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— — DECEMBER 2011 — —
December 29, 2011 NYS Appellate Division, Third Department
§29: Apportionment of legal fees
RESCINDED the Workers Compensation Board’s decision that the claimant was not entitled to reimbursements for certain expenses from his 3rd party law suit.
After being awarded comp benefits for a March 2004 work accident,
claimant commenced a third-party action, received a settlement offer of
$725,000, and then received the carrier’s consent. In its consent, the
carrier asserted a lien in the amount of $132,002.63 for compensation
payments already made [The total amount of the workers' compensation
payments to claimant prior to settlement was $201,053.98, and the
carrier accepted the reduced amount to account for its equitable share
of the litigation costs commensurate with that figure.]. Additionally,
the carrier "specifically reserve[d] its rights to claim a credit and
offset for the net amount of the settlement payable to [claimant]
against any prior, subsequent or future claim for [w]orkers'
[c]ompensation indemnity and/or medical benefits arising out of this
occurrence." The carrier then suspended its indemnity payments to
claimant based upon its offset against claimant's proceeds from the
settlement. After the Board classified claimant with a moderate to
marked permanent partial disability, claimant requested further action
and a Law required the carrier to contribute its share of the litigation
costs associated with the offset amount by paying claimant a discounted
rate of indemnity. On appeal, the Board reversed, finding that an award
of such payments to claimant would alter the terms and conditions of
the settlement consent agreement, which was beyond its jurisdiction.
Because "carriers are obligated to contribute the costs of litigation in proportion to the total benefit that they receive”, the carrier has a legal obligation to "pay its equitable share of litigation costs as benefits accrue"
even in cases in which future benefits are too speculative to apportion
the carrier's litigation costs at the time of settlement. The Court
essentially stated that, contrary to the Workers Compensation Board’s
position, Burns v Varriale, 9 NY3d 207, 214 [2007]did apply. “Although,
in its consent to settlement, a carrier may seek to be released from
its affirmative obligation to pay its share of litigation expenses, it
is ‘required to express that release plainly and unambiguously in the
consent to settlement agreement’. Thus, contrary to the Board's
determination that it lacked jurisdiction, whether the carrier ‘plainly
and unambiguously’ absolved itself of its continuing responsibility to
contribute to the litigation costs consistent with its offset is a
question of fact for the Board to resolve and, accordingly, the matter
must be remitted.” Prevailing party represented by: Justin S. Teff of counsel to Law Office of Ralph M. Kirk (Kingston) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #5040 5518 [1D158-7677]
December 22, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal
REVERSED the Workers Compensation Board’s decision that claimant’s lost earnings were not causally related to claimant's work-related disability while also ruling that the claimant did not voluntarily withdraw from the labor market.
As the result of an established claim for an injury to his left knee in
1998, claimant underwent multiple knee and hip replacement surgeries,
and consequential compensable injuries to his back and right hip were
established. After the light duty position to which he returned in June
2009 was eliminated in August 2009, claimant was offered a full-duty
position as an ironworker, but feeling that he could not accept the
position due to his medical restrictions, he retired. Payments were made
to the claimant until December 2009 when the carrier raised the issue
of claimant's voluntary removal from the labor market. In December 2009,
a law judge ruled that the claimant was entitled to continued benefits
and, then in February 2010, ruled the claimant had involuntarily retired
due to his causally related disability. A Board panel affirmed the
December 2009 decision, but reversed the February 2010 decision, denying
further benefits due to claimant's failure to maintain a sufficient
attachment to the labor market subsequent to December 12, 2009,
prompting a pro-se appeal.
In reversing the Workers Compensation Board, the Court wrote, “The
Board's finding that claimant's retirement was involuntary ‘gave rise
to an inference that his reduced earning capacity continued after
retirement’. That inference is removed only by ‘direct and positive
proof that something other than the disability was the sole cause of
claimant's reduced earning capacity after retirement’. Further, ‘[p]roof
that the claimant has not sought work postretirement, by itself, does
not defeat the inference or shift the burden to [the] claimant to show
that the disability was a cause of the reduction’ . Rather, the employer
or workers' compensation carrier ‘must demonstrate that something other
than the disability was the sole cause of claimant's reduced earning
capacity after retirement, such as age, economic conditions or other
factors unrelated to the disability. Here, the Board relied solely on
the fact that claimant failed to actively search for employment or avail
himself of any employment services after retirement in denying him
further benefits. Given the lack of any proof by the employer that
something other than claimant's disability was the sole cause of his
reduced earnings after retirement, we conclude that the Board's
determination denying claimant further benefits is not supported by
substantial evidence and must be reversed.” Prevailing party represented by: Mark Du of counsel to the Law Office of Joseph Romano (NYC) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0985 8460 [1D157-7676]
The Insider It seems that the Workers Compensation Board did a review on its own
motion of this same June 4, 2009 decision for which the 3rd Department
has just issued the above opinion. Based on that review, issued
September 29, 2011, the Board panel determined that Full Board Review
was not warranted, had determined that the MOD should be amended, and,
in effect, reversed itself, finding involuntary withdrawal from the
labor market. While one can agree or disagree with the result of the
Board panel’s ‘voluntary’ review of its own decision, one is prompted to ask, “At
what point does a Board panel decision become final if the Board can
change its mind when the fancy (or a politician’s phone call) generates
an arbitrary review and reversal?”]
While
we await what will be a clarification on the issue of Voluntary
Withdrawal From the Labor market, the record shows that the Workers
Compensation Board has a failing grade on this issue this year, getting
only 7 of 11 affirmances (63%) of its decision to date.
December 22, 2011 NYS Appellate Division, Third Department
Untimely Submissions/Defenses
REVERSED the Workers Compensation Board’s ruling that claimant sustained a permanent total disability because the Board denied the carrier the right to cross examine witnesses.
In 2008, the employer sought a hearing to determine the degree and
permanency of claimant's disability for injuries sustained in a
compensable accident in 1997. After claimant provided an updated medical
report indicating that he had a permanent total disability, the
employer submitted an independent medical report indicating that
claimant suffered a moderate partial disability of a permanent nature
and was capable of performing some type of work. A law judged denied the
employer's request to cross-examine claimant and his physician
concerning claimant's ability to work, determined that claimant had a
permanent total disability, and awarded benefits with videotapes proving
§114-a fraud. In reversing the Board, the Court agreed with the carrier
that its request to cross-examine claimant and his physician was
improperly denied since they did make a timely request to do so (see 12
NYCRR 300.10 [c]). In its reversal the Court also noted that “Moreover,
inasmuch as the record contains conflicting medical reports regarding
the nature of claimant's disability, denial of the employer's request to
cross-examine claimant's physician clearly prejudiced the employer.” Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for appellants. Commissioners of Record: Higgins, Libous, Foster WCB #6980 0429 [1D157-7675]
The Insider The carrier had also sought a ruling on §114-a but the Law Judge and
Workers Compensation Board's Panel determined that medical reports found
the claimant totally disabled, and did not directly rule on the §114-a
issue. The carrier then raised this issue again with new evidence and,
in a December 8, 2009 decision, was hit by a Law Judge with a
§114-a(3)(i) penalty for raising this issue, an issue for which no
decision (certainly not noted in any of the Board panel MOD’s) had
previously been rendered. The carrier’s appeal to the Board on this
penalty was not only denied but the carrier was then hit with a $500
penalty under §23 for a frivolous appeal. Yet (1) the record show that
the Board had yet to rule on the fraud issue and (2) the decision of the
Appellate Court to remand for testimony on both degree of disability
and work ability would appear to make the videotapes and investigator’s
report, the basis of the fraud claim, neither a waste of the Board’s
time nor a frivolous appeal. Or did I miss something?]
the Insider This
is the first Workers Compensation Board case on this issue to make it
to the Appellate Court since posting started here in late 2008
December 15, 2011 NYS Appellate Division, Third Department
Employment: Temp Worker
AFFIRMED the Workers Compensation Board’s ruling that Snelling & Snelling (S&S), a temp agency, was solely liable for workers' compensation benefits
paid to claimant. Claimant obtained his position with F.T. Well
Support, through S&S, LLC, a temporary employment agency. His claim
was established after he injured both of his legs in a work-related
motor vehicle accident while working at the location of Fortuna Energy,
a client of FT Well. S&S was ordered to pay temporary awards and
the case continued on the issue of general/special employment with
S&S contending the either/or both Fortuna and FT Well were totally
or partially liable for the claim. After claimant and FT Well
testified, the Law Judge found that S&S was claimant's employer and
there was no special employment relationship with Fortuna. There were
numerous appeals and Board panel decisions regarding testimony by
S&S and its witnesses but ultimate the Board determined that S&S
was provided a full and fair opportunity to develop the record.
S&S’s appeal to the Appellate Court on this issue was dismissed as
interlocutory. The Law Judge determined that claimant was a special
employee of FT Well, and not any other entity, but that S&S was 100%
liable for payment on the claim pursuant to the contract between
S&S and FT Well. Although claimant and FT Well testified that FT
Well set claimant's hours, directed and supervised his work and provided
the necessary equipment, substantial evidence supports the Board's
determination that S&S is solely liable for payment of the claim:
S&S obtained workers' compensation insurance for the temporary
employees that it provided to FT Well and part of the fees that FT Well
paid to S&S were intended to include the cost of such coverage. Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy respondent. Commissioners of Record: Ferrara, Finnegan, Bell WCB #5050 7422 [1D156-7674]
December 15, 2011 NYS Appellate Division, Third Department
§18 notice to employer
AFFIRMED the Workers Compensation Board’s ruling that denied the claim’s establishment [The Insider see note below]
for what appears to be late notice, while rejecting the carrier’s
argument that claimant did not give timely §18 notice of injury.
Claimant allegedly injured his right ankle on February 28, 2007 when he
slipped on a patch of ice at the employer's Town Hall. He continued to
work and did not seek medical treatment until March 9, 2007 when he
presented at the local emergency room complaining of pain and swelling. A
review of the March 9 emergency room report indicated that the claimant
injured his right ankle when he fell off a porch whereas a review of
additional medical records, including the medical opinion of the
carrier's consultant, show that the history provided by the claimant was
that he injured himself at work, when he slipped on some ice. When
these symptoms persisted, claimant sought treatment from an orthopedist
in May 2007 following which the prospect of surgical intervention was
discussed. Despite his ongoing difficulties and treatment, he did not
report his injury to the employer until June 27, 2007.
The
carrier initially authorized medical care, but then controverted the
claim following receipt of the emergency room records, which indicated
that claimant twisted his ankle falling off a porch, thus raising a
question as to whether the underlying injury actually was work related, a
question first brought to the Board’s attention by the carrier two
months after receiving the emergency room report. Following a hearing,
Law Judge found that claimant failed to timely report the accident and
disallowed the claim.
While
the claimant asserted that the employer waived the defense of timely
notice, the carrier had shown that its receipt of the claimant's
emergency room records constituted "newly discovered evidence"
sufficient to allow the late filing of its notice of controversy. The
Workers Compensation Board panel then addressed the issue of, “How soon
after the receipt of newly discovered evidence must the notice of
controversy be filed.” While the carrier argued that there is no time
limit in the statute or regulations, the Board agreed with the Law Judge
who found that the notice of controversy must be filed “within a
reasonable period of time” after the newly discovered evidence is
discovered, although neither of these decisions set a fixed date for
such, finding that in this case that the notice of controversy was
“unreasonably” late.
Nonetheless,
the Court affirmed the Workers Compensation Board’s denial of the
claim, asserting, “Here, despite ongoing symptoms, claimant continued
working and delayed both reporting the accident and seeking treatment,
which may well have permitted claimant's condition to worsen and, more
to the point, prevented the employer from promptly investigating the
underlying incident. Under these circumstances, we cannot say that the
Board abused its discretion in disallowing the claim.” Prevailing party represented by: Russell D. Hall of counsel Hamberger & Weiss (Buffalo) for Town of Lancaster and another, respondents. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB# 8071 2755 [1D156-7673]
The Insider The Workers Compensation Board panel decision states, “the
WCLJ found that the evidence supported finding that the SIE failed to
timely controvert the claim. . . In addition, the WCLJ also found that
the claimant failed to timely provide notice to his employer and
disallowed the claim.” I am still not clear as to how the Law Judge,
Board, and Court would find that the insurer failed to timely
controvert the claim on the issue of notice and then disallow the claims
because there was no timely notice.
December 15, 2011 NYS Appellate Division, Third Department
Reopening by claimant
AFFIRMED the Workers Compensation Board’s rulings (1) which denied claimant's application to reopen his claim, and (2) denied claimant's request for reconsideration or full Board review.
In October 2003, claimant, after sustaining work-related injuries, was
awarded workers' compensation benefits. Although he returned to work in
December 2003, he left his employment with DCH in May 2004 and accepted a
position at another firm at a lower rate of pay. Two months later,
claimant requested a reduced earnings award, denied in August 2005 by
the Board, finding that claimant left his job at DCH for personal
reasons unrelated to his compensable injuries. The case was closed and
claimant did not appeal that decision. In April 2008, claimant sought to
reopen his claim again seeking a reduced earnings award. The Board
affirmed the Law Judge concluding that such claim merely was a
reiteration of the original claim filed in 2004 and denied in 2005 and
that claimant had not set forth sufficient facts to warrant reopening
the claim. Claimant's subsequent application for reconsideration or full
Board review was then denied.
The Court stated that, because the Workers Compensation Board had
already denied his original request for reduced earning in a decision
never appealed, the merits of that claim were not properly before the
Court. Although the Board may reopen, modify or rescind a prior
determination (see 12 NYCRR 300.14 [a] [2]) where claimant presents
proof that a material change in condition has occurred, “here the
claimant relied solely upon the fact that he underwent back surgery in
2007 as well as other of his and his employer’s submissions,” it
concurred with the Board’s findings of an insufficient basis upon which
to reopen. Claimant's remaining arguments, to the extent not
specifically addressed, were been examined and found to be lacking in
merit. Prevailing party represented by: Jill M. Johnson of counsel to Ryan, Roach & Ryan (Kingston) for DCH Auto Group, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5031 5308 [1N156-7672]
December 13, 2011 NYS Court of Appeals
§11: Jurisdiction Uninsured Motorist
We hold that a self-insured employer whose employee is involved in an accident may be liable to that employee for uninsured motorist benefits,
notwithstanding the exclusivity provision of the Workers' Compensation
Law. Exum, while driving a car owned by and in the course of his
employment with his employer Elrac, was in an accident with another car,
driven by a person without liability insurance. Elrac was legally
self-insured and thus had not obtained an insurance policy to cover the
car Exum was driving. Exum served a notice of intention to arbitrate on
Elrac, seeking uninsured motorist benefits, a notice stayed by a lower
court but affirmed by the Appellate Division.
“Insurance
Law § 3420 (f) (1) requires every policy of motor vehicle liability
insurance to contain a provision requiring payment to the insured of all
sums that the insured is entitled to recover as damages from the owner
or operator of an uninsured motor vehicle. In Matter of Allstate Ins.
Co. v Shaw (52 NY2d 818 [1980]), we held that a self-insurer had the
same liability for uninsured motorist coverage that an insurance company
would have. There is no policy reason why Exum's uninsured motorist
protection should decrease because he happened to be driving the car of a
self-insurer.”
“But
there is a difference between this case and Shaw: here the person
claiming uninsured motorist coverage was an employee of the
self-insurer. It is undisputed that Exum was entitled to workers' comp
from Elrac, and Elrac claims that he is therefore barred from recovering
uninsured motorist benefits. Exum points out that we permitted an
employee of a self-insurer to recover in Matter of Country-Wide Ins. Co.
(Manning) (62 NY2d 748 [1984]), which involved essentially
indistinguishable facts. Because we did not discuss the workers'
compensation issue in Manning, however, we assume that the issue is
open.”
“Workers'
Compensation Law § 11 says: ‘The liability of an employer [for workers'
compensation benefits] . . . shall be exclusive and in place of any
other liability whatsoever, . . .’ Although the words "any other
liability whatsoever" seem all-inclusive, there are cases of which this
is one in which they cannot be taken literally. Specifically, the
statute cannot be read to bar all suits to enforce contractual
liabilities. An action against a self-insurer to enforce the liability
recognized in Shaw is, in our view, essentially contractual. The
situation is as though the employer had written an insurance policy to
itself, including the statutorily-required provision for uninsured
motorist coverage. This action is therefore not barred by WCL §11" and the order of the Appellate Division should be affirmed. [1D156-7671]
December 13, 2011 NYS Appellate Division, First Department
3030...Employment: Who is or dual
Supreme
Court granted defendants International Tile & Stone Show Expos's
and Metropolitan Exposition Services' motions for summary judgment
dismissing the Labor Law §241(6) cause of action as against them. The
plaintiff worked for a contractor (MES) who was on a list approved by
the New York Convention Center Operating Corporation (NYCCOC), the
operator of Javits. The terms of that between the exhibitor, New York
Convention Center Operating Corporation (NYCCOC), the operator of
Javits, allegedly gave MES all “Obligation to control the work site,
and the responsibility of ensuring that the work contemplated by the
permit was performed in a safe and proper manner.”
Plaintiff, who worked at the Javits Center and was injured while
dismantling one of the exhibit booths, received his paycheck from NYCCOC
as were the workers’ compensation benefits he began to receive after
the subject accident. He signed in at an NYCCOC desk and was then sent
to an MES desk, to sign in there as well. MES gave plaintiff a list of
tasks to complete each day and supplied him with all necessary work
materials, including safety equipment, for which among other reasons,
plaintiff considered MES his supervisor during the tile show.
Plaintiff
commenced this action against MES and ITSS alleging common-law
negligence and violations of Labor Law §§ 200, 240(1), and 241(6). MES
moved for summary judgment dismissing the complaint on the ground that
plaintiff was its special employee and therefore his claim was barred by
Workers' Compensation Law § 29(6). ITSS also moved for summary
judgment, on the ground that it was neither an owner nor a contractor
and therefore could not be held liable. The lower court granted both
motions finding that (1) MES was plaintiff's employer for workers'
compensation purposes since it told him what to do, and when and where
to do it, and (2) because there was no evidence that NYCCOC retained any
control over plaintiff once he left the NYCCOC sign-in desk in the
morning. As for ITSS, The Appellate Court found that “[T]he key
criterion is the right to insist that proper safety practices were
followed. . . . Because ITSS had no authority or ‘Obligation to control
the work site, and the responsibility of ensuring that the work
contemplated by the permit was performed in a safe and proper manner . .
., it cannot be deemed an owner for purposes of Labor Law liability.’ ” Accordingly, its motion for summary judgment dismissing the § 241(6) claim was properly granted. [1D156-7670]
December 8, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED the Workers Compensation Board’s ruling that the claimant voluntarily withdrew from the labor market.
After filing a claim for injuries sustained while working as a baggage
handler in 2001, claimant was awarded compensation benefits. Although a
Law Judge determined that she had a permanent partial disability and had
not voluntarily withdrawn from the labor market, a Board panel
reversed. In this case, medical experts opined that claimant was capable
of returning to work with some restrictions and claimant acknowledged
that she had not worked since August 2001, she refused to return to work
when her employer offered her the opportunity to do so, she made no
efforts to seek other employment within her restrictions, and she failed
to pursue available vocational or employment services. The Court agreed
that, “Substantial evidence supports the Board's determination that claimant voluntarily withdrew from the labor market.” Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for TWA and another, respondents. Commissioners of Record: Foster, Bell, Higgins WCB #0015 3845 [1N155-7669]
?In view of the upcoming Court of Appeals decision in the Matter of Zamora v New York Neurologic, the listing of prior Workers Compensation Board cases for reference may well become moot.
December 8, 2011 NYS Appellate Division, Third Department
Hearing Loss
REVERSED the Workers Compensation Board’s ruling by finding that the pro-se claimant had a further causally related disability.
After claimant retired in March 1994, his work-related occupational
hearing loss was established with a 59.5% binaural hearing schedule loss
of use and the case was closed in 1997. In 2005,the claimant contended
that the causally-related binaural hearing loss had increased to 71.56%.
Although the Law Judge agreed, a Board panel in an amended decision
reversed. Bearing the burden of establishing that a causal relationship
exists between his injury and his employment, the claimant relied on the
medical report of his treating otalaryngologist, who stated
unequivocally that "[claimant's] hearing loss is 100% causally related to his job." The Court then noted that, “Inasmuch
as there was no conflicting medical evidence presented here, the
Board's rejection of the treating physician's uncontroverted medical
opinion on causation was improper.”[ED. NOTE:]
The Board panel, and subsequently, the full board apparently
determined, incorrectly, that once the hearing loss was established, no
further modification in the degree of disability would be accepted if
they fell outside the time lines in §49-bb, a point emphasized in the
amended decision. Prevailing party represented by: Bobby C. Maye Rochester, appellant pro se. Commissioners of Record: Finnegan, Paprocki, Bell WCB #7941 6753 [1N155-7668]
December 8, 2011 NYS Appellate Division, First Department
Employment: special employee
DENIED
defendants' motion for summary judgment dismissing the complaint as
defendants failed to demonstrate that plaintiff was their special
employee and, thus, barred from maintaining this personal injury action
under the Workers Compensation Law. The claimant brought this civil
action after being injured during the course of her employment cleaning
defendants' theater. The record shows that plaintiff was compensated by
nonparty Nederlander Producing Company of America (NPCA), which was also
her supervisor's employer. Although identifying the entity which
controlled the work of plaintiff's supervisor is highly probative of who
controlled the injured plaintiff's work, the record does not support
defendants' assertion that they controlled the work of plaintiff's
supervisor. Moreover, the fact that defendants and NPCA appear to be
affiliated, does not establish, as a matter of law, that they were "alter egos or joint venturers for the purpose of barring plaintiff's claims under the Workers' Compensation Law".
The argument that NPCA was merely a "common paymaster" is not
dispositive of the special employer issue as the record showed that NPCA
also entered into an employment contract with plaintiff's supervisor.
Furthermore, even if one defendant funded NPCA's payroll, such fact is
just a single factor militating in favor of a special employment
relationship. Standing alone, and without, inter alia, the additional
showing that, defendants directed and controlled plaintiff's duties, or
the existence of a contract by which defendants directly undertook
duties in relation to plaintiff, the funding-source element is not
dispositive. [1N155-7667]
Decision dated :not yet issued NYS Court of Appeals
Voluntary Withdrawal from the Labor Market
Because
of the potential impact of the decision in this case on those thousands
of injured workers whose fate rests on the Workers Compensation Board's
determination if they have or have not voluntarily withdrawn from the
labor market, I have written a COMMENTARY on this case along with my
prediction of the ultimate decision. Click here for the link.
December 1, 2011 NYS Appellate Division, Third Department
25-a: True Closing
RESCINDED and returned to the Workers Compensation Board for proper review
the Board’s ruling that §25-a did not apply. The basic question was
whether or not the deferral of a medical procedure commended during a
medical examination just prior to the end of a seven-year period which
would have transferred the case under §25-a. In this case, the
claimant’s medical provider recommended surgery during an exam on March
17, 2009,two weeks prior to the seven-year anniversary of her April 1,
2002 injury, the date after which the claim would have been transferred
under §25–a. The claimant shortly thereafter decided to defer what she
considered to be very serious surgery and opted for remediation of her
pain through prescriptions rather than surgery. A few weeks later, after
the seven-year period elapsed, she decided that medication was not
working and requested the surgery. The carrier argued that the case was
closed based on the March 17 exam in the claimant did not pursue
surgery. The Board determined that the March 17, 2009 report kept the
case open whereas the carrier argued that the case was closed when the
claimant decided not to proceed with surgery and was then reopened after
the seven-year period when the claimant decided to pursue surgery. The
court determined that the Board could not consider whether or not the
claimant’s deferral and then reconsideration constituted a form of
closing and reopening and therefore sent it back to the Board review. [ED. NOTE:]
In my opinion, the claimant’s deferral to await the results of using
medication meant that a clearly foreseeable event (her decision) would
be forthcoming in the immediate future which meant that the case was not
closed. Had the board taken the time to review the carriers appeal
rather than focusing on a daily March 17 exam, there would have been no
delays in resolving this case nor the cost of thousands of dollars
incurred by both sides as a result of this totally unnecessary appeal.] Prevailing party represented by: John M. Cordon Jr. of counsel to Hamberger & Weiss(Buffalo) for appellants. Commissioners of Record: Ferrara, Libous, Paprocki WCB #4020 8675 [1D154-7666]
— — DECEMBER 2011 — —
Morphew v Aero
December 29, 2011 NYS Appellate Division, Third Department
§29: Apportionment of legal fees
RESCINDED the Workers Compensation Board’s decision that the claimant was not entitled to reimbursements for certain expenses from his 3rd party law suit.
After being awarded comp benefits for a March 2004 work accident,
claimant commenced a third-party action, received a settlement offer of
$725,000, and then received the carrier’s consent. In its consent, the
carrier asserted a lien in the amount of $132,002.63 for compensation
payments already made [The total amount of the workers' compensation
payments to claimant prior to settlement was $201,053.98, and the
carrier accepted the reduced amount to account for its equitable share
of the litigation costs commensurate with that figure.]. Additionally,
the carrier "specifically reserve[d] its rights to claim a credit and
offset for the net amount of the settlement payable to [claimant]
against any prior, subsequent or future claim for [w]orkers'
[c]ompensation indemnity and/or medical benefits arising out of this
occurrence." The carrier then suspended its indemnity payments to
claimant based upon its offset against claimant's proceeds from the
settlement. After the Board classified claimant with a moderate to
marked permanent partial disability, claimant requested further action
and a Law required the carrier to contribute its share of the litigation
costs associated with the offset amount by paying claimant a discounted
rate of indemnity. On appeal, the Board reversed, finding that an award
of such payments to claimant would alter the terms and conditions of
the settlement consent agreement, which was beyond its jurisdiction.
Because "carriers are obligated to contribute the costs of litigation in proportion to the total benefit that they receive”, the carrier has a legal obligation to "pay its equitable share of litigation costs as benefits accrue"
even in cases in which future benefits are too speculative to apportion
the carrier's litigation costs at the time of settlement. The Court
essentially stated that, contrary to the Workers Compensation Board’s
position, Burns v Varriale, 9 NY3d 207, 214 [2007]did apply. “Although,
in its consent to settlement, a carrier may seek to be released from
its affirmative obligation to pay its share of litigation expenses, it
is ‘required to express that release plainly and unambiguously in the
consent to settlement agreement’. Thus, contrary to the Board's
determination that it lacked jurisdiction, whether the carrier ‘plainly
and unambiguously’ absolved itself of its continuing responsibility to
contribute to the litigation costs consistent with its offset is a
question of fact for the Board to resolve and, accordingly, the matter
must be remitted.” Prevailing party represented by: Justin S. Teff of counsel to Law Office of Ralph M. Kirk (Kingston) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #5040 5518 [1D158-7677]
Coyle v Midwest Steel
December 22, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal
REVERSED the Workers Compensation Board’s decision that claimant’s lost earnings were not causally related to claimant's work-related disability while also ruling that the claimant did not voluntarily withdraw from the labor market.
As the result of an established claim for an injury to his left knee in
1998, claimant underwent multiple knee and hip replacement surgeries,
and consequential compensable injuries to his back and right hip were
established. After the light duty position to which he returned in June
2009 was eliminated in August 2009, claimant was offered a full-duty
position as an ironworker, but feeling that he could not accept the
position due to his medical restrictions, he retired. Payments were made
to the claimant until December 2009 when the carrier raised the issue
of claimant's voluntary removal from the labor market. In December 2009,
a law judge ruled that the claimant was entitled to continued benefits
and, then in February 2010, ruled the claimant had involuntarily retired
due to his causally related disability. A Board panel affirmed the
December 2009 decision, but reversed the February 2010 decision, denying
further benefits due to claimant's failure to maintain a sufficient
attachment to the labor market subsequent to December 12, 2009,
prompting a pro-se appeal.
In reversing the Workers Compensation Board, the Court wrote, “The
Board's finding that claimant's retirement was involuntary ‘gave rise
to an inference that his reduced earning capacity continued after
retirement’. That inference is removed only by ‘direct and positive
proof that something other than the disability was the sole cause of
claimant's reduced earning capacity after retirement’. Further, ‘[p]roof
that the claimant has not sought work postretirement, by itself, does
not defeat the inference or shift the burden to [the] claimant to show
that the disability was a cause of the reduction’ . Rather, the employer
or workers' compensation carrier ‘must demonstrate that something other
than the disability was the sole cause of claimant's reduced earning
capacity after retirement, such as age, economic conditions or other
factors unrelated to the disability. Here, the Board relied solely on
the fact that claimant failed to actively search for employment or avail
himself of any employment services after retirement in denying him
further benefits. Given the lack of any proof by the employer that
something other than claimant's disability was the sole cause of his
reduced earnings after retirement, we conclude that the Board's
determination denying claimant further benefits is not supported by
substantial evidence and must be reversed.” Prevailing party represented by: Mark Du of counsel to the Law Office of Joseph Romano (NYC) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0985 8460 [1D157-7676]
[ED. NOTE:]
It seems that the Workers Compensation Board did a review on its own
motion of this same June 4, 2009 decision for which the 3rd Department
has just issued the above opinion. Based on that review, issued
September 29, 2011, the Board panel determined that Full Board Review
was not warranted, had determined that the MOD should be amended, and,
in effect, reversed itself, finding involuntary withdrawal from the
labor market. While one can agree or disagree with the result of the
Board panel’s ‘voluntary’ review of its own decision, one is prompted to ask, “At
what point does a Board panel decision become final if the Board can
change its mind when the fancy (or a politician’s phone call) generates
an arbitrary review and reversal?”]
