found that, based upon claimant’s criminal conviction, a violation of WCL §114-a§, modified the WCLJ’s decision, and returned the case for the determination of appropriate penalties.

In recognizing the Boards reliance upon the equitable doctrine of a collateral estoppel in rendering its decision, the Court ruled that “the determinative issue was not whether claimant had been convicted of a crime, but whether he ‘knowingly ma[de] a false statement or representation as to a material fact’ for the purpose of obtaining workers’ compensation benefits or influencing a payment determination. An Alford plea, by its very nature, is accepted on the explicit basis that the person making the plea does not admit having committed the charged acts . On the contrary, he made no factual admissions, his counsel specified that he was pleading guilty ‘without an admission of wrongdoing’. Thus the question of whether claimant committed the charged conduct, though decisive in determining whether he violated Workers’ Compensation Law § 114-a, was not determined in the criminal action. Thus, the requirement of identicality was not met, and collateral estoppel does not apply. Claimant must be provided ‘an ample opportunity to address the issue of whether he knowingly misrepresented material facts’ sufficient to establish the charged violation. Prevailing party represented by: Christine A. Scofield, Syracuse, for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Stojanov v Eastman Kodak Company
April 1, 2010 NYS Appellate Division, Third Department
§ 23: What does “late” mean?)


RESCINDED and sent back for reconsideration
the Board’s ruling that claimants applications to review were untimely. After a Law Judge decision dated May 7, 2008 the claimant’s council on June 6, 2008 mailed application seeking Board review per WCL §23. Because the applications were not received by the Board within 30 days, the Board found that they were untimely (see 12 NYCRR 300.13 [a], [e]) and denied claimant’s requests for Board review. In Matter of McLaughlin v Saga Corp. (242 AD2d 393, 394 [1997]), this Court concluded that the mailing of an application for Board review within the 30-day limitation period “was sufficient to satisfy the time limitation of Workers’ Compensation Law §23.” Subsequently, the Board promulgated the current version of 12 NYCRR 300.13 (a), which provides that an “application is deemed filed with the [B]oard on the date of actual receipt of such application by the [B]oard“. This amendment is obviously at odds with this Court’s holding in McLaughlin and, as such, violates the rule that “[a] court’s affirmance or reversal of an administrative body’s interpretation of its governing statute becomes binding on the agency.” Therefore, the Court reversed the Board stating that the Board could not promulgate administrative regulation that was inconsistent with this Court’s interpretation of WCL §23, remaining the case back to the Board for further proceedings on the original issue raised by the claimant. Prevailing party represented by: James G. Brooker, Rochester, for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Turdo v Dellicato Vineyards
April 1, 2010 NYS Appellate Division, Third Department
ATF Compensation: Mandatory vs Discretionary

RESCINDED and sent back for reconsideration the Board’s ruling that the New York State Insurance Department Liquidation Bureau was required to make a deposit into the Aggregate Trust Fund pursuant to WCL §27(2). After awarding claimant widow death benefits, the Law Judge directed that the Liquidation Bureau, which had assumed liability for the claim following the liquidation of the original carrier, deposit the present value of any unpaid death benefits into the ATF. The substantive but very narrow issue in this case was whether or not the Liquidation Bureau was “an insurance carrier which is a stock corporation or mutual association” in which case “the Board shall immediately compete the present value thereof require payment of such amount into the ATF” (WCL §27 (2)). The Court agreed that, although the Board set forth a rational argument for considering the Liquidation Bureau as standing in the shoes of the insolvent insurer, the Court determined that the Legislature left no room to find that the Liquidation Bureau is subject to the mandatory deposit requirements of WCL §27. Essentially the ruling by the Board requiring payment to the ATF should have been based on the Board’s discretionary authority rather than a mandatory direction for which reason the Court, in its five page decision, returned the matter to the Board for consideration of the discretionary issue. Prevailing party represented by: Daniel A. Tufo of counsel to Rothstein & Tufo (Commack) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Cassata v General Motors Powertrain
March 25, 2010 NYS Appellate Division, Third Department
§25a: What is proper filing of the C-250

AFFIRMED the Board’s ruling that the self-insured employer was not entitled to reimbursement by the Special Funds Conservation Committee due to the late filing of the C-250 seeking reimbursement per WCL §15(8).

Although the injury occurred on September 14, 1998 the case was neither indexed or filed until November 22, 2000. At a May 2005 hearing, a dispute arose as to whether or not self-insured employer had filed with the Workers’ Compensation Board a claim for reimbursement from the Special Funds (form C-250) as required by WCL §15(8)(f). As neither the Board nor the Special Funds Conservation Committee had a copy of the form, the Law Judge directed the employer to provide evidence that it was timely filed. In, 2007, the employer filed with the Board a form C-250 bearing the date “November 30, 2000,” which it argued had been timely filed, but must have been misplaced by the Board. While the record showed that the Special Funds had hand written notes referencing the C-250 and “WCL §15.8″ dating back to “11/30/00″, the Special Funds argued that this document did not establish the employer’s timely filing of a form C-250 with the Board and that it had not waived the timely filing requirement. The Board affirmed the Law Judge finding that the form C-250, filed in 2007, was untimely and, thus, the employer was not entitled to reimbursement from the Special Funds, which it discharged. After reiterating long-standing case law to the effect that “A prerequisite to reimbursement, however, is the filing of a timely claim with the Board”[emphasis added by the Appellate Court]) on a form prescribed by the Board’s chair, here, form C-250…” , the Court agreed with the Board that it was undisputed that the Board’s file did not contain a form C-250 in 2005, when a finding of permanency was made. No documentation existed in the record to establish that the form C-250 bearing a 2000 date was sent to the Board until 2007. Court agreed that the Board’s decision was based on substantial evidence, notwithstanding that the evidence would also have supported the contrary conclusion of timely filing. Prevailing party represented by: Jennie Choy of counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


D’Avilar v New York Univ. School of Medicine
March 25, 2010 NYS Appellate Division, Third Department
Causal Relationship: Consequential while at treatment

AFFIRMED the Board’s ruling that claimant did not sustain causally related consequential injuries incurred after a session of therapy.

In August 2005, claimant sustained a work-related injury to her right knee, requiring reconstructive surgery and physical therapy and her claim was established. In 2006, right after undergoing physical therapy, she slipped and fell at that facility incurring additional injuries which the Law Judge determined were consequential to her initial compensable injury and amended claim. The Board reversed, concluding that the later injuries were not compensable because they occurred while she was engaged in personal errand. While agreeing with the claimant that injuries sustained in the course of traveling to and from treatment for a cause elite related injury may warrant a workers’ compensation claim, the Court agreed with Board that the claimant’s decision to get coffee after treatment “add[ed an additional] factor which weakens the connection between the initial consequential injuries” sufficient that “the Board could rationally conclude that the work-related aspects of claimant’s trip had ended and that the causal connection between claimant’s employment and her off-duty injuries was severed by her pursuit of a personal errand.Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman (Hauppauge)for NYU School of Medicine and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Sacco v Mast Advertising/Publishing
March 18, 2010 NYS Appellate Division, Third Department
Disability: Total Industrial
§ 14: Average Weekly Wage - Commission Salesman

ISSUED A MIXED DECISION AFFIRMING the Board’s ruling that claimant was totally industrially disabled but AMENDING his average weekly wage.

