COURT DECISIONS: 2009

Figueroa v Perfect Shoulder Co
December 31, 2009 Appellate Division, Third Department
Course of Employment: in and out of

AFFIRMED the Workers Compensation Board’s ruling that claimant sustained a compensable injury. Claimant, a supervisor for the employer, was required to open the factory each day by 7:00 A.M., but was prohibited from doing so earlier than 6:45 A.M. Having arrived early on October 9, 2006, claimant was sitting in his parked car on a public street in front of the workplace and was rendered a quadriplegic when his automobile was struck from behind by another vehicle. Both the Law Judge and the Board determined that claimant’s injuries arose out of and in the course of his employment. While accidents that occur in public places and outside of work hours are not compensable those that occurred near the workplace are a gray area where “the risks of travel merge with those of employment.” In this case, the Board concluded that there was a nexus between the employment in the risk which led to the accident based on the fact that the employee could not open the factory later than 7 AM nor earlier than 6:45 AM. The Court stated “Given that the employer’s directions compelled claimant to arrive at work early and wait -and the accident occurred during that wait - we are satisfied that substantial evidence supports the Board’s determination that a causal nexus existed between the employment and the injury.” Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, New York City, for Workers’ Compensation Board, respondent.. Click here to read the full decision of the Court….

The Insider: As a member of the Panel that heard this case, we carefully drafted the language to indicate that it was the 15 minute window (6:45 AM to 7:00 AM) which created the nexus and not the fact that he was waiting outside the place of employment just prior to the accident.

Malone v VRD Decorating
December 31, 2009 Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Workers’ Compensation Board which denied the pro-se claimant’s request for reconsideration or full Board review. After establishing a claim with various sites of injuries from a March 2003 work accident, the Board determined that (1) the claimant’s neck injury was not work-related and (2) the claimant had withdrawn from the labor market in October 2003. Appealing from the Board’s 2008 denial of his application for reconsideration or full Board review, claimant argues that the Board failed to consider evidence supporting his contention that he injured his neck in the incident. Quoting earlier cases, the Court wrote, “Inasmuch as claimant has appealed from only the decision denying [his] application for reconsideration and/or full Board review, the merits of the underlying decision are not properly before us. . . . Our review is therefore limited to whether . . . the Board abused its discretion or acted in an arbitrary and capricious manner.” The claimant argued that emergency room records were not properly considered but those records were available and were not newly discovered evidence. Also conflicting medical opinion was provided as to whether or not the neck injury was causally related. The Court was unpersuaded that the Board abused its discretion or acted arbitrarily in denying claimant’s application for reconsideration or full Board review. Prevailing party represented by: David L. Snyder of counsel to Hamberger & Weiss (Rochester) for VRD Decorating and another, respondents.

Silvers v State of New York
December 29, 2009 Appellate Division, First Department
Broker Fraud

Granted defendants’ motion for summary judgment dismissing the complaint, after the Court of Claims of the State of New York denied the parties respective motions for summary judgment. Claimant insurance broker seeks recoupment of money from defendant State Insurance Fund (SIF) that he was compelled to pay one of his clients after it was determined that he had negligently failed to obtain workers’ compensation insurance for that entity’s out-of-state employees.

Although SIF has never sold out-of-state coverage, claimant maintains that one of SIF’s field representatives advised him that the policy that he had acquired on behalf of his client would cover its out-of-state employees, and the Court of Claims found the existence of triable issues of fact precluding summary judgment to either side. In granting the motion for summary judgment, the Appellate Court found there was no evidence SIF’s field representative was authorized to speak for SIF with respect to coverage for out-of-state employees nor any reason that reliance by claimant upon the representative’s purported misrepresentations was unreasonable as a matter of law. The Court then summarize its position by writing that the “claimant, as a sophisticated insurance broker, is unable to show any reasonable reliance upon the representative’s alleged misrepresentations inasmuch as a broker is presumed to have read, and have knowledge of, the insurance policy that is being procured on behalf of the insured.” Prevailing party represented by: Michael S. Buskus of counsel to Andrew M. Cuomo, Attorney General for respondents-appellants. 

The Insider Although the NYS WCB is not a party of interest, this case is listed because it gives relief to victims of broker fraud, be they the employer or the Uninsured Employers Fund, on those occasions when the Board justifiably finds the employer to be uninsured. As a Commissioner, I always added to the decisions in these cases the statement “the question of broker fraud and the civil and criminal penalties arising therefrom are beyond the scope of the instant workers compensation claim.” It is important to note that another jurisdiction has stepped in to protect the victims of broker fraud.]

Omnipop v NYS Comm of Labor
December 31, 2009 Appellate Division, Third Department
Employment: Control

REVERSED the Unemployment Insurance Appeal Board’s decision which assessed the employer for additional unemployment insurance contributions after finding that a particular class of workers were employees. Omnipop books entertainers for single-performance events for clients such as clubs and schools. The Unemployment Insurance Appeal Board found that the entertainers, booked for single-performance events for clients such as clubs and schools, were Omnipop’s employees. Just as with decisions from the Workers Compensation Board, the existence of an employer-employee relationship is a factual determination for the Unemployment Insurance Appeal Board that will not be disturbed if supported by substantial evidence: an assessment of the extent to which the alleged employer exercises control over the results and, more importantly, the means by which those results are produced.

The Court did not find sufficient indicia of control by Omnipop to support the finding of employer-employee relationship. Among these indicia were: (1) Performer are free to reject a booking opportunities. (2) Omnipop plays no role in organizing performances. (3) the client and performer negotiate directly with regard to the fee to be paid, with any written contract being solely between them. (4) The contract prepared by Omnipop states that the performer has total control over their performance and that Omnipop disavows any liability for a breach by either the client or the artist. The Court then wrote, “Omnipop, in short, exercises virtually no control over either the results of the performances or the means used to achieve those results. . . . Accordingly, substantial evidence does not support the Board’s finding that the performers were employees of Omnipop.” Prevailing party represented by: George Merritts, Garden City, for appellant. 

The Insider  Although the NYS WCB is not a party of interest, this case is listed because the Appellate Court clearly delineated nearly a dozen indicia which clearly support the conclusion that these performers are not employees and therefore the employer could not be assessed unemployment insurance on their remuneration.

Daquino v East Meadow Union Free School Dist.
December 24, 2009 Appellate Division, Third Department
§ 25-a: True Closing

RESCINDED and sent back for reconsideration the Workers Compensation Board’s ruling that liability shifted to the Special Fund for Reopened Cases pursuant to WCL §25-a. The issue in this case revolved around the Board’s incorrect definition of `closed‘. Injured in 1999, this claimant underwent two surgeries missing eight months of work during which time wages were paid pursuant to a collective bargaining agreement. He retained an attorney in 2000, filing forms seeking further workers’ compensation benefits and further submissions, including a report indicating a 25% SLU. The Board finally indexed his case in January 2007. After a Law Judge concluded that liability for the claim had shifted to the Fund, the Fund appealed, contending that the claimant’s case had been informally opened and closed as a result of the employer’s payment of wages to him during the time he missed work, and that claimant’s numerous subsequent submissions to the Board constituted requests to reopen his case that precluded the applicability of WCL § 25-a. The Board affirmed the Law Judge.

In sending back the case for further review with respect to whether any of the claimant’s submissions should be deemed an application to reopen by the Board, the Court determined that “Claimant’s receipt of wages during his absence from work was an `informal’ workers’ compensation award and his case was `closed’ when such payments ceased. Although liability for a claim for workers’ compensation benefits generally shifts to the Fund when a case is closed and subsequently reopened more than seven years from the date of the injury and three years after the date of the last payment of compensation, `[T]he provisions of section 25-a . . . shifting liability to the Fund are inapplicable where a claimant applies to reopen his [or her]case within seven years of an accident.’ Here, therefore, the Board was required to consider whether claimant’s submissions were applications to reopen his case” rather than relying exclusively on the date the claim was indexed in concluding that Workers’ Compensation Law § 25-a was applicable. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds Conservation Committee for appellant. 

Hutchinson v Lansing Conduit
December 17, 2009 Appellate Division, Third Department
Hearing Loss

AFFIRMED the Board which ruled that Reliance National Insurance Company was responsible for coverage on the date of claimant’s disablement. Claimant asserted that he had sustained work-related hearing loss in both ears and filed the present workers’ compensation claim. An investigation revealed that Reliance had provided workers’ compensation insurance coverage to the employer from January to July 1996. The Board ultimately determined that the date of claimant’s disablement was March 13, 1996 and held that, if the claim is established, Reliance would be the responsible carrier. The Court ruled that “Under WCL §49-bb, which addresses work-related hearing problems, ‘the general rule is that the carrier on the risk on the date of disablement is responsible for the award’. There is no question that Reliance issued a workers’ compensation insurance policy to the employer for a period that included the date of disablement. It is claimed that this policy contained an exclusion limiting its applicability to claims arising out of contract work performed for a specific entity, which the claim here did not. Reliance did not produce a copy of the policy, however, even though it had been twice directed and once penalized for failing to do so by a Law Judge. Indeed, nothing in the record beyond the bare assertions of Reliance’s counsel supports the claim that the policy contains an applicable exclusion. As such, we perceive nothing irrational in the Board’s finding that the Reliance policy is applicable to this claim.” Prevailing party represented by: David W. Faber of counsel to Cherry Edson & Kelly (Carle Place) for Travelers Indemnity Company of America, respondent and Marc A. Grodsky of counsel to Jones, Jones & O’Connell ()New York City) for Utica Insurance Company and another, respondents.

Sattanino v Sanitary Dist
December 17, 2009 Appellate Division, Third Department
Apportionment: Awards

AFFIRMED the Board which, in reversing the Law Judge, ruled that apportionment did not apply to claimant’s workers’ compensation award.

In 2003, claimant injured both knees while performing his duties. The self-insured employer’s third-party administrator did not dispute the ensuing claim for benefits, but did raise issues regarding schedule loss of use (SLU) and apportionment. A Law Judge apportioned the bulk of claimant’s SLU in both knees to his preexisting arthritis. Upon review, the Board held that apportionment was unavailable under the circumstances of this case and set claimant’s schedule loss of use at 50% for his right leg and 32.5% for his left leg. The Court then wrote “In general, ‘apportionment is not appropriate where the claimant’s prior condition was not the result of a compensable injury and such claimant was fully employed and able to effectively perform his or her duties despite the noncompensable preexisting condition.’ Here, there is no indication that claimant’s preexisting arthritis constituted a compensable injury and the employer does not contend that claimant was unable to work full time prior to the 2003 injury. Furthermore, the employer’s contention that this case should fall within the narrow exception to the general rule, applicable where a prior nonwork-related injury would have resulted in a schedule loss of use award if that injury had occurred at work is unsupported by the record. Accordingly, the Board properly determined that apportionment is not applicable here and claimant’s schedule loss of use is supported by the testimony and medical report submitted by his physician.” Prevailing party represented by: Robert E. Grey of counsel to Grey & Grey (Farmingdale) for David Sattanino, respondent and Iris Steel of counsel to Andrew M. Cuomo, Attorney General for the Workers’ Compensation Board, respondent.