?While
we await what will be a clarification on the issue of Voluntary
Withdrawal From the Labor market, the record shows that the Workers
Compensation Board has a failing grade on this issue this year, getting
only 7 of 11 affirmances (63%) of its decision to date.
Lewis v Stewarts Marketing
December 22, 2011 NYS Appellate Division, Third Department
Untimely Submissions/Defenses
REVERSED the Workers Compensation Board’s ruling that claimant sustained a permanent total disability because the Board denied the carrier the right to cross examine witnesses.
In 2008, the employer sought a hearing to determine the degree and
permanency of claimant's disability for injuries sustained in a
compensable accident in 1997. After claimant provided an updated medical
report indicating that he had a permanent total disability, the
employer submitted an independent medical report indicating that
claimant suffered a moderate partial disability of a permanent nature
and was capable of performing some type of work. A law judged denied the
employer's request to cross-examine claimant and his physician
concerning claimant's ability to work, determined that claimant had a
permanent total disability, and awarded benefits with videotapes proving
§114-a fraud. In reversing the Board, the Court agreed with the carrier
that its request to cross-examine claimant and his physician was
improperly denied since they did make a timely request to do so (see 12
NYCRR 300.10 [c]). In its reversal the Court also noted that “Moreover,
inasmuch as the record contains conflicting medical reports regarding
the nature of claimant's disability, denial of the employer's request to
cross-examine claimant's physician clearly prejudiced the employer.” Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for appellants. Commissioners of Record: Higgins, Libous, Foster WCB #6980 0429 [1D157-7675]
[ED. NOTE:]
The carrier had also sought a ruling on §114-a but the Law Judge and
Workers Compensation Board's Panel determined that medical reports found
the claimant totally disabled, and did not directly rule on the §114-a
issue. The carrier then raised this issue again with new evidence and,
in a December 8, 2009 decision, was hit by a Law Judge with a
§114-a(3)(i) penalty for raising this issue, an issue for which no
decision (certainly not noted in any of the Board panel MOD’s) had
previously been rendered. The carrier’s appeal to the Board on this
penalty was not only denied but the carrier was then hit with a $500
penalty under §23 for a frivolous appeal. Yet (1) the record show that
the Board had yet to rule on the fraud issue and (2) the decision of the
Appellate Court to remand for testimony on both degree of disability
and work ability would appear to make the videotapes and investigator’s
report, the basis of the fraud claim, neither a waste of the Board’s
time nor a frivolous appeal. Or did I miss something?]
?This
is the first Workers Compensation Board case on this issue to make it
to the Appellate Court since posting started here in late 2008
Carlineo v Snelling & Snelling
December 15, 2011 NYS Appellate Division, Third Department
Employment: Temp Worker
AFFIRMED the Workers Compensation Board’s ruling that Snelling & Snelling (S&S), a temp agency, was solely liable for workers' compensation benefits
paid to claimant. Claimant obtained his position with F.T. Well
Support, through S&S, LLC, a temporary employment agency. His claim
was established after he injured both of his legs in a work-related
motor vehicle accident while working at the location of Fortuna Energy,
a client of FT Well. S&S was ordered to pay temporary awards and
the case continued on the issue of general/special employment with
S&S contending the either/or both Fortuna and FT Well were totally
or partially liable for the claim. After claimant and FT Well
testified, the Law Judge found that S&S was claimant's employer and
there was no special employment relationship with Fortuna. There were
numerous appeals and Board panel decisions regarding testimony by
S&S and its witnesses but ultimate the Board determined that S&S
was provided a full and fair opportunity to develop the record.
S&S’s appeal to the Appellate Court on this issue was dismissed as
interlocutory. The Law Judge determined that claimant was a special
employee of FT Well, and not any other entity, but that S&S was 100%
liable for payment on the claim pursuant to the contract between
S&S and FT Well. Although claimant and FT Well testified that FT
Well set claimant's hours, directed and supervised his work and provided
the necessary equipment, substantial evidence supports the Board's
determination that S&S is solely liable for payment of the claim:
S&S obtained workers' compensation insurance for the temporary
employees that it provided to FT Well and part of the fees that FT Well
paid to S&S were intended to include the cost of such coverage. Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy respondent. Commissioners of Record: Ferrara, Finnegan, Bell WCB #5050 7422 [1D156-7674]
?This
is the only Workers Compensation Board case in 2009, 2010, and 2011
regarding the employment relationship and ensuing liability of a temp
agency towards an injured worker.
Dudas v Town of Lancaster
December 15, 2011 NYS Appellate Division, Third Department
§18 notice to employer
AFFIRMED the Workers Compensation Board’s ruling that denied the claim’s establishment [ED. NOTE: see ED. NOTE below]
for what appears to be late notice, while rejecting the carrier’s
argument that claimant did not give timely §18 notice of injury.
Claimant allegedly injured his right ankle on February 28, 2007 when he
slipped on a patch of ice at the employer's Town Hall. He continued to
work and did not seek medical treatment until March 9, 2007 when he
presented at the local emergency room complaining of pain and swelling. A
review of the March 9 emergency room report indicated that the claimant
injured his right ankle when he fell off a porch whereas a review of
additional medical records, including the medical opinion of the
carrier's consultant, show that the history provided by the claimant was
that he injured himself at work, when he slipped on some ice. When
these symptoms persisted, claimant sought treatment from an orthopedist
in May 2007 following which the prospect of surgical intervention was
discussed. Despite his ongoing difficulties and treatment, he did not
report his injury to the employer until June 27, 2007.
The
carrier initially authorized medical care, but then controverted the
claim following receipt of the emergency room records, which indicated
that claimant twisted his ankle falling off a porch, thus raising a
question as to whether the underlying injury actually was work related, a
question first brought to the Board’s attention by the carrier two
months after receiving the emergency room report. Following a hearing,
Law Judge found that claimant failed to timely report the accident and
disallowed the claim.
While
the claimant asserted that the employer waived the defense of timely
notice, the carrier had shown that its receipt of the claimant's
emergency room records constituted "newly discovered evidence"
sufficient to allow the late filing of its notice of controversy. The
Workers Compensation Board panel then addressed the issue of, “How soon
after the receipt of newly discovered evidence must the notice of
controversy be filed.” While the carrier argued that there is no time
limit in the statute or regulations, the Board agreed with the Law Judge
who found that the notice of controversy must be filed “within a
reasonable period of time” after the newly discovered evidence is
discovered, although neither of these decisions set a fixed date for
such, finding that in this case that the notice of controversy was
“unreasonably” late.
Nonetheless,
the Court affirmed the Workers Compensation Board’s denial of the
claim, asserting, “Here, despite ongoing symptoms, claimant continued
working and delayed both reporting the accident and seeking treatment,
which may well have permitted claimant's condition to worsen and, more
to the point, prevented the employer from promptly investigating the
underlying incident. Under these circumstances, we cannot say that the
Board abused its discretion in disallowing the claim.” Prevailing party represented by: Russell D. Hall of counsel Hamberger & Weiss (Buffalo) for Town of Lancaster and another, respondents. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB# 8071 2755 [1D156-7673]
[ED. NOTE:] The Workers Compensation Board panel decision states, “the
WCLJ found that the evidence supported finding that the SIE failed to
timely controvert the claim. . . In addition, the WCLJ also found that
the claimant failed to timely provide notice to his employer and
disallowed the claim.” I am still not clear as to how the Law Judge,
Board, and Court would find that the insurer failed to timely
controvert the claim on the issue of notice and then disallow the claims
because there was no timely notice.
Pucci v DCH Auto Group
December 15, 2011 NYS Appellate Division, Third Department
Reopening by claimant
AFFIRMED the Workers Compensation Board’s rulings (1) which denied claimant's application to reopen his claim, and (2) denied claimant's request for reconsideration or full Board review.
In October 2003, claimant, after sustaining work-related injuries, was
awarded workers' compensation benefits. Although he returned to work in
December 2003, he left his employment with DCH in May 2004 and accepted a
position at another firm at a lower rate of pay. Two months later,
claimant requested a reduced earnings award, denied in August 2005 by
the Board, finding that claimant left his job at DCH for personal
reasons unrelated to his compensable injuries. The case was closed and
claimant did not appeal that decision. In April 2008, claimant sought to
reopen his claim again seeking a reduced earnings award. The Board
affirmed the Law Judge concluding that such claim merely was a
reiteration of the original claim filed in 2004 and denied in 2005 and
that claimant had not set forth sufficient facts to warrant reopening
the claim. Claimant's subsequent application for reconsideration or full
Board review was then denied.
The Court stated that, because the Workers Compensation Board had
already denied his original request for reduced earning in a decision
never appealed, the merits of that claim were not properly before the
Court. Although the Board may reopen, modify or rescind a prior
determination (see 12 NYCRR 300.14 [a] [2]) where claimant presents
proof that a material change in condition has occurred, “here the
claimant relied solely upon the fact that he underwent back surgery in
2007 as well as other of his and his employer’s submissions,” it
concurred with the Board’s findings of an insufficient basis upon which
to reopen. Claimant's remaining arguments, to the extent not
specifically addressed, were been examined and found to be lacking in
merit. Prevailing party represented by: Jill M. Johnson of counsel to Ryan, Roach & Ryan (Kingston) for DCH Auto Group, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5031 5308 [1N156-7672]
?The only prior Workers Compensation Board case on this issue was in 2010, also affirmed for the carrier. Thomas v Crucible Materials
Elrac Inc v Exum
December 13, 2011 NYS Court of Appeals
§11: Jurisdiction Uninsured Motorist
We hold that a self-insured employer whose employee is involved in an accident may be liable to that employee for uninsured motorist benefits,
notwithstanding the exclusivity provision of the Workers' Compensation
Law. Exum, while driving a car owned by and in the course of his
employment with his employer Elrac, was in an accident with another car,
driven by a person without liability insurance. Elrac was legally
self-insured and thus had not obtained an insurance policy to cover the
car Exum was driving. Exum served a notice of intention to arbitrate on
Elrac, seeking uninsured motorist benefits, a notice stayed by a lower
court but affirmed by the Appellate Division.
“Insurance
Law § 3420 (f) (1) requires every policy of motor vehicle liability
insurance to contain a provision requiring payment to the insured of all
sums that the insured is entitled to recover as damages from the owner
or operator of an uninsured motor vehicle. In Matter of Allstate Ins.
Co. v Shaw (52 NY2d 818 [1980]), we held that a self-insurer had the
same liability for uninsured motorist coverage that an insurance company
would have. There is no policy reason why Exum's uninsured motorist
protection should decrease because he happened to be driving the car of a
self-insurer.”
“But
there is a difference between this case and Shaw: here the person
claiming uninsured motorist coverage was an employee of the
self-insurer. It is undisputed that Exum was entitled to workers' comp
from Elrac, and Elrac claims that he is therefore barred from recovering
uninsured motorist benefits. Exum points out that we permitted an
employee of a self-insurer to recover in Matter of Country-Wide Ins. Co.
(Manning) (62 NY2d 748 [1984]), which involved essentially
indistinguishable facts. Because we did not discuss the workers'
compensation issue in Manning, however, we assume that the issue is
open.”
“Workers'
Compensation Law § 11 says: ‘The liability of an employer [for workers'
compensation benefits] . . . shall be exclusive and in place of any
other liability whatsoever, . . .’ Although the words "any other
liability whatsoever" seem all-inclusive, there are cases of which this
is one in which they cannot be taken literally. Specifically, the
statute cannot be read to bar all suits to enforce contractual
liabilities. An action against a self-insurer to enforce the liability
recognized in Shaw is, in our view, essentially contractual. The
situation is as though the employer had written an insurance policy to
itself, including the statutorily-required provision for uninsured
motorist coverage. This action is therefore not barred by WCL §11" and the order of the Appellate Division should be affirmed. [1D156-7671]
Grilikhes v Intl Tile & Stone
December 13, 2011 NYS Appellate Division, First Department
3030...Employment: Who is or dual
Supreme
Court granted defendants International Tile & Stone Show Expos's
and Metropolitan Exposition Services' motions for summary judgment
dismissing the Labor Law §241(6) cause of action as against them. The
plaintiff worked for a contractor (MES) who was on a list approved by
the New York Convention Center Operating Corporation (NYCCOC), the
operator of Javits. The terms of that between the exhibitor, New York
Convention Center Operating Corporation (NYCCOC), the operator of
Javits, allegedly gave MES all “Obligation to control the work site,
and the responsibility of ensuring that the work contemplated by the
permit was performed in a safe and proper manner.”
Plaintiff, who worked at the Javits Center and was injured while
dismantling one of the exhibit booths, received his paycheck from NYCCOC
as were the workers’ compensation benefits he began to receive after
the subject accident. He signed in at an NYCCOC desk and was then sent
to an MES desk, to sign in there as well. MES gave plaintiff a list of
tasks to complete each day and supplied him with all necessary work
materials, including safety equipment, for which among other reasons,
plaintiff considered MES his supervisor during the tile show.
Plaintiff
commenced this action against MES and ITSS alleging common-law
negligence and violations of Labor Law §§ 200, 240(1), and 241(6). MES
moved for summary judgment dismissing the complaint on the ground that
plaintiff was its special employee and therefore his claim was barred by
Workers' Compensation Law § 29(6). ITSS also moved for summary
judgment, on the ground that it was neither an owner nor a contractor
and therefore could not be held liable. The lower court granted both
motions finding that (1) MES was plaintiff's employer for workers'
compensation purposes since it told him what to do, and when and where
to do it, and (2) because there was no evidence that NYCCOC retained any
control over plaintiff once he left the NYCCOC sign-in desk in the
morning. As for ITSS, The Appellate Court found that “[T]he key
criterion is the right to insist that proper safety practices were
followed. . . . Because ITSS had no authority or ‘Obligation to control
the work site, and the responsibility of ensuring that the work
contemplated by the permit was performed in a safe and proper manner . .
., it cannot be deemed an owner for purposes of Labor Law liability.’ ” Accordingly, its motion for summary judgment dismissing the § 241(6) claim was properly granted. [1D156-7670]
Like
the case above involving a claimant working for a temp agency, the
specific of this case are unlike any which have been to the Appellate
Division in the last three years.
Smith v TWA
December 8, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED the Workers Compensation Board’s ruling that the claimant voluntarily withdrew from the labor market.
After filing a claim for injuries sustained while working as a baggage
handler in 2001, claimant was awarded compensation benefits. Although a
Law Judge determined that she had a permanent partial disability and had
not voluntarily withdrawn from the labor market, a Board panel
reversed. In this case, medical experts opined that claimant was capable
of returning to work with some restrictions and claimant acknowledged
that she had not worked since August 2001, she refused to return to work
when her employer offered her the opportunity to do so, she made no
efforts to seek other employment within her restrictions, and she failed
to pursue available vocational or employment services. The Court agreed
that, “Substantial evidence supports the Board's determination that claimant voluntarily withdrew from the labor market.” Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for TWA and another, respondents. Commissioners of Record: Foster, Bell, Higgins WCB #0015 3845 [1N155-7669]
?In view of the upcoming Court of Appeals decision in the Matter of Zamora v New York Neurologic, the listing of prior Workers Compensation Board cases for reference may well become moot.
Maye v Alton Mfg
December 8, 2011 NYS Appellate Division, Third Department
Hearing Loss
REVERSED the Workers Compensation Board’s ruling by finding that the pro-se claimant had a further causally related disability.
After claimant retired in March 1994, his work-related occupational
hearing loss was established with a 59.5% binaural hearing schedule loss
of use and the case was closed in 1997. In 2005,the claimant contended
that the causally-related binaural hearing loss had increased to 71.56%.
Although the Law Judge agreed, a Board panel in an amended decision
reversed. Bearing the burden of establishing that a causal relationship
exists between his injury and his employment, the claimant relied on the
medical report of his treating otalaryngologist, who stated
unequivocally that "[claimant's] hearing loss is 100% causally related to his job." The Court then noted that, “Inasmuch
as there was no conflicting medical evidence presented here, the
Board's rejection of the treating physician's uncontroverted medical
opinion on causation was improper.”[ED. NOTE:]
The Board panel, and subsequently, the full board apparently
determined, incorrectly, that once the hearing loss was established, no
further modification in the degree of disability would be accepted if
they fell outside the time lines in §49-bb, a point emphasized in the
amended decision. Prevailing party represented by: Bobby C. Maye Rochester, appellant pro se. Commissioners of Record: Finnegan, Paprocki, Bell WCB #7941 6753 [1N155-7668]
?No
prior Workers Compensation Board cases on this increase of a change in
disability under §49-bb. The other two hearing loss cases in 2010 dealt
with establishing the case.
Ortiz v Rose Nederlander
December 8, 2011 NYS Appellate Division, First Department
Employment: special employee
DENIED
defendants' motion for summary judgment dismissing the complaint as
defendants failed to demonstrate that plaintiff was their special
employee and, thus, barred from maintaining this personal injury action
under the Workers Compensation Law. The claimant brought this civil
action after being injured during the course of her employment cleaning
defendants' theater. The record shows that plaintiff was compensated by
nonparty Nederlander Producing Company of America (NPCA), which was also
her supervisor's employer. Although identifying the entity which
controlled the work of plaintiff's supervisor is highly probative of who
controlled the injured plaintiff's work, the record does not support
defendants' assertion that they controlled the work of plaintiff's
supervisor. Moreover, the fact that defendants and NPCA appear to be
affiliated, does not establish, as a matter of law, that they were "alter egos or joint venturers for the purpose of barring plaintiff's claims under the Workers' Compensation Law".
The argument that NPCA was merely a "common paymaster" is not
dispositive of the special employer issue as the record showed that NPCA
also entered into an employment contract with plaintiff's supervisor.
Furthermore, even if one defendant funded NPCA's payroll, such fact is
just a single factor militating in favor of a special employment
relationship. Standing alone, and without, inter alia, the additional
showing that, defendants directed and controlled plaintiff's duties, or
the existence of a contract by which defendants directly undertook
duties in relation to plaintiff, the funding-source element is not
dispositive. [1N155-7667]
?On
this issue, in 2011, there were four cases at the 3rd Department on
appeals of Workers Compensation Board decisions with mixed results
(affirmed for claimant: 7605 Duma v Gentian Baca- 04/14/2011 and Mendoza v Dolgetta - 02/10/11; reversed for employer: Choto v Consolidated Lumber - 03/10/11), affirmed for employer Cassaro v Horton - 2011-11-17, and two cases at the 1st Department ( Morato-Rodriguez v Riva Constr - 10/18/11 and Coneo v Washington Hgts. HO Church 02/17/11)
Zamora v New York Neurologic
Decision dated :not yet issued NYS Court of Appeals
Voluntary Withdrawal from the Labor Market
Because
of the potential impact of the decision in this case on those thousands
of injured workers whose fate rests on the Workers Compensation Board's
determination if they have or have not voluntarily withdrawn from the
labor market, I have written a COMMENTARY on this case along with my
prediction of the ultimate decision. Click here for the link.
Sauers v K-Mart Corp
December 1, 2011 NYS Appellate Division, Third Department
25-a: True Closing
RESCINDED and returned to the Workers Compensation Board for proper review
the Board’s ruling that §25-a did not apply. The basic question was
whether or not the deferral of a medical procedure commended during a
medical examination just prior to the end of a seven-year period which
would have transferred the case under §25-a. In this case, the
claimant’s medical provider recommended surgery during an exam on March
17, 2009,two weeks prior to the seven-year anniversary of her April 1,
2002 injury, the date after which the claim would have been transferred
under §25–a. The claimant shortly thereafter decided to defer what she
considered to be very serious surgery and opted for remediation of her
pain through prescriptions rather than surgery. A few weeks later, after
the seven-year period elapsed, she decided that medication was not
working and requested the surgery. The carrier argued that the case was
closed based on the March 17 exam in the claimant did not pursue
surgery. The Board determined that the March 17, 2009 report kept the
case open whereas the carrier argued that the case was closed when the
claimant decided not to proceed with surgery and was then reopened after
the seven-year period when the claimant decided to pursue surgery. The
court determined that the Board could not consider whether or not the
claimant’s deferral and then reconsideration constituted a form of
closing and reopening and therefore sent it back to the Board review. [ED. NOTE:]
In my opinion, the claimant’s deferral to await the results of using
medication meant that a clearly foreseeable event (her decision) would
be forthcoming in the immediate future which meant that the case was not
closed. Had the board taken the time to review the carriers appeal
rather than focusing on a daily March 17 exam, there would have been no
delays in resolving this case nor the cost of thousands of dollars
incurred by both sides as a result of this totally unnecessary appeal.] Prevailing party represented by: John M. Cordon Jr. of counsel to Hamberger & Weiss(Buffalo) for appellants. Commissioners of Record: Ferrara, Libous, Paprocki WCB #4020 8675 [1D154-7666]
?The
Workers Compensation Board’s record on this issue continues to imply a
lack of understanding by the Board as noted in he following decisions so
far this year, virtually all of which were won by Special Funds: Palermo v Primo Coat (10/6/2011); Gaddis v Niagara Mohawk (7/14/2011); Fitzgerald v Berkshire Farm (7/7/2011); Hunt v Price Chopper Golub (6/30/2011); Beder v Big Apple Circus (5/26/2011); and Donnelly v Alden CSD (4/28/2011)
|
— — NOVEMBER 2011 — —
November 23, 2011 NYS Appellate Division, Third Department
§32 Reopening
AFFIRMED the Workers Compensation Boards’ decision that a §32 waiver agreement could not be reopened. The pro se
claimant settled both of his cases with a §32 waiver agreement in 1999.
His request in 2008 to reopen his claims based on additional alleged
injuries was rejected by the Board on the grounds that it did not have
the jurisdiction to review a waiver agreement once it has been approved.
The Court also noted that it, too, did not have the jurisdiction to
review a waiver agreement, thus affirming the Board's decision, "that it lacked jurisdiction to consider claimant's request." Prevailing party represented by: Charlotte Flynn of counsel to the NY State Insurance Fund for Cosmopolitan Care Corporation and another, respondents. Commissioners of Record: Firestone, Paprocki, Henry WCB#0855 4127 [1N153-7665]
November 23, 2011 NYS Appellate Division, Third Department
Employment: Dual
AFFIRMED the Workers Compensation Board’s ruling that there was dual liability between the volunteer fireman’s organization and the City of New York.
Claimant, a volunteer member of the Plainview Fire Department,
submitted a volunteer firefighters' claim for benefits based upon
injuries allegedly sustained while assisting the NYC Fire Department at
the WTC terrorist attack on 9/11/2001 and thereafter. The decision
references General Municipal Law §209-I(1) which essentially states that
whenever a volunteer firefighter volunteers outside his district to
another fire department and that fire department accepts his services, “the
volunteer . . . shall then be entitled to all powers, rights,
privileges and immunities granted by law to volunteer [firefighers]
during the time such services are rendered, . . .” Although the
claimant originally volunteered on his own, on September 12, 2001, the
Plainview Fire Chief asked for volunteers who would be reporting to the
headquarters of the New York City Fire Department where their activities
were then directed and controlled by the City. “Inasmuch as a
substantial evidence supports the Board’s factual conclusions regarding
claimant’s dual employment, the determination will not be set aside even
if the record could support a contrary conclusion.” Prevailing party represented by: Jacqueline C. Delorbe of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Plainview Fire Dept. and another, respondents. Commissioners of Record: Ferrara, Foster, Libous WCB#107 0004 [1N153-7664]
November 23, 2011 NYS Appellate Division, Third Department
§14(6): Concurrent Employment
AFFIRMED the Workers Compensation Board’s decision that the employer was not entitled to a §14(6) reimbursement from
the Special Disability Fund (Fund) based on the date of the injury. The
claimant was injured November 3, 2009 working as an election polling
inspector while also having concurrent employment with a retail clothing
store. The Law Judge established claimant's average weekly wage (AWW)
at $80.69, combining her $3.56 [yes, $3.56] as a poll inspector and
$77.13 from the clothing store, and directed the carrier to continue
awards at the temporary partial disability rate of $80.69. The carrier
appealed, unsuccessfully arguing that awards should have been based only
on claimant's primary AWW of $3.56 inasmuch as it could no longer
obtain reimbursement from the Fund for additional amounts attributable
to an employee's concurrent employment.
While
Workers Compensation Law §14(6) provides that, where an injured
employee has concurrent employment, compensation is computed based upon
the combined average weekly wage of those employments and payment for
that compensation is made in the first instance by the primary employer
in whose employment the injury occurred, in 2007, WCL §14(6) was amended
so as to bar reimbursement from the Fund for claims with a date of
accident or disablement on or after July 1, 2007.
The Court wrote,
The carrier argues that the sentence in that statute providing that primary employers "shall be liable for the benefits that would have been payable if the employee had no other employment"
(WCL §14[6]) operates to impose a ceiling that limits the liability of
primary employers, and that the ceiling survived the 2007 amendments.
We
do not agree. Clearly, this statutory phrase does not rule out greater
liability on the part of the primary employer, and the carrier's
citation to cases from this Court decided prior to the 2007 amendments
does not call for a different result .... Nor does the amended statutory
language provide support for the proposition that concurrent employment
should no longer be taken into account when calculating a claimant's
average weekly wage. Indeed, the unambiguous language of §14(6)
expressly provides that the injured employee's "average weekly wages shall be calculated upon the basis of wages earned from all concurrent employments."
Notably, the overall purpose of the WCL is to provide benefits payable
by an employer to an employee injured in the course of employment,
without regard to fault. The legislative history of the 2007 amendments
indicates that, as relevant here, its purpose was to close the Fund to
new claims. We find nothing in the legislative history indicating that
the Legislature intended that injured workers receive reduced benefits
as a result of the phasing out of that Fund.
Prevailing party represented by: Michael D. Violando of
Sullivan, Keenan, Oliver & Violando, L.L.P. of counsel to Martin,
Harding & Mazzotti (Albany) for Hazel Hope, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Paprocki, Higgins WCB #021 3160 [1N153-7663]
November 23, 2011 NYS Appellate Division, Third Department
§3(29)/(30) OD-Who pays
AFFIRMED the Workers Compensation Board’s decision that, because the claim was for an occupational disease, the carrier at time of disablement was liable.
Claimant was employed as a maintenance mechanic at a food packaging
facility from 1961 to 2001. Throughout claimant's employment, the
company was sold several times. Six years after his 2001 retirement with
his employer then being Graphic Packaging Corporation, a subsidiary of
Coors Brewing Company, he was diagnosed with interstitial lung disease
attributable to exposure to asbestos and awarded comp for an
occupational disease, with March 15, 2007 set as date of disablement. A
Law Judge determined that Zurich, the comp carrier for Coors/Graphic on
the date of disablement, was liable for the claim. In their defense
Zurich and Coors claim that there is insufficient evidence in the file
to establish that Coors was the employer but failed at two hearing to
present any contrary evidence, thus giving the Board uncontroverted
evidence that Zurich was the carrier of record on the date of
disablement. Prevailing party represented by: Leith Carole Ramsey of counsel of counsel to Stockton, Barker & Mead (Albany) for Kraft General Foods and another, respondents and Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for Liberty Mutual, respondent. Commissioners of Record: Lower, Bell, Finnegan WCB #5070 3549 [1N153-7662]
November 23, 2011 NYS Appellate Division, Third Department
§11: Jurisdiction
In vacating a default judgment against the employer, the Supreme Court,
New York County, stated that the employer established that "[it] did not receive personal notice of the summons in time to defend and has a meritorious defense"
against the claim that it was the decedent's employer when she was
injured. The Court then ruled the claim was limited to recovery from
workers compensation. [ED. NOTE:
My assumption is that, had proper notice been given of the civil
action, recovery could have been sought both through the civil court as
well as workers compensation. But this is not clear in the preceding
decision.] [1N153-7661]
November 17, 2011 NYS Appellate Division, Third Department
Special Errand
AFFIRMED the Workers Compensation Board’s ruing that decedent’s death occurred in and out of the course of employment
(IOCE). In October 2006, after his regularly scheduled work shift as a
delivery driver had concluded, decedent was involved in a motor vehicle
accident that resulted in his death. Alleging that the after work
activity was a special errand, a Law Judge, affirmed by a Board panel,
determined that decedent's death was causally related to his employment
and awarded death benefits.[ED. NOTE:This
issue and employer/employee relationship was the subject of two prior
Board panel decisions, all of which rescinded or modified the underlying
Law Judges’ decisions: February 29, 2008 and February 4, 2009. And the
matter of Average Weekly Wage, after four years of hearing and three
Board panel reviews still remains open, as noted in this March 25, 2010
decision in which IOCE was the only issue determined by the Board.]
While
injuries occurring while traveling to and from work are not normally
considered in and out of the course of employment, the record supported
by both the decedent’s family and the employer, reported that, on
occasion, the employer would request that decedent deliver special order
cakes to a certain restaurant on his way home from work. Not only was
the site of the accident a two-minute drive from the site to which the
delivery was to be made, an inspection of the vehicle after the accident
showed a cake box bearing the name of the bakery that made the special
order cakes. The Court found that “substantial evidence supports the Board's determination that decedent's death arose out of and in the course of his employment.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #4070 1555 [1N152-7660]
November 17, 2011 NYS Appellate Division, Third Department
employer-employee relationship
AFFIRMED the Workers Compensation Board’s decision that an employer-employee relationship did not exist
between claimant and Horton. Injured when the truck he was driving,
owned by Horton, flipped over while he was making a delivery, the Law
Judge, affirmed by a Board panel, found that claimant was not an
employee of Horton. [ED. NOTE: A similar Law Judge decision was rescinded by a Board panel 10/15/2009 and returned to further develop the record.] In finding that the Board had substantial evidence after it considered the key factors as "the
right to control the work, the method of payment, the right to
discharge and the relative nature of the work; however, no single factor
[was] dispositive."