Claimant, working as a salesman, injured his back in the course of employment after which his claim was established and based on a C-240 form, his average weekly wage was set for $447.36. Originally classified with a permanent partial disability he was reclassified in 2003 with a marked permanent partial disability.

In 2007, he sought a finding of total industrial disability and requested that his average weekly wage be recalculated pursuant to WCL §14, arguing that it should have been based on the wages of a similar worker at the time of his injury, rather than his actual wages. Although the employer indicated that, since it maintained payroll records only seven years, no such records were available for an employee at the time of claimant’s injury, the Law Judge found that the C-240 filed in 1992 was “improper on its face” and modified claimant’s average weekly wage to $624 per WCL §14 (3). The Board affirmed.

Substantial evidence supported the Board’s determination that claimant suffers a total industrial disability, a determination that would not be disturbed if supported by substantial evidence. The Court agreed with the Board that the combination of testimony from the claimant and a rehabilitation counselor substantially offset the testimony of the employer’s vocational counselor, thus affirming the finding of total industrial disability.

As to the Board’s action of modifying the claimants average weekly wage, the Court made three determinations. First, the court dismissed the employer’s claim regarding the C-240, basing it on the employer’s original failure 1992 to submit information regarding wages of a similar worker. Second, the Court rejected the carrier’s contention that the Board could not modify the 1993 decision, writing that the Board is empowered to “make such modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just.Third, the Court supported the Board’s refusal to invoke the doctrine of laches to bar claimant from seeking modification of his average weekly wage. The Court cited WCL §14(3) which directs that a claimant’s average annual wage be computed based on “such sum as . . . shall reasonably represent the annual earning capacity of the injured employee” in agreeing with the claimant’s contention that his earnings in the last 10 weeks of employment would most accurately reflect his earning capacity at the time of the accident, since he was a new employee and did not receive commissions in his first several weeks of employment. However, the Court did not affirm that amount because of an arithmetical error in the original decision, an error overlooked in the Board’s affirmance of the Law Judge decision. Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Grant v New York City Transit Authority
March 18, 2010 NYS Appellate Division, Third Department
Course of Employment: Lunch Break

AFFIRMED the Board’s ruling that claimant did not sustain an accidental injury on her lunch break as it was not in the course of her employment. Claimant had walked to a deli across the street from her place of employment when she and the deli clerk were both robbed at gunpoint. Her application for workers compensation benefits claiming she suffered from psychiatric disabilities resulting from the traumatic experience was approved by the Law Judge, finding the injuries arose out of and in the course of employment. In supporting the Board’s reversal and disallowance of the claim, the Court wrote, “Significantly, ‘lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employees during the lunch break’. The record here shows that claimant had discretion over where she spent her lunch break, the incident occurred away from her place of employment and no evidence was produced that the employer retained authority or control over her during that time or benefitted from her going to the deli.Prevailing party represented by: Andrea Rocchio of counsel to Weiss, Wexler & Wornow (NYC) for New York City Transit Authority, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Laezzo v New York State Thruway Auth
March 11, 2010 NYS Appellate Division, Third Department
§13-b Medical Bills: Who Pays for Gastric Bypass Surgery

AFFIRMED the Board’s ruling that as a result of consequential injuries from a work-related accident the injured worker qualified for gastric bypass surgery. The original 2002 accident resulted in a successful claim for injuries to his head, neck, back, and knees. He alleged that his morbid obesity contributed to his knee and back problems seeking authorization for gastric bypass surgery. Both the Law Judge and Board approved, holding that the surgery was causally related to the compensable injuries. The Appellate Court wrote in its decision that “The employer is obliged to pay for claimant’s medical care ‘for such as the nature of the injury or the process of recovery may require.‘” because the claimants treating orthopedic surgeon opined that the injuries imposed a sedentary lifestyle thus increasing his weight thus exacerbating his injuries, the surgery would be appropriate, a position supported by an independent medical examiner. In support of its decision the Appellate Court cited The Matter of Bolds v Precision Health, Inc., 16 AD3d 1007, 1009 [2005] in which a request for causally related breast reduction. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Cicinnati v Clare Rose, Inc.
March 11, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal after termination for cause

AFFIRMED the Board’s ruling that the injured worker voluntarily withdrew from the labor market. On March 30, 2007, four days after returning to work after having been out for more than two years due to a compensable back injury, claimant was terminated for insubordination arising out of an altercation that he had with a customer. He then sought benefits asserting his subsequent reduced earnings were due to his work-related injury. Despite concluding that claimant had been terminated for good cause, a Law Judge determined that claimant was permanently partially disabled, that he had not voluntarily withdrawn from the labor market, and that he was therefore entitled to awards beyond the date of his termination. The Board rescinded those awards, finding that claimant’s employment ended as a result of misconduct — not due to his compensable injury — and that he had failed to demonstrate an attachment to the labor market.

After finding that there was substantial evidence supporting the Board’s termination claimant was terminated for misconduct, the Court found that the claimant was not entitled to the inference that his loss of wages was attributable to his compensable injury but that he bore “‘the burden of establishing by substantial evidence that the limitations on his employment due to his disability were a cause of his subsequent inability to obtain employment.‘” Additionally, although the medical evidence indicated that claimant could perform full-time sedentary work, claimant admitted that he had made no effort to find employment of any kind since his termination. Since “the Board’s determination is supported by substantial evidence, the Court perceived no basis upon which to modify the Board’s decision.” Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Clare Rose, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Guz v Jewelers Machinist
March 11, 2010 NYS Appellate Division, Third Department
1130__Causal Relationship: Was there?

AFFIRMED the Board’s ruling that claimant did not have a causally related psychiatric disability. Five years after her injury during which time her case was established for bilateral carpal tunnel syndrome and amended to include a neck injury and an aggravation of a preexisting back condition, the claim was amended in 2007 to include major depressive disorder after which a Law Judge included this condition and continued the case to determine the extent of her disability. Upon review, the Board reversed the inclusion of the depressive disorder.

The carrier’s IME found some symptoms of depression, but opined that there were no psychiatric restrictions on her ability to perform her job and that her depression did not result in a disability. After a subsequent exam, he “concluded that claimant did not suffer a causally related psychiatric disability or even objectively suffer from a depressive disorder.” The Appellate Court agreed with the Board’s determination that the claimant’s treating psychiatrist’s position on causally related psychiatric disability was “entirely lacking in credibility.” The Court wrote “It is well settled that a claimant bears the burden of establishing, by competent medical evidence, a causal relationship between his or her employment and a disability. Further, the Board is the sole and final judge of witness credibility, and it alone can evaluate the factors relevant to determining whether the testimony of a party or witness is worthy of belief.Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Jewelers Machinist, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Lupo v Cass
March 4, 2010 Appellate Term of the Supreme Court, First Department
Legal Malpractice

AGREED to grant defendants’ motion for summary judgment dismissing the complaint by Elaine Lupo, a workers compensation claimant, who sued her workers compensation attorney, Alan M. Cass, the defendant, for mishandling her case.