Dusharm v Green Is Contr.
December 17, 2009 Appellate Division, Third Department
§ 18 notice to employer

AFFIRMED the Board’s ruling, in reversing the Law Judge, that the claimant failed to give timely §18 notice of his injury to his employer. Claimant allegedly sustained a work-related back injury in April 2006, but did not seek medical treatment until May 2007 and did not apply for workers’ compensation benefits until August 2007. Following a hearing in which a Law Judge awarded claimant benefits, the Board reversed, concluding that claimant failed to provide his employer with timely notice pursuant to WCL §18.

Claimant admittedly did not file timely written notice. The Board has the discretion to excuse a claimant’s failure to give timely written notice even if one of three grounds is proven: notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced Here, the Board refused to excuse claimant’s lack of written notice. Claimant’s testimony indicated that his supervisor, whom he testified he notified within minutes after his accident, did not take him seriously and never filed an accident report. The Board considered the claim suspect based upon claimant’s delay in seeking medical treatment and filing his claim, his failure to initially mention the work injury to his medical providers, his previous 20-year history of back pain, his inconsistent statement to an independent medical examiner that he had never experienced difficulties with his back prior to the accident, and his failure to miss any time from work due to this accident for more than a year thereafter. These circumstances prejudiced the employer’s ability to investigate the claim. Prevailing party represented by: Susan B. Marris of counsel to Gregory J. Allen, State Insurance Fund for Green Island and another, respondents. 

Renzi v Case Mgt. Concepts
December 17, 2009 Appellate Division, Third Department
§ 13-b Medical Bills: Who Pays
§ 23: Late or Interlocutory Appeal
Decision Inadequately/Poorly Written

REVERSED the Board’s ruling that medical treatment of claimant by a licensed massage therapist was compensable provided it was performed under the active and personal supervision of an authorized physician. In 2008, a licensed massage therapist began submitting requests for payment for massage therapy that had allegedly been prescribed by claimant’s treating physician. After the Fund objected contending that licensed massage therapists are not authorized providers under the WCL, the Law Judge held the claims for payment in abeyance, the claimant instructed to provide the Fund with copies of her treating physician’s prescriptions for this therapy, and the Fund instructed to then pay any disputed bills covered by the prescriptions, a decision affirmed by the Board.

Initially, we reject the Board’s contention that their decision here was interlocutory and, therefore, not appealable, as the decision directing that the Fund pay any disputed bill for this therapy rendered pursuant to a prescription “’reache[d] a potentially dispositive threshold legal issue’. Moreover, although the Board found in favor of the Fund in holding the payments in abeyance, as the Fund was directed to pay for the treatment upon the submission to it of a physician prescription, it may appeal as an aggrieved party as it was not granted the relief sought.”

The Court, turning to the merits of the case, i.e. authorized medical treatment under WCL §13-b, determined that it is undisputed that (1) the massage therapist was not authorized by the Board to render medical care to claimant, nor was there evidence supporting a finding that one of the statutory exceptions was applicable or that this therapist was either a duly trained physical therapist rendering physical therapy or a duly authorized occupational therapist rendering occupational therapy, regardless of whether the massage therapy was prescribed by an authorized physician, thus concluding that there was insufficient evidence to support the Board’s determination.

And, as is far too often the case with the many poor Board decisions that had been ruled upon this Fall, the Court wrote, “Parenthetically, we note that the Board has subsequently rendered a decision under similar facts that found that a carrier is not liable for payment for massage therapy provided by a duly licensed massage therapist where, as here, there was no evidence in the record that the therapy was rendered by a registered nurse or persons trained in laboratory or diagnostic techniques or that the care provider was a duly licensed physical therapist, notwithstanding supervision of the treatment by a physician (see Matter of Nassau BOCES,[WCB 2070 2864, August 12, 2009].” Prevailing party represented by: Jill B. Singer of counsel to Steven M. Licht, Special Funds Conservation Committee for appellant. 

Mamaroneck Village Tile v WCB
December 17, 2009 Appellate Division, Third Department
§141-a Stop Work Orders

AFFIRMED the Board’s decisionwhich denied the application of Mamaroneck Village Tile Distributors, Inc. (MVTD) for redetermination review of a stop-work order issued pursuant to WCL §141-a.

In 2008 based on the filing of a C-3 form from a person claiming to have been injured while working for MVTD, Glenn Muller, a Board investigator, spoke to MVTD’s president, Jonathan Mammana, who stated that the company had no employees and therefore did not have workers’ comp insurance. Muller entered a rear work area, ultimately speaking to one man who reportedly indicated that he had worked for MVTD for two years. Based upon this information and other evidence seen that day, a stop-work order was issued that day against Mamaroneck.

Supported by an affidavit of Mammana, sworn to September 19, 2008 asserting that MVTD had no employees, MVTD made an application seeking review of that order. In an October 2008 hearing at which both Muller and Mammana testified, the Law Judge upheld the stop work order issued per WVL §141-a [4] . While the precise procedures for review of a stop-work order are not spelled out in detail in the statute, the Court wrote that “The procedures in this case after receiving the timely affidavit on behalf of MVTD included conducting a prompt hearing before a WCLJ at which both sides that the opportunity to produce evidence in support of their contentions procedures, . . . such that these procedures accorded ample due process protection to MVTD.” MVTD argued that the decision upholding the stop-work order and denying its application for redetermination was not supported by substantial evidence. Since there was no dispute that MVTD did not have workers’ compensation insurance, the dispositive issue narrowed to whether substantial evidence supported the determination that the company had employees. The court determined that the totality of the evidence, fully detailed in the Court’s decision, was sufficient to uphold the stop work order. Prevailing party represented by: Paul Groenwegen of counsel to Andrew M. Cuomo, Attorney General, for respondent. 

O’Sullivan v DiNapoli
December 17, 2009 Appellate Division, Third Department
Causal Relationship: Was there?

AFFIRMED the denial of petitioner’s applications for accidental and performance of duty disability retirement benefits.

In October 1999, petitioner, a firefighter, suffered hearing damage and tinnitus after the air horn of a fire engine was inadvertently discharged close to his right ear. He returned to full duty within a month of the incident, continuing to work in that capacity. In May 2004, he experienced severe chest pains while driving a fire truck in response to an emergency. Diagnosed with atherosclerotic heart disease, he thereafter underwent quadruple bypass surgery.

In 2004, petitioner applied for accidental and performance of duty disability retirement benefits based on both incidents. The New York State and Local Police and Fire Retirement System denied the applications, finding that, while petitioner was permanently incapacitated from the performance of his duties, his disability was not a natural and proximate result of his duties as a firefighter. Petitioner sought a hearing and redetermination, at the conclusion of which the Hearing Officer upheld the denial of both applications .

First addressing petitioner’s heart condition, there was no dispute that petitioner successfully passed his preemployment physical and that he wa now permanently disabled from performing his duties as a firefighter due to his heart disease. Inasmuch as petitioner relied exclusively on the statutory heart presumption contained in Retirement and Social Security Law § 363-a (1), the only issue for the Court’s review was whether the Retirement System rebutted this presumption by competent medical evidence. The Court did not agree with the Petitioner, who presented no expert testimony of his own, but argued that the expert testimony of a board-certified cardiovascular disease specialist who examined petitioner on behalf of the Retirement System, was insufficient to overcome the statutory heart presumption. Brown’s testimony, coupled with petitioner’s medical records and the identified risk factors, was sufficient to rebut the statutory presumption.

Next addressing petitioner’s ear injury, Petitioner also challenged the denial of this application for retirement disability benefits. Since respondent conceded that such injury was the result of an accident within the meaning of Retirement and Social Security Law §363, the issue thus distills to whether substantial evidence supports the determination that petitioner’s hearing impairment does not render him permanently incapacitated from performing his duties as a firefighter. Although petitioner testified that his ear injury rendered him unable to discern certain tones, especially in noisy situations, and affected his ability to drive a fire engine, hear the fire radio and perform at the scene of a fire, he failed to provide any additional evidence supporting these assertions, and it is undisputed that he returned to work within a month following the October 1999 incident and thereafter continued to work on full duty as a firefighter until the May 2004 incident. Moreover, the Retirement System proffered the report of an otolaryngologist who concluded that petitioner is “able to communicate adequately to perform the duties of a [f]irefighter.” As the otolaryngologist’s report was “rational, articulate and founded upon a physical examination and review of prior medical [records],” it provided the requisite substantial evidence to support respondent’s determination. Prevailing party represented by: Zainab A. Chaudhry of counsel to Andrew M. Cuomo, Attorney General for respondent. 

Feeney v DiNapoli
December 17, 2009 Appellate Division, Third Department
Causal Relationship: Was there?

AFFIRMED the denial of petitioner’s applications for accidental and performance of duty disability retirement benefits. Petitioner began working as a police officer in 1979, continuing with the same employer in different positions until 2005, when he filed for accidental and performance of duty disability retirement benefits. Both applications were denied. Substantial evidence supported the Comptroller’s determination that none of petitioner’s work-related injuries were the direct and proximate cause of his permanent disability. While respondents concede that petitioner was permanently disabled from resuming his duties as a police officer, petitioner bore the burden of demonstrating that he was incapacitated from the performance of duty as the natural and proximate result of an accident or disability sustained in service Petitioner presented his own testimony and medical records, none of which proved a causal link between his work-related injuries and his permanent disability. Respondent provided the testimony and report of a board-certified orthopedist opined that petitioner was permanently disabled due to his back condition, but that his disability was solely attributable to an off-duty injury and that petitioner’s knee injuries did not render him permanently disabled. The Court “will not substitute our judgment for that of the Comptroller, as the orthopedist’s factually-based opinion constitutes substantial evidence supporting the determination to deny petitioner’s applications because his disability was not proximately caused by injuries suffered while on duty.” Prevailing party represented by: Owen Demuth of counsel to Andrew M. Cuomo, Attorney General for respondents. 

Gilpatric v State Commission on Judicial Conduct
December 15, 2009 Court of Appeals
Procedure: Due Process/Mailings

MODIFIED the determination of the State Commission on Judicial Conduct which sustained one charge of misconduct against petitioner, a City Court Judge, for his failure to render timely decisions and concluded that his conduct constituted a pattern of “persistent or deliberate neglect of his judicial duties”, concluding that this matter should be remitted to the Commission for a hearing before a referee.