Horton, who ran a trucking company out of his home, specializing in
arranging to transport scrap metal and waste tires, would contact
claimant when he had work available and claimant would use Horton's
truck. Claimant did not have a set schedule and was not paid a salary or
hourly wage, but was paid a percentage of the amount that Horton
collected for each load and no taxes were withheld from claimant's pay.
Horton was not present at the job sites and did not supervise claimant's
work. Claimant could choose how many loads he transported and the
amount of time he took to transport the loads, so long as he arrived at
the destination yard prior to its closing. Horton testified that he and
claimant had an agreement that claimant was an independent contractor
and that Horton would not take out any insurance on claimant. Further,
claimant represented on his 2008 tax return that he was self-employed
with respect to the income he earned from Horton. The Court then added, “Finally,
inasmuch as claimant's injury predates the effective date of the New
York State Construction Industry Fair Play Act, such Act is not
applicable here.” Prevailing party represented by: John D. Dunne of counsel to Ryan, Roach & Ryan (Kingston) for Horton, respondent. Commissioners of Record: Ferrara, Libous, Paprocki WCB #008 1465 [1N152-7659]
November 17, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED the Workers Compensation Board’s ruling that claimant was not entitled to additional comp benefits
pursuant to WCL §15(3)(v). As the result of work-related injuries to
both shoulders in March 1999 and several subsequent operations, in
February 2006, claimant was awarded a 55% schedule loss of use (SLU) of
his left arm and a 52.5% SLU for his right arm, entitling him to 355
weeks of benefits. When the schedule awards were exhausted, claimant
applied for additional comp benefits per §15(3)(v). After first finding
the claimant did qualify, in a February 2, 2009 decision reversing the
Law Judge, after a Full Board Review, the Full Board on March 25, 2010
reversed the Board Panel’s February 2, 2009 decision, [ED. NOTE: 14 months to do a Full Board Review]
and affirmed the original Law Judge ruling, based on a finding that the
loss of income was not due solely to his established injury. In
supporting the Board’s final decision in this case, the Court wrote, “Here,
claimant testified that, after being laid off by the employer, he
attempted to obtain employment in both real estate sales and tax
preparation but was unable to do so because of the poor economy.
Claimant further testified that he was currently employed as a security
guard for 16 hours per week and was available to work more, but the
employer had no additional work available. In light of such testimony,
substantial evidence supports the Board's decision that the impairment
of claimant's earning capacity is due in part to economic factors and
not solely to his established injury.” Prevailing party represented by: Daniel P. Kuhn of counsel to Hamberger & Weiss (Rochester) for Eastman Kodak Company and another, respondents. Commissioners of Record: Bargnesi, Bell, Libous WCB #7010 6695 [1N152-7658]
November 17, 2011 NYS Appellate Division, Third Department
AFFIRMED
the decision of the office of the Comptroller of the State of New York
which denied petitioner's untimely applications for disability and
performance of duty disability retirement benefits. The petitioner
claimed that her successfully filling for workers compensation benefits
was sufficient notice for her to qualify for disability retirement
benefits pursuant to Retirement and Social Security Law Article 15.
However, there are several conditions that must be met when asserting
that the workers compensation filing qualifies as proper notice for
asking for disability retirement benefits , condition detailed in the
Appellate Court’s decision Court’s decision.
[1N152-7657]
Collins v Dukes Plumbing
Hardy v Trico
Parkhurst v United Rentals
Salgy v Halsted Communications
November 15, 2011 NYS Court of Appeals
Aggregate Trust Fund
The Insider Because of the length and importance of this case, the attached copy of
the decision has line numbers to which reference is made in this
summary. Underlining has been added to emphasize key wording.
AFFIRMED
the Workers Compensation Board’s ruling that the Workers' Compensation
Board (the Board) and the Appellate Division properly construed the
amended statute by requiring the carrier to deposit a lump-sum amount
into the Aggregate Trust Fund (ATF) representing the present value of
the award. The carrier objected on three basic grounds: The Board was
incorrect to make the payment mandatory and retroactive and the
decisions was unconstitutional. The Court wrote [Line #35] “This
appeal requires us to address the amendments to Workers' Compensation
Law §§ 27 (2) and 15 (3) (w) as they pertain to insurance coverage by
private insurance carriers only.”
In rejecting the ‘mandatory’ issue, the Court wrote that which was discretionary is now mandatory [Line #46].
Prior
to 2007, the Workers Compensation Board, at its discretion, could also
order a private insurance company to deposit into the ATF the present
value of an unscheduled permanent partial disability indemnity award
(see former Workers' Compensation Law §27[2]). The 2007 amendment to
Workers' Compensation Law §27(2) added language to the existing statute
now making such payments for unscheduled awards mandatory, (L 2007, ch
6, §46).
In rejecting the ‘retroactive' issue, the Court wrote [Line #142],
The
carrier further claims that the Workers Compensation Board and the
Appellate Division are improperly applying the statute retroactively.
The statute, however, only governs non-scheduled permanent partial
disability awards made after its passage. The fact that the award may
relate to an injury that occurred prior to the enactment of the statute
does not render it retroactive. "'A statute is not retroactive . . .
when made to apply to future transactions merely because such
transactions relate to and are founded upon antecedent events'"
(Forti v New York State Ethics Commn., 75 NY2d 596, 609-610 [1990]
quoting McKinney's Cons Laws of NY, Book 1, Statutes § 51). That is the
case here. Thus, the carrier's claims of inequity due to the
overturning of settled expectations as the result of the amended statute
is without merit as the statute neither altered the carrier's
pre-existing liability nor imposed a wholly unexpected new procedure. It
merely changed the time and manner of payments of non-scheduled
permanent partial disability awards.
As to the constitutional issues, the law does not violate the Taking Clause because [Line #178]
The
statute neither increases the amount of compensation owed to claimant,
nor does it appropriate the carrier's assets for the use of the State. .
.
Nor does it violate the Contracts clause because [Line #191]
The amendment merely makes what was once discretionary, mandatory.
The Court then summarized its decision [Line #226]
This
amendment is neither retroactive, arbitrary and capricious nor
unconstitutional. Although the carrier argues that the legislation, as
enacted, is unfair and places an unanticipated financial burden on
private insurance carriers, we are merely interpreting the statute by
applying the rules of statutory construction. It is not our role to pass
on its fairness or wisdom. It is for the legislature to limit the
statute, if it so desires.
The Insider I see a potential legal issue arising when the ATF settles a claim
with a §32 settlement for a sum less than what has been deposited. To
whom does the balance of the money belong? The fund or the carrier? The
Court of Appeals wrote [Line #177]
The
Takings Clause prohibits the government from taking private property
for public use without providing just compensation. The amended statute,
as applied, does not violate this clause. The statute neither increases
the amount of compensation owed to claimant, nor does it appropriate
the carrier's assets for the use of the State (see Connolly v Pension
Benefit Guar. Corp., 475 US 211, 225 [1986]; cf. Alliance of Am.
Insurers v Chu, 77 NY2d 573, 577-578 [1991] [statute held
unconstitutional because insurers had a property interest in the fund
whose earnings were diverted to the State's general fund]). Here, there
is no such diversion, the mandatory deposit only reflects the present
value of what is owed to an injured worker.
I read this to state that these funds are held in trust by the ATF for
the beneficiary, the injured worker. When events transpire that end that
relationship and the terms of the trust, i.e., the trustee’s
responsibilities have been completed but the fund not depleted, it seems
that the remaining balance of the fund is to be returned to the
depositor and not the trustee. For what other purpose would the ATF hold
these funds? But with the State’s overreaching on ‘surplus’ insurance
funds, such as those held by the State Insurance Fund, will the State
simply move the unused funds into the general budget?
A lengthier analysis of this issue and other issues that will arise from the Court's decision can be found on the COMMENTARY page.
Prevailing party represented by: Steven C. Wu for respondent Workers' Compensation Board. [1N151-7656]
November 10, 2011 NYS Appellate Division, Third Department
§14: Average Weekly Wage
AFFIRMED the Workers Compensation Board’s decision that set the average weekly wage
for decedent at $780. Decedent was delivering food on a motorcycle for
the employer when he sustained fatal injuries in a motor vehicle
accident. Two days after the accident, the employer filed a C-2 form
reporting his death and stated that decedent's gross weekly wage was
$350. Claimant, decedent's widow, subsequently filed an application for
death benefits, alleging that decedent's monthly pay was $2,500.
Thereafter, the employer filed a C-11 form which reported that decedent
earned $780 per week. After extensive deliberation, the Board determined
that the $780 reported by the C-11 submitted by the employer was the
best measure of the decedent’s wages and tips for the six-day week he
regularly worked. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #012 3983 [1N155.7655]
The Insider My reading of the underlying MoD gave me the impression that the
employer and the carrier had different perspectives on the proper AWW.
November 3, 2011 NYS Appellate Division, Third Department
5110...Voluntary Withdrawal
AFFIRMED the Workers Compensation Board’s decision that claimant voluntarily withdrew from the labor market. [ED. NOTE:] The
August 26, 2010 amendment was a Full Board Review which modified this
decision only to the extent of adding that the claimant did have a
moderate partial disability. Both Board decisions reversed the Law Judge
decision awarding benefits.] Claimant, a certified nurse's aide,
injured when she fell at work, successfully applied for workers' comp
benefits. After she rejected the employer's offers to place her in a
light-duty assignment, the carrier asserted that she had voluntarily
withdrawn from the labor market, holding that claimant had no
compensable lost time following the employer's last offer of light-duty
work. In affirming the Board the Court held that, “Whether claimant's
failure to accept a light-duty assignment constituted a voluntary
withdrawal from the labor market presented a factual issue for the
Board, the resolution of which will be upheld if supported by
substantial evidence.” The Board found that the detailed light duty
position offered to her was withing the restrictions listed by an IME,
more than offset the opinion of her medical provider who told her not to
accept the assignment. Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O'Boyle & Weisman (Hauppauge) for Medford Multicare and another, respondents. Commissioners of Record: Bargnesi, Foster, Finnegan WCB #4080 6362 [1N155-7654]
November 3, 2011 NYS Appellate Division, Third Department
Employment: Who is
AFFIRMED the Workers Compensation Board’s decision which ruled that apportionment applied to claimant's workers' comp award.
In November 2002, claimant began employment with Borg Warner Company
(hereinafter the employer). In July 2003, claimant began experiencing
pain. He eventually stopped working in July 2004. His claim for workers'
compensation benefits was established for an occupational disease of
the neck and shoulder. Thereafter, the employer raised the issue of
apportionment, per WCL §44, with claimant's previous employer, Shepard
Niles, where he had been employed for 28 years performing various manual
labor tasks. After a Law Judge denied the apportionment, a Board panel
reversed. Although claimant was asymptomatic and was not treated for
neck or shoulder pain while employed by Shepard, both Shepard Niles and
the employer presented reports of independent medical experts who
examined claimant and reviewed his medical records. Each expert opined
that claimant's prior employment with Shepard Niles was partly
responsible for his cervical degenerative disease. Considering this
medical proof, the Court agreed that there was substantial evidence to
support the Board's determination that claimant contracted the
occupational disease while employed by Shepard Niles, rendering
apportionment appropriate. Prevailing party represented by: Gary C. Tyler of counsel for Hinman, Howard & Kattell (Binghamton) for Travelers Insurance Company, respondent. Commissioners of Record: Ferrara, Libous, Williams WCB#9040 3898 [1N155-7653]
November 3, 2011 NYS Appellate Division, Third Department
VFBL
AFFIRMED the Workers Compensation Board’s decision to grant claimant's application for death benefits pursuant to the provisions of the Volunteer Firefighters' Benefit Law
(VFBL). The decedent, who collapsed while responding to an automobile
accident and died shortly thereafter, was determined to have suffered an
acute coronary artery thrombosis, uncontested by the carrier. The Board
applied the presumptions contained in VFBL §§ 44 and 61 and established
a claim for workers' comp death benefits by his widow, thus reversing
the Law Judge. Claimant is entitled to death benefits if that condition "resulted from the duties and activities in which [decedent] was engaged"
(VFBL §61[1]). Here, decedent had never been diagnosed with a heart
condition, was examined by his physician just weeks before his death and
was found to be in good health. The accident scene where he collapsed
was described as chaotic and emotional, [detailed in both the Board’s and Court’s rulings.]
Although the carrier’s consulting cardiologist opined that death
resulted from various risk factors unrelated to his duties as a
volunteer firefighter, the doctor admitted that exertion could trigger
heart problems and that wearing bulky gear placed additional stress on
decedent's heart. While the cardiologist characterized decedent's
actions at the accident scene as "routine" for a volunteer
firefighter, even typical firefighting tasks were unusual in the course
of decedent's daily life, and the Board properly determined that
claimant's demonstration of entitlement to death benefits had not been
rebutted. Prevailing party represented by: Carrie Q. Curvin of counsel to Lewis & Lewis (Buffalo) for Mary S. Machajewski, respondent and Estelle Kraushar of counsel to the NYS Attorney General, for WCB. Commissioners of Record: Ferrara, Libous, Paprocki WCB #806 0027 [1N155-7652]
November 3, 2011 NYS Appellate Division, Third Department
§161 World Trade Center Cases & Notice
AFFIRMED the Workers Compensation Board’s ruling that claimant was not a participant in the WTC rescue, recovery or cleanup operations and denied workers' comp benefits. The Insider An earlier decision by the Board denying this claimant’s appeal was rescinded by the Court because of the Board’s decision “repeatedly
referring to and ostensibly premising a decision on an activity that is
not germane, with no analysis of the pertinent activity, does not
permit meaningful judicial review.” The case was reviewed by the Panel and a Full Board review which again denied the claim.]
Prior
to her September 2002 retirement, claimant was employed in the NYC Dept
of Social Services when shortly after September 11, 2001, she among
others was reassigned to issue relief checks to individuals who lived or
worked below Canal Street and suffered various damages as a result of
the terrorist attacks. This assignment did not require claimant to work
outdoors or, according to her supervisor, cause claimant to come into
contact with soot or dust from the WTC site. Claimant, who had a history
of bronchitis and asthma and also was a former smoker, returned to her
regular office duties in February 2002. Alleging that her special
assignment caused an aggravation of her preexisting respiratory
problems, claimant filed four claims for workers' comp benefits between
December 2005 and June 2007 and, to avoid having these claims dismissed
as untimely, twice registered as a "participant in [the] World Trade Center rescue, recovery and clean-up operations" (WCL §162).
The
basis for the Court agreeing with the Workers Compensation Board’s
denial of the claim and the Panel’s reversal of the Law Judge decision
Board’s conclusion that the term “recovery” did not encompass the
sort of economic recovery efforts engaged in by claimant and her
coworkers rather than in any rescue-related activities within the
meaning of WCL Article 8-A. Both the Court’s and the Board’s decision
cover in detail the definition of the classes of workers covered and
those not covered by WCL §162 and Article 8-A. Prevailing party represented by: Larry A. Sonnenshein of counsel to Corporation Counsel, New York City for City of New York, respondent. Commissioners of Record: Ferrara, Libous, Higgins/Henry WCB #0060 0519 [1N155-7651]
|
—— October 2011 ——
October 27, 2011 NYS Appellate Division, Third Department
§25-a: Advance Compensation
RESCINDED and returned to the Board its decision which improperly shifted liability to the Special Fund for Reopened Cases per WCL §25-a.
After filing her claim for CTS in August 2000, the claimant had
surgery, returned to work January 30, 2004, received a 15% SLU, then in
January 2006 after a second surgery, claimant again returned to work.
Over the course of the next two years, claimant worked at times without
any restrictions and, on other occasions, was subject to varying degrees
of restriction. In March 2009, the carrier successfully sought to
transfer liability for the claim to the Fund per WCL §25-a. The
decisions rested on the factual question regarding whether claimant
received an advance payment of compensation, a factual question for the
Board to resolve. The record reflects (as detailed in the Court’s
decision), that the claimant was accommodated with certain limitations
and restrictions on her work, due to her CTS. The Court then wrote, “Accordingly,
in view of the various restrictions under which claimant did (or did
not) work during the relevant time period, we cannot say that the
Board's decision is supported by substantial evidence. We therefore
remit this matter for such further development of the record as will
enable the Board to ascertain whether ‘the employer paid for something
[it] did not get in the way of service’.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent.Commissioners of Record: Bargnesi, Libous, Bell WCB #6001 0966 [11107650]
—— SEPTEMBER 2011 ——
September 30, 2011 NYS Appellate Division, Fourth Department
§ 11: Jurisdiction
The Appellate Court granted a motion stating that State Farm had no duty to defend or indemnify the Brady Farms, the owner and operator of a farm,
in connection with fatal injuries sustained by Brady's employee
(hereafter, decedent) while working at the farm. At the time of the
accident, the Brady was insured under a primary policy issued by State
Farm as well as an umbrella policy also issued by State Farm. Brady did
not have workers' compensation insurance at that time. The decedent
filed for workers compensation benefits, establishing that his estate
elected to forego the recovery of damages through a civil action and
instead sought to pursue what was essentially a claim for the workers'
compensation insurance benefits Brady should have secured for him. Per
WCL §26-a (1) (a), an employer that failed to secure workers'
compensation benefits for an injured worker is liable for the payment of
benefits awarded to the injured worker.I n effect, the employer (Brady)
is substituted for the insurer it failed to hire as the party
responsible for payment of the workers' compensation benefits awarded to
decedent.I n view of the uncontroverted proof in the record that the
workers' compensation award issued against Brady in connection with
decedent's death is outside the scope of coverage for Brady under the
Package policy, the Appellate Court granted the summary judgement
sought by State Farm. [11107649]
October 20, 2011 NYS Appellate Division, Third Department
Income from self-employment Decision Poorly Written
RESCINDED and returned to the Board for proper review (1) the claimant's average weekly wage,
thus (2) rendering moot the issue of its denial for Full Board Review
(FBR). Claimant, a truck driver who was injured 1999, and was awarded
benefits based on claimant's 1999 tax return, which reflected that his
gross income was $49,224, resulting in an average weekly wage (AWW) of
$946.61. The carrier sought a FBR, contending claimant's AWW should
have been based upon his net income, taking into account tax deductions
taken by claimant for certain employment-related expenses. Whether
claimant's average weekly wage should be based upon his gross income or
net income as reported on his tax forms is a factual determination to be
made by the Board. While claimant is considered an employee for
workers' comp purposes, he is treated as self-employed for tax purposes.
The Court noted that, “The Board has held in at least one case that
is factually indistinguishable from the instant matter that, in
determining the average weekly wage of such a ‘hybrid’ claimant,
expenses which are characterized as mandatory/necessary should be
deducted from the claimant's gross profit.” The Court, in sending this back for a proper review, wrote, “There is no indication in the record before us that the Board reviewed
claimant's tax deductions and determined which, if any, should have
been deducted from his gross earnings in fixing his average weekly wage,
and the Board has not set forth an explanation for its deviation from
prior precedent.” Prevailing party represented by: Rudolph Rosa DiSant of counsel to the NY State Insurance Fund for Triple R Transport. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #0002 9540 [11107648]
October 18, 2011 NYS Appellate Division, First Department
Employment: Who is
REVERSED the motion of the lower court by finding it incorrectly denied a motion for nunc pro tunc approval
of settlement of the underlying personal injury action pursuant to WCL
§29(5). Plaintiff Medina, during his employment with Shiva Ambulette
Service, was injured when the vehicle he was operating was struck by a
vehicle operated and owned by defendants. Medina commenced a personal
injury action against defendants, alleging he suffered a "serious injury,"
as defined by Insurance Law § 5102(d). On or about October 3, 2008,
Medina entered into a settlement of the underlying action with
defendants in the amount of $20,000. Until that date, he had been
receiving workers' comp benefits from his workers comp, nonparty
respondent First Cardinal.
The lower court erroneously denied Medina's request for a nunc pro tunc order granting him a right-to-settle letter from First Cardinal. "A
judicial order may be obtained nunc pro tunc approving a previously
agreed-upon settlement, even in cases where the approval is sought more
than three months after the date of the settlement, provided that the
petitioner can establish that (1) the amount of the settlement is
reasonable, (2) the delay in applying for a judicial order of approval
was not caused by the petitioner's fault or neglect, and (3) the carrier
was not prejudiced by the delay.” The record does not show that
the delay in obtaining approval was attributable to the fault or neglect
of plaintiff but rather that First Cardinal "unwittingly lulled
[plaintiff] into believing that it was willing to waive [plaintiff's]
failure to obtain timely consent or court approval of the settlement." The remained of the decision details the many indicia supporting the Appellate Court’s decision. [11107647]
Octoober 18, 2011 NYS Appellate Division, Third Department Employment: Who is
Granted the motion
for summary judgment dismissing the complaint against it as being
barred by WCL §11. The motion court correctly determined that
plaintiff's claims against defendant Riva are barred by WCL § 11. Riva
demonstrated that it and nonparty WTS Contracting Corp. are alter egos
by establishing that they share a president and chief executive, an
office manager and an office address, and were insured by the same
liability and WC policies. Although plaintiff was paid with a WTS check
and WTS was identified as his employer in the report regarding his
accident as well as in the Board’s notice of award, these facts are
consistent with the averment by the president of both Riva and WTS that
WTS was merely the payroll entity for all Riva employees. Additionally,
plaintiff testified that his supervisor, a Riva employee, was the only
person who instructed him regarding the work. [11107646]
October 6, 2011 NYS Appellate Division, Third Department
Aggregate Trust Fund
AFFIRMED the Board’s ruling that, even if claimant is deceased, carrier must make a deposit into the ATF
per WCL §27(2). After a finding of permanent total disability, a Law
Judge directed the carrier to deposit the present value of all unpaid
benefits into the aggregate trust fund by February 2009. Rather than
appeal or make the required deposit, the carrier continued to make
payments directly to decedent. After he died in August 2009, the carrier
sought to be relieved of its obligation to make the deposit. The Board
directed that the deposit be made with interest.
The employer and carrier do not dispute that the carrier's "liability [was] fixed by the computation and mature[d] on the direction to pay," and that it accordingly remained obliged to make a deposit into the aggregate trust fund despite decedent's death (Matter of Marconi v Marshall,
284 App Div 728, 730 [1954]). Instead, they contend that the Board's
refusal to absolve the carrier of that obligation constituted an
unexplained departure from prior precedent (see Matter of Applied Elec. Corp., 2001 WL 1017456, 2001 NY Wrk Comp LEXIS 93524 [WCB No. 08336389, July 11, 2001]).
Specifically, the prior case involved a self-insured employer that made
all death benefit payments to a claimant-widow until her death,
notwithstanding an order 11 years earlier to make a deposit with the
aggregate trust fund (see Applied Elec. Corp). In that
case, however, the Board had mistakenly advised the employer to
disregard the deposit order, the aggregate trust fund made no attempt to
enforce it for almost eight years, and the extensive delay resulted in
the employer paying out more in benefits than the ordered deposit amount
(see Applied Elec. Corp). In contrast, the deposit order
here was indisputably valid, the carrier did not make unduly large
benefit payments to decedent in the brief period between the order and
his death, and the Board emphasized that the carrier had not adequately
explained its failure to make the deposit. Inasmuch as the prior
decision was not based upon "essentially the same facts" as those presented here, the Board was not required to expressly distinguish it. Prevailing party represented by: Nancy E Wood of counsel to the State Insurance Fund for Aggregate Trust Fund, respondent Commissioners of Record: Firestone, Henry, Paprocki WCB #0013 0012 [11097645]
October 6, 2011 NYS Appellate Division, Third Department
§114-a: Fraud
AFFIRMED the Board’s ruling that claimant did not commit §114-a fraud.
Claimant received benefits based on a back injury and associated
depression from a 2001 accident. In 2004, after a private investigator
retained by the carrier recorded claimant performing snow removal
outside the apartment building in which he resided, the carrier's
medical consultants changed their opinions regarding claimant's
disability status. Following testimony of several witnesses, the Law
Judge found that claimant did not violate §114-a and is permanently
partially disabled. Claimant acknowledged that he spread ice melt and
shoveled for short periods of time on occasion to assist his wife in her
responsibilities as superintendent of the building in which they
reside. Claimant further testified that prior to his work-related
injury, he assisted his wife to a greater degree than he is now able.
Claimant's treating physicians testified that spreading ice melt and
shoveling for a brief period were not inconsistent with claimant's
medical limitations and did not affect their opinion as to his degree of
disability. Although the carrier's medical consultants offered
conflicting opinions, credibility determinations and resolution of
conflicting medical evidence are issues that rest within the exclusive
province of the Board, and it was free to credit the testimony of
claimant and his treating physicians over that of the carrier's
witnesses. Prevailing party represented by: Estelle Kraushar of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Firestone, Henry, Paprocki WCB #0013 0012 [11107644]
October 6, 2011 NYS Appellate Division, Third Department
§114-a: Fraud
Procedure: Denial Full Board Review
AFFIRMED the Boards rulings that (1) the claimant did not violate §114-a and (2) properly denied employer’s request for Full Board Review.
In July 2002, claimant sustained injuries to his back, right knee and
left wrist, later amended to include consequential major depressive
disorder; was awarded workers' comp; and determined to have a permanent
partial disability. Following the accident, claimant did not return to
work and, in 2003, filed for disability retirement benefits at which
time he was classified for that purpose as partially disabled. In May
2007, the carrier unilaterally stopped paying compensation benefits to
claimant on the basis that a "fraud referral" concerning claimant
had been submitted by a local District Attorney's office, a charge
subsequently dismissed. In July 2008, claimant alleged that the carrier
improperly suspended compensation payments without following proper
procedures. In September 2008, a Law Judge awarded claimant back
benefits, penalized the carrier for the unilateral suspension and
scheduled a hearing on §114-a. Following a hearing, the Law Judge found
no violation. Essentially the decision rested on the claimant’s
testimony, supported by that of his physician that the claimant was not
restricted from light activity as long as he remained within the
restrictions of his partial disability.
The Board, which "is the sole arbiter of witness credibility"
found an absence of any discrepancy between claimant's testimony
regarding his activities and the medical proof in the record. Thus the
Court determined that there was no basis to disturb the Board's
conclusion that claimant did not knowingly make a material false
statement to obtain benefits. The Court also noted that the Law Judge
afforded the Fund the opportunity to have claimant reexamined by an
independent medical examiner, the Fund did not do so and instead chose
to have the medical practitioner review claimant's medical file and
videotaped surveillance footage. In the absence of an actual physical
examination, the Board specifically found the resulting report to be of
little weight and declined to credit it. “As to the carriers
remaining arguments, including their contention that the Board erred in
not finding that claimant voluntarily withdrew from the workforce and
their challenge to the denial of the employer's application for full
Board review,” the Court found them to be unpersuasive. Prevailing party represented by: Iris A. Steel of counsel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Foster, Lower, Finnegan WCB#3020 7239 [11107643]
The Insider When a Full Board Review is denied, only Vice-Chairman Libous
participates in that decision, a procedure whose legality I questioned
in my May 26, 2009 COMMENTARY "Judicial Economy vs Judicial Integrity"
October 6, 2011 NYS Appellate Division, Third Department
§14(3),(4): Average Weekly Wage
AFFIRMED the Board’s ruling which increased the claimant’s average weekly wage,
after the Court, on May 20, 2010, rejected the Board’s earlier ruling
in this case of a $620 AWW, sending it back to the Board for a proper
review. The Court now affirmed a $500 AWW based upon the record which
reflected that claimant worked for the employer three to four days a
week at a rate of $130 per day and that the Board’s calculation of
claimant's average weekly wage upon remittal was proper per §14[3],[4].
The Court also rejected the employer assertion that claimant was an
undocumented worker who was not legally entitled to earn any wages and,
therefore, no average weekly wage should be established, inasmuch as
this argument was not raised at the administrative level. Prevailing party represented by: Iris A. Steele of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Ferrara, Finnegan, Foster WCB #2080 2639 [11107642]
October 6, 2011 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review
AFFIRMED the Board’s decision to deny claimant's application for Full Board Review.