Although the Civil Court refused to dismiss the motion, the Appellate Court disagreed. They reviewed the complaints and the plaintiff’s “purported expert’s assertion” and summarized their rejection of the plaintiff’s positions as “nothing more than criticism of defendants’ considered, tactical strategy of how best to pursue plaintiff’s claim”, “insufficient to raise a triable issue”, and “rank speculation.” Click here to read the full court decision of the NYS Appellate Division, Third Department….


Dunn v American Tr. Ins. Co.
March 2, 2010 Appellate Term of the Supreme Court, Second Department
Which Court decides Jurisdiction

AFFIRMED The Appellate Court ruled that[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board.” In this case, the defendant’s motion presented factual questions as to the plaintiff’s “status as either an independent contractor, as he claims he is, or as an employee of” a car service dispatch base, as the defendant claims. Accordingly, prior to rendering a determination on the motion, the Supreme Court should have referred the matter to the Workers’ Compensation Board for a hearing and determination as to whether the plaintiff is relegated to benefits under the Workers’ Compensation Law. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Garifo v Pathmark Stores
March 4, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board which ruled that claimant voluntarily withdrew from the labor market. After incurring injury in November 2001, claimant was awarded compensation until his return to work March 2002. He sought to reopen his case in January 2006, alleging that the worsening of his condition prevented him from working. In January 2007 a Law Judge affirmed causally related disability as of January 2006, continuing the case for further development of lost time. At a subsequent hearing, claimant testified he ceased employment in February 2006 when his employer closed the store where he worked, made no effort to seek employment or retraining, and was subsequently approved for Social Security disability benefits. The employer then raised the issue of voluntary withdrawal to which the claimant alleged total industrial disability. In November 2007 the Law Judge awarded additional benefits ruling that the claimant was relieved of his obligation to seek work given his receipt of Social Security disability benefits.

The Board reversed the Law Judge, finding that claimant’s loss of earnings and cessation of employment were unrelated to his compensable partial disability and, therefore, he was not entitled to an award of benefits for the period in question. Where, as here, claimant’s loss of employment was due to circumstances unrelated to his partial disability and no finding of involuntary retirement was made by the Board, “the burden rests on claimant to demonstrate ‘by substantial evidence that his disability contributed to his continued unemployment’”. Claimant testified that he probably would have continued to work had the employer not closed the store. Additionally, the weight of medical testimony established that claimant was capable of resuming employment despite any disability. This evidence, together with claimant’s admission that he made no effort to find employment or seek retraining, provides substantial support for the Board’s decision that claimant voluntarily withdrew from the labor market), notwithstanding evidence in the record that could support a contrary conclusion. Prevailing party represented by: Lauren Camo of counsel to Jones, Jones & O’Connell (NYC) for Pathmark Stores, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Jamal v Gohel [& SIF]
February 16, 2010 NYS Appellate Division, Second Department
§ 29: lien against the recovery
Who decides the lien: Civil Court or WCB

REVERSED the Supreme Court’s order granting plaintiff’s motion to dismiss the NY State Insurance Fund’s (SIF) assertion that it had a claim for a credit or offset against death benefits. The plaintiff, widow of the decedent and on behalf of her four children, was awarded death benefits by the Worker’s Compensation Board against the decedent’s employer’s carrier SIF. She then commenced action against the driver ultimately winning a judgment in the Supreme Court, obtaining a decree from the Surrogate’s Court, inter alia, approving both the allocation of the entire amount of the proceeds of the jury award to the wrongful death cause of action and the discontinuance of the cause of action alleging conscious pain and suffering. Thereafter, SIF retroactively consented to the Surrogate’s decree, and waived its statutory right pursuant to Workers’ Compensation Law § 29(1) to a lien against the recovery. Subsequently, however, SIF asserted its right pursuant to Workers’ Compensation Law § 29(4) to claim a credit or offset against the death benefits that it was otherwise obligated to pay to the plaintiff and her children in an amount equal to the proceeds of the jury award. The Appellate Court ruled that the Supreme Court erred in entertaining the plaintiff’s motion as “Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board. . . . The issue of whether an employer or insurer has adequately reserved its right to claim a credit or an offset is a matter of fact for the Board. Accordingly, the instant issue is properly one for the Board’s determination.” Click here to read the full court decision of the NYS Appellate Division, Third Department….


Magidson v Strategic Telemarketing
February 18, 2010 NYS Appellate Division, Third Department
§123: Late Appeal (7 years)
EDITOR’s NOTE: Court of Appeals October 19, 2010: Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.

AFFIRMED the Board which ruled that the injured worker’s claim could not be reopened pursuant to Workers’ Compensation Law §123 or §25-a. In October 1993, claimant filed a claim for workers’ compensation benefits alleging that she was totally disabled as a result of her exposure to toxic chemicals at work.

Her disputed claim was first heard in May 1994 when neither claimant nor her attorney appeared nor submitted medical evidence such that the Law Judge closed the case for failure to prosecute. After the case was reopened, the claimant failed to appear at three more hearings (December 1995, March 1998, June 1998) although she was represented at one by an attorney. At that time the Law Judge ruled that “[f]ailure to prosecute 4th non appearance. All present issues are resolved. No further action is planned by the Board at this time.” The matter remained closed until January 2006, when the claimant filed an application to reopen the claim. At a hearing, attended this time by claimant and her attorney, the Law Judge disallowed the claim, finding that it could not be reopened because 14 years had passed since the date of the accident and no determination on the merits of the claim had been made.

The Appellate Court noted that while Workers Compensation Law §123 gives the Board discretion to open cases, “no claim for compensation . . . that has been otherwise disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits, shall be reopened after a lapse of seven years from the date of the accident or death.” And, contrary to the claimant’s assertion she had never been given proper notice, the Board’s determination that she had been given such notice was supported by substantial evidence. As to the claimant’s assertion that her claim should be reopened against the Special Fund for Reopened Cases per §25-a, the Court agreed with the Board that §25-a could not “reassert [stale claims] after seven years by claimants who had failed to make out a case in contested hearings or had failed even to attempt to assert their claims after due notice and an opportunity to be heard.” Prevailing party represented by: Edward Obertubbesing of counsel to Gregory J. Allen, State Insurance Fund, for State Insurance Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Barbaro v Eastman Kodak
January 28, 2010 NYS Supreme Court - Nassau County
Causal Relationship: Was there toxicity?

The Supreme Court Nassau County granted Kodak’s motion for summary judgment dismissing the complaint or recovery of damages as a result of exposure to chemicals at work. The plaintiff advanced claims sounding in negligence, breach of warranty, failure to warn and strict products liability. Kodak sought summary judgment dismissing the complaint on the grounds that the Developer Systems Cleaner did not cause the plaintiffs injuries and/or was time-bared, or in the alternative, a partial summary judgment dismissing the plaintiffs ‘ claims for dermal injuries, breach of warranty and failure to warn.