In August 2008, the Commission filed a formal, written complaint against petitioner, alleging that from July 2004 to February 2008 petitioner delayed in rendering decisions in 43 cases and 4 motions. The allegations are undisputed. In several cases, the litigants or their attorneys wrote to petitioner or petitioner’s administrative judge inquiring about the delayed decisions in their respective cases.

The Court wrote, “A judge has an ethical obligation to ‘dispose of all judicial matters promptly, efficiently and fairly’ (22 NYCRR 100.3[B][7]).“The Court recognized that when a judge “has defied administrative directives or has attempted to subvert the system by, for instance, falsifying, concealing or persistently refusing to file records indicating delays, We now hold that lengthy, inexcusable delays may also be the subject of disciplinary action, particularly when a judge fails to perform judicial duties despite repeated administrative efforts to assist the judge and his or her conduct demonstrates an unwillingness or inability to discharge those duties.” The Court Of Appeals returned this case to that Commission because of certain procedural anomalies in this case but acknowledged the need for such sanctions. 

Smith v Consolidated Edison
December 10, 2009 Appellate Division, Third Department
Voluntary Withdrawal

REVERSED the Board’s ruling that claimant was entitled to an award of reduced earnings subsequent to September 15, 2007, thus determining that Board’s decision is not supported by substantial evidence. The claimant, exposed to dust following the terrorist attacks of September 11, 2001, was subsequently diagnosed with reactive airway disease and his claim for workers’ compensation benefits was established in 2004. But he sustained no compensable lost time and continued to work until he retired on February 1, 2007. After he was denied compensation by a WCLJ, he reentered the labor market, began working part time and again submitted a request for benefits this time for reduced benefits. The law judge, later confirmed by the Board, awarded benefits. In its reversal, the Court wrote, “Since claimant had voluntarily retired from his position with Consolidated Edison in February 2007, he was obligated, before obtaining a reduced earnings award, to demonstrate that he had attempted to obtain employment that took into account the restrictions caused by his disability. [In this case] claimant has failed to meet his burden of establishing that his reduced earnings are attributable to his disability, as opposed to age, existing economic conditions, or other factors that are not in any way related to his disability.” Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for appellants.

Mistofsky v Consolidated Edison
December 10, 2009 Appellate Division, Third Department
Disability: Degree of or R/E
Voluntary Withdrawal

AFFIRMED the Board’s ruling that claimant is entitled to an award of reduced earnings in a decision based in part by the failure of the employer to file an appeal of an earlier decision finding involuntary withdrawal. Claimant was terminated for misconduct in 1994 and then reinstated by an arbitrator. In June 1996 he testified he stopped working due to breathing problems as a result of exposure to asbestos during his 46 years of work with this one employer and began working for a different employer on a part-time basis at a reduced hourly wage. In July, a second arbitrator supported his termination for misconduct. In November 1996, he filed a claim for workers comp asserting that he contracted asbestosis while working for the employer.

In a March 2003 decision, a WCLJ established the claim for the occupational diseases of pulmonary asbestosis and asbestos-related pleural disease, classified claimant with a permanent partial disability, and set December 7, 1998 as the date of disablement. The WCLJ, finding that claimant did not voluntarily withdraw from the labor market, made reduced earnings awards. The Board specifically noted that the employer failed to produce evidence before the WCLJ controverting claimant’s testimony to the effect that the reason he stopped working for the employer in June 1996 was because of breathing difficulties. In August 2006, the WCLJ found that, per the prior March 19, 2003 decision, claimant was entitled to reduced earnings benefits subsequent to December 1998 as a result of his established occupational disease.

Contrary to the employer’s argument, the Court determined that an inquiry as to whether claimant’s withdrawal from the labor market in June 1996 was involuntary was not before them inasmuch as no appeal from the January 2004 decision was taken. Consequently, claimant’s involuntary retirement in June 1996 “gave rise to an inference that the subsequent reduction in earnings [as a messenger] was due to claimant’s permanent partial disability“. In order to defeat that inference, the employer was required to “demonstrate that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement.” The Court agreed with the “Board’s determination that the employer did not defeat the inference and, therefore, that claimant is entitled to reduced earnings is supported by substantial evidence.” Prevailing party represented by: Leonard B. Feld, Jericho, for appellants. 

Gregorec v Brenners Furniture
December 10, 2009 Appellate Division, Third Department
§ 25-a: True Closing

REVERSED the Board’s decision that WCL § 25-a is inapplicable to claimant’s award of workers’ compensation benefits. Although claimant suffered a work-related back injury in February 2000, no compensation was awarded as claimant did not lose any time from work. Claimant continued to receive symptomatic chiropractic treatment from the date of the injury until November 2000, then had one treatment in 2003 and resumed periodic chiropractic treatments in February 2005. In September 2005, although the claimant’s chiropractor began filing the C-4 reports regarding possible permanent restriction or a total or partial loss of function, he did not offer a specific opinion on the permanency of claimant’s condition. In July 2007, the carrier raised the applicability of WCL §25-a, which prompted the Board to index the case for the first time and later determined WCL § 25-a was inapplicable.

While the Board determined that medical reports, submitted in September 2005 and thereafter, served to reopen claimant’s case prior to a lapse of seven years since the injury, the Court wrote that “The mere mention of permanency in a medical report, absent an opinion regarding the degree of permanency, is insufficient to act as a request to reopen a case ’such that these “medical reports did not display a clear intention by the reporter to reopen the case” Finally, the Court concluded, “Inasmuch as the Board’s determination was not supported by substantial evidence, it must be reversed. We further note that, in reaching its conclusion in this case, the Board failed to explain its departure from its determinations [issued in prior cases].” Prevailing party represented by: Paul L. Isaacson of counsel to Gregory J. Allen, State Insurance Fund (NYC) for appellants. 

Carlucci v Omnibus Print
December 10, 2009 Appellate Division, Third Department
Disability: Degree of or R/E

RESCINDED the Board’s ruling that claimant had sustained a permanent moderate partial disability. Claimant sustained various respiratory, pulmonary and cardiac disorders in the course of his employment as a pressman. A WCLJ found that he had sustained a permanent partial disability whereupon the Board determined that claimant suffered from a permanent moderate partial disability, reducing his compensation award. Quoting the Court,

While the Board’s resolution of conflicting medical evidence in the record will be upheld if supported by substantial evidence, such a determination cannot be sustained if it relies upon an inaccurate legal standard or is based on incorrect factual assertions or a misreading of the record. In its decision, the Board quoted specific guidelines used to determine whether an individual has sustained a total disability of the low back (see State of New York Workers’ Compensation Board Medical Guidelines, at 27 [June 1996]). The Board then stated that it could ‘not rely upon the opinion of the claimant’s physician or the opinion of the impartial specialist [on the degree of claimant’s disability] . . . as there is no evidence in the record that these opinions conform to the Board’s medical guidelines on this issue.’ Claimant’s disability, however, does not involve his back and the quoted guidelines are accordingly irrelevant. The employer and its workers’ compensation carrier are correct in pointing out that, while the guidelines present useful criteria, the ultimate determination as to the degree of disability rests with the Board (see Matter of VanDermark v Frontier Ins. Co., 60 AD3d 1171, 1172 [2009]). That being said, the Board did not disregard the guidelines, but instead incorrectly relied upon inapplicable ones in reviewing the medical evidence. Under these circumstances, the matter must be remitted to the Board so that a proper assessment of the evidence may occur.

Prevailing party represented by: John F. Clennan (Ronkonkoma) of counsel to Goldsmith & Tortora (Commack) for appellant. Click here to read the full decision of the Court….

Bond v Suffolk Transp.
December 10, 2009 Appellate Division, Third Department
§ 21(1): Presumptions
Course of Employment: in and out of

AFFIRMED the Board’s ruling that claimant did not sustain an accidental injury in the course of her employment and denied her claim. Claimant, a school bus driver, was injured when she slipped and fell exiting a bus outside of her home and sought workers’ compensation benefits. A WCLJ determined that claimant’s injury had not been sustained in the course of her employment. For an accident to be compensable, it must have arisen out of and in the course of employment. The record here shows that claimant had a split work shift consisting of morning and afternoon bus runs, with several hours off duty in between. During what claimant referred to as her “break” period, she was permitted to drive the bus to her home, where her fall occurred. No evidence was produced to show that the employer retained any control or authority over claimant in the period between the bus runs or that her use of the bus had any relationship to her employment or benefit to her employer. Claimant then attempted to rely upon the presumption of compensability contained in WCL § 21(1) to establish such a relationship, but that statute does not wholly relieve her of the burden of demonstrating that the accident occurred in the course of, and arose out of, her employment, such that the Court agreed with the Board’s previously stated position. Prevailing party represented by: Marc A. Grodsky of counsel to Jones, Jones & O’Connor (NYC) for Suffolk Transportation Service and another, respondents. Click here to read the full decision of the Court….

Tipping v Orthopedic Surgeons
December 3, 2009 Appellate Division, Third Department
Causal Relationship: Medical (ANCR/ODNCR)

REVERSED the Board’s ruling that claimant did not sustain an occupational disease and denied her claim for workers’ compensation benefits, thus making “academic” her appeal from the second board decision which denied her request for full Board review. In April 2006, after years of working in a medical office spending almost 5 hours each day cradling the phone with her head while she performed other work-related duties, claimant sought medical attention for pain and spasms in her neck and upper back and began a regimen of physical therapy. In April 2000, a month after she stopped working, she was terminated and thereupon filed a claim for workers’ compensation benefits. A WCLJ granted her application finding that the condition was an occupational disease. The Board reversed and denied both the claim and the subsequent application for full Board review.

The medical experts on both sides stated that (1) claimant, in the period prior to her employment, had been asymptomatic, (2) her condition during that period of time had been dormant and nondisabling, and (3) her preexisting condition had been exacerbated by her employment. The Court wrote, “A preexisting condition, such as claimant’s, can constitute an occupational disease if it is ‘demonstrated that the condition was dormant and nondisabling and that a distinctive feature of the employment caused the disability by activating the condition.’ Given that the medical evidence before the Board established that claimant’s employment activities resulted in an exacerbation of her prior condition, its conclusion to the contrary was not supported by substantial evidence.” Prevailing party represented by: John F. Clennan, Ronkonkoma, for appellant. Click here to read the full decision of the Court….