Claimant, initially injured when he slipped off the back of a truck
suffering multiple injuries, thereafter developed a deep venous
thrombosis in his left leg, which he sought to add to his claim as a
consequential injury. A Law Judge denied the application, the Board
affirmed, and the claimant's subsequent application for full Board
review was denied. The Court wrote, “Inasmuch as claimant has
appealed only from the Board's denial of his request for full Board
review, the merits of the underlying decision are not properly before
us. Rather, our analysis is limited to ascertaining whether such denial
was arbitrary and capricious or otherwise constituted an abuse of
discretion. To that end, claimant did not establish a material change in
his condition or present evidence that previously was unavailable, and
the record reflects that the Board considered all relevant material in
rendering its initial decision. Under these circumstances, the Board's
decision denying full Board review will not be disturbed.” Prevailing party represented by: Matthew E. Weerth of counsel to Weiss, Wexler & Wornow (New York City) for Accurate Signs and Awnings and another, respondents. Full Boar Decision issued by Libous WCB #0064 4097 [11067641]
The Insider When a Full Board Review is denied, only Vice-Chairman Libous
participates in that decision, a procedure whose legality I questioned
in my May 26, 2009 COMMENTARY "Judicial Economy vs Judicial Integrity"
October 6, 2011 NYS Appellate Division, Third Department
§25-a: True Closing
AFFIRMED the Board’s decision that liability shifted to the Special Fund for Reopened Cases(Fund)
pursuant to §25-a. Although the claim was established and awards made,
in 2005, the claimant plead guilty for fraudulently collecting workers'
comp while working. Nonetheless, claimant's assertion that she had
suffered a consequential left elbow injury was not resolved. As a result
of her guilty plea, she was permanently disqualified from receiving
further lost wage benefits in 2005, although her medical expenses
continued to be paid. In 2008, the carrier applied for a §25-a finding:
that liability for the claim should be shifted to the Fund, an
application approved by the Board. As there was no dispute that the
requisite time periods under §25-a have passed, the sole issue was
whether the case was truly closed given the unresolved claim of a
consequential injury. The fact that a "claimant's condition may change or worsen in the future"
does not preclude a finding that the claim is truly closed. Whether a
case is truly closed is a factual question for the Board to determine
based on whether further proceedings related to the payment of
compensation were contemplated at the time of the presumed closing, with
the Court noting that compensation is distinct from the payment of
medical expenses. While the issue regarding the alleged left elbow
injury remained outstanding, those issues related to the payment of
medical expenses and not compensation, as claimant was disqualified from
obtaining further lost wage benefits in 2005. Thus, substantial
evidence supported the Board's determination that the claim was truly
closed. Prevailing party represented by: Charlotte Flynn of counsel to the State Insurance Fund for Primo Coat Corporation and another, respondents. Commissioners of Record: Ferrara, Higgins, Finnegan WCB #0006 2038 [11107640]
September 29, 2011 NYS Appellate Division, Third Department
Legal Fees
REVERSED the Board’s decision which denied an application for an award of counsel fees
to claimant's counsel. After the claimant suffered a May 2009 injury
but prior to any award of benefits, the carrier began making payments to
claimant in the amount of $550 per week. In addition, as part of its
benefit plan, the employer began paying claimant wages in lieu of
workers' comp benefits so that claimant was receiving his full salary.
The employer requested reimbursement for the payments it had made in
lieu of the workers' comp. Although there were issues relating to the
employer’s right to seek reimbursement, the claimant’s attorney’s
request for a legal fee was denied, based on the Board’s conclusion that
since there were no payments currently being made to claimant and no
current reimbursement owed to the employer, there is no source of funds
upon which a lien for counsel fees can attach. The Court, in reversing
the Board determined that a line for counsel fees "attaches to any compensation awarded,"
and the fact that there is presently no balance due to claimant does
not necessarily preclude an award of such fees, payable either now or as
a lien against any future awards made to claimant.
The Insider On July 31, 2001, the Full Board deliberated at length on this issue
and made a decision It recognized that in some cases, it had been argued
that since there is no additional/fresh money moving to the claimant,
an award of legal fees is not appropriate. References were usually made
to both Scandale and Dickman but in WCB #09610566 Westbury (Feb 2001), the Full Board’s reversed the Board Panel decision by distinguishing the prior two cases from Westbury: while a fee was due, it was to come from future payments to the claimant, not by the carrier/self-insured. Then, in Rodd ex rel. Rodd v. Coram Fire Dist., 12 A.D.3d 890, 785 N.Y.S.2d 753 (2004),
the Appellate Court agreed with the Full Board that legal fees could
come out of awards not yet made or necessarily contemplated.
Prevailing party represented by: Vincent Rossillo of counsel to Fine, Olin & Anderman (NYC) Commissioners of Record: Bargnesi, Higgins, Foster WCB #0078110 [11097639]
September 29, 2011 NYS Appellate Division, Third Department
Untimely prehearing conference statement
AFFIRMED
the Board’s ruling that claimant sustained a compensable injury. After
he filed a claim, the carrier controverted the claim, and a prehearing
conference was scheduled. The employer filed an untimely prehearing conference statement
but argued that, because it simultaneously filed an amended notice of
controversy, the scheduled conference was premature and should be
rescheduled, rendering its statement timely. The Law Judge disagreed
citing NYCRR 30.38 [f], declined to excuse the employer's late filing,
found that the employer waived its defenses as a result of its untimely
statement, and ultimately established the claim. In affirming the Board,
the Court wrote, “A prehearing conference is required to be
scheduled ‘as soon as practicable . . . after receipt of notice of
controversy and a medical report referencing an injury’ and the Board
has specified that it must occur within 30 days after those documents
are filed. Contrary to the employer's argument, claimant had already
filed a medical report referencing his injury, and the prehearing
conference was correctly scheduled upon the employer's filing of its
initial notice of controversy. Therefore, it was incumbent upon the
employer to submit an affidavit demonstrating that its failure to timely
file the prehearing conference statement ‘was due to good cause’ and
occurred despite its ‘good faith and due diligence’. The employer did
not submit the required affidavit and wholly failed to explain why it
was unable to file its statement in a timely fashion.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Bell, Finnegan WCB #013 4027 [11097638]
September 29, 2011 NYS Appellate Division, Third Department
Causal Relationship: Death & Insufficient Evidence
REVERSED the Board’s decision that the death of was causally related to employment,
based on their conclusion that supposition does not support a legal
decision. The decedent, a maintenance supervisor, died as the result of
chronic obstructive pulmonary disease and lung cancer in 2007. Claimant,
decedent's wife, filed for death benefits, asserting that his lung
conditions resulted from exposure to asbestos and other substances in
the course of his employment. Although there was an issue pertaining to
prehearing documentary submissions, the Court found that “substantial evidence does not support the Board's finding that decedent's death was causally related to his employment.”
It noted that the decedent's primary care physician submitted a death
certificate which states that his death resulted from chronic
obstructive pulmonary disease caused by tobacco use and "possible occupational exposure,"
with lung cancer playing a contributory role, and then added in a
covering letter that environmental factors during his employment that "could"
have played a role in causing his lung conditions. The Court noted that
she did not offer an firm opinion but rather referred specific
questions regarding causation to decedent's pulmonologist and
oncologist. The Court, in reversing, concluded that, “Inasmuch as
these equivocal statements amounted to ‘mere surmise, or general
expressions of possibility’ [they] cannot ‘support a finding of causal
relationship." Prevailing party represented by: Edward Obertubbesing of counsel to the NY State Insurance Fund for for SUNY Cobleskill and another, appellants. Commissioners of Record: Lobban, Paprocki, Higgins WCB #011 8789 [11097637]
September 29, 2011 NYS Appellate Division, Third Department
Decision not based on the facts
REVERSED
the Board’s ruling that the carrier’s §15(8)(d) application for
reimbursement from the Special Disability Fund was untimely, on the
basis that the Board did not follow legal procedure. Essentially,
in a question as to whether or not the carrier timely filed its
reimbursement request forms, it submitted an affidavit detailing the
carrier's practice of filing such forms. Although the Law Judge found
the affidavit sufficient, the Board panel determined that the affidavit
insufficient to show that the reimbursement requests were timely, as the
affiant did not have personal knowledge about the form in relation to
this claim. While thee Board panel determined that the affidavit
submitted by the carrier was insufficient, the Court stated that the
carrier should have been given an opportunity to further develop the
record. But “because the Law Judge found that the affidavit
submitted by the carrier was sufficient, no further testimony from the
carrier's employees was required. Significantly, in reversing the Law
Judge’s's decision, the Board noted that neither the claims examiner who
allegedly sent the forms nor her supervisor submitted documentation or
testified. Because the carrier has not been given an opportunity to
offer such testimony, and the Board reversed based upon the specific
factual issue that the testimony was intended to address, we find that
the matter must be remitted for further development of the record.” Prevailing party represented by: Joseph A. Caligiuri of counsel to Gielowski, Federice & Caligiuri (Buffalo) for appellants. Commissioners of Record: Bargnesi, Higgins, Foster WCB #8000 7424 [11097636]
September 29, 2011 NYS Appellate Division, Third Department
§ 14: AWW multiplier
REVERSED the Board’s decision to determine average weekly wage under §14(3) and (4) using a 200 multiplier.
While both the claimant and the Board found that Law § 14 (1) and (2)
are inapplicable because claimant did not work substantially the whole
of the year nor is there a similar employee who worked substantially the
whole of the year, they disagree on the multiplier. Case law states
that the 200 multiplier is a minimum to be applied in calculating a
claimant's average annual earnings. In this case the Court found that
the 200 bears no rational relationship to the number of days that
claimant actually worked and results in an average weekly wage that does
not fairly reflect his actual annual earnings. The case was sent back
to the Board for review. Prevailing party represented by: Michael P. Oot of counsel to Oot & Stratton (East Syracuse) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #006 9531 [11097635]
September 13, 2011 NYS Court of Appeals
§50(5): Assessments & GSITs
DISMISSED.
In a major setback for those carriers and self-insured seeking a ruling
fro the Court that the Board’s determination that the required
Aggregate Trust Fund payments is not legal, New York State’s Court of
Appeals on its own motion dismissed the appeal on the grounds that no
substantial constitutional question was involved. The Appellate Court,
Third Department opined in its April 21, 2011
ruling that the Board’s determination that retroactive assessments
against group self-insured trusts (GSITs) per WCL §50 (5) (former [f])
are valid, the second time this case has been before the Appellate
Court, Third Department. [1109-7634]
The Insider No word yet as to how this decision, Held v WCB, will impact on the
cases still pending at the Court of Appeals (Collins v Dukes Plumbing,
Parkhurst v United Rentals, Raynor v Landmark Chrysler, Hardy v Trico,
and Salgy v Halsted Communications),
|
—— JULY 2011 ——
July 14, 2011 NYS Appellate Division, Third Department
Causal Relatinship: Was there?
AFFIRMED
the board's decision that the claimant did suffer from an electric
shock while using a pneumatic tube. A key factor in this determination
was the failure of the employer to read but the claimants description of
the incident when the employer failed to bring in for testimony two
coworkers who could allegedly disproved the claimant's story. Prevailing party represented by: Jacob J. Meranda of counsel to Cohen & Siegel (White Plains) for Michelle Cicciarelli and Steven Segall f counsel to the NYS Attorney General for the Board. Commissioners of Record: Bell, Paprocki [Beloten], Finnegan WCB #3060 5820 [11077633]
July 14, 2011 NYS Appellate Division, Third Department
§25-a: A true closing?
REVERSED the Board's decision that §25-a applied when the Court found "We
discern no basis in the statute or the case law for the Board's
conclusion that the lack of further lost time awards precludes
consideration of a medical report as an application to reopen that, if
made prior to the lapse of seven years from the date of injury, would
operate to bar liability from shifting to the Special Fund". Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee. Commissioners of Record: Ferrara, Paprocki, Foster WCB #6980 4353 [11077632]
July 14, 2011 NYS Appellate Division, Third Department
Causal Relationship: Death claim
RESCINDED and returned for review
the Board's determination that the claimant's husband's death by
suicide was not closely related. The decedent, a forensic scientist, for
the employer, was extensively interviewed by the employer after errors
were found in some of his procedures, errors which could have
jeopardized the lab's continued existence. After becoming extremely
depressed by the stress of these meetings and the potential negative
determinations, claimant after writing a suicide note committed suicide.
In denying the claim, the Board found that the disciplinary actions
brought by the employer were of such a nature that WCL §2(7) precluded
the claim. The Court noted that the claimant argued, and the employer
agreed, that there was no disciplinary action but simply a set of
required interviews on the procedures under review. Since the Board
omitted addressing this aspect of the claim, the Court reversed the
Board's decision and returned it for additional review. Prevailing party represented by: Brenda Quinn of counsel for Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Commissioners of Record: Ferrara, Libous, Paprocki WCB #0005 4606 [11077631]
July 7, 2011 NYS Appellate Division, Third Department
§25-a: True Closing
REVERSED
the Board’s decision which ruled that WCL §25-a is inapplicable to the
award of workers' compensation benefits. The decedent received benefits
for a February 1994 from the date of injury through June 1996 when he
got an SLU and the case was closed. IN May 2005, after claiming a
consequential injury, surgery was approved and liability for the claim
went to the Special Fund (Fund). He had surgery in November 2005 after
which he was awarded additional comp, paid by the Fund. But as the
result of surgical complications, decedent died in October 2007. When
his widow in January 2008 filed for death benefits, the carrier sought
to shift benefits to the Fund. The Board disagreed [editor’s emphasis] because
since the Fund paid compensation benefits from 2005 to 2007, the time
requirements to shift the death claim to the Fund, per §25-a(1), had not
been satisfied. In reversing the Board, the Court wrote:
Here,
WCL §25-a was triggered and the Fund became liable in November 2005
since both the pertinent seven-year and three-year time frames had
undisputedly passed. Under the well-established interpretation of §25-a,
the Fund stepped into the carrier's shoes regarding this stale claim
and made payments from November 2005 to October 2007. It would be
antithetical to the settled statutory purpose to permit these payments
to serve as a basis to place liability for the death claim on the
carrier, which had already been discharged from liability for claims
related to the 1994 incident.
Prevailing party represented by: Edward Obertubbesing of counsel to the NY State Insurance Fund for appellants. Commissioners of Record: Ferrara, Foster, Libous WCB #5080 1785 [11077630]
—— JUNE 2011 ——
June 30, 2011 NYS Appellate Division, Third Department
Schedule Loss of Use issues
AFFIRMED the Board’s decision that claimant was entitled to a schedule loss of use (SLU) award rather than permanent partial disability benefits.
After 30 years of employment as a steamfitter, claimant was diagnosed
with bilateral osteoarthritis in his long fingers and forced to
discontinue working in March 2007. After several years of treatment
which failed to resolve the medical issues, the issue arose as to an
ongoing award of disability benefits or an SLU award, with the Board
finding for a 40% SLU. The IME orthopedic surgeon opined that claimant
had demonstrated no measurable improvement despite extensive
occupational therapy and that, inasmuch as claimant refused surgery, he
had reached maximum medical improvement and an SLU was appropriate. The
claimant's treating physician testified that because the claimant’s
condition was likely to worsen in the future, classification was
appropriate. In affirming the Board, the Court wrote, " ‘Whether a
condition warrants a schedule loss award or an award of continuing
disability benefits is a question of fact for resolution by the Board,'
and its determination will be upheld if supported by substantial
evidence". Prevailing party represented by: Peter M. DeCurtis of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Island Fire Sprinkler, Inc. and another, respondents Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #2070 1022 [11067629]
June 30, 2011 NYS Appellate Division, Third Department
Causal Relationship: Is there
AFFIRMED the Board’s two decisions that (1) ruled that pro-se claimant did not sustain a causally related injury and (2) denied claimant's request for reconsideration or full Board review.
Because claimant failed to address the decision denying her application
for reconsideration or full Board review, the Court deemed that appeal
abandoned. In January 2008, claimant filed a claim alleging that the
installation of new carpeting in her workplace caused her to develop
multiple chemical sensitivity, a claim denied by a Law Judge, finding
that claimant's health condition was not causally related to her
employment. Although her treating physician concluded that claimant had
developed multiple chemical sensitivity as a result of the carpeting
installation in 2002, he was apparently not fully informed about other
possible causes of claimant's symptoms, including the presence of mold
and dust mites in her home, and that by her own testimony, her symptoms
began prior to the carpet installation, increased several years later in
2007, were most intense at night when she was in her home and failed to
abate after she stopped working. The Board concluded that the claimant
failed in her burden to establishing a causal relationship between her
employment and her condition. Prevailing party represented by: Joseph Buttridge (Albany) for Natural Health Family Chiropractic and another, respondents. Commissioners of Record: Groski, Bell, Finnegan WCB #9080 0417 [11067628]
June 30, 2011 NYS Appellate Division, Third Department
Consequential
AFFIRMED the Board’s ruling that claimant did not sustain a causally related injury.
Claimant received workers' comp for a 2001 work-related injury. After a
second injury in 2002 she filed a claim, for her face, neck and right
shoulder and then sought to amend this claim after allegedly developing
complex regional pain syndrome (hereinafter CRPS) in her right arm. In
March 2006, while the 2002 claim was still pending, claimant filed a
third claim based upon alleged injuries to her right arm, hand and wrist
suffered in a slip and fall in the employer's parking lot, which she
claimed aggravated her CRPS. In August 2006, the claim regarding the
2002 incident was established for injuries to claimant's face, neck and
shoulder, but the Board denied amending the claim to include CRPS,
concluding that the credible medical evidence presented did not support a
finding that claimant suffered from that condition. The medical
evidence upon this third claim regarding CRPS was limited to the report
and testimony of Walter Nieves, a neurologist chosen by the Board, who
in 2009 opined that claimant suffered from CORPS as the result of the
work-related injuries in 2001 and 2002, and the condition was
exacerbated by the 2006 fall. Although, based upon this opinion, a Law
Judge established the claim, a Board panel reversed, finding
insufficient evidence to establish that the 2006 fall caused or
aggravated the CRPS. The Court then wrote, “So long as the Board's determination is supported by substantial evidence it will be upheld". Further, "[t]hough
the Board may not fashion its own expert medical opinions, it may
reject medical evidence as incredible or insufficient even where . . .
no opposing medical proof is presented". Prevailing party represented by: Kenneth J. Gorman of counsel to Davis & Venturing (Hicksville) for Jawanio, Inc. and another, respondents. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #3060 2907 [11067627]
June 30, 2011 NYS Appellate Division, Third Department
§25-a: True Closing
AFFIRMED
the Board’s ruling that WCL §25-a did not apply as the case was not
closed. After injuring his back in July 1994, claimant, a truck driver,
had his claim established, missing work intermittently between the date
of the accident and September 1995. When claimant began to miss work
again as a result of his injuries in 2009, the carrier requested that
liability be transferred to the Special Fund for Reopened Cases pursuant
to WCL §25-a. A Board panel found that liability should not be
transferred to the Special Fund because the case was never truly closed.
Here, although a claim for an injury to claimant's neck was not
originally established, the employer's medical experts indicated as
early as 1995 that claimant had suffered a neck injury as the result of
the July 1994 accident. Thus, although the Board purported to close the
case in April 1997, unresolved issues remained as to the extent of
claimant's neck injury. “Accordingly, substantial evidence supports the
Board's conclusion that the case was never truly closed.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Lower, Paprocki, Bell WCB #5941 5663 [11067626]
June 21, 2011 NYS Appellate Division, First Department
Undocumented worker
Although
this case did not involve workers compensation or Workers Compensation
Board, the key issue dealt with the amount of money awarded by a jury
for future medical expenses and projected loss earnings with most of the
arguments dealing with future medical expenses. The result was a split decision
from the Appellate Court, First Department. The injured worker was
hired as a construction worker by third-party defendant Roadrunner
Construction Corp., despite its knowledge of his immigration status.
Roadrunner never requested a social security number from plaintiff and
paid him in cash or by check, and never withheld any payroll taxes from
his wages. The defendants argued that, because the injured worker had
suggested he would return to Ecuador, his home country, after earning a
certain amount of money, the value of the future lost earnings and
medical expenses should not be based on the American marketplace but
rather the appropriate values for Ecuador. The majority, in agreeing with the injured worker that the American marketplace values should be used, wrote, "Although
a worker's immigration status may be a legitimate factor in litigating a
lost wage claim (Balbuena v IDR Realty LLC, 6 NY3d 338, 362 [2006]),
under the facts of this case, the trial court providently exercised its
discretion in precluding defendant from inquiring about plaintiff's
immigration status. In addressing mitigation concerns, the Balbuena
Court explicitly held that where a plaintiff has suffered serious
injuries which prevent him from working (such as Angamarca)." The minority countered in part with, “the
Court of Appeals suggested that disputes must be resolved without
regard to a litigant's immigration status; when material to the issue at
bar, the Court has not hesitated to consider it, in one instance
finding it dispositive of rights afforded by New York law (see Katz Park Ave. Corp. v Jagger, 11 NY3d 314, 317-318 [2008] [B-2 visitor's visa was "logically incompatible" with a primary residence in New York for rent regulation purposes])." The
value of this case are the arguments raised by both sides regarding the
issue of the injured worker’ s immigration status in determining awards
for future medical and lost wages. [11067625]
June 16, 2011 NYS Appellate Division, Third Department
Aggregate Trust Fund: Statute of Limitations
Appeal from an order of the Supreme Court in Albany County, which
denied a motion by defendant Rome Memorial Hospital (RMH) for partial
summary judgment which asserted that the claims for all GSIT
deficiencies known prior to June 2002 are barred by the statute of
limitations.
RMH was a member, from 1999 to 2003, of the New York Health Care
Facilities Workers' Compensation Trust (hereinafter the Trust), a trust
established in 1997. Beginning in 1999, the Trust began operating at a
level where its liabilities exceeded its assets. As this deficiency
persisted, The WCB — which is required by law to oversee the Trust per
WCL §50[3-a— worked with the Trust to enact measures to close the
shortfall. By 2006, after the gap had become increasingly larger, the
WCB terminated the Trust, assumed its administration, and retained an
accounting firm to perform a forensic audit of the Trust. Upon
completion of the audit, the WCB informed all former members of the
Trust that they were liable, jointly and severally and on a pro rata
basis, for the shortfall of $31,350,780. [Note: Defendant's pro rata
share of liability was $798,663.] In
June 2008, the WCB commenced this action against all Trust members who
failed or refused to pay their pro rata share. RMH moved for partial
summary judgment, asserting that the claims for all deficiencies known
prior to June 2002 are barred by the statute of limitations was denied.
The Court rejected this position, stating that, “Although the Trust
was operating with deficiencies [since 1999], the members themselves did
not owe anything until an assessment was ordered or demanded. RMH did
not breach the contract by not paying extra amounts in 1999 through
2002, as assessments had not been levied in those years. It appears that
no breach arose until RMH refused to pay the assessment levied in 2008.” [11067624]
Ths Insider See my Commentary on this case and the ATF debacle itself: Who was Watching the Cookie Jar?
June 16, 2011 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund
AFFIRMED the Board’s ruling that the carrier was not entitled to reimbursement from the Special Disability Fund (Fund) per WCL §15(8).
After the claimant developing asbestosis and chronic obstructive
pulmonary disease, exposure to asbestos and other lung irritants in the
course of his employment, his claim for benefits was established, with
the Board determining that his date of disablement was November 13,
2008. The employer then sought reimbursement for those benefits from the
Fund (see WCL §3[2][29]; §15[8][ee]) which the Board denied on the
basis that amendments to WCL §15(8) in 2007 closed the Fund to claims
with a date of disablement after July 1, 2007. While acknowledging that
there were time limits imposed by under the 2007 amendments, the
employer contended that the time limit imposed by WCL §15(8)(h)(2)(A) is
inapplicable because it pertains only to "claims" for
reimbursement and, in the context of dust diseases, a claim for
reimbursement is not necessary. In its lengthy decision, the Court
summarized its affirmance of the Board, writing:
Our interpretation of the statutory language added in 2007 is supported
by the legislative history behind the amendments, which were
specifically "intended to close the Fund to new claims as of July 1, 2007"). Indeed, one group expressly recognized that the 2007 amendments would result in "carriers . . . retaining full loss values on every claim, especially those cases involving dust and occupational disease"
(Letter of New York Compensation Ins Rating Bd, Mar. 9, 2007, at 4,
Bill Jacket, L 2007, ch 6, at 64 [emphasis added]). The employer's
preferred interpretation of the 2007 amendments would not only defeat
its goal, but would result in an absurd and contradictory result — the
Legislature would have subjected WCL §15(8)(ee) to the limitation
contained in WCL §15(8)(h)(2)(A), but then defined that limitation in
such a way as to render it inapplicable to §15(8)(ee). Accordingly, we
hold that the Board's decision is supported by both the language of the
statute and its legislative history.
Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB and Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases.Commissioners of Record: Lower, Paprocki, Bell WCB # 002 2018 [11067623]
June 16, 2011 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund §44 Apportionment Dust Diseases
AFFIRMED the Board’s decision which denied the carrier's request for apportionment among claimant's prior employers pursuant to WCL §44.
Claimant, a plumber and pipe fitter with more than 20 years of
experience, began working for Lin-Dot (hereinafter the employer) in
March 2003, when he developed pains in his neck, subsequently diagnosed
as cervical stenosis. Claimant ceased working for the employer in August
2003 and, after he underwent surgery for this condition in 2004, filed a
claim for wc benefits, ultimately established for an occupational
disease. The carrier’s request to apportion responsibility for the claim
among his prior employers was denied. The Court agreed with the Board
which found “that claimant, prior to being employed by the employer,
was asymptomatic for the injuries subsequently diagnosed to his neck and
did not seek or receive any medical treatment for this condition while
previously employed” and “there [was] no objective medical proof
that claimant's occupational disease was contracted during his prior
employment and, as a result, the Board's determination that he
contracted this disease while employed by the employer is supported by
substantial evidence.” Prevailing party represented by: Timothy Bocek of counsel to Personius, Mattison, Palmer & Bock (Elmira) for Kimbel, Inc. and Jason M. Carlton f counsel to Gitto & Niefer (Binghamton) for CNA Insurance Company and another, respondents Commissioners of Record: Foster, Libous, Bell WCB #9040 2157 [11067622]
June 16, 2011 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund
REVERSED the Board’s ruling by finding that the carrier is not entitled to §15(8)(d) reimbursement from the Special Disability Fund (Fund), a case decided on the issue of “employability”.
Claimant, after sustaining multiple injuries in a head-on collision
while driving a cement truck in July 2004, was awarded benefits based
upon his injuries. Prior to 2004, claimant suffered from an array of
maladies. Hence, carrier application for reimbursement from the Fund was
approved by a Law Judge and Board panel. To qualify for reimbursement
from the Fund, the employer must demonstrate that claimant suffered from
(1) a preexisting permanent impairment that hindered job potential, (2)
a subsequent work-related injury, and (3) a permanent disability caused
by both conditions that is materially and substantially greater than
would have resulted from the work-related injury alone. The Court
appeared to accept the Board’s fing in items (2) and (3) but agreed with
the Fund that the employer failed to demonstrate that any of claimant's
preexisting conditions hindered or were likely to hinder his employment
potential. The Court agreed with the Fund's contention that the
employer failed to demonstrate that any of claimant's preexisting
conditions hindered or were likely to hinder his employment potential.
Furthermore, claimant's testimony established that he was continuously
employed as a truck driver for 20 years prior to his 2004 accident.
Since "employability", the third factor in determining this
issue, was not proven by the employer, or even addressed by the Board
panel in its decision, the Court reversed and denied reimbursement. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund Commissioners of Record: Lower, Bell, Finnegan WCB #5040 8847 [11067621]
June 9, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED
the Board's ruling that claimant voluntarily withdrew from the labor
market. As a result of the 1998 injury to his neck, shoulder, and back,
the injured construction worker was awarded benefits and, later, via
stipulation was determined to have a permanent partial disability. At
that time the carrier contended the claimant had voluntarily removed
himself from the labor market and requested discontinuance of benefits.
The Law Judge found that because claimant had unrelated health problems
that rendered him unable to work, he did not voluntarily separate from
the labor market, a decision reversed by a Board panel. Evidence
indicated that the claimant’s unrelated health condition and his
compensable injury, while preventing him from working in the
construction industry, did not render him so disabled he could not seek
other employment. Claimant also admitted he has worked nor sought
employment since shortly after his accident and has failed to
participate in vocational educational services to which he was referred.
The Court, in affirming the Board, wrote “substantial evidence
supports the board’s determination that the claimant’s separation from
the labor market is voluntarily in that it is due to causes other than
his compensable injuries.” Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for Peter Charbonneau Construction and another, respondents. Commissioners of Record: This decision is not in Lexis. WCB #5981 [11067620]
—— MAY 2011 ——
May 26, 2011 NYS Appellate Division, Third Department
§25-a: True Closing
REVERSED
the Board’s ruling which denied carrier’s request to shift liability to
the Special Fund for Reopened Cases (Fund) per WCL §25-a and then
denied a request for Full Board Review [rendered moot by this reversal].
Based on his 1987 injury, claimant was awarded benefits, classified as a
permanent partial, and paid benefits through October 2005 when he
returned to work. After filing three C-8.1 forms in May 2008 disputing
bills for medical services provided in 2005, 2006 and 2007 as being
untimely submitted, the carrier in November 2008 contended that
liability should shift to the Fund per WCL §25-a. In affirming the Law
Judge’s denial of §25-a, a Board panel found that the filing of the
C-8.1 forms served to reopen the claim within three years from the last
date of compensation, precluding the shift of liability to the Fund.
This case was closed pursuant to a stipulation by the parties and the
last payment of compensation was in October 2005. The Court noted that,
The Board determined, without providing any supporting rationale,
that the carrier's submission of the C-8.1 forms in May 2008
constituted an application to reopen the case within three years
following the last payment of compensation and found Workers'
Compensation Law § 25-a to be inapplicable. The C-8.1 forms at issue
here dispute three bills submitted by claimant's medical provider for
specific treatments rendered between 2005 and 2007. There does not
appear to be any objection to the necessity of the treatments or any
evidence that the treatments reflect a change in claimant's condition.
The only dispute that can be gleaned from the record is that the carrier
contends that the bills for the treatments were not timely submitted
(see 12 NYCRR 325-1.24 [b]). Inasmuch as the payment for continuing
medical care does not bar the transfer of liability under WCL §25-a, we
cannot conclude that the issues raised by the C-8.1 forms, which concern
only the timeliness of submitted bills for medical care, would serve to
toll the time limitations of WCL §25-a.