The plaintiff testified that he started experiencing breathing difficulties in the beginning of 2005. He saw a pulmonologist in November, 2005 and on his health questionnaire, he represented that he had smoked a pack of cigarettes a day for 25 years but stopped in 1987. When his symptoms worsened, a lung biopsy was performed on September 26, 2006 and he was diagnosed with a malignant carcinoma. Surgery in October 2006 revealed invasive moderately differentiated squamous cell carcinoma. The injured worker went out on disability that month and filed for workers compensation alleging that his medical condition was caused by exposure to sodium dichromate in the Developer Systems Cleaner. His claim was denied and he appealed to the Department of Labor. [It appears that this Supreme Court action was commenced after claimant’s workers compensation appeal was unsuccessful.]

In ruling against the plaintiff the Supreme Court ruled that, while via his affidavit, the injured worker raised issues of fact regarding agitation and spilling of the Developer Systems Cleaner, he gave is no reliable scientific evidence that that caused it to become airborne subjecting him to the risk of inhaling it. The plaintiff has not met his burden of establishing the existence of a material issue of fact. The plaintiff’s claim that he was not warned that he was being exposed to mists via his regular use of the product and had he been warned, he would have worn a respirator fails because, again, there is simply no admissible evidence that he was exposed to mist. In addition, as per the plaintiffs testimony at his examination-before-trial, he was well aware of the cancer causing risks posed by the chemicals and further warnings would have been cumulative. Click here to read the full court decision of the NYS Supreme Court - Nassau County….


American Home Assur v NY Ctrl Mut
February 3, 2010 Supreme Court, New York County
Jurisdiction: Who decides which carrier pays bills

AFFIRMED In support of this proceeding to stay arbitration, American Home Assurance contends that the Workers’ Compensation Board is the proper forum to determine whether American Home, as the no-fault carrier, owes any money to New York Central Mutual Fire Insurance Company, the employer’s workers compensation carrier.

The claimant, injured in a motor vehicle accident, filed a successful claims for both no-fault benefits and workers compensation, for which the Workers Compensation Board ordered payments made to or on behalf of the claimant, totaling $24,684.55. Among other things, New York Central asserts that there were some duplicative payments made on claims, and that it paid approximately $45,000 to Cochran and/or to others on his behalf, which should have been paid by American Home, as the workers’ compensation carrier.

The primary issue presented here is whether the Workers’ Compensation Board or Arbitration Forums, Inc. is the proper forum to determine whether American Home owes any money to New York Central. American Home contends that, pursuant to the applicable rules and laws, including the WCL (§§11, 124, and 142) and the rules issued by the Workers’ Compensation Board, the proper and sole method for a party to request resolution of an issue involving a workers’ compensation claim is for the party to request a hearing before the Workers’ Compensation Board. In opposition, New York Central asserts that §5105 (b) is applicable to this controversy, and, pursuant to its terms: “[tlhe sole remedy of any insurer or compensation provider to recover” on a loss transfer claim “shall be the submission of the controversy to mandatory arbitration pursuant to the procedures promulgated or approved by [the Superintendent of Insurance].” New York Central further references 11 NYCRR § 65-3.12 (b), 11 NYCRR §65-4 et seq, and 11 NYCRR § 65- 4.11, citing several cases in support of its position.

The court in rejecting American homes arguments determined that Insurance Law §5105 is not analogous to those issues presented and concludes that the application for a permanent stay of arbitration is warranted and that the issues raised by New York Central in the Arbitration Application must be submitted to, and determined by, the Workers’ Compensation Board. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Altobelli v Allinger Temporary Servs
February 4, 2010 NYS Appellate Division, Third Department
Apportionment: Awards

AFFIRMED the Board’s ruling that claimant’s workers’ compensation award be apportioned equally to two work-related incidents.

Despite a non-work-related back injury requiring surgery in 1989, claimant worked without disability or restrictions until October 2001 when he reinjured his back while working for Allinger Temporary Services, leading to a second surgery and an established workers’ compensation claim. Although he returned to work after that surgery, claimant sustained another back injury in May 2004 while employed by Calvary Design Team and had a second claim established. In July 2005, claimant underwent a third back surgery after experiencing pain at home in March of that year. After hearings were held regarding apportionment, a Law Judge concluded that awards should be apportioned 80% to the 2001 injury and 20% to the 2004 injury. Allinger appealed and a Board Panel apportioned an equal one-third basis to the 1989, 2001 and 2004 injuries. After a full Board review at claimant’s request, the Board rescinded its prior decision and apportioned the claims equally between the 2001 and 2004 work-related incidents. Allinger again appealed.

In its affirmance of the Board, the Court ruled that the decision on apportionment is a factual issue to be resolved by the Board which would be sustained as long as the Board’s decision detailed its reasoning, notwithstanding contrasting medical evidence. Also, the fact that the medical doctor found that apportionment in the “medical sense” was evenly split between the three injuries, the Board was correct in determining that apportionment in the “legal sense” was limited to the 2001 and 2004 work-related incidents, precluding the non-work-related 1989 injury as a matter of law because that injury did not render claimant disabled in the “compensation sense”. Prevailing party represented by: Jason D. Poselovich of counsel to Segar & Sciortino (Rochester) for Rob Altobelli, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Kot v Beth Ameth Home
February 4, 2010 NYS Appellate Division, Third Department
Causal Relationship: related or consequential

AFFIRMED the Board which ruled that claimant, in denying her claim for workers’ compensation benefits, did not sustain a causally related injury to her left hip.

Claimant, after sustaining injuries while attempting to lift a patient in April 2004, had her claim initially established for a lower back injury and subsequently amended to include awards for a ventral hernia and a consequential psychiatric condition. After undergoing left hip replacement surgery in 2006, a Law Judge concluded that this hip injury was also causally-related to the 2004 claim.

After the employer appealed that decision, and Board Panel determined that further development of record was necessary. Based partly on the opinion of the impartial specialist who examined the claimant, the Board Panel reversed the decision of the Law Judge. In its affirmance of the Board, the Court ruled that the decision on causality, related or consequential, is a factual issue to be resolved by the Board which would be sustained as long as the Board’ s decision detailed its reasoning, notwithstanding contrasting medical evidence. [In a footnote, the Court referenced a procedural error: “Although claimant’s assertions herein include challenges to certain conclusions of the impartial specialist, we note only that claimant waived her opportunity to cross-examine him.”] Prevailing party represented by: Irosha Ratnasekera of counsel to Charles J. Siegel (New York City) for Beth Ameth Home Attendant Service and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Wilcox v Niagara Mohawk
January 28, 2010 NYS Appellate Division, Third Department
SLU Apportionment