Ridgeway v RGRTA Regional Tr. Serv
December 3, 2009 Appellate Division, Third Department
§114-a Fraud

AFFIRMED the Board which ruled that claimant did not violate WCL §114-a, thereby reversing the WCLJ’s decision. Claimant had filed a number of workers comp claims including one in October 2005, which was an automobile accident after her work shift ended for which she completed a “Personal Injury Form” for her employer stating that the accident occurred after her work shift began at 5:35 P.M., when in reality her shift had ended at that time. The employer sought to bar claimant from receiving further workers’ comp benefits pursuant to WCL §114-a, asserting that she intentionally misrepresented on the form that the accident was related to her work. A WCLJ agreed disqualifying the claimant from receiving further benefits related to an earlier as well as this current injury. The Board rescinded the findings, holding that the evidence was insufficient to show that claimant knowingly made material misrepresentations on the form, and the employer appealed. The Board’s determination as to whether a claimant ran afoul of WCL §114-a will not be disturbed if substantial evidence supports it. The Board found that the claimant made mistakes filling out the form which she acknowledged after the inaccuracies were brought to her attention. The Court agreed with the Board that the substantial evidence supported that determination the claimant did not knowingly make a false statement. The Court then added, “the Board is not bound by the credibility determinations of a Workers’ Compensation Law Judge, and nothing in the Board decisions pointed to by the employer [in their appeal] indicate that the Board adheres without question to those determinations.” Prevailing party represented by: James D. Hartt, Rochester, for Glenda F. Ridgeway, respondent and Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General (NYC) for the Board, respondent. Click here to read the full decision of the Court….

Jean-Louis v Hilton Hotels Corp
December 1, 2009 Appellate Division, First Department
§ 11 Election of Remedies

DISMISSED by the Supreme Court, New York County, a second cause of action wherein plaintiff alleges that defendants negligently trained, managed and/or supervised employees who confined her to an office for an hour and did not allow a union representative to be present while discussing her complaint that her supervisor inequitably distributed work based on her ethnicity and religious beliefs. This claim is barred by the exclusive remedy provisions of the Workers’ Compensation Law (see WCL § 11; § 29[6]. Even if the alleged conduct could be reasonably construed to be in furtherance of defendants’ interest, “[t]he complaint. . .did not contain requisite allegations that [defendants] had knowledge of, or acquiesced in, the tortious conduct of [their employees].” Prevailing party represented by:Diane Windholz of counsel to Jackson Lewis (New York) for respondents. Click here to read the full decision of the Court….

Shepler v City of Tonawanda
November 25, 2009 Appellate Division, Third Department
§ 15(8)(e) 2nd Injury Fund

AFFIRMED the Board’s decision to discharge the Special Disability Fund from liability under §15(8)(e). The decedent, claimant’s husband, as the result of undiagnosed arteriosclerotic cardiovascular disease, went into cardiac arrest while collecting garbage and died. After the WCB established the claimant’s ensuing workers’ comp claim, the employer and its TPA sought to obtain reimbursement from the Special Disability Fund. The Court agreed with the Board’s rejection in that the employer had not shown that decedent’s prior condition hindered or was likely to hinder his employability, writing the employer failed to show “(1) that the decedent had a preexisting permanent impairment that hindered or was likely to hinder his or her employment potential, (2) a compensable injury and (3) that either the injury or the death would not have occurred but for such preexisting permanent impairment.” Among other points, “the fact that decedent’s preexisting condition contributed to his death, without more, is insufficient to show that his employment potential was hindered by it.” An interesting point made by both the physician and the medical examiner who performed decedent’s autopsy was that at least 85% of individuals who suffer sudden cardiac arrest are at rest or engaged in minimal physical activity at the time. Moreover, there was no evidence that decedent’s undiagnosed condition had previously affected his work or recreational activities in any way. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds (Albany) for the Fund respondent. Click here to read the full decision of the Court….

Schmidt v Falls Dodge
November 25, 2009 Appellate Division, Third Department
Schedule Loss of Use issues

AFFIRMED the Board which ruled that claimant’s schedule loss of use (SLU) award is not subject to claimant’s awards in other workers’ compensation cases. In 2005, claimant filed three separate workers’ comp claims and was awarded benefits in each. After submitting a fourth claim for hearing loss in 2007, the WCLJ established the claim for the occupational disease of binaural hearing loss, awarding a 21.43% SLU, to be paid at $400 per week for 32.145 weeks. Although the WCLJ also established the date of disablement as September 27, 2005, and claimant’s earlier awards encompassed various time frames within the ensuing 32 weeks, the WCLJ determined that claimant’s SLU award was not subject to the temporary disability benefits he was already receiving. The Court wrote that, “Contrary to the assertion of the State Insurance Fund and the employer, the Court of Appeals’ decision in Matter of LaCroix v Syracuse Exec. Air Serv., Inc. (8 NY3d 348 [2007]), which dealt with the proper method of payment of a schedule loss of use award, did not overrule this Court’s holding in Matter of Miller v North Syracuse Cent. School Dist. (1 AD3d 691 [2003]). . . . Accordingly, here, the Board correctly concluded that the SLU award, intended to compensate claimant for his future loss of earnings as a result of his hearing loss, was not subject to his temporary disability awards, which were ‘intended to compensate him for his loss of income during . . . finite periods].’” Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, NYC for the WCB, respondent.Click here to read the full decision of the Court….

Magerko v Edwin B. Stimpson Co
November 25, 2009 Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s decision which, among other things, ruled that pro-se claimant voluntarily withdrew from the labor market. Claimant, with an established permanent partial disability due to a variety of ailments related to a 1990 work-related injury, was laid off in 2003 when his employer moved part of its operations out of state. Following hearings, a WCLJ found that claimant had not voluntarily withdrawn from the labor market following his layoff. Upon review, the Board disagreed and rescinded all awards from June 2003 onward. Inasmuch as claimant’s loss of employment was due to a layoff unrelated to his disability and the Board made no finding of involuntary retirement, the burden rests on claimant to demonstrate “by substantial evidence that his disability contributed to his continued unemployment“. The Court noted that testimony revealed the claimant collected unemployment insurance but made minimal efforts at seeking work and, although he stated he had physical constraints, he presented no evidence this information was supplied to potential employers. He began receiving Social Security disability benefits and moved to Florida in 2004, and he had made no subsequent effort to find a job. Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly, (Carle Place) for Edwin B. Stimpson Company, Inc. and another, respondents.Click here to read the full decision of the Court….

Benjamin v Sprint/Nextel
November 25, 2009 Appellate Division, Third Department
Disability: Further Causally Related

AFFIRMED the Board’s ruling that the pro-se claimant did not sustain a further causally related disability. In 2006, after a work accident, a claim for workers’ comp benefits was established for head and neck injuries. After extensive further proceedings, a WCLJ determined that claimant had not suffered a causally related back injury or psychiatric disability. Dealing first with claimant’s alleged back injury, the Court agreed with the Board that her treating physician’s opinion that a variety of back problems “could” have been caused by the accident but failed to specify what conditions actually caused the pain or how the accident gave rise did not support the claim of a back injury. The Court added, “As that opinion amounted to ‘mere surmise, or general expressions of possibility,’ the Board was free to reject it, even in the absence of contrary medical evidence.” With regard to claimant’s alleged psychiatric disability, the Court felt the Boards reasoning to be sufficient: a psychiatrist who conducted an independent medical examination of claimant concluded that she did not suffer from any psychiatric disability. Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly, (Carle Place) for Sprint/Nextel and another, respondents. Click here to read the full decision of the Court….

Maricle v Crouse Hinds
November 25, 2009 Appellate Division, Third Department
Causal Relationship: Exacerbated or New

AFFIRMED the Board which ruled that claimant had exacerbated a prior compensable injury and awarded workers’ compensation benefits. After first sustaining a work-related back injury in 2001, for which he intermittently missed time from work and received workers’ comp benefits, the claimant in 2007 again missed work and required medical treatment due to back pain, at which time the employer alleged that the pain was unrelated to the 2001 injury. Following hearings, a WCLJ determined that claimant had not suffered a new injury and awarded benefits. With back injuries, “there is the ever-present danger of recurrence and the question then arises as to whether the subsequent incident was a new accident, an aggravation or . . . an [incident associated with the primary injury.” The Court wrote, as it has in so many similar cases, that, “We will not interfere with the Board’s resolution of that issue if substantial evidence supports it, even if evidence in the record could justify a different conclusion.” Even though there was extensive and contradictory medical evidence, the Court stated that the Boards decision was sustainable. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, NYC for the Board. Click here to read the full decision of the Court….

Parrelli v Atlantic Constr
November 25, 2009 Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s ruling, which reversed the WCLJ, that there was no causal relationship between claimant’s asbestos-related pleural disease and his loss of earnings. Claimant won a workers’ compensation claim for a 1997 injury to his right hand, was ultimately found to have suffered a permanent partial disability, and received a lump-sum settlement. Not returning to workdue in part to his hand injury, he applied for disability retirement in 1998. Claimant filed the present claim in 2000, alleging that he suffered from a lung disease caused by his workplace exposure to asbestos. A WCLJ established the claim and, among other things, awarded claimant lost wages from September 2001 through December 2006. But the Board eliminated that award, determining that claimant retired for reasons unrelated to his lung condition and lost no wages as a result of it. Two key factors in this decision were the claimant’s acknowledgment that his retirement was due to physical elements other than his lung disease, due to which he never lost any time from work, and his admittance that, after retiring, he made no effort to find work within his medical limitations. Prevailing party represented by: David E. Baida of counsel to Gregory J. Allen, State Insurance Fund (NYC) for Atlantic Construction and another, respondents. Click here to read the full decision of the Court….

Bovis v Crab Meadow
November 17, 2009 Appellate Division, 2nd Judicial Department
§ 11 Election of Remedies

DENIED MOTIONS by two third-party defendant-appellants for motions for summary judgment in a suit brought by the employee in an action against, among others, the Crab Meadow defendants (who contracted with Picone, claimant’s actual employer), alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The Crab Meadow defendants commenced a third-party action seeking indemnification and contribution from Picone, and a judgment declaring that Sirius (Crab’s insurer) was obligated to defend and indemnify them in the main action. And Picone sought a cross motion for summary judgment dismissing the third-party complaint insofar as asserted against it, per WL §11. The Court agreed with the lower court that the third-party defendant Picone failed to establish that it did not enter into an indemnification agreement with the Crab Meadow defendants in 2002 prior to the injured plaintiff’s accident. Stating that an insurer’s obligation to defend is broader than its obligation to indemnify and arises whenever the allegations in a complaint against the insured fall within the scope of the risk undertaken by the insurer, the Court then added that Sirius failed to submit any evidence establishing that there was no possible basis upon which it may be obligated to indemnify the Crab Meadow defendants since there was no evidence that Picone and the Crab Meadow defendants did not enter into an indemnification agreement in 2002. Click here to read the full decision of the Court….