Accordingly, based upon our review of the record, we find that the
Board's determination was not supported by substantial evidence and,
therefore, it must be reversed.
Prevailing party represented by: Susan B. Marris of counsel to the NY State Insurance Fund for appellants. Commissioners of Record: Ferrara, Foster, Libous WCB #0878 7920 [11057619]
May 26, 2011 NYS Appellate Division, Third Department
Causal Relationship: Death
AFFIRMED
the Board’s decision that decedent did not sustain a causally related
injury and denied decedent's former wife’s claim for death benefits for
decedent's two children. Decedent collapsed and died after suffering a
heart attack while working for the employer as a mail courier in August
2007. A Law Judge, affirmed by a Board panel, denied the claim, finding
that decedent had long-standing heart disease and his death was not
causally related to his work activities. WCL §21 creates a presumption
of compensability where, as here, an unwitnessed or unexplained death
occurs during the course of employment, a presumption the employer may
overcome by presenting "substantial evidence to the contrary"
(WCL §21). While both sides presented medical evidence to bolster their
positions, the Court in supporting the Board’s finding, wrote, as it
does in these cases, “ conflicting opinion[s] .. created a
credibility issue for the Board to resolve. Inasmuch as the Board's
determination is supported by substantial evidence, we will not disturb
it.” Prevailing party represented by: George B. Burke III of counsel to Walsh and Hacker (Albany) for Albany County and another, respondents. Commissioners of Record: Ferrara, Finnegan, Foster WCB #5071 0554 [11057618]
May 26, 2011 NYS Appellate Division, Third Department
Schedule Loss of Use v PPD
AFFIRMED
the Board’s decision that claimant was entitled to a schedule loss of
use award for a 2007 work-related injury to her left hand, for which she
received workers' compensation benefits. After a dispute arose as to
whether she should be classified as having a permanent partial
disability or instead receive a schedule loss of use (SLU) award, the
Board ultimately made a 15% SLU, and claimant, seeking a classification,
appealed.The Court noted that, “There is no question that claimant
has reached maximum medical improvement and her condition is stable,
factors that ordinarily render a schedule loss of use award appropriate.”
While both sides presented medical evidence to bolster their
positions, the Court in supporting the Board’s finding determined that, “[r]esolving
this conflicting medical evidence was a matter within the Board's
discretion and, accordingly, we will not disturb its finding that a
schedule loss of use award was warranted.” Prevailing party represented by: John M. Oliver of counsel to Sullivan, Keenan, Oliver & Violando (Albany) for The Record and another, respondents. Commissioners of Record: Libous, Bell, Finnegan WCB #5071 0663 [11057617]
May 19, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal
RESCINDED and returned
to the Board for proper review the Board’s ruling, which in turn
reversed the Law Judge, that claimant voluntarily removed himself from
the labor market and denied his claim for benefits. [ED. NOTE: Although the issue of §25-a was litigated at length, only the issue of voluntary withdrawal was appealed.
Prior to retiring as a delivery driver for UPS in April 2006, claimant
had two established work-related injuries to his back (1998 and 2001)
neither of which caused him to lose time from work nor resulted in the
payment of benefits. In August 2008 after claimant sought to reopen his
case, whereupon a Law Judge classified him with an 80% PPD.
Subsequently, after the claimant sought further action, the Law Judge
found that claimant's withdrawal from the labor market was involuntary
due to his causally-related disability, and made awards retroactive to
the retirement date. However, a Board panel reversed, finding that the
retirement was a voluntary withdrawal from the labor market. In
reversing the Board, the Appellate Court noted that contrary to the
Board’s statement that "[t]here is no medical evidence of treatment for the period between February 15, 2001 and May 16, 2006", a review of the Board’s own files show that the claimant treated regularly during that period. [ED. NOTE: The next sentence of the Board decision reads “In an attached treatment note dated May 2, 2006, Dr. Lasser noted ...”] "Ordinarily,
a determination by the Board that a claimant voluntarily withdrew from
the labor market “will be upheld if supported by substantial evidence,
but such finding cannot be based on incomplete facts or a misreading of
the record.” As the Board had done just that, the Court remitted the case back to the Board for further proceedings. Prevailing party represented by: Kevin J. McDonald of counsel to Bond & McDonald (Geneva) for appellant. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #7050 8937 [11057616]
May 12, 2011 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund
REVERSED the Board’s decision by finding that the employer's workers' compensation carrier was entitled to §15 (8) (ee) reimbursement from the Special Disability Fund
(Fund). In 1994, Walter Krausa's claim for occupational disease of
silicosis was established, with a date of disablement of September 24,
1992. After being classified as permanently totally disabled, the
carrier was found by a Law Judge to be entitled to reimbursement from
the Special Disability Fund pursuant to WCL §15(8)(ee). After he died in
2007, the claimant, his widow, filed a claim for death benefits which
were awarded in 2009 at which time the Law Judge, affirmed by a Board
panel, removed and discharged the Fund as of the date of death,
determining that it was no longer liable under §15(8)(ee).
The Court indicated that the Board and Fund misinterpreted the WCL
with their contention that because the date of death, the basis of the
widow’s claim, was after July 1, 2007, §15(8)(h)(2)(A) prohibits the
claim: the phrase "date of accident or date of disablement"
refers to an employee's date of death, and that no new claims can be
entertained based upon deaths occurring on or after July 1, 2007. The
Court has previously written that "the clearest indicator of
legislative intent is the statutory text, [and] the starting point in
any case of interpretation must always be the language itself, giving
effect to the plain meaning thereof." They added, “the statutory
terms refer to the ‘date of accident or date of disablement’; they do
not reference date of death (Workers' Compensation Law §
15[8][h][2][A]). Inasmuch as the "date of disablement" in this case was
previously found to be September 24, 1992, the Board's denial of
reimbursement is contrary to the plain terms of the statute." Also, they wrote,
“while claims for disability and death benefits are legally distinct
and have different accrual dates for statute of limitations, ‘death [is
not] a new injury’ or accident, ‘but rather a new claim consequentially
related to the original injury.’ ” After a detailed analysis of the
language of various statues dealing with these issues, the Court
concluded that the carrier was entitled to reimbursement from the Fund. Prevailing party represented by: Marc H. Silver of counsel to State Insurance Fund (NYC) for appellants. Commissioners of Record: Foster, Higgins, Bargnesi WCB #0080 3459 [11057615]
May 12, 2011 NYS Appellate Division, Third Department
Causal Relationship: Was there?
AFFIRMED the Board’s ruling that claimant sustained a compensable injury
and awarded workers' compensation benefits. In July 2008, claimant
submitted a claim alleging a March 31, 2008 a back injury during the
course of employment, a claim denied by the self-insured employer. The
Law Judge ultimately credited claimant's testimony that he suffered a
work-related injury to his back as the result of an accident on March
31, 2008. Upon review, insofar as is relevant to this appeal, a Board
panel affirmed the injury but modified the date of accident to March 30,
2008. In affirming the Board, the Court wrote, “Whether a
compensable accident occurred is a question of fact for the Board to
resolve, and its determination will not be disturbed when supported by
substantial evidence. Furthermore, the Board has broad authority to
make credibility determinations and to draw reasonable inferences from
record evidence.” Prevailing party represented by: Iris A. Steel of counsel to NYS Attorney General, for WCB and Joseph A. Romano (NYC) for Stanley Klamka Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #0083 3313 [11057614]
May 12, 2011 NYS Appellate Division, Third Department
Causal Relationship: Was there?
AFFIRMED the Board’s ruling that claimant sustained an asbestos-related work-related accident.
In 2002, after working for years in a plant where overhead pipes were
wrapped in asbestos insulation, claimant was diagnosed with an
asbestos-related lung disease and filed a claim, which the employer
contested. A Law Judge disallowed the claim finding that claimant failed
to prove an occupational disease but a Board panel, after directing he
be examined by an impartial pulmonary specialist, found that the
specialist's reports supported the casual relation to his employment of
his asbestos-related lung condition, establishing the case for an
occupational disease. The Board thereafter amended its decision changing
the finding of occupational disease to accidental injury, with an
August 2, 2002 accident date. While conflicting proof was presented by
fact witnesses about the extent of exposure and by the experts regarding
causation, it is undisputed that there was exposure and that claimant
has an asbestos-related lung disease. The employer further contends that
the record does not support the Board's determination of August 2, 2002
as claimant's date of injury. In selecting August 2, 2002 as the date
of injury, the Board explained that while claimant had lost time from
work primarily due to his unrelated chronic obstructive pulmonary
disease (hereinafter COPD) caused by his years of smoking, it concluded
that a report from claimant's physician dated August 2, 2002 constituted
the first confirmed diagnosis of a causally related asbestos condition.
Prevailing party represented by: Estelle Kraushar of counsel to NYS Attorney General, for WCB, respondent Commissioners of Record: Ferrara, Foster, Paprocki WCB #6020 7009 [11057613]
May 5, 2011 NYS Appellate Division, Third Department
§ 32: Fairness & Legality
REVERSED the Board’s ruling which denied claimant's request to rescind a §32 settlement agreement.
Under the §32 approved by the Board in November 2001, the carrier
agreed to pay claimant a lump sum payment of $92,950, with claimant's
understanding that an attorney's fee of $12,000 would be deducted from
the lump sum amount. Further, pursuant to the agreement, claimant
acknowledged that the Suffolk County Office of Child Support Enforcement
Bureau was to deduct the entire amount of claimant's outstanding child
support payments, which apparently totaled $18,973.50, from proceeds of
the settlement. In 2009, claimant requested that the Board rescind the
settlement agreement. His request was based upon his contention that he
believed at the time the agreement was reached that the carrier was to
pay the outstanding child support payment separately, and not out of the
$92,950 settlement amount. While the Court agreed that
"[a] decision duly filed and served approving an agreement submitted to
the [B]oard shall not be subject to review pursuant to section
twenty-three of this article" (Workers' Compensation Law § 32 [c]; see
12 NYCRR 300.36 [g]).” ... Further, "[a]lthough the Board has
continuing jurisdiction over its cases pursuant to Workers' Compensation
Law § 123, it is well settled that 'neither the Board nor this Court
may review a waiver agreement once it has been approved.'" However, citing the Matter of Hart v Pageprint/Dekalb, 6 AD3d 947 , 948-949 [2004],
the precedent setting case on this issue, the Court found that the
Board did not hold a hearing prior to approving the agreement in 2001,
although required by law at that time. Inasmuch as the settlement
agreement was not validly approved, the Board is not precluded in such
cases from reviewing the agreement. Prevailing party represented by: Robert Golan (Mineola) of counsel for appellant. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #2961 3821 [1105-7612]
The Insider See my comments in COMMENTARY and REPORT as to how the Board made a major mistake in this case.
—— APRIL 2011 ——
April 28, 2011 NYS Appellate Division, Third Department
Disability: Further Causally Related
AFFIRMED the Board’s ruing that claimant had no further causally related disability.
After claimant’s filed for workers comp benefits for a December 2007
injury, the Law Judge found that claimant had sustained a work-related
injury and awarded benefits from the date of her injury until April 16,
2008 but then ruled that claimant's disability ceased as of that date,
discontinuing benefits. Here, the independent medical examiner retained
by the employer's carrier examined claimant on April 16, 2008 and
testified that claimant suffered from no disability at that time and
could return to work without restrictions. Even though claimant's
medical experts opined that she continued to suffer from a total
disability, The Court found that the Board's decision was supported by
substantial evidence. “It is within the exclusive province of the
Board to resolve conflicting medical opinions and its decision will not
be disturbed when supported by substantial evidence, despite the
existence of evidence that would have supported a contrary result.” Prevailing party represented by: Avninder S. Aujla of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Supercuts and another, respondents. Commissioners of Record: Firestone, Higgins, Paprocki WCB #2080 0739
April 28, 2011 NYS Appellate Division, Third Department
§25-a: True Closing
AFFIRMED the Board’s ruling that WCL §25-a is inapplicable
to claimant's award of workers' compensation benefits. As the result of
February 2001 work-related injury, a Law Judge filed a decision on May
2, 2006 making an 85% schedule loss of use award for claimant's right
leg, authorized further medical treatment and care as necessary and
indicated that no further action was planned. Subsequently, in a medical
report dated May 21, 2009, claimant's treating physician requested
authorization for various procedures. In response the self-insured
employer applied to shift liability to the Special Fund for Reopened
Cases. Although this request was approved by the Law Judge, a Board
panel reversed and found §25-a did not apply. The only question before
the Court was whether there was substantial evidence to support the
Board's determination that medical reports submitted in January 2009 and
February 2009 constituted an application to reopen rather than the
claimant’s doctor’s surgery request filed with the Board on May 21,
2009. The Court affirmed the Board’s determination that the effective
dates for the WCL §25-a determination were the medical reports filed by
the claimant's doctor in early 2009 and not, as was determined by the
Law Judge, the formal May 21, 2009 doctor’s request for surgery, which
was filed three years and 19 days after the last Board filing in this
case, which inter alia, closed the case. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Lower, Bell, Finnegan WCB #8010 2812
April 28, 2011 NYS Appellate Division, Third Department
Course of Employment: Lunch Break
AFFIRMED the Board’s ruling that claimant, on lunch break, did not sustain an accidental injury arising out of and in the course of his employment.
In January 2008 claimant, a bricklayer, left his work site, purchased a
sandwich and sat down to eat his lunch inside a municipal bus shelter
across the street from his work site. As claimant prepared to return to
work, a glass panel in the shelter collapsed on him, causing him to
sustain various injuries. Claimant thereafter filed this claim for
workers' comp. A Board panel, in reversing the Law Judge, found that the
injury did not arise out of and in the course of his employment. In
affirming the Board, the Court wrote that:
As a threshold matter, an injury is compensable only if it arises out of and in the course of employment (see WCL §10[1]). "Lunchtime
injuries are generally deemed to occur outside the scope of employment
except under limited circumstances where the employer continues to
exercise authority over the employees during the lunch break." Here, although claimant testified that "[i]f one of the foremen saw [him] and wanted [him] to come back,"
they would tell him to do so, such testimony, in our view, falls short
of establishing that the employer retained control over claimant during
his lunch break or derived any benefit from claimant eating his lunch
inside the public bus shelter. Notably, claimant was not required to
carry a beeper, nor was he instructed as to where he should take his
lunch break. To the extent that claimant contends that his accident
occurred within sufficient proximity to his work site as to qualify as
compensable, [the Court] needs note only that "[a] purely fortuitous
coincidence of time and place is not enough. There must be a causal
relationship or nexus between the accident and the employment.”
Claimant's theory as to the cause of the bus shelter collapse
(vibrations from the work site) is entirely speculative and, in any
event, he failed to establish, among other things, that his accident was
"related to a special hazard connected to [his] employment as opposed to a risk shared by the general public."
Finally, as for claimant's assertion that he is entitled to the
presumption of compensability contained in WCL §21(1), [the Court] needs
note only that the statute "does not wholly relieve [claimant] of
the burden of demonstrating that the accident occurred in the course of,
and arose out of, [his] employment."
Prevailing party represented by: Matthew E. Weerth of counsel to Weiss, Wexler & Warnow (NYC) for Masterclass Masonry and another, respondents. Commissioners of Record: Groski, Paprocki, Finnegan WCB #0082 3201
April 28, 2011 NYS Appellate Division, Third Department
§18 notice to employer Procedure: Due Process/Mailings
AFFIRMED the Board’s rulings that (1) sustained a compensable injury and (2) Board did not err in not restoring the case to the calendar
to permit it to cross-examine claimant and submit other evidence.
Claimant filed his claim for benefits in May 2009, alleging that he
sustained a work-related injury in November 2008. The carrier
controverted the claim and argued that claimant failed to provide timely
notice of the accident. The employer filed a prehearing conference
statement, but failed to appear for the conference itself. A Law Judge
accordingly relied upon claimant's testimony given at the conference and
established the claim. (see 12 NYCRR 300.38 [g] [17]). As to the
carrier’s second issue on appeal, The Court noted that relevant
regulations do not automatically provide for the adjournment or
rescheduling of a prehearing conference where an insurance carrier fails
to appear. But since the employer did not seek an adjournment nor
offered explanation for its nonappearance beyond a failure by the
carrier's third-party administrator to alert counsel to the upcoming
conference, the Court perceived no abuse of discretion in the Board's
refusal to permit further development of the record. Turning to the merits, claimant's failure to give timely written notice of his compensable injury to the employer bars his claim "unless
the Board excuses that failure on the ground that notice could not be
given, the employer or its agent had knowledge of the accident, or the
employer was not prejudiced" (see WCL §18). Here, claimant testified
that he orally notified his supervisor of the accident a week after it
occurred, ceased working and obtained short-term disability benefits.
The Board determined that the oral notice given was sufficient, which
was a matter within its exclusive province. Claimant further stated that
he had no intention of seeking workers' compensation benefits initially
and only did so after his condition worsened. Moreover, he began
receiving medical treatment for his injuries soon after the accident,
and his medical records were available to the employer. Prevailing party represented by: Thomas N. Kaufmann (Fayetteville) for Shaun McCarthy, respondent and Steven Segall f counsel to NYS Attorney General, for WCB, respondent.Commissioners of Record: Lower, Paprocki, Bell WCB #0006 8798
April 21, 2011 NYS Appellate Division, Third Department
§ 50(5): Assessments & GSITs
AFFIRMED,
in essence, the Board’s determination that retroactive assessments
against group self-insured trusts (GSITs) per WCL §50 (5) (former [f])
are valid, the second time this case has been before the Appellate
Court, Third Department. In its original January 15, 2009 decision,
the Court determined the appeal concerning various procedures used by
the Board to determine assessments was moot as the Albany Supreme Court
had,
"among other items, partially granted petitioners’ (GSITs)
application to vacate certain assessment made pursuant to WCL
§50(5)(formerly F).
In this decision, the appellate Court has looked at several issues
raised by the GSITs and ruled against then on every one, thus upholding
not only the right of the Board to assess but to retroactively assess as
well.
The
GSITs commenced this action in 2008 to challenge the constitutionality
of certain annual assessments against them by defendant State of New
York Workers' Compensation Board, including assessments imposed pursuant
to WCL §50 (5) (former [f]) and (g) to cover the cost of the Board's
payment of the compensation liabilities of defaulted groups. During the
pendency of this action, the Legislature amended the WCL by, among other
things, relabeling WCL §50 (5) (former [f]) as (g) and confirming the
Board's authority to impose assessments pursuant to that provision
against group self-insurers by expressly including them within the
meaning of the term "self-insured employers" (see L 2008, ch 139, §3).
The Legislature also amended the WCL by altering the formula used to
determine each active and inactive group's share of assessments (see L
2008, ch 139, §3).
Plaintiffs then amended their complaint to add a challenge to the constitutionality of the amended statutes. As
a starting point, plaintiffs contend that WCL §50 (5) (former [f]) did
not authorize the Board to levy assessments against them for the unpaid
compensation and benefits owed by defaulted group self-insurers. They
argue that former paragraph (f) refers to "private self-insured
employers," and groups are not included in that term because, while
groups are self-insurers whose members are employers, they are not
themselves employers. Also, the Board’s interpretation of the statute
permit it to assess solvent groups for its costs incurred by paying the
compensation liabilities of defaulted groups in unrelated fields. Also
the Board never previously applied the statute in this manner, that they
had no notice that they would be liable for the benefits owed by
defaulted groups, and that the Board's interpretation will result in
groups being unable to afford to continue to self-insure in the future.
The
Court then looked at the proper construction of WCL §50(5)(former [f]).
In doing so it concluded that group self-insurers were intended to be
included among those to be assessed to provide the funds to cover the
defaults of all private self-insurers, including groups, and subjecting
groups to the same statutory provisions governing self-insured
employers. Further, the legislative history of the 2008 amendments to
the WCL confirms that group self-insurers were always intended to be
included among the self-insured employers against whom assessments could
be imposed pursuant to WCL §50(5)(former [f]).
As to the contention that the statue was never previously applied in
this manner, while it is true that the Board did not include assessments
to cover its payment of the insolvent groups until 2007, after the
first groups defaulted. When additional groups defaulted in that year,
the assessment amounts increased dramatically in 2008, leading
plaintiffs to bring this action. In view of this background, plaintiffs'
argument that assessments to cover defaulted groups were never
previously imposed, while true, rings hollow as they do not dispute that
groups had never previously defaulted. Further, plaintiffs do not deny
that they have always been assessed to cover defaulted individual
self-insured employers.
As
to the assertion that an interpretation allowing assessments against
all self-insurers is inconsistent with the contractual obligation of
joint and several liability assumed by the individual members of a group
self-insurer, the joint and several liability of each member is
separate and distinct from the imposition, on a pro rata basis, of
administrative expenses on the group.
Turning
to the constitutional issues, The Appellate Court disagreed with
Supreme Court's conclusion that Board’s application of WCL §50 (5)
(former [f]) and (g) was an unconstitutional taking. Here, the amounts
of the assessments may have been unanticipated, but it cannot be said
that their economic effect on plaintiffs rises to the level of a taking.
The GSITs, as voluntary participants who have elected to exercise the
privilege of self-insurance, cannot now complain that the assessments
imposed to administer the self-insurance program consistently with the
purpose and goals of the workers' compensation system is an unexpected
taking of their property. Further, the Court determined that the
character of the government action at issue here is a public program
adjusting the benefits and burdens of economic life to promote the
common good and, as such, is not generally the type of regulation
considered to rise to the level of a taking. Finally, inasmuch as the
statute has authorized the assessments at issue since its enactment in
1976, prior to plaintiffs' existence, they had notice of it and it was
not retroactively applied to them. For this same reason, the statute
does not violate the Contracts Clause (see US Const, art 1, §10), as a
"statute cannot be said to impair a contract that did not exist at the
time of its enactment." Additional remarks by the Court on
constitutional issues can be found in the 12 page decision attached. Prevailing party represented by: Paul Groenwegen of counsel to the NYS Attorney General, for appellants-respondents.
The Insider In
view of the unanimous nature of this decision and the detailed analysis
of every one of the GSITs’ arguments, I feel that this matter is now
closed, in so far as the legality of the assessments, including
retroactive. As to whether or not the WCB and/or the New York State
Department of Insurance have some degree of responsibility — moral,
ethical, or legal — is an issue yet to be resolved.
April 21, 2011 NYS Appellate Division, Third Department
§114-a: Fraud
AFFIRMED the Board’s decision that claimant violated WCL § 114-a (Fraud)
and disqualified him from receiving future wage replacement benefits.
In this case, the claimant was denied benefits with a §114-a finding in a
Law Judge decision issued August 12, 2008; had the decision reversed by
a Board panel January 12, 2009 because the carrier’s doctor’s intake
form was never filed; was then awarded compensation by a Law Judge
February 5, 2009; and subsequently found to have committed §114-a by a
Full Board review March 4, 2010 (subject of this appeal) after a Board
review discovered that the intake form had been filed but overlooked by
the Law Judge, the writers of the January 12, 2009 decision, and the
three commissioners who signed it. Essentially, the claimant denied
having any prior history of an injury to his back in statements to both
his and the carrier doctors, yet the medial records show he had a
serious non-work related back injury in early 2006: “an MRI taken in
April 2006 found evidence of multiple herniated discs and claimant
testified that he was out of work for three months as a result of that
injury.” On this bases, it was determined that “ substantial evidence supports the Board's determination that claimant made false representations regarding a material fact . . . ” Prevailing party represented by: Rudolph Rosa DiSant (NYC) for Taconic Correctional Facility and another, respondents. Commissioners of Record: Ferrara, Libous, Paprocki WCB #3070 8153
The Insider Another
point worth noting is that in this February 2009 decision, the WCLJ
made awards and directed the carrier to continue payments. Yet, the
Board panel’s March 2010 decision found that a mandatory penalty was not
necessary “as his receipt of benefits was not ultimately affected by
his misrepresentations, given that awards were first issued to the
claimant approximately 10 months after the carrier initially raised the
issue of WCL 114-a and the record was fully developed on the issue. But
the Full Board review only two months later found, and the Court
agreed, that the original January 2009 decision which allowed
compensation was based on a record that failed to include the key piece
of evidence: the carrier doctor’s medical intake form. Why the carrier
did not cross appeal on this is not noted anywhere in the available
record.
April 14, 2011 NYS Appellate Division, Third Department
Employment: Who is
AFFIRMED the Board’s ruling that an employer-employee relationship existed
between claimant and Gentian Baca d/b/a A & G Cleaning Services.
After being struck by an auto while making a delivery for Baca, claimant
sought and was awarded benefits by a Law Judge who found that an
employer-employee relationship existed between him and A & G, a
decision affirmed by a Board panel. While no single indicia was the
determining factor, the Court agreed with the Board that substantial
evidence supported its conclusion, notwithstanding evidence in the
record that could support a contrary result. The "non-employment
application" signed by the claimant was dismissed as claimant,
testifying through an interpreter, stated that the document was not
explained to him and he did not understand it. A&G not only supplied
the truck, set up the delivery schedule and route, and paid for all the
trucking operating expenses, but also initially paid him a flat fee of
$600.00 per week, which was later raised to $900.00 based on an increase
in his working hours. [ED. NOTE:]
Many years ago, when I convinced a warehouse worker, who did speak
English, to resign, I had him sign a letter to that effect in English
and Spanish. At a later unemployment hearing, he would only testify
through an interpreter, stating he did not understand or read English,
thus, per his attorney, invalidating the one paragraph resignation he
signed. That is, until I showed the Court the one he wrote by hand in
Spanish and then signed, thus destroying his credibility. Why employers
do not use this procedure makes no sense.] Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General for WCB, respondent. Commissioners of Record: Foster, Higgins, Bargnesi WCB #0083 7498
April 14, 2011 NYS Appellate Division, Third Department
§ 15(8) Reimbursement Special Fund
AFFIRMED the Board’s ruling that the carrier's application for reimbursement from the Special Disability Fund (Fund) was untimely.
Claimant sustained injuries to his neck and right knee on October 2,
2006, seeking medical attention two days later, and then stopped work
October 17, 2006, after which he filed his comp claim. In July 2007,
benefits were awarded, starting October 17, 2006 but held in abeyance
from April 10, 2007 to May 17, 2007. At the same time his prior workers’
comp claim (left knee) from March, 21 2006. On October 1, 2008, the
carrier filed a C-250 form for reimbursement from the Fund per WCL
§15(8)(d), citing, among other things, claimant's prior workers'
compensation claim as a preexisting disability. A Board panel denied the
application, stating that the C-250 was untimely. [ED. NOTE:] In affirming the Board the Court wrote the following, making reference to an October 1, 2008 date of accident as a key factor in its decision, a date of accident neither for this case nor WCB #5061 3203.)
For
an employer's C-250 form to be timely, it must be filed "prior to the
final determination that the resulting disability is permanent, but in
no case more than [104] weeks after the date of disability or death or
[52] weeks after the date that a claim for compensation is filed with
the chair, whichever is later" (Workers' Compensation Law §15[8][f].
Initially, the employer contends that its October 1, 2008 filing was
timely, inasmuch as it was within 104 weeks of October 17, 2006, the
date upon which claimant first began to miss work as a result of his
injuries and the payment of workers' compensation benefits commenced.
However, disability for the purposes of Workers' Compensation Law
§15(8)(f) does not necessarily require the cessation of work, but can be
found to begin on the date of injury. Here, in concluding that the C-250 form was untimely, the Board relied on the date of the accident, October 1, 2008,
as the date of disability. We find no basis to disturb the Board's
determination, as the record reflects that all the medical records and
forms filed, including the C-2 form filed by the employer on the day
after the accident, refer to that date. We
must also reject the employer's contention that its application was
timely because claimant's case was closed and later reopened. Indeed,
Workers' Compensation Law §15(8)(f) further provides that, irrespective
of whether the time frames above have been met, the filing of an
application is timely if, in the event of the reopening of a case
previously closed, it is filed "no later than the determination of
permanency upon such reopening". However, whether a case has been truly
closed is a factual determination to be made by the Board, the
determination of which depends upon whether further proceedings were
contemplated at the time of the purported closing, and its decision in
that regard will not be disturbed if supported by substantial. Here, at
the hearing held on June 28, 2007, a decision on benefits for the period
from April 10, 2007 to May 17, 2007 was held in abeyance.
Notwithstanding the fact that subsequent decisions in August 2007 and
November 2008 stated that no further action was planned, the status of
those benefits remained unresolved and, thus, substantial evidence
supports the Board's determination that the case was never truly closed.
Prevailing party represented by: Jill B. Singerof counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Commissioners of Record: Ferrara, Foster, Libous WCB #5061 3203
April 14, 2011 NYS Appellate Division, Third Department
Interlocutory Appeal
DISMISSED AS INTERLOCUTORY
an employer’s appeal regarding the removal of a second firm from notice
as a potential employer. Claimant, who applied for benefits in 2005,
alleged incurring asbestos related lung disease while employed by Silver
Construction Corporation in 1961. Silver then raised the issue that, in
1961, claimant was actually employed by its predecessor, Rizzi
Associates, after which a Law Judge, among other things, thereafter
placed Rizzi on notice as a potential employer. On review, a Board found
that there was insufficient evidence in the record to place Rizzi on
notice as a potential employer, removed Rizzi from notice, and continued
the case to resolve the issue of an employer-employee relationship.