AFFIRMED the Board’s ruling that apportionment did not apply to claimant’s workers’ compensation award. Claimant sustained a work-related injury to his right ankle in December 2004, 12 years after undergoing surgery on the same ankle for a condition that was wholly unrelated to his employment. Claimant’s treating physician opined that claimant suffered a 45% schedule loss of use (SLU) of his right foot and did not attribute any portion of the loss to the noncompensable 1992 injury. The employer’s medical examiner agreed that claimant had a 45% SLU but attributed 50% to claimant’s earlier injury. The Law Judge, affirmed by the Board, granted claimant a 45% SLU, rejecting the employer’s claim of apportionment. The Court noted that, although apportionment May be applicable in a schedule loss of use case if the medical evidence establishes that the claimant’s prior injury — had it been compensable — would have resulted in a schedule loss of use finding, the Board determined that medical records and reports relevant to claimant’s 1992 surgery were unavailable, and neither expert was provided with any objective documentation indicating to what extent, if any, claimant’s use of his right foot or range of motion had been impaired as a result of the prior injury. Consequently, although the medical examiner who evaluated claimant for the employer opined that claimant had a preexisting 22.5% loss of use, claimant’s treating physician testified that any opinion regarding a preexisting loss of use would be entirely speculative. Thus confronted with conflicting medical evidence, the Board was authorized to credit the opinion of one expert over that of another. Prevailing party represented by: Peter W. Hill (Oneonta) for Clyde F. Wilcox, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Shelley v Shelley Septic
January 28, 2010 NYS Appellate Division, Third Department
Coverage: Sole Executive Exclusion

AFFIRMED the Board which ruled that, per WCL §14(6), claimant was not concurrently employed by Thompson Sanitation Corporation when he was injured working at Sheeley Septic Service. A review of the controverted Board decision shows that the issue was not concurrent employment but executive exclusion under a corporation’ s workers compensation insurance policy, per WCL §54[6][d]. At the time of claimant’s injury, he and another individual, Paul Walsh, were Thompson’s sole owners and officers. Walsh testified that he elected to be excluded from Thompson’s workers’ compensation coverage in 1994 and, while he did not remember if claimant did so that year, claimant had done so when Thompson was initially formed. According to documentation submitted by the workers’ compensation carrier, and admitted upon claimant’s stipulation, the policy in effect when claimant was injured contained an exclusion election for him. The Court found that the Board could properly find from the evidence presented that he did make such an election, thus removing himself from the definition of an “employee” and placing his work for Thompson outside of the ambit of Workers’ Compensation Law §14(6). Prevailing party represented by: Patrick B. Guy of counsel to Gitto & Niefer (Binghamton) for Sheeley Septic Service and another, respondents. And Jill Singer of Counsel to Steven Licht, Special Funds Conservation Committee for State Insurance Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Moysello v David
January 21, 2010 NYS Appellate Division, Third Department
Employment: Taxi driver

AFFIRMED the Board which ruled that claimant was an employee of Charles David and David Enterprises, Inc. In January 2007, claimant was injured in a motor vehicle accident during the course of his employment as a taxicab driver for David’s Taxi. An investigation determined that the vehicle was registered to David Enterprises, Inc. and the was “true owner” of David Enterprises was Charles David. At the conclusion of the hearing, at which claimant was the only party to appear, a Law Judge concluded that claimant was employed by David and David Enterprises (D/DE) on the date of his accident– both of which were uninsured in violation of Workers’ Compensation Law § 50. D/DE filed an application for Board review, contending that claimant’s actual employer was a related entity, David Brothers, Inc., which purportedly had workers’ compensation coverage on the day in question, and that D/DE did not receive proper notice of the hearing. The Board affirmed, finding that D/DE met the presumptive definition of employer contained in WCL §2 (former [3]) and that jurisdiction had been properly obtained. The Court agreed pointing out that D/DE conceded David Enterprises was the registered owner of the vehicle and that there was sufficient indicia of control to support the Board’s finding that D/DE and that proper notice was served. Prevailing argument presented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Lew v Younger
January 21, 2010 NYS Appellate Division, Third Department
Employment: Who is

AFFIRMED the Board which ruled that an employer-employee relationship existed between claimant and Richard Younger. Claimant, a cleaner, in 2006 had his claim for workers’ compensation benefits after he was allegedly injured in the course of his employment for Richard Younger, a site manager who arranged for the upkeep of a number of buildings. In 2007, the Board reversed the Law Judge, determined that claimant was employed by Younger, established the claim and restored the case to the calendar. Younger and others sought and was denied review of the argument that claimant was either an independent contractor or in the employee of the owner of the building where he was injured. The Appellate Court listed in its decision some of the evidence with which it supported the Board’s determination that an employer employee relationship existed, notwithstanding evidence that could permit a different result. Prevailing argument presented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


DiLascio v Tilden Glen Head
January 21, 2010 NYS Appellate Division, Third Department
Coverage: sole executive exclusion

AFFIRMED the Board which ruled that the State Insurance Fund is not liable for the payment of workers’ compensation benefits to claimant. Claimant was the sole executive officer of an automobile repair business that maintained workers’ compensation insurance through the State Insurance Fund (hereinafter SIF). But in 1994 to 2001 elected to exclude himself from such coverage at which time without expressly notifying SIF that he intended to now be covered by the insurance policy, began including his salary in the chargeable payroll statements he submitted to SIF used to calculate premiums. A renewal policy covering the period from October 2005 to October 2006, however, was provided to the employer, which explicitly stated that claimant was not covered by the policy due to the election to have him excluded. In May 2006, during the time that this policy was active, claimant was injured while at work and he applied for workers’ compensation benefits. [SIF thereafter credited the employer’s account for the portion of the premiums applicable to the inclusion of claimant’s salary in the chargeable payroll paid from 2004 to 2006.] A Law Judge ruled that claimant, by paying the higher premiums based upon the inclusion of his salary in the chargeable payroll, believed that he was covered and SIF was estopped from denying coverage.The Court agreed with the Board’s decision to reverse agreeing that there was sufficient evidence that estoppel did not apply. Most importantly, the record reveals that the policy, in the year, expressly excluded the claimant from coverage, that he had actual knowledge that he was not covered by the policy and, therefore, could not have reasonably relied on SIF’s acceptance of higher premiums in believing that he was covered. Prevailing party represented by: Janis M. Riekstins of counsel to Gregory J. Allen, State Insurance for Tilden Glen Head, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Li v Southern Garden
January 21, 2010 NYS Appellate Division, Third Department
§ 15(8)Reimbursement Special Fund

AFFIRMED the Board which discharged the Special Disability Fund from liability under WCL §15(8) (d). After the injured worker claim was established for injuries sustained in a January 2000 accidents, the carrier filed a notice for reimbursement from the Fund based on a previous injury sustained by claimant.

In April 2005, the Board approved a settlement agreement between claimant and the carrier pursuant to WCL §32. In light of the carrier’s reimbursement claim, the Fund was also a party to the agreement. The agreement noted that the issue of permanency was outstanding and that the parties had decided to settle the claim rather than litigate the issue. The Committee gave provisional consent to the settlement, “subject to the carrier’s successful claim under [Workers’ Compensation Law § ] 15 (8) (d), less any statutory retention period remaining at the time of the approval of this agreement.” The agreement expressly provided that the Committee’s consent “is not to be construed as a concession of liability under . . . [s]ection 15 (8) (d).” Thereafter, the Law Judge granted the carrier’s reimbursement claim but was then reversed after a Board’s review. First the Court accepted the board’s discretion to accept the Funds appeal which is one day late but not the carriers which was two months late. Then the Court agreed with the Board’s reasoning denying reimbursement because the work-related injury did not result in a permanent disability, even though evidence in the record might support a contrary result. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….