Lee v Astoria & Elliott Turbo
November 23, 2009 Court of Appeals
Jones Act (LHWCA)

The Court of Appeals, with two dissents, reversed the Appellate Division which in turn had reversed the Supreme Court in the interpretation of 33 USC § 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA), thus preempting New York State Labor Law §§ 240(1) and 241(6) claims, by holding that a barge containing an electricity generating turbine is a vessel. Plaintiff injured his back while performing work on a turbine on barge in a facility owned and operated by defendants(Astoria/Orion). That plaintiff was employed by Elliott, a firm hired in 2000 by Astoria/Orion to perform an overhaul of the turbines at the facility. In 2001, the plaintiff placed a claim and was awarded benefits under the LHWCA, which “provides workers’ compensation to land-based maritime employees” and also commenced this state court action against Astoria/Orion, asserting Labor Law §§ 200, 240(1) and 241(6) claims and common law negligence claims. Astoria/Orion subsequently filed a third-party complaint against Elliott seeking indemnification. Elliott moved for summary judgment and the barge owners cross-moved for summary judgment which the Supreme Court granted only to be then reversed by the Appellate Division which reinstated plaintiff’s Labor Law §§ 240(1) and 241(6) claims and granted summary judgment as to the Labor Law § 240(1) claim in plaintiff’s favor. The Majority and the Dissenting Justices have issued a five-page decision justifying their respective opinions. Click here to read the full decision of the Court….

Aminzadeh v Hyosung USA
November 19, 2009 Appellate Division, Third Department
Date of Disablement

AFFIRMED the Board’s decision which ruled that the date of claimant’s disablement for her carpal tunnel syndrome was June 8, 2007. Claimant’s first compensation claim was established for a cut to her left hand in 2005 and then for ensuing complications. While being treated for those conditions, there were indications that claimant also suffered from carpal tunnel syndrome (CTS) in her left wrist. A separate claim was filed for the CTS, and a Law Judge ultimately established it as an unrelated occupational disease with a June 2007 date of disablement. Upon review, the Board affirmed and the carrier (American Home Assurance Company) appealed. The Court reiterated its standard reasoning for supporting the board by writing that “but that “. . .the Board’s selection of a June 2007 date of disablement is supported by substantial evidence, notwithstanding that claimant had symptoms of, and was treated for, CTS earlier.” Prevailing arguments presented by: Michael V. DeSantis of counsel to DeSantis & DeSantis (Utica) for Shahnaz Aminzadeh, respondent and John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Hyosung USA, respondent.Click here to read the full decision of the Court….

Johnson v Unifirst Corp.
November 13, 2009 Appellate Division, Fourth Department
§ 11 Election of Remedies

REVERSED the Supreme Court’s denial of Derrick’s motion, by granting the motion for summary judgment and dismissing the third-party complaint. Plaintiff commenced this action seeking damages for injuries he sustained when, during the course of his employment as a welder for third-party defendant (Derrick), the uniform he was wearing caught fire. The uniform was rented by Derrick from defendant-third-party plaintiff, UniFirst Corporation (UniFirst), which commenced the third-party action against Derrick seeking contractual indemnification. The Appellate Court wrote that, “It is undisputed that plaintiff did not sustain a grave injury within the meaning of the statute, and Derrick established as a matter of law that its written contract with UniFirst containing the indemnification provision had expired and thus was not in effect at the time of plaintiff’s accident.” Pursuant to WCL §11, a third-party action for indemnification against an employer for injuries sustained by its employee in a work-related accident is barred unless the employee sustains a grave injury or the claim for indemnification is “based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the . . . person asserting the cause of action for the type of loss suffered. UniFirst may not rely upon the automatic renewal provision of the written contract because UniFirst did not comply with its statutory obligation to provide timely written notice to Derrick ‘calling [its] attention’ to that provision.” The Appellate Court also rejected UniFirst’s contention that General Obligations Law § 5-903 (2) did not apply. Prevailing party represented by: Mark P. Della Posta of Counsel to. Walsh, Roberts & Grace (Buffalo) for Third-party Defendant-appellant. Click here to read the full decision of the Court…

Miraglia v H & L Holding Corp.
November 17, 2009 Appellate Division, First Department
§ 11 Election of Remedies

“Plaintiff was injured while working on a construction project on property owned by defendant H & L Holding Corp. (306 AD2d 58 [2003]). Plaintiff commenced a personal injury action against H & L, which subsequently impleaded Lane, plaintiff’s employer. H & L was granted summary judgment on its claim for indemnification against Lane, and Lane assumed defense of the main action. After a jury trial, H & L was found liable for plaintiff’s injuries and plaintiff was awarded damages. The judgment, however, permitted plaintiff to recover the damages from H & L (the defendant in the main action) and Lane (the defendant in the third-party action). On defendant Lane’s appeal from the judgment, we modified the judgment to the extent of, inter alia, setting aside the award for future pain and suffering unless plaintiff stipulated to reduce the award (36 AD3d 456 [2007], lv denied 10 NY3d 703 [2008]). “Lane did not argue on that appeal that it was not liable to plaintiff but only to H & L. “Lane now argues that we misapprehended the facts and the law in deciding its appeal because we focused on whether it had waived any argument that plaintiff could not recover against it because of the exclusivity provision of Workers’ Compensation Law § 11. A defense of worker’s compensation exclusivity is waived if the employer ignores the issue “to the point of final disposition itself”, especially where belated assertion of the defense will prejudice the party opposing the assertion. Here,third-party defendant (L&S) fail to raise this objection to the judgment on the 2007 appeal, but it assumed defense of the direct defendant (H&L) at trial.” The majority of the Court felt that “third-party defendant (L&S) [is not] persuasive in arguing — for the first time on appeal — that Supreme Court lacked personal jurisdiction over it because plaintiff never named it as a direct defendant. Supreme Court has always had the power to render an adjudication over third-party defendant which surely would not have assumed the defense of the direct defendant at trial if it believed the court lacked personal jurisdiction over it. Moreover, by first actively participating in the litigation as if it were a direct defendant, and then by failing to raise the issue on appeal, third-party defendant waived its right to rely on , in which the Court of Appeals held that a plaintiff may not recover directly from a third-party defendant over which it has no direct claim.” In a concurring opinion, Justice McGuire wrote “Thus, the order denying Lane’s motion to amend the original judgment should be affirmed on the ground that Lane waived that argument by not raising it on the appeal from the judgment.” Click here to read the full decision of the Court…

Cueto v Hamilton Plaza
November 10, 2009 Appellate Division, Second Department
§ 11 Election of Remedies

AFFIRMED order of the Supreme Court, Westchester which denied motion of the nonparty Special Trades Contracting and Construction Trust, c/o New York Compensation Managers Third-Party Administrator for Workers’ Compensation for Arkay Contracting (The Trust), pursuant to CPLR 3211(a)(7), to dismiss the second cause of action in the third-party complaint for common-law indemnification and contribution for failure to state a cause of action. In 2004, the plaintiff, Victor Cueto allegedly was injured when a portion of a ceiling fell on him at a construction project. After his WC claim against his employer, Arkay was settled, the plaintiff commenced an action to recover damages for personal injuries against various owners, managers, contractors, and subcontractors on the construction project. The defendant Reckson Construction commenced a third-party action against Arkay, inter alia, for common-law indemnification and contribution. The 2nd Department agreed that The Trust failed to sufficiently allege that Cueto had suffered a “grave injury” and that, therefore, WCL §11 barred Reckson’s claim for common-law indemnification and contribution. And the 2nd Department found sufficient evidence was presented that Cueto suffered a “grave injury,” and, consequently, that the Supreme Court properly denied Special Trades’ motion pursuant to CPLR 3211(a)(7) to dismiss the cause of action in the third-party complaint for common-law indemnification and contribution. Click here to read the full decision of the Court…

Porter v Triboro Bridge
November 12, 2009 Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board which ruled that claimant voluntarily withdrew from the labor market. Claimant suffered work-related injuries in December 2005 and received comp benefits from that date until February 2006, when the employer, relying on an IME report, determined that claimant was able to return to work. A hearing was scheduled following claimant’s request for further action. While the hearing was still pending, the employer sent claimant a letter directing him to return to work no later than June 5, 2006 or be considered to have abandoned his position and terminated. In response, claimant tendered his resignation, noting that he was compelled to do so in order to preserve benefits that he had accrued during his employment. He further noted that other physicians who had examined him had advised against his return to work. Although the Board precluded reports of three IME’s due to violations of WCL §137, it affirmed the WCLJ’s determination. The Court ruled that, “The Board’s determination that claimant had voluntarily withdrawn from the labor market was supported by substantial evidence in the record. In addition to the Board’s reasonable conclusion that claimant refused to return to perform light-duty work, there is ample evidence in the record to support the Board’s conclusion that claimant simply chose to retire.” [Once again, the Court has determined,] “Inasmuch as the Board’s decision is supported by substantial evidence, we decline to disturb it.” Prevailing party represented by: Warren J. Fekett of counsel to Foley, Smit, O’Boyle & Weisman (Hempstead) for Triboro Bridge and another, respondents. Click here to read the full decision of the Court..

Jaworek v Sears Roebuck
November 12, 2009 Appellate Division, Third Department
§ 15(8)(f) Reimbursement Special Fund

AFFIRMED that Board the employer was not entitled to reimbursement from the Special Disability Fund. Claimant, who suffered a knee injury on July 28, 2007 in an undisputed claim, also maintained concurrent employment as the result of which the WCLJ determined that a substantial portion of claimant’s average weekly wage was attributable to the concurrent employer. Per WCL §14(6), the WCLJ directed the carrier to pay the full benefits award, $500 per week. The employer then sought reimbursement from the Fund for the portion of the award attributable to claimant’s concurrent employment. However, the WCLJ determined that the 2007 amendments to the WCL prevented such reimbursement. Initially, the Court noted, “[w]e note that because the issue presented here is one of pure statutory interpretation, we need not accord deference to the Board’s decision (see Matter of Belmonte v Snashall, 2 NY3d 560 , 565-566 [2004]; Matter of Belance v Manhattan Beer Distribs., 52 AD3d 1059 , 1061 [2008], lv denied 11 NY3d 715 [2009]). Nevertheless, we agree with the Board’s determination that the employer’s claim for reimbursement from the Special Disability Fund is barred by Workers’ Compensation Law § 15(8)(h)(2)(A), which provides that ‘[n]o carrier or employer . . . may file a claim for reimbursement from the special disability fund, for an injury or illness with a date of accident or date of disablement on or after’ July 1, 2007‘”. It is apparent from the legislative history of the 2007 amendments to the WCL that the Legislature intended to close the Special Disability Fund to new claims as of July 1, 2007. Although the employer contends that WCL §15(8)(l) opens a loophole around the amendments, payments referenced in that section are those made pursuant to WCL §14(6) and, accordingly, are subject to the date restrictions of WCL §15(8)(h)(2)(A). Inasmuch as the statutory interpretation advocated by the employer contravenes not only the unambiguous language of the statute but also the legislative intent, it is rejected and the decision of the Board is affirmed. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds Conservation Committee (Albany) for Special Disability Fund, respondent. Click here to read the full decision of the Court..