Given that the Board continued the case to determine the issue of an
employer-employee relationship, the Board's decision was interlocutory
and did not dispose of all of the substantive issues or reach a
potentially dispositive threshold legal issue. Hence the decision is not
appealable. Prevailing party represented by: George Tabor (NYC) for Lawrence Dow;David J. Goldsmith of counsel to Stewart, Greenblatt & Manning (Syosset) for Travelers Insurance Company ;and Iris A. Steel f counsel to the NYS Attorney General for WCB, respondent. Commissioners of Record: Ferrara, Foster, Libous WCB #0052 0784
April 7, 2011 NYS Appellate Division, Third Department
§11: Jurisdiction
REVERSED
the Board’s January 2010 decision which ruled that claimant, a resident
of New York, injured on the job while working for a company, with
offices only in New Jersey, could file his claim in New York. On
Travelers' previous appeal to the Court, the Third Dept. reversed the
Board’s decision and remitted the case back to the Board (64 AD3d 987 [2009]),
as its initial review of the insurance contract was incomplete. On
remittal, the Board again found that Travelers was the liable carrier
and this appeal by Travelers ensued. Claimant's employer is a New Jersey
corporation with its sole office located in New Jersey. At the time of
the accident, claimant was working in New York on a project lasting
five or six days. All parties agreed that the claimant's employment was
temporary. The carrier, Travelers Indemnity Company, denied the claim
on the basis that the policy in effect at the time did not cover the
employer for workers' comp injuries occurring outside New Jersey. The
Law Judge, affirmed by a Board panel, held that Travelers was the liable
carrier. The
issue before the Court distilled to whether, as the employer claims and
the Board found, the employer's workers' compensation policy is
ambiguous. As relevant here, the policy includes a "limited other states insurance endorsement."
That endorsement sets forth three conditions, all of which must be met
in order for workers' compensation benefits to be paid. Those conditions
require that the employee claiming benefits was employed under a
contract of hire made in New Jersey and at the time of the injury was "principally employed"
in New Jersey, that the claim for benefits is not being made in a state
where the employer is required by that state's law to have insurance
coverage by virtue of the employer's operation in that state, and that
the claimant's work was temporary, a fact to which all parties agreed. The
Court then addressed the Board's determination that the second
condition — that the employer was not required by New York law to
obtain separate workers' compensation insurance — is ambiguous. “Pursuant
to New York law, an employer is required to obtain workers'
compensation insurance for its employees working in New York (see WCL
§50). Moreover, the policy endorsement here clearly states on its face,
under the caption ‘IMPORTANT NOTICE,’ that if the employer ‘begin[s]
operations in any state other than New Jersey, [it] must obtain
insurance coverage in that state and do whatever else may be required
under that state's law, as this . . . [e]ndorsement does not satisfy the
requirements of that state's workers' compensation law.’ The Board did
not articulate what it found to be problematic about this exclusion
provision of the endorsement and we find its determination that such
provision is ambiguous to be irrational (cf. Matter of Ovando v Hanover Delivery Serv., Inc., 13 AD3d 780, 781-782 [2004]).” Also the Court noted that “the
policy's information page clearly states that the policy only applies
in New Jersey. In addition, the policy indicates that it cannot be
changed or waived except by endorsement issued by Travelers as part of
the policy, which the certificate of insurance is not.” Prevailing party represented by: Beverly M. Barr of counsel to Golden, Rothschild, Spagnola, Lundell, Boylan & Garbo (NYC) for appellant. Commissioners of Record: Bargnesi, Higgins, Finnegan (Groski and Henry participated in the earlier decision.) WCB #0064 8820
April 7, 2011 NYS Appellate Division, Third Department
Disability: Degree of
AFFIRMED
the Board's decision which ruled that the exacerbation of claimant's
preexisting chronic obstructive pulmonary disease was temporary. In
2005, while working for Liberty Travel, Inc., claimant was diagnosed as
having chronic obstructive pulmonary disease (hereinafter COPD). In
2006, claimant was transferred to another Liberty office After one week
of working there, claimant fell ill with bronchitis and was out of work
for a week. Soon thereafter, mold was found at that location and that
office was temporarily closed to address the issue. When the Sayville
office reopened, claimant resumed working there for four months, again
became ill, and was out of work for approximately a week after which she
transferred to a different office. Claimant eventually ceased her
employment with Liberty, filing this claim for workers' comp. A Law
Judge prima facie evidence that claimant's COPD was exacerbated by her
exposure to the mold, also finding that the aggravation of claimant's
preexisting condition was temporary, not permanent, despite claimant's
challenge to the duration of the award. In affirming the Board the Court
stated that claimant bears the burden of demonstrating, among other
things, that the exacerbation of her COPD due to her work conditions was
permanent (see WCL Law §§15, 20). But medical testimony from both her
and the carrier doctor indicated that COPD is "a condition that can wax
and wane," and the medical record is devoid of any information stating
that the exacerbation of her preexisting condition is permanent.
"Therefore, even if there is evidence in the record that would support a
different result, we will not disturb [the] determination" that her
exacerbation is temporary.. Prevailing party represented by: Anthony E. Pizza of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Liberty Travel, Inc. and another, respondents. Commissioners of Record: Higgins, Bargnesi, Bell WCB #4070 4238
|
— — MARCH 2011 — —
March 31, 2011 NYS Appellate Division, Third Department
§ 15(8) Reimbursement Special Fund
RESCINDED and returned for proper consideration the Board’s ruling when the Court determined that the carrier is not entitled to §15(8)(d) reimbursement from the Special Disability Fund (Fund).
In 1997, the employer filed a C-2 form based upon claimant's chronic
upper respiratory problems, listing January 1997 as the date of injury;
the claimant, working with various particulate matter, including clay
dust used for ceramics, applied for workers' comp benefits in October
1997, receiving benefits for intermittent lost time beginning in January
1997. The State Insurance Fund, as the carrier, sought reimbursement
from the Fund pursuant to WCL §15(8)(d). In December 2008, a Law Judge,
subsequently affirmed by a Board panel, found that the carrier was
entitled to reimbursement per §15(8)(d). In rejecting the Board’s
decision, the Court wrote, “To qualify for reimbursement, ‘an
employer must show that the claimant had a preexisting permanent
impairment that hindered job potential, a subsequent injury arising out
of and in the course of employment, and a permanent disability caused by
both conditions materially and substantially greater than what would
have been caused by the work-related injury alone.’ Although the factual
determination as to whether these factors have been demonstrated is
within the exclusive province of the Board, the record herein does not
disclose the exact nature of the medical condition upon which the
finding of permanent partial disability was based, nor is there
sufficient evidence to determine whether the subsequent condition was
‘separable from the prior pre-existing permanent condition and not
merely . . . the culmination or the progressive process of the same
disease or condition of which the pre-existing condition was a symptom
or part’ Furthermore, the record does not allow meaningful review as to
whether the carrier has sufficiently demonstrated that claimant's
pre-existing ailments created a permanent impairment that hindered job
potential. Accordingly, the matter must be remitted for further
development of the record.” Prevailing party represented by: Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation Committee, for appellant. Commissioners of Record: Bargnesi, Libous, Finnegan WCB #5971 0815
d
March 31, 2011 NYS Appellate Division, Third Department
§ 23: Frivolous Appeal Penalty
REVERSED the Board’s ruling which improperly assessed a frivolous appeal penalty against the carrier pursuant to WCL §2.
Claimant, with a 2003 work-related injury, was not classified as a
permanent partial disability until 2009 . Pursuant to amendments to the
WCL §27 in 2007, a Law Judge directed the carrier to deposit the present
value of the award into the aggregate trust fund (ATF). The carrier
appealed, arguing that deposits into the ATF should not be required when
the injury occurred prior to the 2007 amendments to the statute. The
day after a Board panel affirmed his decision, the Law Judge issued a
supplemental decision specifying that the amount of the lump-sum payment
to be made was $111,182. When then employer then sought review of the
Judge’s supplemental decision, making arguments identical to those
raised in its first appeal, the Board again rejected the arguments and,
in addition, penalized the employer for pursuing "a frivolous appeal.”
The Court wrote, “Upon
an employer's or a carrier's appeal from a WCLJ decision, the Board is
directed to impose a penalty if it ‘find[s] that such notice of appeal
was served or such application was made for the purpose of delay or upon
frivolous grounds’ (WCL §23). Here, the employer appealed to this Court
from the Board's September 2009 decision, and asserts that if it had
not sought immediate Board review of the WCLJ's supplemental decision,
it would have been required to make the lump-sum payment into the ATF
during the pendency of its appeal to this Court. The Board responds that
the employer's position is legally incorrect because the employer's
notice of appeal from the September 2009 decision resulted in a
statutory stay of the direction to make an ATF deposit during the
pendency of the appeal despite the Judge’s issuance of the supplemental
decision. In that regard, we note that WCL §23 provides that where an
"award is subject to the provisions of section [27] of this article, the
appellant shall pay directly to the claimant all compensation as it
becomes due during the pendency of the appeal" (emphasis added). Relying
on that language, the Board has clarified that carriers are not
required to deposit the present value of an award into the aggregate
trust fund — as opposed to making payments directly to the claimant as
compensation becomes due — during the pendency of an appeal to this
Court from a Board decision directing such a lump-sum. That
clarification, however, postdates the administrative appeal from the
WCLJ's supplemental decision herein. Under these circumstances, we
conclude that, while the employer's rationale for appealing the WCLJ's
supplemental decision may have lacked merit, its conclusion that it was
required to take a second administrative appeal in order to preserve its
rights was not ‘frivolous.’” Prevailing party represented by: Jason M. Carolton of counsel to Gitto & Niefer (Binghamton) for appellants. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #9030 5419
March 31, 2011 NYS Appellate Division, Third Department
Refusing medical treatment
REVERSED the Board’s ruling by finding, as did the Law Judge, that the claimant’s refusal to continue treatment was unreasonable.
Injured in July 2007, claimant was first examined by a physician on
August 1, 2007, who diagnosed him with biceps tendinitis of the right
shoulder and prescribed an anti-inflammatory and physical therapy.
Claimant, who did not miss time from work as a result of the injury,
declined to take the medication, discontinued physical therapy after
just one session and did not follow up with his treating physician. In
August 2008, after an independent medical examination was found to have a
45% SLU of his right shoulder. A Law Judge denied claimant's requested
SLU, finding that the permanency of his injury was caused by his
unreasonable refusal to undergo any treatment. Upon review, a Board
panel reversed, finding that claimant's refusal to continue treatment
was not unreasonable, and awarded the 45% SLU. The Court found that “the
unanimous medical opinion of the physicians . . . was that claimant had
not yet reached maximum medical improvement that could be achieved if
he were willing to undergo the recommended treatment. Moreover, an IME
opined both that a course of treatment involving medication and physical
therapy involved little risk and that claimant's refusal to engage in
such treatment was unreasonable. While certain of claimant's examining
physicians testified that claimant had the right to refuse treatment
and/or that the failure to engage in treatment would not be harmful,
none of them unambiguously testified that claimant's refusal was
reasonable. Under these circumstances, where there is no actual medical
conflict, the Board's determination that claimant's refusal to
participate in any medical treatment was reasonable is not supported by
substantial evidence and must, therefore, be reversed.” Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for appellants. Commissioners of Record: Finnegan, Higgins, Foster WCB #5080 8654
March 31, 2011 NYS Appellate Division, Third Department
§ 29: MVA liens & legal fees
REVERSED the Board’s ruling by determining that, in fact, claimant was entitled to reimbursements for the carrier's share of the litigation expenses.
The claimant asserts that the decision is in error as, for the holiday
period, the carrier should be required to pay the claimant $119.00 per
week, which represents the carrier's share of the claimant's third-party
litigation expenses with respect to the holiday, pursuant to Burns v
Varriale (9 NY3d 207 [2007]), and where the claimant did not waive his
right to be paid the carrier's remaining share of the litigation
expenses. The claimant maintains that his right to be paid the
carrier's remaining share of the litigation benefits is required by
Workers' Compensation Law 29, and can only be waived by the claimant's
legally binding agreement to waive it.
The
Court noted that in this case it was asked to consider the validity of
certain limitations that the Workers' Compensation Board has placed on
the applicability of Burns v Varriale (9 NY3d 207 [2007]).
As explained in its detailed seven-page decision, the Court wrote that “the
Board has misconstrued the scope of Burns by ruling that the case
applies only when a carrier's consent to settlement of a third-party
action has been compelled by court order and the claimant has been
classified with a permanent partial disability prior to obtaining a
third-party recovery. Accordingly, we reverse the Board's rejection of
claimant's request for equitable apportionment under Burns and remit for
further proceedings.
"Here,
the Board denied claimant's request for reimbursement pursuant to Burns
v Varriale (supra), concluding that the case was inapplicable for two
reasons: first, the Board has ruled that Burns is relevant only when a
claimant has been classified with a permanent partial disability prior
to settlement of the third-party action; and, second, the Board reads
Burns as applying only when settlement is compelled by compromise order
because the carrier has refused consent. In our view, the Board's
reading of Burns is overly narrow and perpetuates the inequities that
the Court of Appeals sought to remedy in that case, as well as in Kelly
and Brisson.
"While
Burns limited the Kelly rule — which required apportionment at the time
of settlement — to cases in which the claimant received benefits for
death, total disability or schedule loss of use, the Court of Appeals
also directed, without limitation, that in other cases "the carrier
should be required to periodically pay its equitable share of attorney's
fees and costs incurred by a claimant in securing any continuous
compensation benefits". There is no requirement that the claimant be
classified with a permanent partial disability to obtain continuing
apportionment under Burns; rather, the requirement is that the
compensation benefits upon which apportionment is based be
nonspeculative, such as those that have accrued.
"With
respect to the Board's conclusion that Burns has no relevance unless a
compromise order has been issued, we note that Kelly established — and
Burns reaffirmed — that carriers are obligated to contribute the costs
of litigation in proportion to the total benefit that they receive.
"Furthermore,
Burns clarified that when future compensation is speculative at the
time of settlement, the carrier has the obligation to pay its equitable
share of litigation costs as benefits accrue. Given this clearly
established legal obligation on behalf of carriers prior to execution of
the consent to settlement in this case, and in light of the rule set
forth in Brisson that carriers must explicitly and unambiguously reserve
any entitlement to future offsets, we conclude that SIF, in seeking to
be released from its affirmative obligation to pay its share of
litigation expenses, was required to express that release plainly and
unambiguously in the consent to settlement. Contrary to the Board's
determination that it lacks jurisdiction to determine claimant's request
for Burns payments pursuant to the consent to settlement agreement, the
question of whether the carrier adequately preserved its right to this
portion of the future offset is a fact question for the Board (see id.).
Inasmuch as the Board failed to determine this issue in light of the
obligation on the carrier set forth in Burns, we must remit for a
factual determination of the precise credit to which the carrier was
entitled as an offset against future benefits." Prevailing party represented by: Michael P. Daly , Manlius, for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #6050 5286
March 24, 2011 NYS Appellate Division, Third Department
Aggregate Trust Fund
AFFIRMED the Board’s ruling that directed the carrier to make a deposit into the Aggregate Trust Fund
per WCL §27(2). In this very short opinion, the Court referenced its
earlier decisions in the matter of mandatory oaymennts into the ATF,
thus joining a long list of cases on the legality of all the Board’s
decision regarding mandatory payments into the Aggregate Trust Fund. Prevailing party represented by: Carol Fisher of counsel to the New York State Attorney General, for Workers' Compensation Board, respondent Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #6030 0832
March 24, 2011 NYS Appellate Division, Third Department
Course of Employment: in and out of
AFFIRMED the Board’s ruling, reversing the Law Judge, that because claimant was not an outside worker
the injury did not arise out of and in the course of his employment and
denied his claim for workers' comp benefits. Claimant was hired by the
employer to perform work at a single construction project at a
substantial distance from his permanent residence, receiving a per diem
for living expenses in addition to his hourly wages. Injured while
commuting to work, he applied for workers' comp which was awarded by a
Law Judge finding that the injuries arose out of and in the course of
his employment a decision reversed by a Board panel. Although the
claimant argued that he had no fixed workplace, the Court agree with the
Board that the claimant reported to “a fixed location prior to work
each day,” thus removing him from the class of ‘outside’ workers. The Insider
While there was no discussion of the length of time during which he was
assigned to work at the site, it was clear that it was not a single day
or even a weekly assignment. Prevailing party represented by: Renee E. Heitger of counsel to Hamberger & Weiss (Buffalo) for Fagan, Inc. and another, respondents Commissioners of Record: Foster, Finnegan, Higgins WCB #8070 9498
March 24, 2011 NYS Appellate Division, Third Department
§ 15(8) Reimbursement Special Fund
AFFIRMED the Board’s ruling which discharged the Special Disability Fund
(SDF) from liability under WCL §15(8). 13 years after the injured
worker’s claim was established, the carrier filed a C-250 form in
October 1996, applying for reimbursement from the Special Disability
Fund. After a 20% schedule loss of use of claimant's right arm was
awarded in March 1997, a Law Judge ruled that the carrier's application
for reimbursement was untimely, the SDF was discharged and case closed.
The case was reopened in 2000 when the claimant was awarded further
benefits; in 2002, to include neck and thoracic outlet syndrome; and, in
September 2004, for classification as a permanent partial disability.
In 2009, the carrier filed an RFA-2 form, requesting relief from
liability, arguing that, pursuant to WCL §15(8)(f), the 2004
classification upon reopening rendered their 1996 C-250 application for
reimbursement from the SDF timely. A Law Judge, affirmed by a Board
panel, denied the request. In its affirmance, the Court reasoned that
the carrier failed to file the forms.
In its review, the Court wrote that “we
cannot say that the Board's conclusion that the carrier is not entitled
to reimbursement as it failed to file a timely C-250 form was an
irrational interpretation of Workers' Compensation Law § 15 (8) (f).
Inasmuch as there is an exclusive procedure for submitting a claim for
reimbursement on reopened cases, it is not unreasonable here to require
the carrier to file a timely claim for reimbursement subsequent to the
reopening of the case, but prior to the permanency determination upon
the reopening. Clearly, the carrier could have filed a new or amended
C-250 form between the reopening of the case in 2000 and the permanency
determination in 2004, but failed to do so. The fact that an untimely
application for reimbursement had been filed prior to the 1997 closing
and the initial finding of permanency does not, in our view, satisfy the
specific statutory requirement regarding reimbursement claims being
filed prior to the permanency determination in reopened cases.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee (Albany) for Special Disability Fund. Commissioners of Record: Ferrara, Foster, Libous WCB #8940 2760
March 24, 2011 NYS Appellate Division, Third Department
§ 15(8) Reimbursement Special Fund
AFFIRMED the Board’s ruling that discharged the Special Disability Fund (SDF) from liability
under WCL §15(8). After the claimant, a truck driver who injured his
back in 2002, was eventually found to have sustained a permanent partial
disability, the carrier sought reimbursement from the SDF pursuant to
WCL §15(8)(d), a request denied by a Board panel. The Court wrote that
the Board correctly determined that the employer had not met the first
prong of the test of §15(8) that the employer was required to "show
that the claimant had a preexisting permanent impairment that hindered
job potential, a subsequent injury arising out of and in the course of
employment, and a permanent disability caused by both conditions
materially and substantially greater than what would have been caused by
the work-related injury alone." Although claimant did suffer a back
injury in 1990, he testified that the injury only required limited
medical treatment, worked without restriction, and played sports during
that period, testimony supported by this medical records and a doctor
who conducted an independent medical examination. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee (Albany) for Special Disability Fund. Commissioners of Record: Ferrara, Foster, Libous WCB #3030 2950
March 24, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED the Board’s ruling that claimant voluntarily withdrew from the labor market.
In 2006, claimant, a home health aid, sustained work-related hip and
back injuries to her right hip and back, injuries eventually found to
constitute a permanent partial disability. At a later hearing, a Law
Judge found claimant remained attached to the labor market, a decision
reversed by a Board panel. The Court wrote, “In determining that
claimant had sustained a permanent partial disability, the Law Judge
credited the opinion of a physician who examined claimant, reviewed her
medical records and found that she could return to work with
restrictions. Claimant did not appeal to the Board from that
determination, and . . . accordingly, she was obliged ‘to demonstrate
attachment to the labor market with evidence of a search for employment
within medical restrictions’ in order to receive continuing workers'
compensation benefits. In that regard, claimant admitted that she had
not looked for work since her injury and did not plan on doing so in the
future. Substantial evidence to support the Board's determination that
she had voluntarily withdrawn from the labor market.” Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for Homemakers Upstate Group, respondent. Commissioners of Record: Ferrara, Finnegan, Libous WCB #8070 0088
March 24, 2011 NYS Appellate Division, Third Department
§ 28: time bar
AFFIRMED the Board’s ruling that found the claim was time barred by WCL §28.
Claimant, a teaching assistant, was injured on January 3, 2003 when she
suddenly fell to the classroom floor. Although no one witnessed the
incident, the principal heard the claimant fall. The school nurse was
notified who applied an ice pack and checked claimant's blood pressure
and pulse rate, taking claimant to the nurse's office until paramedics
arrived to transport her to the hospital. Claimant applied for workers'
comp in August 2005. A Law Judge found that the medical treatment
provided by the employer on site in 2003 waived the two-year filing
requirement of §28. A Board panel majority affirmed, with Commissioner
Paprocki dissenting, thus forcing a Full Board Review which resulted in
the decision being reversed and the claim disallowed.
The Court noted that two-year time limitation can be waived if the
employer or its carrier provides an advance payment of compensation in
the form of wages or medical treatment in recognition of liability.
Although, as relevant here, "[a] furnishing of medical services by
the employer sufficient to constitute an advance payment of compensation
can be made out from first-aid treatment rendered at the time of the
accident" the medical services "must have been performed in a manner to imply acknowledgment or recognition of liability on the part of the employer."
In this case those at the school who offered medical aid were only
concerned with claimant's well-being that day and did not consider
whether her injuries were work-related. Inasmuch as there was no
evidence that the first aid administered to claimant by the principal
and the nurse was in recognition of any employer liability for the
injuries, the Court found no reason to disturb the Board’s disallowance
of the claim. [ED. NOTE:]This was a
real stretch by the Board panel in so much as, had the school nurse and
other official failed to offer any aid, their actions would have been
described with a surfeit of negative adjectives. To rule that any
medical aid given to an injured or ill employee at the place of business
is an acknowledgment of a work-related claim is nothing more than an
attempt to make workers’ compensation a ‘safety net’ well beyond the
intent of the WCL. Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for Peru Central School District and another, respondents. Commissioners of Record: Groski, Paprocki (dissent), Libous WCB #5051 1477
March 24, 2011 NYS Appellate Division, Third Department
Course of Employment: in and out of
Procedure: Denial Full Board Review
AFFIRMEDthe Board’s rulings (1) that claimant's injury did not arise out of and in the course of his employment, and (2) which denied claimant's application for full Board review.
Contending he suffered injuries of an alleged accident while working as
a carpenter and being struck by a forklift, the injured worker had his
claim, controverted by the carrier, established by a Law Judge. A Board
panel reversed this, finding that claimant was not present at the work
site on the day of the alleged accident, subsequently denying claimant's
request for full Board review. (1) Here, in disallowing the claim,
contrary to petitioner's testimony that he was at the job site and was
injured on the day in question, the forklift operator and general
supervisor for the employer testified that he did not believe that
claimant worked that day, he had no recollection of striking anyone with
the forklift and there were no reports of accidents on the job site
that day. In addition, testimony from the union shop steward supported
the employer’s contention as did the pay stubs submitted by the claimant
himself. The Court agreed that there was substantial evidence to
support the Board's decision that claimant's injuries did not arise out
of his employment. (2) The claimant’s request for Full Board review was
based on his submission of “a handwritten, unverified statement that
was alleged to have been written by claimant's coworker who purportedly
gave claimant a ride from the job site to obtain medical assistance on
the day of the accident” ... information which should have been
available at the time of the original hearing. The Court found that the
Board’s denial of a review, based on this submission was neither an
abuse of discretion nor an arbitrary or capricious act. Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for Sea Breeze Svcs and another, respondents. Commissioners of Record: Ferrara, Bell, Finnegan WCB #4070 7922
March 24, 2011 NYS Appellate Division, Third Department
§ 23: Interlocutory Appeal
DISMISSED AS INTERLOCUTORY the carrier’s appeal of a decision which precluded an independent medical examination report and related deposition testimony
submitted by the employer's workers' compensation carrier. When further
casually related benefits were held in abeyance, the carrier submitted
an independent medical examination report and deposition testimony of
its medical expert, Sanford Wert, in which he opined that claimant had
no further causally related disability. Although a Law Judge denied
claimant's request to preclude consideration of Wert's report and
testimony and determined that claimant had no further causally related
disability, a Board panel rescinded the Judge’s decision, finding that
the report and testimony should be precluded for not complying with WCL
§137 and 12 NYCRR 300.2. The Board restored the matter to the calendar
for a determination of whether claimant suffers from a further causally
related disability, without consideration of Wert's report or testimony.
In repose to the carrier’s appeal, the Court wrote, “The Board's
decision which is now on appeal — which rescinded the WCLJ's original
decision and remanded the matter to the WCLJ for a new determination on
the issues — is interlocutory in nature and does not dispose of all the
substantive issues nor reach legal threshold issues which may be
determinative of the claim. Inasmuch as this nonfinal decision is
reviewable upon an appeal of the Board's final determination, this
appeal must be dismissed". Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for Workers' Compensation Board, respondent Commissioners of Record: Bargnesi, Higgins, Foster WCB #0001 4913
March 24, 2011 NYS Appellate Division, Third Department
.§ 23: Moot Appeal
DISMISSED AS MOOT the pro se claimant’s appeal regarding a finding of WCL §114-a fraud.
He sought and received a Full Board Review of an October 31, 2008
Board panel decision which affirmed the Law Judge’s ruling finding
§114-a fraud and assessing a mandatory penalty. The Full Board modified
that decision, this making this particular appeal moot. Unfortunately
for the claimant, the Full Board’s modification, in addition to
affirming the §114-a finding and the mandatory penalty, added a
discretionary penalty. Prevailing party represented by: Theresa E. Wolinskiof counsel to Foley, Smit, O'Boyle & Weisman (NYC), for NYC Transit Authority, respondent. Commissioners of Record: Bargnesi, Libous, Paprocki WCB #0001 9995
March 17, 2011 NYS Appellate Division, Third Department
ATF Compensation
AFFIRMED the Board’s ruling that directed the carrier to make a deposit into the Aggregate Trust Fund per WCL §27(2). In this very short opinion, the Court referenced its earlier decisions in Matter of Parkhurst v United Rentals Aerial Equip., Inc., 75 AD3d 702, 704-705 [2010], and Matter of Collins v Dukes Plumbing & Sewer Serv., Inc.,
75 AD3d 697, 698-702 [2010], both of which, along with the Matter of
Raynor v Landmark Chrysler, 75 AD3d 697 have been accepted for argument
by the New York State Court of Appeals, thus joining a long list of
cases on the legality of all the Board’s decision regarding mandatory
payments into the Aggregate Trust Fund. To read The Insider's summary of
these decisions when they were first issued on July 10, 2010, click here. Prevailing party represented by: Carol Fisher of counsel to the New York State Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #9010 0584
March 10, 2011 NYS Appellate Division, Third Department
§ 29: MVA liens
Procedure: Denial Full Board Review
AFFIRMED the Board’s rulings which (1) suspended
claimant's workers' compensation benefits pending proof that the
employer's carrier consented to the settlement of claimant's 3rd party
action, and (2) denied claimant's request for reconsideration and/or full Board review.
After
a 1998 work-related injury and an award of compensation, claimant
brought a 3rd party negligence action resulting in a settlement of
$800,000 in June 2000. In October 2000, a Law Judge found that claimant
was permanently partially disabled, set his average weekly wage and
determined that the comp carrier had waived its lien of $71,000.
Claimant continued thereafter to receive $400 per week for several
years. In 2008, the employer's current workers' compensation carrier
sought to offset claimant's comp benefits against his 3rd party
recovery. Both parties were requested to produce evidence regarding
whether the former carrier had waived its right to offset the 3rd party
recovery. Following a hearing, a WCLJ found that the former carrier had
waived its right and directed the current carrier to continue paying
compensation benefits. On review, a Board panel found that there was
insufficient evidence that the lien and the right to offset benefits had
been waived, rescinded the Law Judge’s decision and suspended benefit
payments pending the production of evidence demonstrating the former
carrier's consent. The Board subsequently denied claimant's application
for reconsideration and/or full Board review, and these appeals ensued.
[This portion of the appeal was denied as the claimant failed to raise
any issue with respect to this separate appeal.]
First,
the Court rejected the claimant's contention that the doctrine of
laches bars the current carrier from challenging the question of consent
because the former carrier raised a lack of consent to the settlement
back in August 2000 and claimant, directed to submit proof of such
consent, failed to do so.
As to the merits, there must exist either the written consent of the
carrier to the settlement or a compromise order from the court in which
the 3rd party action is or was pending. The burden is on the claimant to
establish that consent. Claimant relies on the transcript of the
settlement agreement, during which the defendant, the State of New York,
agreed to the $800,000 amount, indicating that it was authorized to
consent to claimant receiving that sum and also continuing to receive
workers' comp benefits. But neither the employer nor the former carrier
was a party to that action, nor were they present when the settlement
was placed on the record, and there is no evidence that either consented
in writing to its terms or gave authority to the 3rd party defendant to
confer such consent. Moreover, although the transcript reflects that
claimant's attorney had spoken to the former carrier and was informed of
the exact amount of its workers' compensation lien, there is no
evidence that the former carrier agreed to waive the lien.