Davis v Ready Labor
January 21, 2010 NYS Appellate Division, Third Department
Course of Employment: driving to work

AFFIRMED the Board which ruled that the death of claimant’s decedent did not arise out of and in the course of her employment. Decedent was employed by Labor Ready, an employment agency that provides temporary employees to its clients. On March 16, 2004, decedent was driven, along with two other employees, to a work assignment at Dunkirk Ice Cream by McKinley Barnes, a Labor Ready employee who was not working that day but had agreed to drive decedent and the two other employees to the work site. Barnes returned to Dunkirk when decedent and the other Labor Ready employees had finished their eight-hour shifts and, during the 26-mile return trip, an automobile accident occurred that resulted in decedent’s death. Claimant’s application for his comp death benefits was granted by a law judge but the Board reversed and disallowed the claim.

Claimant argued that because Labor Ready assumed the responsibility for transporting its employees to and from their temporary job assignments, this accident should have been deemed to have occurred within the scope of decedent’s employment per WCL §10 [1]). Although there are exceptions to the general rule that travel to and from a work site is not considered to be within the scope of employment and injuries occurring during that period, the Court agreed with the Board that this case was not such an exception. It was noted that the employer did encourage car pooling with employees were assigned to the same job location but the vehicles used for transport were not owned by Labor Ready and it had no contract nor did it pay any driver to transport its employees to the work site. In addition the driver of the car was not working for the employer that day was not pay for the service by the employer but by the individual employees who did not get paid for travel time. The Court agreed with the Board that Labor Ready did not have exclusive control of the conveyance, which combined with the Board’s review of other evidence, supported its decision to disallow the claim. Finally the court stated that the Board did not abuse its discretion by refusing to consider her rebuttal because she failed to include the required cover sheet and affidavit of interested parties. Prevailing party represented by: Karen Darling of counsel to Hamberger & Weiss (Buffalo) for Labor Ready and another, respondents. Click here to read the full court.decision of the NYS Appellate Division, Third Department….


Domenico v United Way
January 14, 2010   NYS Appellate Division, Third Department
Venue issues: Switch Law Judges

AFFIRMED the Board’s ruling which denied the pro se claimant’s request to move the case to a different venue. Claimant, after injuring her hand and wrist, was found to have a compensable partial disability but, when issues subsequently arose regarding permanency and the degree of her disability, the employer and claimant were directed to produce medical evidence relating to permanency and loss of use. The employer thereafter submitted an independent medical examination, but claimant did not. At a July 2008 hearing, a Law Judge again directed claimant to provide medical evidence, on or before October 14, 2008, if she wished to controvert that provided by the employer. The Law Judge noted as much in the resulting decision and continued the case. Claimant appealed that continuance to the Workers’ Compensation Board, requesting that her case be assigned to a different Law Judge and/or transferred to a different district, and arguing that the Law Judge improperly continued her case. The Board rejected claimant’s arguments and affirmed the Law Judge’s decision. Prevailing party represented by: David A D’Agostino of counsel to Smith, Sovik, Kendrick & Sugnet (Syracuse) for United Way and another, respondents. Click here to read the full decision of the Court….


Begor v Holmes
January 14, 2010   NYS Appellate Division, Third Department
Coverage: Which carrier

AFFIRMED the Board’s decision which ruled that American Zurich Insurance Company is the liable workers’ compensation carrier. In this case, the injured worker was employed by Four Seasons who had no workers comp insurance. Four Seasons was hired by Mid Hudson who used a professional employer organization (PEO) to handle all its human resources functions, including payroll, employee benefits, and workers’ compensation benefits. Mid Hudson’s leased employees were covered by a workers’ compensation and employers’ liability insurance policy obtained by the PEO and issued by American Zurich Insurance Company (hereinafter Zurich), on which the named insured was the PEO as labor contractor for Mid Hudson. Mid Hudson in turn was hired by Brenner & McHugh, Inc., the general contractor on the project who was insured by NYSIF.

The Zurich policy provided, in pertinent part: “This policy provides coverage for the workers leased to the client [Mid Hudson] . . . This policy does not satisfy the client’s duty for the complete payment of any obligations it may have under the Workers’ Compensation Law for non-leased employees . . .” The certificate of liability insurance for the policy similarly provided that “[c]overage is provided for only those employees leased to but not subcontractors of Mid Hudson.

After an initial hearing on claimant’s application for workers’ compensation benefits, a Law Judge issued a decision that found that Mid Hudson did not have coverage on the date of the accident extending to its subcontractor and that, since they both had failed to provide coverage for claimant, SIF was obligated under WCL §56, as Brenner’s carrier, to pay any outstanding awards and causally related medical bills. The Board in reviewing SIF’s appeal, concurred with the Law Judge’s determination that the claim was SIF’s liability, finding that Mid Hudson was an uninsured subcontractor because, although it had coverage for its leased employees, it had exposed itself to workers’ compensation liability for which it had no coverage by subcontracting work to Four Seasons. The full Board accepted review, rescinded the Board panel’s decision, and returned the matter for further consideration. The Board panel then issued a decision finding that the limitation of coverage in the Zurich policy to leased workers was ineffective to exempt claimant from coverage because, under WCL §54(4), the policy was deemed to include the statutory coverage provided under WCL §56 to employees of uninsured subcontractors such as claimant. The Board panel therefore found that Zurich, as Mid Hudson’s carrier, was liable for the claim.

Because the resolution of this matter depends on pure statutory construction, the Appellate Court recorded no deference to the Board’s determination but agreed with the Board’s statutory analysis, the specifics of which can be found in the Court’s decision. Prevailing party represented by: Kelly A. O’Neill of counsel to Gregory J. Allen, State Insurance Fund (White Plains) for Brenner & McHugh, Inc., and another, respondents. Click here to read the full decision of the Court….


Brook v Overseas Media
January 12, 2010  NYS Appellate Division, First Department
§120: Discrimination: a workers’ comp issue, not Civil Court

DISMISSED a Supreme Court motion to proceed under which the plaintiff sought a finding of retaliatory discharge under the New York City Human Rights Law. The Appellate Court found that the allegation does not state a cause of action for retaliatory discharge under the NYC Human Rights Law. The Court explained that “[t]he mere filing of a claim for workers’ compensation is not a ‘protected activity’ within the meaning of that provision, because it does not constitute ‘opposing or complaining about unlawful discrimination’ [filing of a workers’ compensation claim not a protected activity under Title VII, 42 USC § 2000e-3(a)]). Plaintiff’s sole remedy for retaliatory discharge in violation of WCL §120 is to file a complaint with the Workers’ Compensation Board. Even when the complaint is liberally construed to allege that plaintiff’s employment was terminated in retaliation for requesting an accommodation for her disability, it does not state a cause of action because it fails to allege that she opposed her employer’s discriminatory failure to make reasonable accommodation.Prevailing party represented by: Jason M. Zoladz of counsel for appellant. Covington & Burling (New York) for appellant. Click here to read the full decision of the Court….


Church v Arrow Elec
January 7, 2010  NYS Appellate Division, Third Department
§114-a: Fraud
7050 Procedure: Denial Full Board Review

AFFIRMED the Board’s rulings (1) that the claimant violated Workers’ Compensation Law § 114-a and disqualified him from receiving future wage replacement benefits and (2) which denied claimant’s request for full Board review but RESCINDED part of the mandatory penalty due to the Boards “undescernable” logic.