Auchampaugh v Syracuse Univ
November 12, 2009 Appellate Division, Third Department
§ 11 Election of Remedies

DISMISSED a motion for summary judgment by the defendant on its contractual indemnification claim against third-party defendant. This case is discussed in far more detail in a prior decision by the Third Department but in this later appeal an additional issue regarding WCL §11 was addressed: “[A]n owner [may] bring a third-party claim against an injured worker’s employer in only two circumstances: where the injured worker has suffered a ‘grave injury’ or the employer has entered into a written contract to indemnify the owner” As there was no claim that plaintiff suffered a grave injury, GE could proceed only if International Chimney entered into a written agreement to indemnify it. The record showed that, although GE had an addendum in this contract referring to additional terms and conditions, the document ultimately submitted by GE was not the one reflected in the agreement nor did GE point to any evidence of the parties past practice that would permit an inference that they agreed to the terms of that document. There were a number of other factors noted by the Court but, in the end, GE lost the case because of an improperly drafted contract. Prevailing party represented by: Maureen G. Fatcheric of counsel to Costello, Cooney & Fear on (Syracuse) for third-party defendant-respondent. Click here to read the full decision of the Court..

NYSIF v. F&V Distrib.
November 4, 2009 Appellate Division, Second Department
Employment: Who is or dual

DISMISSED an action to recover allegedly unpaid premiums for a workers’ compensation insurance policy. Under the terms of the policy, premiums were to be calculated based on payroll and the remuneration earned during the policy period by the employees of the defendant engaged in its business operations, and “all other persons engaged in work that could make [SIF] liable under Part One (Workers’ Compensation Insurance) of this policy.” This case involves certain truck drivers who made deliveries of the defendant’s products and were not on the defendant’s payroll. The deliveries they made were based upon sales made by the defendant’s employees. The issue is whether compensation the defendant paid to the outside drivers should have entered into SIF’s calculation of the relevant premiums. If the outside drivers were the defendant’s employees, then SIF is correct that the defendant was in default of its premiums. However, if the outside drivers were independent contractors, then SIF has no claim. SIF failed to make a prima facie showing that the factors relevant to determining whether there exists an employer-employee relationship were met in this case, under either the “control test,” or the “relative nature of the work test“. Nor did SIF make a prima facie showing that there was a “reasonable risk” that the Workers’ Compensation Board would conclude that the outside drivers were the defendant’s employees, rather than independent contractors. Prevailing party represented by: Christopher P. Keenan of counsel to Westermann, Sheehy, Keenan, Samaan & Aydelott, (White Plains) for respondent. Click here to read the full decision of the Court..

Administrative Assets v Zurich Am. Ins. Co.
October 1, 2009 Civil Court Richmond County
§118 Rules of Evidence

A medical service provider commenced this action, pursuant to the No-Fault Law, to recover payments from Zurich for services plaintiff rendered to its assignor as a result of the injuries that he sustained in an automobile accident. Defendant moves to dismiss the action on the ground that the assignor is entitled to Workers Compensation because the assignor was an employee who was injured on the job while working, thus granting the WCB primary jurisdiction over issues of coverage. The issue related to a document supplied by the defendants claims specialist to prove WCB jurisdiction, a document which was obtained from the WCB: an “Employer’s Report of Work-Related Accident” (”Employer’s Report”) filled out by a third party - the assignor’s employer. The Court agreed with the plaintiff’s assertion that the claims specialist’s affidavit is insufficient to lay a foundation to admit a hearsay document (the Employer’s Report) into evidence. The Court addressed several issues relating to the hearsay exception to business records contained in CPLR 4518(a). With reference to this particular document, the Court ruled that because the document was not written in the regular course of business but was related specifically to this event, this record is inadmissible as evidence. Therefore the Court found that defendant has not submitted sufficient evidence that the assignor was employed at the time of the accident, that workers compensation is primary, and that the issue of coverage must first be presented to the Workers Compensation Board. As defendant’s motion for summary judgment is denied, this case shall proceed to trial. Click here to read the full decision of the Court..

Esparo v Buffalo Bd. of Educ.
November 4, 2009 Appellate Division, Third Department
Aggravation or New Injury
Poorly written decision

RESCINDED and sent back for reconsideration the Board’s decision, reversing the WCLJ, that claimant’s injury was an aggravation of prior compensable injuries. Claimant, sustained work-related injuries March 1999, returned to work eight months later, and remained asymptomatic from October 1999 until September 29, 2006 when she was alleged reinsured after turning her head to address a colleague in the hallway. Claimant’s subsequent application for workers’ comp benefits was denied by a WCLJ who determined that the act of turning one’s head does not constitute an accident within the meaning of the WCL. Upon review, the Board reversed, prompting this appeal by the employer and its claims administrator. Although the claimant’s two doctors testified that claimant’s 2006 injury was unrelated to the injuries she sustained in 1999, the Board determined “that claimant’s 2006 workplace incident constitutes an aggravation of the 1999 neck injuries.” The Court wrote in its decision that because they found that inconsistencies in the Board’s decision, the matter must be remitted to the Board for the purpose of clarifying its finding regarding what occurred and rendering a decision that will permit intelligent judicial review. Prevailing arguments presented by: Karen M. Darling of counsel to Hamberger & Weiss (Buffalo) for appellants. Click here to read the full decision of the Court..

Rodriguez v Port Authority
November 4, 2009 Appellate Division, Third Department
§161 WTC Cases & Notice

AFFIRMED with modification the Board’s decisions that the self-insured employer is entitled to a credit against workers’ comp death benefits paid in New Jersey for the period of September 11, 2001 to June 1, 2007 and denied claimant’s claim for an award for that period. The minor son of claimant and decedent elected to receive workers’ comp death benefits in NJ at the NJ rate, payable to Rodriguez as McNeil’s parent. In 2007, after seeking death benefits in New York on her own behalf and being adjudicated decedent’s domestic, she was awarded workers’ comp death benefits in NY commencing June 1, 2007 – the day that, as found by the WCLJ, McNeil’s NJ death benefit payments ceased. As for the period between September 11, 2001 and June 1, 2007, the WCLJ determined that the employer was due a credit in the amount of the NJ award paid to claimant on McNeil’s behalf and, therefore, she was not entitled to an additional death benefit award for that period. The Court wrote, “Although a domestic partner of an employee who died in the terrorist attacks is deemed a surviving spouse of such employee for the purpose of any death benefits, here, claimant received the NJ award on behalf of her son, who was the only claimed surviving beneficiary. Therefore, allowing claimant to collect death benefits in NY without entitling the employer to a credit against the NJ award payments would amount to an impermissible double recovery by decedent’s surviving beneficiaries.” Turning to the date upon which claimant’s award of death benefits commenced, the record does not support the Board’s finding that the New Jersey award payments ended on June 1, 2007. Rather, the evidence submitted to the Board establishes, and the employer concedes, that those payments ended on February 17, 2007 and, therefore, claimant should be entitled to an award of death benefits commencing on that date. [ED. NOTE: April 1, 2010 - Mo. No. 2010-120: Court of Appeals denied motion for leave to appeal]. Prevailing arguments presented by: David Sanua of counsel to Gorman & Rankin (NYC) for Port Authority of New York and New Jersey Click here to read the full decision of the Court..

Campos v Richmond Home Need
November 4, 2009 Appellate Division, Third Department
§ 23 Late or Interlocutory Appeal

REVERSED the Board’s decision that claimant’s application for review of an administrative decision was untimely. Claimant’s counsel argued that the claimant’s doctor (Persuad) had been improperly precluded from presenting evidence in a decision filed on February 1, 2008. In a decision filed on February 8, 2008, the WCLJ determined that Persuade “remain[ed] precluded” and found that claimant suffered a further psychiatric causally related disability, but made no monetary award. Claimant’s appeal, received March 7, 2008 by the WCB, sought reversal of the WCLJ’s decision to preclude Persuad’s testimony and reports and referenced February 8, 2008 as the filing date of the decision to be reviewed. The Board panel denied review, concluding that claimant’s application was four days late because she should have appealed from the WCLJ’s February 1, 2008 decision as opposed to the February 8, 2008 decision. The Court wrote, “[T]he fact that interlocutory review can be sought of a threshold legal issue does not, as the Board held in this case, mandate a claimant to seek review at such time or risk the issue being foreclosed as untimely“, and send the case back for consideration of whether Persuad’s testimony and reports were properly excluded, ruling that the Feb 8, 2008 was the correct decision as the WCLJ expressly revisited the question of Persuad’s preclusion, thus making the Feb 1, 2008 decision date irrelevant. Prevailing arguments presented by: Brian M. Mittman of counsel to Markhoff & Mittman (White Plains) for appellant. [ED.NOTE: opposing party failed to present an argument.] Click here to read the full decision of the Court..

Liberty Mutual Insurance Company et al v. Hurlbut et al
March 9, 2009 New York Southern District Court
Aggregate Trust Fund

DISMISSED a claim brought by insurers against the NYS WCB challenging the constitutionality of amendments to the WCL which modified insurers= ability to settle claims by empowering an aggregate trust fund (ATF) to settle claims following the required deposit by the insurer of the present value of the claim without the ATF required to obtain an insurer’s approval before entering into a settlement nor to refund to insurers deposit amounts in excess of settlements. The Court ruled that “Federal abstention was proper where the claims implicated important state interests and the insurers were afforded adequate opportunity to raise their federal constitutional claims in state court proceedings.” Prevailing arguments presented by: Barbara K. Hathaway of counsel to Andrew M. Cuomo, Office of the Attorney General

Browne v NYC Tr. Auth
October 29, 2009 Appellate Division, Third Department
§21(1) Presumptions

RESCINDED and sent back for reconsideration the Board decision that there was no prima facie medical evidence of a causally related injury. Claimant, a railroad track employee, was bending down to pick up a rail flag when he began experiencing weakness on the left side of his body, went to the hospital the next day, and was diagnosed with having suffered a stroke. Thereafter, claimant submitted an application for workers’ comp benefits, asserting that his stroke arose out of and in the course of his employment. Following the hearing, at which no testimony was taken, a Law Judge determined that there was no prima facie medical evidence and designated the claim “no further action” pending claimant’s submission of such. The Court ruled that inasmuch as the employer never refuted the allegation that the onset of symptoms occurred while claimant was at work, claimant was entitled to the statutory presumption that his stroke arose out of and in the course of his employment (see WCL §21 [1]) “Here, the record is clear that neither the Law Judge nor the Board gave claimant the benefit of that presumption and it was ‘err[or to] requir[e] claimant to come forward, in the first instance, with prima facie medical evidence of a causal relationship between’ his injury and his employment. Accordingly, this matter must be remitted to the Board to afford the employer an opportunity to rebut the presumption and, if it does so, to then allow claimant to proffer other prima facie evidence of causality.” Prevailing arguments presented by: Robert E. Grey of counsel to Grey & Grey (Farmingdale) for appellant. Click here to read the full decision of the Court..