"The
question of whether a settlement was procured with the proper consent
of the carrier is a factual issue for the Board to determine. Absent any
proof in the record that the employer or carrier either consented to
the settlement agreement or to waiving the lien, or that claimant sought
judicial approval of the settlement, [the Court founds] no reason to
disturb the Board's decision." Prevailing party represented by: Sean J. McKinley of counsel to Vecchione, Vecchione & O'Conner (Garden City) for Tully Construction and another, respondents. Commissioners of Record: Groski, Bell, Finnegan WCB #0982 7881
March 10, 2011 NYS Appellate Division, Third Department
Employment: Who is
REVERSED the Board’s ruling by determining that an employer-employee relationship did not exist
between claimant and Consolidated Lumber Transport Inc. Six months
after his April 2006 accident in which claimant, owner-operator of a
truck and trailer, fell off the top of a loaded flatbed trailer,
suffering multiple injuries, he submitted a workers' comp claim that
listed as his employer Consolidated Lumber — for which claimant hauled
lumber pursuant to a lease agreement. Following hearings to determine
employer-employee relationship, a Law Judge, later affirmed by a Board
panel, found that an employment relationship had been established. The
Court wrote, “Whether an employee-employer relationship exists is a
determination to be made by the Board and it will not be disturbed if
supported by substantial evidence. Factors relevant to that
determination include the right to control the claimant's work, the
method of payment, the right to discharge, the furnishing of equipment
and the nature of the work, and no single factor is dispositive.”
Initially, central to its finding that claimant was an employee, the
Board found that he could only work for other carriers if the lease
agreement with Consolidated was canceled. However, that finding is
contradicted by the record. Additionally, this fact and other indicia
used by the Board to support its conclusion are mandated by federal
regulations and, thus, should not be found to be dispositive of an
employee-employer relationship. The record demonstrates that claimant
owned, operated, maintained and repaired his own truck and trailer;
provided his own equipment, including the straps, tarps and chains used
to secure a load; paid for his own liability, bobtail and cargo
insurance; covered all of his own expenses, including fuel, fuel taxes
and tolls; and he took breaks at his own discretion. Furthermore,
claimant was issued an IRS 1099 form and indicated on his tax returns
that he was self-employed, taking the commensurate deductions. In
addition, the lease could be terminated by either party with 24 hours
written notice. Finally, pursuant to the lease, claimant was paid 87% of
the adjusted gross revenue of the loads he carried and, to a large
extent, claimant determined how many and what loads he chose to carry
for Consolidated. Prevailing party represented by: Anthony J. Centone of counsel to Anthony J. Centone, P.C. (White Plains) for appellant. Commissioners of Record: Bargnesi, Bell, Higgins WCB #2060 7356 The Insider On
March 9, 2010, a Board panel affirmed a Law Judge’s decision denying
the employer’s appeal on various medical evidentiary issues.
March 10, 2011 NYS Appellate Division, Third Department
§ 23: Interlocutory Appeal
AFFIRMED the Board’s ruling that the record was properly closed.
Claimant, a bus driver, injured in 2007, testified that she did not
work in any capacity from January to August 2007 and, as such, workers'
comp benefits were awarded for that period. The employer then sought to
disqualify claimant from receiving benefits pursuant to WCL §114-a,
asserting that it had evidence demonstrating that she had worked during
that period. After initially declining to allow the employer's video
footage into evidence unless authenticated by the investigator who shot
it, and adjourning the hearing to hear that testimony, the Law Judge
refused to admit footage that had been filmed by an investigator who did
not testify and closed the record. Upon administrative review, a Board
panel ruled that the missing investigator's testimony was necessary to
authenticate the video footage but the employer did not appeal from the
Judge’s initial ruling that the footage be authenticated and failed to
identify and produce all of its investigators to testify despite being
given sufficient opportunity to do so. The Board panel accordingly
determined that the record was properly closed and remitted for the WCLJ
to determine whether claimant should be disqualified from receiving
benefits. In affirming the Board, the Court wrote, “The Board's
decision is an interlocutory one that ‘neither disposes of all
substantive issues nor reaches a potentially dispositive threshold legal
issue’ and, accordingly, this appeal must be dismissed. A final
determination by the Board on the merits is forthcoming, and the
employer's arguments may be reviewed upon an appeal from that decision.” Prevailing party represented by: Estelle Kraushar of counsel to the New York State Attorney General for Workers' Compensation Board, respondent.
March 3, 2011 NYS Appellate Division, Third Department
Untimely defense per 12 NYCRR 300.38(f)(4)
Course of Employment: in and out of
AFFIRMED the Board rulings that (1) claimant suffered from depression and anxiety due to harassment at his work place and (2) carrier filed untimely prehearing conference statement
in violation of 12 NYCRR 300.38(f)(1). After the claimant applied for
workers' comp, the carrier controverted the claim. However. after the
carrier submitted an untimely prehearing conference statement in
violation of 12 NYCRR 300.38(f)(1), the Law Judge found that the
employer waived all defenses to the claim pursuant to 12 NYCRR
300.38(f)(4) and, upon review of claimant's medical records, established
an occupational injury. In rejecting the carrier’s contention that the
regulation imposing a waiver of defenses for failure to timely file a
prehearing conference statement conflicts with WCL §25, the Court wrote
that it will uphold a regulation "if it has a rational basis and is
not unreasonable, arbitrary, capricious or contrary to the statute under
which it [is] promulgated. . . . In our view, the challenged
regulation, which provides for the waiver of defenses for the unexcused
filing of an untimely statement (see 12 NYCRR 300.38 [f] [4]), is not in
conflict with the statute. Rather, it facilitates the stated purpose of
a conference which is, among other things, to simplify and limit
factual and legal issues (see WCL §25[2-a][b][iii]). It also supplements
the purpose of the conference and promotes the overall statutory
framework designed to provide speedy redress to injured workers.
Furthermore, the employer has not demonstrated how this regulation
impinged on its due process rights.”
As to the medical issue, the medical reports submitted by claimant were
considered and found to be sufficient to establish a claim for
work-related stress and that the accompanying threats and harassment
from inmates and staff which caused the injury were greater than that
experienced by others working in similar capacities (see WCL §2[7]). Prevailing party represented by: George P. Ferro of counsel to Law Firm of Alex C. Dell (Albany) for Raymond C. Smith, respondent and Steven Segall of counsel to the New York State Attorney General, for Workers' Compensation Board. Commissioners of Record: Ferrara, Foster-Tolbert, Libous WCB #0005 5311
ffee
March 3, 2011 NYS Appellate Division, Third Department
untimely defense per 12 NYCRR 300.38(f)(4)
AFFIRMED the Board ruling that carrier filed untimely prehearing conference statement
in violation of 12 NYCRR 300.38(f)(1). After the claimant applied for
workers' comp alleging a repetitive occupational injury to his neck and
arms, the carrier controverted the claim. However, after the carrier
submitted an untimely prehearing conference statement in violation of 12
NYCRR 300.38 (f) (1), the Law Judge found that the employer waived all
defenses to the claim pursuant to 12 NYCRR 300.38 (f) (4) and, upon
review of claimant's medical records, established an occupational
injury. In rejecting the carrier’s contention that the regulation
imposing a waiver of defenses for failure to timely file a prehearing
conference statement conflicts with WCL §25, the Court write that it
will uphold a regulation "if it has a rational basis and is not
unreasonable, arbitrary, capricious or contrary to the statute under
which it [is] promulgated. . . . In our view, the challenged regulation,
which provides for the waiver of defenses for the unexcused filing of
an untimely statement (see 12 NYCRR 300.38 [f] [4]), is not in conflict
with the statute. Rather, it facilitates the stated purpose of a
conference which is, among other things, to simplify and limit factual
and legal issues (see WCL §25[2-a][b][iii]). It also supplements the
purpose of the conference and promotes the overall statutory framework
designed to provide speedy redress to injured workers. (See Matter of
Smith v Albany County Sheriff's Dept. decided today and cited above).
Furthermore, the employer has not demonstrated how this regulation
impinged on its due process rights.” The Court also denied the
carrier’s appeal on the medical issue stating that not only was the
record sufficiently developed through the submission of claimant's
medical records, but the carrier never appealed that decision to the
Board and no direct appeal to the Court lies from a decision of a WCLJ. Prevailing party represented by: Alexander Osborne of counsel to Connors & Ferris (Rochester) for Terry Quagliata and Iris A. Steel of counsel to the New York State Attorney General, for Workers' Compensation Board. Commissioners of Record: Ferrara, Foster-Tolbert, Finnegan WCB #G004-6809
March 3, 2011 NYS Appellate Division, Third Department
Course of Employment: in and out of
Procedure: Denial Full Board Review
AFFIRMED the Board’s rulings that (1) claimant suffered a causally related injury and (2) denied the application for reconsideration or full Board review
(FBR). In 1996, claimant sustained compensable injuries, a claim
shifted the claim to the Special Fund for Reopened Cases in June 2009.
Then in April 2009, claimant again applied for workers' comp claiming
that in January 2009, he had suffered new injuries. At hearing in which
the employer was denied an opportunity to cross-examine claimant's
physicians, a work-related injury to claimant's neck was established, a
decision affirmed by the Board panel which also denied the employer's
application for reconsideration or full Board review. The employer's
sole argument on appeal is that the Board erred in denying its request
to cross-examine claimant's physicians as to why their reports regarding
their treatment of claimant made no reference to the January 2009
accident. [The Court noted that since the carried failed to raise any
issue with respect to its separate appeal of the Board's denial for FBR,
the Court felt that appeal to be abandoned.] However, that failure to
reference the 2009 accident was fully developed at the hearing and was
not an issue in this proceeding. Moreover, although the initial reports
of claimant's physicians made no reference to the 2009 injury, their
content is not inconsistent with claimant's testimony regarding what
transpired at the time of his accident and the employer was permitted to
cross-examine claimant about the incident as well as his conversations
with these physicians when they treated him. Both the Court and Board
noted there appeared to be no dispute among these experts that
claimant’s "complaints from January 12, 2009 and the history
coordinate with the problems with the neck and shoulder and relate to
that [2009] incident." Even the carrier’s orthopedic surgeon arrived at a similar conclusion. The Court then wrote that, “Accordingly,
we find that the Board did not err in denying the employer's request
for an opportunity to cross-examine claimant's physicians.” Prevailing party represented by: Sherman, Federman, Sambur & McIntyre (Bay Shore) for Vincent Albano, respondent;; Iris A. Steel f counsel to the New York State Attorney General, for Workers' Compensation Board; and Jill B. Singer for Steven Licht, Special Funds Conservation Committee, respondent. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #0002 7654
—— FEBRUARY 2011 ——
February 24, 2011 NYS Appellate Division, Third Department
§ 28: time bar v. constructive notice
AFFIRMED the Board’s ruling that the employer had waived the statute of limitations defense of WCL §28.
After sustaining an injury on July 29, 2006, claimant did not lose time
from work and did not file a workers comp claim until June 2008, filing
her claim on July 30, 2008 – one day after the expiration of the two
year limitations period of WCL §28. When the employer alleged the claim
was time-barred, a Law Judge determined that the employer had waived the
limitations defense by making payments of compensation to claimant with
an acknowledgment of liability. An employer waives the limitations
defense by making payments of compensation to a claimant in the form of
wages, medical treatment or other compensable expenses that carry a "recognition or acknowledgment of liability under the WCL."
The employer filed a C-669 September 22, 2006 indicating that it was
not disputing the claimant's work-related injury of July 29, 2006. In
the fall of 2008, the employer filed a C-11 form reporting that the
claimant sustained lost time from employment, commencing on June 20,
2008, due to her work-related injury of July 29, 2006 and received
payment during her absence from work for the period from June 20, 2008
to September 16, 2008. Finally, the employer did not file a notice of
controversy which it was required to do within 25 days of the Board's
mailing of the notice of indexing if it intended to contest the claim
per WCL §25[2][b]. The foregoing actions of the employer provided
substantial evidence to support the Board's determination that the
employer waived the statute of limitations defense by making payments of
compensation to claimant with an acknowledgment of liability. Prevailing party represented by: Estelle Kraushar of counsel to the NYS Attorney General for Workers' Compensation Board, respondent. Commissioners of Records: Foster-Tolbert, Paprocki, Higgins WCB 0083-3248
—— JANUARY 2011 ——
February 17, 2011 NYS Appellate Division, Third Department
Course of Employment: Lunch Break
AFFIRMED the Board’s ruling that claimant, injured on his ‘lunch break’, did not sustain an accidental injury in the course of his employment
and denied his claim for workers' compensation benefits. Claimant
fractured his leg after he slipped on a sidewalk when he and his
coworker stopped to get something to eat at a bakery while on their way
back to the employer's office at the end of a work day. The claimant
testified that his partner pulled over to let him out of the employer's
van, and that he slipped on debris, fell and broke his left ankle. A Law
Judge determined that the injury was not compensable because it
occurred while claimant was on an unpaid lunch break and disallowed the
claim. In affirming the Board, the Court cited prior decisions which had
ruled that “‘Lunchtime injuries are generally deemed to occur
outside the scope of employment except under limited circumstances where
the employer continues to exercise authority over the employee during
the lunch break.’ Here, substantial evidence supports the Board's
determination that claimant and his coworker had discretion regarding
the timing and location of their lunchtime break and that the employer
did not derive any benefit from their decision to take their lunch break
when they did or otherwise retain authority or control over them during
that time." [Court Footnote: It is notable that the stop at the bakery is repeatedly referred to as a "lunch break" during the hearing and claimant made no objection to such classification.] Prevailing party represented by: Janis M. Riekstins of counsel to State Insurance Fund for T.G. Peppe, Inc. and another, respondents. Commissioners of Records: Firestone, Higgins, Paprocki WCB #0000-1476
February 14, 2011 NYS Appellate Division, Second Department - Motion
Disbarment under consideration
In
the Matter of Sandra Mara Sands, an attorney and counselor-at-law.
Grievance Committee for the Tenth Judicial District, petitioner; Sandra
Mara Sands, respondent (Attorney Registration No. 2792265), it is
ordered that the respondent, Sandra Mara Sands, is immediately suspended from the practice of law in the State of New York,
pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), and that the Grievance
Committee for the Tenth Judicial District is hereby authorized to
institute and prosecute a disciplinary proceeding in this Court, against
Sandra Mara Sands, based on the Court’s finding, prima facie,
that the respondent is guilty of professional misconduct immediately
threatening the public interest based upon substantial admissions she
has made under oath that she committed acts of professional misconduct
and other uncontroverted evidence of professional misconduct. In part,
after securing a workers comp settlement via a stipulation, which was
paid by the carrier directly to the claimant, a WCL §14-a penalty claim
against the employer was also settled by stipulation but the scheduled
payments were made not to the claimant but to the respondent, payable to
"Sandra Sands and Associates, PLLC.” The investigation by the
Grievance Committee for the Tenth Judicial District (hereinafter
Grievance Committee) emanated from a complaint filed by the claimant
alleging that the respondent converted settlement proceeds. The
respondent admitted under oath before the Grievance Committee that she
failed to deposit it into her IOLA account, or any other trust account,
on behalf of the client. Rather, she deposited the check into her
operating account, and converted the funds to pay for her personal
expenses. Therefore, the Grievance Committee is authorized to institute
and prosecute a disciplinary proceeding against her, and the matter was
referred to a Special Referee (Hon. Abraham G. Gerges, a retired Justice
of the Supreme Court, Kings County) to hear and issue a report.
The Insider Without
access to the file, it would appear that the stipulation agreed to by
the employer was done in front of a Workers Compensation Law Judge or
Conciliator which raises the question of why it is that the Board
allowed payment for an injured worker to be paid to someone other than
the injured worker. If the claimant was deemed sufficiently capable to
accept the settlement agreed to under the stipulation with the
employer’s carrier, why not for the employer’s payments as well?
February 17, 2011 NYS Appellate Division, First Department
Employment: Who is
AFFIRMED
an order of the Bronx County Supreme Court which, inter alia, granted
defendant Washington Heights Hellenic Orthodox Church, Inc.'s (WHHOC)
motions for a directed verdict and/or judgment notwithstanding the
verdict to the extent of setting aside the jury verdict insofar as it
included a finding that denied WHHOC's Workers' Compensation defense,
i.e., that plaintiff's employer was not the alter ego of WHHOC, and
directed a new trial on that issue, unanimously modified, on the law,
judgment directed in favor of defendant as to the Workers' Compensation
defense, the complaint dismissed, and otherwise affirmed. The trial
evidence established that the school, where plaintiff worked at the time
of his injury, was the alter ego of WHHOC. Specifically, WHHOC, through
its governing board (i.e., the Parish Council), exercised domination
and control over the school, completely controlling its day-to-day
functions including its decision making and finances. WHHOC owned the
properties on which the school and St. Spyridon Church were situated.
Moreover, the school and Spyridon Church were not separate legal
entities, but rather, in effect, were unincorporated divisions of WHHOC
that functioned in accordance with WHHOC's directives. Given such proof
of an alter ego relationship, the plaintiff can be deemed an employee
of WHHOC, which would afford WHHOC a complete defense to the plaintiff's
negligence action under WCL §11, thereby warranting dismissal of his
claims.
The Insider This
case highlights the need for non-profits, religious institutions in
particular, to be sure that their workers compensation insurance covers
all their related ‘business’ activities, lest they find themselves in
civil court.
February 10, 2011 NYS Appellate Division, Third Department
Course of Employment
AFFIRMED the Board’s decision that claimant, while on a lunch break, sustained an accidental injury arising out of and in the course of her employment.
Employed as a visiting nurse, seeing several patients each day, on July
22, 2007 she had no visits scheduled between 1:30 P.M. and 3:30 P.M.
and elected to get lunch at an outdoor festival. Returning to her
vehicle after lunch, she fell breaking her arm. After applying for
workers' comp, a Law Judge found that the injury arose out of and in the
course of her employment and established the claim. A Board panel, with
one dissent, affirmed, as did a Full Board Review.
The Court noted that “[t]he
employer and carrier concede that claimant was an ‘outside employee’
entitled to expanded workers' compensation coverage and that it was
‘reasonable and customary for [her] to have obtained a meal’ between
assignments.” But the carrier argued that travel to the festival for
lunch was so unreasonable as to constitute a disqualifying deviation
from her employment, which presented a factual issue for the Board to
resolve. But the board determined that the festival was not a
significant departure from claimant's route to her next appointment and,
while the gap between appointments exceeded claimant's allotted time
for lunch, she was paid after her lunch break even if she had no
scheduled appointments and carried her beeper should any work arise,
providing sufficiently substantial evidence for the Court to support the
Board's determination that claimant's dining at the festival did not
constitute a disqualifying deviation from her employment. Prevailing party represented by: Estelle Kraushar of counsel to Eric T. Schneiderman, Attorney General for WCB Commissioners of Records: Firestone, Higgins, Bargnesi (Dissent) WCB #8070-8261
.
February 10, 2011 NYS Appellate Division, Third Department
Legal Fees
AFFIRMED the Board’s decision which approved lower than requested legal fees.
After claimant had his claim accepted, a stipulation was reached for a
23.75% schedule loss of use and $3200 in legal fees to the claimant’s
attorney. Thereafter claim was amended for additional site and the
parties again stipulated, this time to a 58.75% schedule loss of use of
the claimant’s attorney seeking $11,000. The Law Judge, later affirmed
by a Board panel, reduced the fee to $6500. In affirming the Board, the
Court wrote that “[o]ur review of the record reveals that the Board
considered the extent of the services rendered by counsel and that the
claim was settled by stipulation without extensive litigation when
making its determination. Under these circumstances, we cannot conclude
that the amount awarded was an abuse of the Board's discretion, and its
determination will not be disturbed." Prevailing party : The Board’s legal representative was not listed in the decision. Commissioners of Records: Bargnesi Higgins, Foster WCB #3070-1479
February 10, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED the Board’s ruling that claimant voluntarily removed himself from the labor market.
Claimant, a police officer, sustained work-related injuries in 1991 and
2000 automobile accidents, and he retired in 2002. On February 19,
2009, the Court reversed an earlier Board decision that the claimant
voluntarily withdrew from the labor market because the Board failed to
take into account the testimony of the claimant’s treating orthopedic
surgeon, Peter Llesniewski. After the case was returned by the Court,
the same Board panel reviewed the Law Judge decision as well as
testimony of the claimant's doctor and again found that the claimant
voluntarily withdrew from the labor market but this time based on the
doctor’s testimony as well as the claimant’s actions. On this second
review of the case, again brought on appeal by the claimant, the Court
agreed that the Board’s more thorough review warranted an affirmance,
indicating that, while some evidence exists to support a different
conclusion, the Board's decision that claimant's injuries did not
contribute to his decision to retire is supported by substantial
evidence and will not be disturbed. Prevailing party represented by: Sean J. McKinley of counsel to Vecchione, Vecchione & Connors (Garden City) for Nassau County Police Department, respondent and Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation Committee, respondent.Commissioners of Records: Firestone, Finnegan, Paprocki WCB #2920-1817
.
February 10, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED the Board’s ruling that claimant did not voluntarily withdraw from the labor market.
After suffering a left hand injury in 2003, claimant returned to work
shortly but stopped working in 2005. She was found to suffer from carpal
tunnel syndrome that was causally linked to her hand injury. As
claimant remained capable of working in some capacity, the carrier
argued that she had voluntarily removed herself from the labor market. A
Law judge, supported by a Board panel, disagreed, finding no voluntary
withdrawal. The Board’s finding of no voluntary withdrawal will be
sustained if supported by substantial evidence in the record. The
claimant remained on the employer's payroll and would have returned to
her job, but has been advised that no light duty assignments are
available. Instead, she was referred to and has met with officials at
the Office of Vocational and Educational Services for Individuals with
Disabilities to discuss job options. Her involvement with that office is
ongoing, although it has been slowed by administrative problems beyond
her control. Moreover, the Board accurately observed that the carrier
caused delays in claimant undergoing a necessary functional capacity
evaluation. While claimant's treating hand surgeon has repeatedly
requested that this evaluation occur, the carrier did not respond to
those requests despite being directed to do so, instead scheduling the
evaluation at a distant facility of its own choosing. Under these
circumstances, the Court found that substantial evidence supports the
Board's finding that claimant did not voluntarily withdraw from the
labor market. Prevailing party represented by: Iris A. Steel of counsel to Eric T. Schneiderman, Attorney General for WCB
February 10, 2011 NYS Appellate Division, Third Department
Reimbursement §25[4][a]
AFFIRMED the Board’s ruling that the employer is entitled to reimbursement for certain benefits paid to claimant per WCL §25[4][a].
Claimant, a correction officer, suffered a work-related injury leading
to a schedule loss of use award. A Law Judge declined to grant the
self-insured employer reimbursement out of the award for wages paid to
claimant while she was absent from work, opining that the employer had
failed to file a request for that relief (see WCL §25[4][a]). But a
Board panel disagreed, awarding reimbursement. Claimant, conceding that
the employer filed a claim for reimbursement, argued that the Board's
separate determination as to the reimbursement amount is unsupported by
substantial evidence in the record. The record contains the previously
established average weekly wage, however, as well as forms documenting
the amount of time missed by claimant due to her injury and her salary.
Moreover, claimant was subject to a collective bargaining agreement that
afforded her unlimited sick leave with pay, and no basis existed for
reducing the reimbursement amount sought. Prevailing party represented by: Elina Druker of counsel to Michael A. Cardozo, Corporation Counsel, New York City for NYC Dept of Correction, respondent. Commissioners of Records: Bargnesi, Libous, Bell WCB #0007-5925
February 10, 2011 NYS Appellate Division, Third Department
Employment: Who is
AFFIRMED the Board’s ruling that claimant was an employee
of Joseph Dolgetta. After being injured at work, claimant applied for
workers comp, listing A & J Distributor as his employer. A Law Judge
employer-employee relationship between claimant and Joseph Dolgetta,
trading as A & J Distributora decision affirmed by a Board panel.
Claimant testified that he asked Dolgetta for a job. Dolgetta spoke to
him about being a delivery driver and on the next morning picked
claimant up to accompany Dolgetta to the meat market and on the delivery
route. Claimant testified that Dolgetta told him what his weekly work
schedule would be and, at the end of the day, paid him $100. Claimant
testified that on the next Sunday, he called Dolgetta, who stated that
he would not hire claimant. However, when claimant reiterated his need
for a job, Dolgetta told claimant that he would pick him up the next
morning. On Monday, claimant rode with Dolgetta to the meat market
where, according to claimant, he helped both Dolgetta and Dolgetta's son
load meat into the vans before he fell. In rebuttal, Dolgetta testified
that he had no intention of hiring claimant, that he never discussed a
work schedule or salary with him, and that he only offered to take him
to the meat market on Monday to give him an opportunity to speak with
other potential employers. Dolgetta further testified that the money he
gave claimant on Friday was not payment for work performed, but was
intended to help claimant recover his repossessed vehicle. This
contradictory testimony created a credibility issue within the Board's
authority to resolve Notwithstanding the evidence to the contrary,
substantial evidence supports the Board's finding that an
employer-employee relationship existed here. Prevailing party: The Board’s legal representative was not listed in the decision. Commissioners of Records: Firestone, Libous, Henry WCB #0063-6689
.
February 10, 2011 NYS Appellate Division, Third Department
Course of Employment
AFFIRMED the Board’s ruling that claimant's injury did not arise out of and in the course of her employment.
Approximately 15 minutes before being present at the daily required
roll call, the claimant, a police officer, injured her back reaching
across the front seat of her personal vehicle, which was parked on a
public street, to retrieve a bag filled with personal and work-related
items. Claimant's subsequent application for workers' was denied by a
Law Judge, a decision affirmed by a Board panel. In general, accidents
that occur outside of work hours and in public areas away from the
workplace are not compensable. An exception to this rule exists in a "gray area" near the work site; the test of compensability then becomes "whether the accident happened as an incident and risk of employment." . . . “Notably,
the Board in the exercise of its fact-finding powers has the authority
to make a discretionary determination of the risks attendant to
employment under the particular circumstances of a case." Here,
claimant maintains that her injury was work-related because the contents
of her bag included a police radio, handcuffs and Penal Law books, all
of which she needed to perform her duties as a police officer. Claimant
acknowledged, however, that she was not required to bring such equipment
home and could have left these things in a locker at work. Moreover,
claimant stated that her bag also contained cans of soda, her lunch,
spare clothing and a variety of other personal items. Finally, claimant
testified that she was not considered on duty until the moment she
entered the police station. In light of the foregoing, the Court found
that substantial evidence supported the Board's factual finding that
claimant's accident did not occur as an incident or risk of her
employment. Prevailing party represented by: Sean F. Nicolette of counsel to Walsh and Hacker (Albany) for City of Albany and another, respondents Commissioners of Records: Ferrara, Bell, Bargnesi WCB #5080-4883#
February 10, 2011 NYS Appellate Division, Third Department
Aggregate Trust Fund
AFFIRMED the Board’s ruling which directed the carrier to make a deposit into the aggregate trust fund pursuant to WCL §27(2).
Claimant sustained his injury in 2004, and classified with a marked
permanent partial disability in 2009. As his injury predated a 2007
amendment to WCL §15(3)(w), there is no "cap on the number of weeks
for which [he] can receive that subdivision's non-schedule permanent
partial disability . . . benefits." As the award itself was made on
or after July 1, 2007, the Board found that §27(2) required that the
carrier pay the award's full amount into the aggregate trust. In
affirming the Board the Court wrote, “We affirm. We have previously
considered and rejected the majority of the challenges made by the
employer and carrier to the relevant provisions of the WCL.
Notwithstanding the urging of the carrier, we do not discern any
relevant factual distinctions between those earlier cases and the
present one.” Prevailing party represented by: Justin S. Teff of counsel to the Law Office of Ralph M. Kirk (Kingston) for Anthony P. Messina, respondent, and Carol Fischer of counsel to Eric T. Schneiderman, Attorney General for WCB.Commissioners of Records: Bargnesi, Higgins, Foster WCB #3040-7630
February 10, 2011 NYS Appellate Division, Third Department
Aggregate Trust Fund
AFFIRMED the Board’s rulings in two cases which directed each of the employers' workers' compensation carriers to make a deposit into the aggregate trust fund pursuant to WCL §27(2). See Messina v Hudson News (above) for the reasoning behind the Court’s decision. Prevailing party represented by: Carol Fischer of counsel to Eric T. Schneiderman, Attorney General for WCB Commissioners of Records:
in Hardy v Trico: Ferrara, Firestone, Paprocki (Dissent) WCB#8030-2853
and in Salgy v Halsted: Bargnesi, Higgins, Finnegan WCB #8060-9343
The Insider Paprocki’s
dissent in Hardy & Trico was one of 80 dissents she authored on
cases on this issue, changing her opinion on this matter on those
decisions presented to her for review and for her signature as of April
1, 2009.
January 27, 2011 NYS Appellate Division, Third Department
Group Self-Insured Trusts
REVERSED
that part of an order of the Supreme Court in Albany County which
partially denied third-party defendant's motion to dismiss the
third-party complaint, an insurance broker who signed up firms for
participation in a group self-insured trust.
Defendants, members of the Manufacturing Self-Insurance Trust (hereinafter MSIT) were informed by the Board that the group self-insured trust was operating with a significant deficit,
did not meet financial standards, and could not be restored to
financial stability. After the Board then resumed control of the trust,
it commenced this action to recover a multimillion dollar fund reserve
deficit from numerous former MSIT members, including Hudon, alleged to
be jointly and severally liable for a portion of the total sum claimed.