Claimant, injured in April 2003, was awarded benefits in December 2003. The carrier applied for review by a Board Panel which determined that claimant “knowingly made false statements and representations as to a material fact for the purpose of influencing the determination of workers’ compensation benefits in violation of [Workers’ Compensation Law] § 114-a,” as a result the Board rescinded prior benefits and disqualified him from future receipt of wage replacement. Claimant’s subsequent application for review by the full Board was denied. Claimant now appeals both from the Board’s decision reversing the WCLJ and from the denial of his application for full Board review.

The Court found find that the Board’s finding of §114-a fraud was supported by substantial evidence, i.e. “Claimant’s attempts to explain the discrepancies between his representations and the observations of the physician conducting the independent medical examination and the surveillance video presented issues of credibility that the Board was entitled to resolve.” But the Court then wrote, “turning to the propriety of the sanctions imposed, while it is clear that the Board assessed a mandatory penalty, we are unable to discern from the Board’s decision ‘a link between the false statement or representation and the forfeited compensation to show that the compensation was directly attributable to the false statement or representation’. Thus, we must remit to the Board to further develop the underlying decision in this regard. However, we are unpersuaded by claimant’s contention that the disqualification from receiving future benefits was disproportionate to his conduct, given the thorough explanation set forth by the Board in its assessment of this discretionary penalty.

They added, “Claimant’s appeal from the denial of his application for full Board review is deemed abandoned due to his failure to raise any issues with respect thereto in his brief on appeal.” Prevailing party represented by: Matt Worth of counsel to Weiss, Wexler & Wornow (NYC) for Arrow Electronic, Inc. and another, respondents. Click here to read the full decision of the Court….


Epp v Cortland City DPW
January 7, 2010  NYS Appellate Division, Third Department
Causal Relationship: PFME, et al
Procedure: Denial Full Board Review

AFFIRMED the Board’s rulings (1) that claimant sustained a causally related injury to his right knee, and (2) which denied the self-insured employer’s request for reconsideration or full Board review. Claimant, after allegedly ensuring his right knee on July 31, 2006, filed a claim for workers’ compensation. A Law Judge continued the case pending the deposition of claimant’s treating physician which the parties were directed to complete and submit by May 18, 2007. The employer encountered difficulties in procuring claimant’s physician’s testimony, prompting it to request an extension of time. The WCLJ indicated that the request would be held in abeyance pending receipt of an affirmation detailing, among other things, the employer’s efforts to schedule the deposition. When no responding affirmation was tendered, the Law Judge issued a reserved decision establishing the claim, which was affirmed by the Board which subsequently denied the employer’s request for full Board review.

It is well settled that the assessment of witness credibility and the resolution of conflicting testimony lie within the exclusive province of the Board, with the Board in this case siding with the claimant and his witnesses rather than those of the employer’s witnesses. As to deposing the physician or striking her reports from the record, the Court agreed with the Board that the employer failed to comply with the procedures outlined by the Law Judge. “Finally, inasmuch as the employer failed to brief the denial of its application for reconsideration or full Board review, we deem that portion of the employer’s appeal to be abandoned.Prevailing party represented by: Estelle Kraushar of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court….


Flores v Newstar Apparel
January 7, 2010 NYS Appellate Division, Third Department
Causal Relationship: PFME, et al
Procedure: Denial Full Board Review

AFFIRMED the Board’s that (1) claimant sustained a compensable injury, and (2) denied the carrier’s request for full Board review. Claimant, injured in a fall that occurred at the start of her workday when she slipped on ice in the entryway of the building where her employer was a tenant, had her application for benefits denied by a Law Judge who determined that the accident did not occur within the precincts of her employment. The Board reversed and subsequently denied the carrier application for full Board.

Although injuries that occur while an employee is traveling to and from work are not generally compensable, an exception may lie in the ‘gray area’ . . . courts must additionally consider whether (1) there was a special hazard present, and (2) if the route taken by claimant had a close association with the premises of [the] employer.” In this case the claimant’s testimony, including very specific facts regarding the location of injury, was substantially uncontroverted. “Finally, inasmuch as the employer failed to brief the denial of its application for reconsideration or full Board review, we deem that portion of the employer’s appeal to be abandoned.” Prevailing party represented by: Steven Segall of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court….


Friedman v NYC DOT
January 7, 2010 NYS Appellate Division, Third Department
Income from self-employment

AFFIRMED the Board’s ruling that claimant was not entitled to an award of reduced earnings subsequent to November 22, 1987 as his business income was salary and not profits.

Claimant, having sustained work-related back injuries in 1979 and 1983, was classified as permanently partially disabled and was awarded reduced earning benefits beginning in 1985, when he stopped working for the employer. The benefits were suspended in November 1987, when the employer’s investigation revealed that claimant owned his own business and was also serving as a corporate officer for at least one other business. The case was closed in 1989 after he failed to comply with the Board’s direction to produce personal and corporate tax returns. In 2003 after 14 years of his failing to follow Board directions and subpoenas, the Board ultimately found that claimant had failed to provide sufficient evidence entitling him to reduced earnings, and closed the case pending his production of such evidence. In 2007 after testimony from the original employer’s accountant indicating the returns that were available were incomplete as well as testimony from the claimant, the Law Judge determined that claimant was actively engaged in gainful activity and had not demonstrated a diminution of earning capacity.

The claimant argue his income constituted profits rather than earnings and that “a self-employed claimant’s work primarily in a supervisory capacity has been found to be profits from an investment”. Unlike a business owner who passively supervises employees who carry out the actual work of the business, claimant’s testimony reveals that the inspection and review services that he performed constituted is company’s actual work.”[W]hether an individual’s income is based on profits or a salary for services performed is a factual determination for the Board” and, in this case, the Court agreed with the Board’s determination that “claimant’s income from LAF was actively earned from his labor and constituted actual earnings rather than a passive return on investment.Prevailing party represented by: Ronald E. Sternberg of the Office of Corporation Counsel for the New York City Department of Transportation and another, respondents. Click here to read the full decision of the Court…


Hassan V Ford Motor
January 7, 2010 NYS Appellate Division, Third Department
Hearing Loss

AFFIRMED the Board’s ruling that claimant had a 0.625% schedule loss of use for binaural loss of hearing despite claimant’s contention that the carrier’s medical witness was not qualified. In his appeal, the claimant contends that because the employer’s registered nurses who performed audiometric examinations on him are not “qualified professionals” pursuant to 12 NYCRR 351.7, the examination results should not have been admitted into evidence, for which reason, the opinion of the otolaryngologist who served as the employer’s independent medical examiner, lacks credibility and should have been rejected due to his partial reliance on those examination results.

The Court agreed with the Board’s findings that “the special certification and training received by the employer’s nurses in performing audiograms” as evidenced by the nurses’ uncontradicted testimony is sufficient to render them “qualified professionals” under 12 NYCRR 351.7. Also it was noted that the otolaryngologist’s conclusion was also based on tests he himself performed. The court noted that when there was conflicting but were relatively equal medical evidence, the “Board is vested with broad authority to evaluate the credibility of witnesses, weigh conflicting evidence and draw any reasonable inference from the proof .” Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for Ford Motor Company, respondent. Click here to read the full decision of the Court….