Hammes v Sunrise Psychiatric
October 29, 2009 Appellate Division, Third Department
§114-a Fraud

AFFIRMED the Board’s decision which ruled that claimant violated WCL §114-a and disqualified her from receiving wage replacement benefits. Claimant had been receiving benefits for a permanent partial disability. Based on the carrier presentation of the testimony of its investigator and video surveillance evidence of claimant’s disability, the Board imposed mandatory and discretionary penalties pursuant to §114-a. Once again the Court has affirmed its position that the Board is the sole arbiter of witness credibility and its determination that claimant violated §114-a will be upheld if supported by substantial evidence. In this case substantial evidence, together with claimant’s eventual admissions, supported the Board’s determination. The Court also agreed that the mandatory and discretionary penalties imposed by the Board were appropriate particularly as the Board set forth a thorough explanation for the discretionary sanction. Prevailing argument presented by: Alison Kent-Friedman of counsel to Gregory J. Allen, State Insurance Fund (Melville) for Sunrise Psychiatric Clinic, Inc. and another, respondents. Click here to read the full decision of the Court…

Koebel v New York State Comptroller
October 29, 2009 Appellate Division, Third Department
WTC Notice

AFFIRMED a Supreme Court decision dismissing petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Comptroller denying petitioner’s application for accidental disability retirement benefits. On November 25, 2002, petitioner applied for accidental disability retirement benefits from her employment with the Port Authority of NY & NJ, describing her disabling condition as posttraumatic stress disorder that resulted from her observation of the terrorist attacks on September 11, 2001 from a location in New Jersey and her subsequent performance of emergency management duties. The Comptroller denied petitioner’s application based upon her failure to give timely written notice to him as required by Retirement and Social Security Law §63(c). Petitioner challenged this determination in a CPLR article 78 proceeding which the Supreme Court dismissed. The Appellate Court disagreed with the Petitioner’s Contention that the widely-known events of September 11, 2001 themselves satisfied the notice requirements of Retirement and Social Security Law § 63 and that her oral notice to her supervisor was sufficient or that her mental state following September 11, 2001 constituted good cause under 2 NYCRR 331.2 (b) for not giving written notice. Finally the Court explained why it did not accept the petitioner’s contention that Executive Order No. 113.7 tolled the 90-day time period. Click here to read the full decision of the Court..

Ashley v Worsell
October 29, 2009 Appellate Division, Third Department
§33 Child Support Lien

AFFIRMED a Family Court order granting the mother’s (the petitioner) application to modify a prior child support order in which the father was ordered to make monthly payments in the amount of $58. But prior to that modification, the father was involved in a workers compensation accident from which he received a $100,000 §32 settlement. In 2006, after becoming aware of this settlement, the mother sought an increase in child support and a second action that the father violated the order by failing to report his §32 settlement. Family Court affirmed the Support Magistrate’s decision that the father had not willfully violated the order, but directed the father to pay the mother 17% of the total amount he received in this settlement, as well to reimburse her for counsel fees.

The father does not dispute the fact (pursuant to Family Ct Act § 413 (1) (b) (5) (iii) (A)) that $30,000 of the award served to compensate him for lost wages but that $70,000 of the settlement was specifically earmarked to pay for future medical and, as such, is not income that should be included in child support calculations. However, as Family Court noted, the father spent the entire amount on expenses that were clearly not medically related. Therefore, he used the entire proceeds of the award to supplement his income and pay for routine expenses, such that for child support purposes, the entire settlement should be counted as income and, in part, be used to support his child. As for the decision that this entire amount be paid by the father in a lump-sum payment rather than in monthly increments, the Appellate Court noted that the father historically paid a bare minimum in child support and did not use any of the funds from this settlement to supplement the child’s ongoing support or care. Given this history, Family Court had ample justification not only to require that the income the father received from the settlement be used to provide for the needs of his child, but also that this payment be made in a lump sum. The Court ruled in the father’s favor on the issue of the legal fee. Click here to read the full decision of the Court..

Mott v ITT Indus
October 22, 2009 Appellate Division, Third Department
§ 28 time bar

RESCINDED and sent back for reconsideration the Board’s decision which ruled that claimant’s application for workers’ comp benefits was time barred. Claimant was diagnosed with bilateral carpal tunnel syndrome in 2006 and applied for benefits. The Law Judge disallowed the claim as time barred pursuant to WCL §28. Here, the Board determined that claimant knew or should have known no later than 2001 that her bilateral carpal tunnel syndrome symptoms were related to her employment. The Court noted, however, that notwithstanding claimant’s prior awareness that her symptoms were work-related, the Board failed to establish the date of claimant’s disablement. Thus, absent “the necessary concomitant finding that claimant’s date of disablement was more than two years prior to the filing of her claim for benefits, … any conclusion on our part concerning whether the Board’s overall determination is supported by substantial evidence would be speculative.” Prevailing argument presented by: Kevin J. McDonald of counsel to Bond, McDonald & Lehman (Geneva) for appellant. Click here to read the full decision of the Court..

Williams v City of New York
October 22, 2009 Appellate Division, Third Department
§161 WTC Cases

RESCINDED and sent back for reconsideration the Board’s decision which ruled that the claimant was not a participant in the World Trade Center (WTC) rescue, recovery or cleanup operations and denied her claim for workers’ comp benefits. Claimant was employed as an auditor working in lower Manhattan and returned to work within a week of the terrorists’ attacks on September 11, 2001. It is undisputed that her employment was within the area defined as the “WTC site” by the WCL §161(2). She had a special assignment until February 2002, returning to her normal duties until September 2002, when she took a regular retirement with over 30 years of credited service. She allegedly began experiencing an exacerbation of her respiratory condition while working on the special assignment. In 2006 and 2007, she submitted forms registering as a participant in the WTC rescue, recovery and cleanup so as to be entitled to the provisions of the recently enacted WCL Article 8-A. The Law Judge found that because the claimant had been involved in rescue, recovery and cleanup, her claim was protected by WCL Article 8-A from dismissal for being untimely (see WCL §28). Upon review, the Board determined that claimant’s activity did not constitute rescue, recovery and cleanup within the meaning of WCL §161(1) and, thus, disallowed her claim as untimely.

To qualify for the coverage afforded by the statute, a claimant must essentially establish three elements, which relate to time, location and activity. The Court wrote, “This language, which is susceptible to varying interpretation and application, is the focus of the current appeal.” and agreed with the claimant’s contention that the Board construed the qualifying activity in the statute too narrowly and focused unduly in her case on the word “rescue” rather than “recovery”. Here, the Board’s original decision and amended decision repeatedly relied upon its conclusion that claimant’s “work was not a rescue-type activity” in finding the statute inapplicable: neither decision discussed “recovery”, despite the fact that this was the relevant activity in this case. The Court said, “This is not to suggest that the Board must always address each activity (rescue, recovery, cleanup) separately or that it cannot group the terms in its decision. However, 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.” Prevailing argument presented by: Robert E. Grey of counsel to Grey & Grey ( Farmingdale) for appellant. Click here to read the full decision of the Court..

Iannaci v Independent Cement Corp.
October 22, 2009 Appellate Division, Third Department
§ 25-a: Advance Compensation

RESCINDED and sent back for reconsideration the Board’s decision that ruled that liability shifted to the Special Fund for Reopened Cases (SFCC) pursuant WCL §25-a. Claimant sustained a work-related injury in 1992, receiving benefits until his case was closed in 2001. In 2007, the carrier requested that the claim be reopened to determine whether §25-a was applicable. The SFCC asserted that further development of the record was necessary before such a determination could be made. The Law Judge disagreed and, finding that the relevant time periods had been met under §25-a, shifted liability to the Special Fund. The Court noted that the Board’s determination that §25-a was applicable was based upon an erroneous finding that there was “no evidence” that claimant received an advance payment of compensation within three years of the date of the application to reopen his claim. The Court noted the absence of any proof regarding the nature of claimant’s light duty work meant the Board could not determine if the claimant received an advance payment of compensation, and determined “The Board could not assess whether an advance payment was made for the purposes of determining the applicability of §25-a. Accordingly, the Board’s decision is not supported by substantial evidence and the matter must be remitted for further development of the record on this issue.” Prevailing argument presented by: Jill Waldman of counsel to Steven M. Licht, Special Funds Conservation Committee (Albany), for appellant. Click here to read the full decision of the Court..

Sajeski v Waldbaum’s
October 22, 2009 Appellate Division, Third Department
Apportionment: Awards

RESCINDED and sent back for reconsideration the Board’s decision that claimant sustained a compensable injury and awarded benefits. Claimant, a maintenance worker, began working for the self-insured employer in 2001. At that time, he was receiving chiropractic treatment for a 1999 neck injury he sustained at a previous place of employment. On September 6, 2006, claimant allegedly re-injured his neck while lifting buckets filled with recyclable materials. Five days later, he submitted an application for workers’ compensation benefits. The employer challenged the claim, asserting that injury did not arise out of employment. Claimant’s immediate supervisor, Donald Allen, testified at an ensuing hearing. In light of an opinion from an independent medical examiner that claimant’s condition was 15% attributable to the 1999 incident, the WCLJ so apportioned his award. Upon review, the Board determined that apportionment was inapplicable, but otherwise affirmed the decision of the WCLJ. In doing so, however, the Board observed that claimant’s immediate supervisor “was not produced for testimony.” The Court ruled that, “While it is true that the Board’s factual determination that a claimant suffered a work-related injury will generally be upheld if supported by substantial evidence, when it appears that the Board’s decision may have been based on an inaccurate reading of the record or incomplete facts, it cannot be sustained.” The court added that it appeared from the language in the Board’s decision that Allen’s testimony was not reviewed, such that an analysis of the Board’s apportionment ruling at this juncture was considered to be premature. Prevailing argument presented by: Theresa E. Wolinski of counsel to Foley, Smith, O’Boyle & Weisman (Hauppauge), for appellants. Click here to read the full decision of the Court..