Hudon thereafter commenced a third-party action against its insurance
broker/agent, third-party defendant, Scalzo, Zogby & Wittig, Inc.
(hereinafter SZW), asserting, among other causes of action, the
violation of General Business Law §349 (GBL). GBL §349 declares unlawful
"[d]eceptive acts or practices in the conduct of any business, trade
or commerce or in the furnishing of any service in this state" (GBL
§349 [a]) and grants a private right of action to any person injured by
such acts or practices (see GBL §349 [h]), among other acts. Defendants
allege that SZW engaged in deceptive or misleading conduct by claiming
that membership in MSIT would result in "significant savings"
while failing to advise of the risk of exposure to joint and several
liability. In addition, the third-party complaint further failed to
sufficiently allege that SZW had committed a deceptive or misleading
act. To meet this objective standard, a representation or omission must
be "likely to mislead a reasonable consumer acting reasonably under the circumstances".
The
potential for joint and several liability inherent in membership in a
workers' compensation group self-insured trust is mandated by statute
(see WCL §50[3-a]; Matter of Aides At Home, Inc. v State of N.Y. Workers' Compensation Bd., 76 AD3d 727 , 728 [2010]).
Thus, Hudon could reasonably have obtained this information from
another source. Moreover, upon joining MSIT, Hudon's officers executed
participation agreements acknowledging, among other things, that Hudon
would be jointly and severally liable for all participants' workers'
compensation obligations during its membership and that it might be
required to pay additional amounts to meet these obligations. [No
representative of SZW signed the participation agreements, and the
record does not indicate whether the agreements were furnished by SZW or
by some other entity.] Thus, affording a liberal construction to the
third-party complaint, accepting its allegations as true, and according
the benefit of every favorable inference to Hudon , no claim pursuant to
GBL §349 was stated, and SZW's motion to dismiss the claim pursuant to
CPLR 3211 (a) (7) should have been granted.
January 27, 2011 NYS Appellate Division, Third Department
Volunteer Firefighters' Benefit Law
AFFIRMED the Board’s ruling that the decedent, who died while performing the duties of a firefighter, was an employee and not a volunteer,
thus not subject to death benefits pursuant to the provisions of the
Volunteer Firefighters' Benefit Law, thus reversing the Law Judge’s
earlier decision. The decedent had a part-time paid position as an
assistant fire chief and he was also a member of one of the several
volunteer fire companies. A review of the facts, as determined by a
Board panel and confirmed by the Appellate Court, found that at the time
of the incident in question, the decedent was acting in his capacity as
an assistance fire chief in a supervisory capacity rather than acting
as a member of a volunteer fire department, citing several indicia to support that conclusion. Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for City of Rensselaer Fire Department and another, respondents. Commissioners of Records: Firestone, Henry, Bell WCB F506-0047 and 5050-2795
January 27, 2011 NYS Appellate Division, Third Department
Prima Facie
AFFIRMED
the Board’s ruling by DISMISSING an appeal on the issue that the Board
refused to review a determination that claimant had submitted prima facie medical evidence.
The carrier controverted the claimant's allegation that she sustained a
work-related injury while moving a couch. At a prehearing conference, a
Law Judge found that prima facie medical evidence of an injury had been
submitted, setting a hearing to determine, among other things, causal
relationship. The employer sought Board review, arguing that claimant
had not submitted prima facie medical evidence. The Board refused,
pointing out that a finding of prima facie medical evidence after a
prehearing conference "is an evidentiary determination that the case may proceed and is interlocutory and is not reviewable by the Board"
(12 NYCRR 300.38 [g] [3] [I]), further finding that the application for
review was frivolous and had been brought for the purpose of delay, and
imposed a penalty upon the carrier. The employer appealed, arguing that
12 NYCRR 300.38 (g) (3) (i) prevented it from exercising its right to
appeal to the Board as provided by WCL §23 and that it was improperly
penalized for its decision to appeal. Claimant responded that the
present appeal to the Court was taken from an interlocutory decision and
must be dismissed, and the Court agreed.
Based on the Matter of Frozen, 2008 WL 4180772, *1 [WCB No. 20706664, Aug. 29, 2008]), the Board defined prima facie medical evidence to mean any "medical report referencing an injury”,
jettisoning the requirement that such evidence draw a causal link
between the injury and the claimant's employment and adopted 12 NYCRR
300.38 (g) to cast the issue as an interlocutory one (WCL §25 [2-a] [a];
see 12 NYCRR 300.1 [a] [9]). The Court added that a regulation will be
upheld if it "has a rational basis and is not unreasonable, arbitrary, capricious or contrary to the statute under which it was promulgated,"
and the employer failed to meet its burden of showing the absence of
any reason for the promulgation of 12 NYCRR 300.38 (g). As the Board
pointed out in its decision, 12 NYCRR 300.38 (g) does not prevent review
of the prima facie medical evidence issue, but only requires that it be
addressed after the claim is finally determined. Instead, the
regulation is reasonably designed to "speed resolution of compensation claims," a purpose supported by applicable statutory authority. While "the question of appealability of a [B]oard decision is ultimately one for this [C]ourt to pass upon", the changes to the Law and the Board's regulatory scheme persuaded the Court that the appealed-from decision "neither resolved all substantial issues in the claim nor reached a threshold legal issue".
Thus, the challenge to the penalty was also premature. [Footnote: By
coincidence, the Law Judge issued a decision disallowing the claim on
the same day, finding that claimant had not established that her injury
was work related.] Prevailing party represented by: George P. Ferro of counsel to the Law Firm of Alex C. Dell (Albany) and Steven Segall of counsel to Eric T. Schneiderman, Attorney General for Workers' Comp Board, respondent Commissioners of Records: Ferrara, Bell, Higgins WCB #0005-2191
January 27, 2011 NYS Appellate Division, Third Department
§ 16(2-a) Dependency defined
REVERSED the Board’s ruling that decedent's disabled son was a lawful dependent of decedent
and is entitled to death benefits pursuant to Workers' Compensation Law
§ 16 (2-a), thus awarding the claimant/widow/step-mother 100% of the
benefits. After James Jourdanais Sr. (hereinafter decedent) died while
at work in 2007, the claimant, decedent's wife, applied for and was
awarded workers' comp death benefits. Decedent's sister and her husband
are the legal guardians of decedent's disabled son, respondent James
Jourdanais Jr. (born in 1983), awarded custody when he was six years
old. After they placed a claim seeking a portion of decedent's death
benefits, a Law Judge, affirmed by a Board panel, ruled that James was a
dependent of decedent, thus entitled to 30% of decedent's average
weekly wage.
While
all parties agreed that James' permanent and total mental incapacity
was accepted, the Court determined that the Board's determination that
James was decedent's dependent and, therefore, eligible for death
benefits pursuant to Workers' Compensation Law § 16 (2-a) is not
supported by substantial evidence. “Here, while it is undisputed that
James is not self-supporting and that decedent cared for him on some
weekends and purchased some of his clothing, the record is bereft of any
evidence as to the extent of such financial contributions, the extent
of James' needs or the effect of the loss of decedent's contributions on
James. Specifically, no proof was presented that either James or his
legal guardians were dependent on decedent's contributions or that
James' needs will not continue to be met by his guardians.” Prevailing party represented by: Brendan G. Quinn of counsel to Buckley, Mendleson, Criscione & Quinn (Albany), for appellant. Commissioners of Records: Bargnesi, Bell, Higgins WCB #5071-1705
January 27, 2011 NYS Appellate Division, Third Department
Income from self-employment
AFFIRMED the Full Boards Review which determined which detailed expenses could be deducted from gross income to calculate claimant's reduced earnings award.
The Board panel affirmed a Law Judge’s determination using a wide list
of items but, after a mandatory Full Board Review (FBR), the Board
accepted the dissenting opinion and eliminated from the calculation a
number of previously accepted deductions. After sustaining a
work-related injury in January 1999, her claim was established with an
AWW of $788.34 and she was classified as having a permanent partial
disability with a weekly rate of $389.17. After she set up a subchapter S
corporation in June 2009 to run a psychotherapy business, the carrier
sought review (and a decrease) of the rate of the reduced earnings award
based on claimant's income from her business.
The
primary dispute distilled to what expense deductions from gross income
were proper under the circumstances. Claimant had minimized or reduced
to zero the corporation's net earnings (and thus her income) for many of
the years in dispute by taking sundry deductions which a Law Judge
found were necessary expenses for purposes of computing claimant's
reduced earnings award. A Board panel articulated the "necessary/mandatory" versus "optional/elective"
expenses standard, with a majority determining that all the expenses
claimed by claimant were necessary in light of the nature of her
business. The dissent urged that only some of the expenses fell within
the "necessary/mandatory" category, a position accepted after FBR.
The
Court noted that while the Board's approach in the past consistently
used the fact-specific approach of analyzing the nature of a claimant's
business venture and categorizing expenses as either necessary or
optional, the Court itself had not previously been directly presented
with a challenge to the methodology. Therefore, the Court determined
that use of this methodology, bringing in outside accountants when
necessary (as in this case), was similar to the Board's determinations
as to which expenses are necessary to such business in order to arrive
at an amount of earnings for workers' compensation purposes is analogous
to the factual determination the Board makes regarding how much of a
self-employed person's income is passive profit from investment rather
than earnings for services. The Court summarized its decision by stating
that the reasons for challenging certain expenses as optional were set
forth in detail with the FBR explaining it reasoning at length. (A
detailed analysis can be found at 2009 NYWCLR (LRP) LEXIS 224, *; 109 NYWCLR (LRP) 239) Prevailing party represented by: Michael H. Ruina of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for LI Island Jewish Medical and another, respondents. Commissioners of Records: Groski, Finnegan, Bell (Dissent -won FBR) WCB #0996-5536
January 27, 2011 NYS Appellate Division, Third Department
§28: time bar & Article 8-A (WTC)
REVERSED the Board’s ruling to disallow a claim as time barred under WCL §28 and RESCINDED the Board’s ruling that claim was not covered by WCL Article 8-A.
On September 11, 2001 and the days that followed, claimant, a civil
employee of the NYC Fire Dept., was charged with cleaning and repairing
fire trucks that had responded to the scene of the terrorist attacks
that had occurred at the World Trade Center. In February 2002, claimant
received medical treatment for bronchitis but was ultimately diagnosed
with gastroesophageal reflux, reactive airway dysfunction, apnea and
posttraumatic stress disorder resulting in his filing as claim but
continuing to work until his retirement in February 2007. The employer,
in a C-7 form dated August 17, 2006, argued that the claim was untimely
per WCL §28 because it was filed more than two years after the accident
that created the conditions that caused claimant's illness. A Law Judge
ruled in claimant's favor finding proper filing under WCL §8-A, with a
Board panel reversing the Article 8-A finding and then finding that the
claim was also barred by WCL §28.
WCL §28:
While the Board dismissed this claim because it found that it was filed
on November 27, 2006, well outside the two-year statutory time period
per §28, this finding was at odds with record evidence before the Board
indicating that the claim was filed prior to November 27, 2006,
including the employer's C-7 form challenging the claim which was dated
more than three months prior to when the Board's decision states that
the claim was "filed." The Court wrote, "Simply stated, the
record before the Board does not support its finding of a §28 bar as the
matter must be remitted for further proceedings to determine the
claim's actual filing date."
As for the claim under Article 8-A,
the statute limits its application to claims generated by work
actually performed at very specific sites whereas claimant acknowledges
that much of the work he performed in connection with the World Trade
Center attacks took place in Brooklyn and Queens and not at sites
identified by the statute. While he contends that the exception in the
statute should nevertheless apply because the fire apparatuses he
cleaned and repaired at those locations came from the World Trade Center
site. The Court wrote that “the statute, by its terms, limits its
application to work performed at specific geographical locations. By
describing these locations with such specificity, the Legislature
clearly manifested an intention to limit the application of this
exception to the two-year filing requirement to work actually performed
at these sites.” But because the claimant did testify to being on
duty during part of the relevant time period at the World Trade Center
site, work performed at this location could qualify for coverage under
the statutory exception. Since work performed at this location could
qualify for coverage under the statutory exception and the Board did not
address this issue, the Court ordered the matter be remitted to the
Board for further proceedings in regard to this particular issue. Prevailing party represented by: John F. Clennan of Ronkonkoma for appellant. Commissioners of Records: Bargnesi, Bell, Finnegan WCB #0062-3867
January 27, 2011 NYS Appellate Division, Third Department
Causal Relationship: Stress
AFFIRMED the Board’s ruling which barred per WCL §2(7) claimant's applications and then denied claimant's request for full Board review.
Three months after claimant began serving as the Chief of University
Police, he was terminated, and then filed an application for workers'
comp, claiming that in the days immediately prior to his termination he
had suffered a "recurrence of posttraumatic stress disorder, [irritable bowel syndrome and] anxiety"
— a panic attack. Two months later he filed a second claim, alleging
that the manner in which he was informed of his termination exacerbated
his preexisting psychological conditions. A Law Judge, affirmed by a
Board panel, denied both applications, concluding that §2(7) barred
them. Although the claimant argued that he was deprived of due process
in the manner in which his hearings were conducted, the Court found that
he did not preserved this issue and could not raise it for the first
time on appeal nor did the Court agree that the security measures
implemented while these hearings were being conducted so tainted the
atmosphere as to deprive claimant of due process.
Claimant also argues that the Board's determination that WCL §2(7)
served to bar his claims is not supported by substantial evidence. But a
mental injury, even if job related, is not compensable if it is "a
direct consequence of a lawful personnel decision involving a
disciplinary action, work evaluation, job transfer, demotion, or
termination taken in good faith by the employer" (WCL §2[7]).
Claimant argued that the decision to terminate him was not justified or
made in good faith and, as such, did not constitute "a lawful personnel decision" made by the employer.
However,
the Board reviewed claimant's employment history and, in particular,
took into account that the employer, prior to terminating him, had
received numerous complaints alleging inappropriate behavior while he
was serving as Chief of Police. As for the precautions taken by the
.
January 20, 2011 NYS Appellate Division, Third Department
§ 15(8) Reimbursement Special Fund
Stipulations not binding
AFFIRMED the Board’s ruling that the self-insured employer (SIE) was not entitled to reimbursement from the Special Disability Fund
(Fund). As the result of a slip on ice in 2003, claimant suffered
persistent low back pain that restricted his mobility and prevented him
from returning to work; the Board found that he suffered a work-related
injury to his lower back and tail bone, and in March 2005, based on an
agreement between the employer and claimant, claimant was classified as
permanently partially disabled, at the 87.5% disability rate. In 2007
the employer requested apportionment of claimant's injury between the
2003 accident and a preexisting disability caused by a 1975 gunshot
wound, ultimately seeking a finding of §15(8)(d), a position denied by
the Judge and a Board panel. Following a hearing on this issue in 2009,
the WCLJ found that "claimant has been classified as suffering from a
permanent partial disability, but the consensus of the medical evidence
is of a permanent and total disability" due to the low back injury, and
that WCL §15(8)(d) did not apply because “an employer will not be
entitled to reimbursement under WCL §15(8)(d) if a claimant suffered a
permanent total disability caused solely by a work-related accident,
because necessarily the combined disability could not be greater than
that caused by the work-related disability alone.”
As to whether or not the Board erred in determining that claimant was permanently and totally disabled “is a factual determination within the sole province of the Board which, if based on substantial evidence, will not be disturbed".
Furthermore, the Board has the broad authority to, on its own motion,
"reclassify a disability upon proof that there has been a change in
condition, or that the previous classification was erroneous and not in
the interest of justice" (WCL §15[6-a] and §123) as the Court agreed
with the Board panel and there was substantial evidence in the record to
support that determination, "despite the existence of evidence that may have supported a different result".
Finally the Court added, “To
the extent that claimant's permanent partial disability classification
was based on an agreement by the parties, we find that this arrangement is not binding on the parties.
Under 12 NYCRR 300.5 (b) (1), the "[p]arties to any claim before the
[B]oard may stipulate to uncontested facts or proposed findings." Such a
stipulation "is binding upon the parties where . . . a WCLJ approves it
after verifying through questioning that each party has been advised of
the legal effect of the agreement and has signed it voluntarily. Here,
the record fails to reveal that the agreement to classify claimant as
permanently partially disabled complied with the mandates of 12 NYCRR
300.5 (b) (1). There is no evidence that any such agreement was approved
by the WCLJ. In any event, "consistent with the Board's jurisdiction
and control over awards of compensation in the [s]tate, such [a]
stipulation[] [is] subject to further review by the Board" and can even be disregarded, as has been done in this case. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Records: Firestone, Paprocki, Libous WCB #8030-3186
January 20, 2011 NYS Appellate Division, Third Department
Causal Relationship: Death
AFFIRMED the Board’s ruling that the death of claimant's spouse was causally related
to her employment. In May 2004, Claimant's spouse (hereinafter
decedent) slipped on a wet floor at work and fell, striking the back of
her head on a sink, thereafter being awarded benefits for head, neck and
back injuries. Her attempt to return to work was unsuccessful and she
received treatment for ongoing pain and severe headaches. On April 13,
2005, decedent died from an apparent accidental heroin overdose. A Law
Judge and Board panel determined that decedent's death was causally
related to her employment. Death resulting from an accidental overdose
taken to relieve a condition caused by a work-related accident can be
compensable. "Resolution of conflicting medical opinions regarding
causation is an issue vested within the province of the Board and we
will not disturb its determination so long as it rests upon substantial
evidence." Here, although conflicting evidence was presented, the
Board credited the testimony of decedent's psychiatrist and determined
that decedent's post-accident pain led to her use of cocaine and the
drug abuse that resulted in her death. The court then wrote, “Substantial evidence in the record supports this determination and, in light of our limited scope of review, we affirm.” Prevailing party represented by: Estelle Kraushar of counsel to Eric T. Schneiderman, Attorney General, for Workers' Compensation Board, respondent. Commissioners of Records: Higgins, Libous, Tolbert WCB #3060-3660
January 20, 2011 NYS Appellate Division, Third Department
§ 15(8) Reimbursement Special Fund
REVERSED the Board’s ruling that the carrier is entitled to reimbursement from the Special Disability Fund
(Fund). Claimant, a home health aide, was injured after falling down
two stairs, suffering injuries to her knees, back and neck. As a result,
claimant was determined to be mildly to moderately permanently
partially disabled and awarded benefits. Thereafter, asserting that
claimant had preexisting injuries to both her knees, the carrier sought
reimbursement from the Fund pursuant to WCL §15(8), a position agreed to
by a Law Judge and Board panel. “Although claimant had preexisting
injuries to her knees as evidenced by MRIs taken just days prior to her
December 2003 work-related accident, the employer offered no evidence
that those injuries hindered her job potential. Significantly, when the
Fund sought to have claimant testify as to whether her past injuries had
proven a hindrance to her employment, the employer opposed her
testimony and the Law Judge disallowed it. Thus, because the employer
failed to present any evidence that claimant suffered from a preexisting
permanent impairment that hindered her job potential, we find that the
Board's determination was not supported by substantial evidence.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Records: Libous, Paprocki, Ferrara WCB #0040-3806
January 13, 2011 NYS Appellate Division, Third Department
§ 14(5): Wage Expectancy
AFFIRMED the Board which established claimant's wage expectancy adjustment
at $450 per week, reducing the rate set by the Law Judge. Claimant,
then 18 years old, injured her back after which her comp claim was
established and AWW set at $226.38 based on her earnings with her
employer. However, she aspired to pursue a career in professional
dancing and/or choreography but, due to her injuries, was unable to
continue dancing. A Law judge, after finding a permanent partial
disability, amended claimant's average weekly wage to $800 per future
wage expectancy (WCL §14(5)), to reflect her future wage expectancy as a
dancer/choreographer, retroactive to the February 12, 2007 date of
permanency. A Board panel found that claimant was not pursuing a career
as a professional dancer at the time of her injury and, therefore, was
not entitled to a wage expectancy rate of $800 per week, lowering it to
$450 to reflect her potential earnings as a dance instructor and the
facts that she had both been studying and teaching dance. [The $450 came
from an analysis by the carrier detailed in the underlying Board panel
decision.]
“While
claimant asserts that the Board should have considered her potential
earnings as a professional dancer and/or choreographer instead of as a
dance teacher, the record supports the Board's conclusion that claimant
had not substantially progressed towards attaining that goal at the time
of her injury. Claimant acknowledged that her intention to establish a
career in professional dancing and choreography was a long-term plan
and, under these circumstances, substantial evidence supports the
conclusion that such a career was both speculative and insufficiently
pursued by claimant at the time of her injury.” Prevailing party represented by: Kelly C. O'Connor of counsel to Smith, Sovik, Kendrick & Sugnet (Syracuse) for Wal-Mart and another, respondents. Commissioners of Records: Firestone, Paprocki, Finnegan WCB #6000-4231
January 13, 2011 NYS Appellate Division, Third Department
Voluntary Withdrawal
REVERSED* the Board’s ruling that claimant had involuntarily retired but that subsequent lost earnings were not causally related
to claimant's work-related disability. After claimant sustained a
work-related injury when she was assaulted by a student in 2005, she was
awarded workers' comp benefits, returning to work a month later. She
retired in March 2009, but continued to work sporadically for the
employer as a substitute teacher's assistant. The Board relied upon the
claimant’s testimony that she returned to work as a substitute teacher's
aide on an intermittent basis after retiring, signing up for work only
when she felt well enough to do so, to conclude that because claimant
chose the days and classes that she would work, her reduction in
earnings was unrelated to her disability. The Court supported the
Board's initial finding that "claimant's retirement was causally related as she was not able to continue working in the same capacity for the employer," i.e., that her retirement was involuntary. But the Court added,
Upon a finding of involuntary retirement, an inference arises that . .
. earning capacity is reduced by the disability and claimant is
[therefore] entitled to compensation until the inference is removed from
the case. Moreover, once the withdrawal [is] found to be involuntary, .
. . it become[s] inherently inconsistent to hold that a claimant is
obligated to search for work within medical limitations." Thus, this
Court has repeatedly "emphasize[d] that 'proof that the claimant has not
sought work post-retirement, by itself, does not defeat the inference
or shift the burden to claimant to show that the disability was a cause
of the reduction [in earnings].'" Rather, "the workers' compensation
carrier must demonstrate that something other than the disability was
the sole cause of claimant's reduced earning capacity after retirement,
such as age, economic conditions or other factors unrelated to the
disability".
Accordingly,
in the absence of any "direct and positive proof that something other
than the disability was the sole cause of claimant's reduced earning
capacity after retirement", The Court concluded that the decision should
be reversed. Prevailing party represented by: Robert Golan of counsel to Golan & Masiakos (Mineola) for appellant. Commissioners of Records: Bargnesi, Higgins, Finnegan WCB #4051 0742
January 13, 2011 NYS Appellate Division, Third Department
1130...Causal Relationship: Was there?
§ 18 notice to employer
AFFIRMED the Board's ruling that claimant sustained a work-related lower back injury and gave proper notice.
Claimant, a housekeeper, filed a claim for workers' benefits in March
2006 asserting that she had sustained an injury at work while lifting a
pail of water in February 2005. After waking up in severe pain the
morning after the injury, she went to the emergency room. She apparently
did not return to work for the employer and, in March 2005, took an
extended leave of absence under the Family Medical Leave Act; her
employment was terminated in April 2006. Although the carrier argued
that she suffered an injury at home and aggravated preexisting back
problems, a Law Judge concluded and a Board panel agreed that there was
sufficient credible evidence to establish accident, notice and causal
relationship. Claimant testified that she pulled something in her back,
told coworkers about the incident, and finished her shift. The following
morning, she called in sick to work, went to the emergency room for
treatment, and was diagnosed with sciatica. Her two doctors testified
she reported her injuries as coming from the specific work incident
whereas the carrier doctor, who examined her three years later,
concluded she had not been injured in the course of her employment. The
Court agreed with the Board that, "[t]he proof and arguments submitted by the carrier were speculative ..."
On the issue of notice, while claimant conceded that she did not give
timely written notice of her injury to the employer per WCL §18, the
Board credited claimant's testimony that she told her supervisor whereas
the supervisor ultimately admitted that she simply had no recollection
of these events, supporting the Board's conclusion that the employer
had actual notice of her injury within days, excusing the lack of timely
written notice. Prevailing party represented by: Bruce B. Rubin (Troy) for Rosemary Conyers, respondent and Steven Segall of counsel to Eric T. Schneiderman, Attorney General for WCB, respondent. Commissioners of Records: Ferrara, Libous, Higgins WCB #5060-3747
January 6, 2011 NYS Appellate Division, Third Department
Consequential
RESCINDED and returned for proper consideration the Board’s ruling that claimant sustained consequential injuries
as a result of a work-related accident. Claimant, a volunteer
firefighter, was working at a firehouse when he fractured his right
fifth metacarpal with an initial inability to work. While recovering, he
returned to work as a house painter, apparently performing all of his
work with his left hand. Several months later after he began to complain
of numbness and significant pain in both hands, his physician diagnosed
bilateral median nerve compression of the right wrist, left ulnar nerve
compression at the elbow, and possible right ulnar nerve compression at
the elbow. The employer's IME diagnosed claimant as suffering from
right carpal tunnel syndrome (CTS) related to the accident and
consequential mild left CTS, but a second IME found no CTS in either of
claimant's wrists, after which the carrier disputed further treatment.
In amending the claim to include consequential bilateral CTS and
consequential left ulnar nerve compression, the Law Judge took no sworn
testimony nor did he allow cross-examination of the doctors, ruling that
the carrier had no right to medical testimony and neither claimant's
testimony nor medical testimony was necessary, a ruling affirmed by a
Board panel.
However,
the Court, agreeing with the carrier that it was an error for the Law
Judge to deny its request to develop the record by obtaining claimant's
testimony and to cross-examine claimant's treating physician, wrote that
"[E]ither the claimant or the employer or his insurance carrier may introduce witnesses . . . in compensation proceedings.”
It also agreed the cross examination was appropriate as there was
conflicting medical evidence between the opinions of claimant's treating
physician, those set forth in the first IME report, and those set forth
in the second IME report. And "Since no formal testimony was taken
at the . . . hearing, denial of the request to cross-examine claimant's
attending physician to explore such issues clearly prejudiced the
employer." Prevailing party represented by: Matthew J. Leonardo of counsel to Sullivan, Keenan, Oliver & Violando (Albany) for appellants. Commissioners of Records: Firestone, Libous, Higgins
January 6, 2011 NYS Appellate Division, Third Department
Causal Relationship: Stress
RESCINDED and returned for proper consideration the Board’s ruling that claimant suffered from work-induced stress,
per WCL §27(7). Claimant, a child support investigator, filed for
workers' comp benefits alleging that work-related stress caused her
anxiety, migraine headaches, hypertension, and insomnia. At the
prehearing conference, however, the Law Judge held that the employer
waived its defenses due to its failure to file a prehearing conference
statement pursuant to 12 NYCRR 300.38 (f) (4). Viewing the question of
whether the claim was compensable under WCL §2(7) as a defense that
should have been raised in the prehearing conference statement, the Law
Judge established the claim. However, the Court ruled that the claimant
had the initial burden of showing that she sustained a work-related
injury, even though the employer waived its defenses. To establish a
claim for injury due to work-related stress, the claimant was required
to show that the stress she experienced was greater than that which
other similarly situated workers experienced in the normal work
environment. The medical reports submitted by claimant establish that
she experienced work-induced stress, but do not offer any basis upon
which to conclude that she experienced greater stress than other
similarly situated workers. As the determination that claimant sustained
a compensable injury is not supported by substantial evidence, the
matter must be remitted to the Board for further development of the
record on this issue. Finally, as claimant is required to establish the
compensable nature of her injury regardless of the employer's waiver of
its defenses, the employer's challenge to 12 NYCRR 300.38(f)(4) is moot.
Prevailing party represented by: Glenn D. Chase of counsel to Walsh & Hacker (Albany) for appellants. Commissioners of Records: Ferrara, Finnegan, Foster-Colbert
January 6, 2011 NYS Appellate Division, Third Department
Disability: Further Causally Related/Compensation
RESCINDED and returned for proper consideration the Board’s ruling that the claimant is not entitled to lost time awards
from November 18, 2003 to September 13, 2007. This claimant, who had
three different cases, had been receiving benefits for his May 2002
injury for a short period of time. After several years when his
application for continuing benefits covering the period of November 18,
2003 to September 13, 2007 was finally considered, the Law Judge, later
affirmed by a Board panel denied same, stating that prior decisions had
made this determination and that there was no medical evidence. In a
Full Board Review issued November 3, 2010, the Board Panel (Paprocki
replacing Groski) made awards for a few intermittent weeks of
compensation on his two earlier comp cases but again denied awards for
his 2002 injury.
The Court, in rescinding the Board’s original decision, wrote that the decision of the Board cannot be upheld
"when it is clearly based on incorrect facts or an inaccurate reading of the record".
Here, the Board affirmed the Workers' Compensation Law Judge's denial
of awards for compensable lost time from November 18, 2003 to September
13, 2007 purportedly based upon findings on this issue in prior
decisions of the Board. Our review of the record, however, reveals no
prior determinations by the Board regarding this matter. As the Board's
determination is not supported by substantial evidence in the record,
the decision must be reversed and the matter remitted to the Board to
engage in its fact-finding role to resolve the issue.
Prevailing party represented by: George P. Ferro of counsel to Law Firm of Alex C. Dell (Albany)for appellant. Commissioners of Records: Bargnesi, Finnegan, Groski [Paprocki for Groski on the FBR]
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