Hurlburt v Cortland County
January 7, 2010 NYS Appellate Division, Third Department
§ 29: MVA liens, malpractice
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling that (1) the employer was responsible for the payment of certain of claimant’s medical bills, and (2) denied the employer’s request for full Board review. Claimant, a former Cortland County Sheriff’s Deputy, sustained serious injuries at the Cortland County Jail in September 1981. Following a surgery to repair damage to his elbow, claimant developed a bacterial infection in his heart, causing him to suffer a heart attack and stroke, which eventually led to paralysis and aphasia. A Law Judge found claimant to be permanently physically disabled as a result of injuries sustained at work and awarded him benefits.

Between August 2005 and January 2006, claimant underwent emergency care for an infection of the area where a pacemaker had been installed at the time of his heart attack, resulting in substantial medical bills that the self-insured employer disputed. In a March 2006 hearing, the employer conceded that the disputed bills were causally related to a compensable injury, but indicated that it was investigating whether claimant had settled a third-party malpractice action related to his compensable injuries without the employer’s consent. After the employer stated that it had discovered no information other than that a lawsuit had been commenced, a Law Judge found for the medical providers with regard to the disputed bills.

The employer then applied for review by the Board, contending that it had evidence that claimant had settled or discontinued a third-party lawsuit without its consent, supplementing its application with a copy of a stipulation of discontinuance in a malpractice action. Nevertheless, the Board found that the WCLJ had “acted appropriately and within his discretion in denying the self-insured employer further opportunity to defend the claim” and commented that the employer did not file a copy of the stipulation of discontinuance with the Board in a timely manner and failed to explain why it could not have been produced at an earlier date. The employer now appeals from the Board’s decision and from the denial of its application for full Board review.

While the Court cited case law to the fact that “if a third-party action relating to an injury also subject to a workers’ compensation claim is settled without the consent of the employer/carrier or a compromise order, the claimant forfeits any further benefits for which a recovery might have been had in the third-party action (see WCL §29 [5] and the claimant bears the burden of establishing that the employer’s consent was obtained.” But in this case, among other reasons, the employer failed to present any evidence to the WCLJ that claimant had commenced a malpractice action, let alone settled or discontinued such action. Therefore, claimant’s duty “to demonstrate the employer’s consent never arose”. As to the denial of full Board review, the employer proffered no new evidence in support of its application. Prevailing party represented by: Phyllis I. Hulbert, Rotanda, Florida, as power of attorney for Mark Hulbert, respondent and Iris Steel of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court….


Jaquin v Community Covenant
January 7, 2010 NYS Appellate Division , Third Department
Causal Relationship: Was there?

AFFIRMED the Board’s ruling that the pro se claimant did not sustain a causally related injury, denying her claim for benefits.

Claimant alleges that she suffered a work-related injury when she lifted a heavy child out of a carriage during the course of her employment at a day-care center in February 2004 and filed the claim in March 2004. The Board affirmed the June 2004 closing of her claim for lack of prima facie medical evidence but reopened the case for submission of additional medical evidence. In January 2005, claimant submitted a second C-3 form that provided somewhat different statements of the date, nature, and circumstances of the injury and of the timing and nature of the notice allegedly given to the employer but she did not supply prima facie evidence until May 2007 at which time she and an employer witness testified. The Law Judge then disallowed the claim determining that claimant had failed to show a causal relationship between the injury and her employment by competent medical evidence, and that the opinion of claimant’s doctor as to a causal relationship, given two years after the accident, lacked foundation in the record.

The burden is upon claimant to produce competent medical evidence establishing that her injuries or limitations were causally related to her employment but her records show she had a prior history of chronic problems with the site’s allegedly injured at work, her medical reports did not substantiate her claims, and there were discrepancies in claimant’s own accounts of the event and its consequences. In supporting the Board’s decision, the Court stated, “Though the Board may not fashion its own expert medical opinions, it may reject medical evidence as incredible or insufficient even where, as here, no opposing medical proof is presented . . . Claimant’s proof failed to definitively link her injuries to the February 2004 event rather than to the 2003 accident or to her preexisting conditions.” Prevailing party represented by: Robert E. Geyer Jr. of counsel to Wolff, Goodrich & Goldman (Syracuse) for Community Covenant Church and another, respondents.Click here to read the full decision of the Court….


Kane v Unger/Compton
January 7, 2010 NYS Appellate Division>, Third Department
Coverage (including Death Claims)

AFFIRMED the Board’s decision which determined, among other things, that PMA Insurance Group was the liable workers’ compensation carrier as their policy was in effect at the time of the alleged accident of June 9, 2006. Although Unger began transferring ownership of his business in March 2006 to C/C, who took over day-to-day operations on March 31, 2006, transfer of ownership was not completed until August 2006. Unger canceled his workers comp insurance effective June 19, 2006 (six weeks before a final transfer of ownership and less than two weeks after the alleged accident) and C/C obtained their insurance on July 15, 2006 (one month after Ungar canceled his and six weeks after the alleged accident). The Law Judge ruled that, since formal control of the business did not take place until August 2006, the claimant was effectively an employee of Ungar. The Board did affirm the Law Judge as to the proper employer but noted that the Law Judge had misidentified Ungar’s workers’ compensation carrier, determining it should have been PMA Insurance Group. The Court added, “While there is evidence in the record that C/C had taken over the day-to-day operation of the business as of June 2006, which evidence could support a different conclusion, we nevertheless find that the Board’s determination was supported by substantial evidence.Prevailing party represented by: Jason M. Carlton of counsel to Gitto & Heifer (Binghamton) for Andrea Compton and another, respondents Click here to read the full decision of the Court….


Nothaft v Hawkeye Construction
January 7, 2010 NYS Appellate Division , Third Department
Causal Relationship: Death

AFFIRMED the Board’s ruling that the unwitnessed death of claimant’s decedent was not causally related to his employment. [I was on this panel.]

In March 2005, claimant’s husband (hereinafter decedent) was employed as a truck driver at a construction site. Approximately two hours after the start of his shift, decedent was found unconscious in the cab of his truck and later died. An autopsy determined that the causes of death were hypertensive and arteriosclerotic heart disease. Claimant sought workers’ compensation death benefits, but a Law Judge determined that decedent’s death was not causally related to employment. The Board determined that, “As decedent suffered an unexplained or unwitnessed accident during the course of his employment, a presumption of compensability arises (see Workers’ Compensation Law § 21 [1]) but that presumption may be rebutted by substantial evidence to the contrary, however, and ‘irrefutable proof excluding every conclusion other than that offered by the employer’ is not required.” Both the Court and the Board agreed that the autopsy report and death certificate indicated, and a medical expert who reviewed decedent’s medical records opined, that decedent’s death was unrelated to his work. “As substantial evidence supports the Board’s determination that decedent’s work had no connection to his death, we decline to disturb it.Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Hawkeye Construction, Inc. and another, respondents. Click here to read the full decision of the Court….