Mlodozeniec v Trio Asbestos Removal
October 22, 2009 Appellate Division, Third Department
Coverage

REVERSED the Boards decision, and thus affirming the Law Judge’s decision, that the State Insurance Fund (SIF) was liable for the payment of compensation benefits. Claimant was employed until September 1995, performing asbestos removal for Trio Asbestos Removal Corporation. During claimant’s employment, SIF provided workers’ compensation insurance to Trio but in 1996, after claimant left Trio’s employ, Trio replaced the SIF policy with one written by Zurich American Insurance Company, a policy remaining in effect until 1999. After claimant’s health subsequently deteriorated and he was diagnosed with an occupational condition August 1999, he filed for workers’ comp benefits and a Law Judge found that (1) claimant’s pleural and hyperactive airway disease was caused by his asbestos related employment, (2) he was disabled as of August 24, 1999, and (3) concluded that Zurich, Trio’s insurer on that date, was responsible for the payment of this claim. The Board reversed this decision, finding that because SIF was the insurer when claimant was employed by Trio when he was last exposed to asbestos, SIF was liable for the claim.

The question to be decided on this appeal is which carrier is liable for the payment of claimant’s workers’ compensation benefits — the carrier who insured Trio on the date claimant became disabled (Zurich) or the carrier that insured Trio when claimant was last exposed to the asbestos (SIF). In reversing the Board, the Court noted there is no question that Trio, as the last entity to employ claimant to perform asbestos removal work, is responsible for the payment of this claim. The Board’s reliance on Cammarata v Caldwell & Cook Inc. to reach a different conclusion is in error as in Cammarata no policy was in place at the time of Cammarata’s death: as a result, the policy that was in effect at the time Cammarata was last employed was found to be responsible for the payment of this. However, where a policy is in place on the date of a claimant’s disablement, that carrier is responsible for the payment of the claimant’s workers’ compensation award even though it was not in place at the time the claimant was last exposed to the condition that brought on his or her disablement. Prevailing argument presented by: Marc H. Silver of counsel to Gregory J. Allen, State Insurance Fund (NYC) for appellants. Click here to read the full decision of the Court…

Virtuoso v Glen Campbell
October 22, 2009 Appellate Division, Third Department
Disability: Further Causally Related

AFFIRMED the Board decision that claimant did not sustain a further causally related injury to his back as the result of a work-related accident in 1991; he did not qualify in 1991 for workers comp benefits due to insufficient lost time. In 2003, he requested further action on his case, alleging a change in the condition of his back that had required surgery in 2002 at which time the SFCC, now on notice questioned whether claimant’s worsened condition at the times of that surgery and a second surgery in 2006 were causally related to his accident. The Board cited several factors in determining that claimant had not established that his condition at the time of the surgeries was causally related to his accident and denied him benefits for certain time periods. It observed that claimant had failed to file medical reports during the time periods for which benefits were denied, reports required because he had not been found to be permanently disabled and the presumption of continuing disability did not arise. The Board also noted that the physician who performed the surgeries declined to say whether a causal relationship existed. Moreover, the Board concluded that proper authorizations for claimant’s surgeries in 2002 and 2006 were not obtained as required by WCL §13-a(5)et al. Nor did claimant’s proof demonstrate that either surgery was necessary as an emergency procedure. Prevailing argument presented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee (Albany) for respondent. Click here to read the full decision of the Court..

October 9, 2009 Appellate Division, Fourth Department
Burnett v Columbus Mckinnon Corp.
Jurisdiction

REVERSED the order of the lower court by finding that the Supreme Court erred in granting plaintiffs’ motion for an order applying the substantive law of New York, rather than Indiana, in this personal injury action. Burnett, the plaintiff, a resident of Ohio, was injured in Indiana, with a piece of equipment manufactured by the defendant, a New York corporation, but owned by his employer. The Appellate Court first addressed the ancillary issues (1) of the site of the tort which should be the place of injury rather than a location where the allegedly defective product was manufactured and (2) whether “New York’s choice-of-law principles govern the outcome of this matter”. Turning to the merits of the case court then addressed two additional issues: New York State’s adoption of a “pure” comparative negligence approach and then New York’s law which posits that comparative fault may not be apportioned against the employer of an injured worker covered by workers’ compensation insurance unless that worker suffered a grave injury within the meaning of WCL §11. After review of these four points plus a number of other issues raised by both parties in the Appellate Court determined that the Supreme Court should have granted defendant’s motion seeking a determination that the substantive law of Indiana applied. Prevailing party represented by: Richard A. Clack of Counsel to Amigone, Sanchez, Mattrey & Marshall, Llp, (Buffalo) for Defendant-appellant. Click here to read the full decision of the Court..

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October 8, 2009 Appellate Division, Third Department
Chiesa v Stillwater Cent. School Dist.
Causal Relationship: Medical (ANCR/ODNCR)

AFFIRMED the Board which affirmed the Law Judge’s ruling that the claimant did not sustain a causally related injury. Claimant applied for benefits, claiming that she had been injured due to exposure to particulate matter released into the air as the result of an explosion that occurred due to construction and asbestos abatement work at the school where she worked. The WCLJ, subsequently affirmed by the Board, disallowed the claim, finding, among other things, that claimant lacked credibility and failed to establish causally related injury that stemmed from this accident. The claimant’s contention that she was exposed to a toxic cloud which engulfed the school after an explosion was contradicted by the employer’s witnesses who testified that neither recalled an explosion that caused a dust cloud to engulf the school or any portion of it. Each denied being informed of such an incident nor with claimant’s alleged injury until three years later when claimant filed her application for compensation benefits. And there were no other witnesses or documentation to support her claim of the toxic cloud. Although the claimant testified she resigned from her position the day after the incident in part because of her alleged injuries, her letter of resignation states that she resigned for “personal reasons”, with no mention of the accident or any injuries. The school principal testified he requested her resignation because of her poor work performance. As to the medical evidence the claimant’s medical providers based their opinion on her claim of exposure whereas the carriers doctors noted her pre-existing respiratory ailments. The Court agreed with the Board’s determination that claimant lacked credibility and did not establish a causally related injury to be supported by substantial evidence. Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for Stillwater Central School District and another, respondents. Click here to read the full decision of the Court…

Ancrum v NYC Bd. of Ed.
Disability: Further Causally Related

AFFIRMED the Board which affirmed the Law Judge’s ruling that the claimant had no further causally related disability. The claimant sustained a compensable injuries in February 2005. The employer thereafter controverted the claim based upon the results of an IME in 2007 as which time the WCLJ, later affirmed by the Board, determined that claimant had no further causally related disability. It is well settled that “[s]o long as the Board’s determination is supported by substantial evidence it will be upheld“. As occurs in most of these cases in which the treating physician and the employer’s expert disagreed, the Court stated that “the Board’s determination is supported by substantial evidence and it will not be disturbed, despite evidence in the record which might support a contrary conclusion.” Prevailing party represented by: Marta Ross of counsel to Michael A. Cardozo, Corporation Counsel (NYC) for NYC Board of Education, respondent. Click here to read the full decision of the Court…

Frederick v Lindenhurst
§ 21 Unwitnessed Death

AFFIRMED the Board which, in reversing the Law Judge, ruled that the death of claimant’s decedent was not causally related to his employment. The decedent, a school custodian, went to the school’s boiler room on a break from work and was later discovered there slumped on a staircase, not breathing and unresponsive. He subsequently died. The Board reversed the WCLJ’s establishment of the claim, finding that the presumption of compensability contained in WCL §21(1) had been overcome. Given that both the death certificate and the results of an autopsy attribute decedent’s death to arteriosclerotic heart as well as the lack of any medical evidence which would call that conclusion into question or otherwise suggest that decedent’s work and his death were causally linked, the Court declined to disturb the Board’s decision. Prevailing party represented by: Peter D. DeCurtis of counsel to Davis & Venturing (Hicksville) for Lindenhurst Union Free School District and another, respondents. Click here to read the full decision of the Court…

Reynolds v Essex County
Reimbursement
Procedure: Denial Full Board Review

AFFIRMED the Board which (1) affirmed the Law Judge’s ruling that the employer is entitled to reimbursement for certain benefits paid to claimant and (2) denied the application of the employer for Full Board Review. Claimant sustained a work-related injury for which a WCLJ awarded the claimant benefits and directed that the employer be reimbursed for wages paid to the claimant. While not disputing either the underlying award or the amount of reimbursement ordered, the employer objected to certain language in the WCLJ’s decision outlining the circumstances under which reimbursement would not be permitted, language which the Board accepted. The employer’s appeal of that decision by means of a Full Board Review was subsequently denied. Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General (NYC) for WCB, respondent. Click here to read the full decision of the Court..

Curtis v Xerox
Causal Relationship: Medical (ANCR/ODNCR)

AFFIRMED the Board which affirmed the Law Judge’s ruling that claimant sustained a work-related occupational disease and awarded benefits. During her 33-year with the employer, claimant worked in various positions requiring she spend most of her day performing data entry on a keyboard, thereafter developing pain and swelling in her wrists, hands and fingers. She stopped work in 2005 pursuant to her doctor’s orders and submitted a claim, after which the WCLJ in 2007 found, due to the lack of medical records that a case could not be established. But the Board rescinded that decision, directing that medical records be produced by the employer within two weeks, or the Board would infer a diagnosis of a causally related occupational disease. In subsequent hearings, the employer testified that they had no medical records at which time the WCLJ ruled, based on the remaining evidence, claimant had failed to submit prima facie medical evidence of a work-related injury. But the Board reversed basically positing that the employer’s inability to supply medical records entitled to an inference that the records exist and show a diagnosis favorable to claimant that, along with the other medical evidence, established the claim. The Court agreed that where an employer, without excuse, fails repeatedly to present evidence as directed by the Board, it is an abuse of discretion for a WCLJ to grant an adjournment for the purpose of later submission of such evidence, and as the employer had ample opportunity but failed to present evidence, the Board did not err in precluding the subsequent introduction of testimony. Likewise, they found that it was within the Board’s authority to draw an inference in favor of claimant based on the employer’s failure to produce the evidence as directed. In addition, the Court found that the Board’s determination that claimant sustained a work-related occupational disease was supported by substantial medical evidence from the claimant’s own doctors, even without such negative inference. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, New York City for WCB, respondent. Click here to read the full decision of the Court…

Brown v City of Rome
Employment: Who is or dual

AFFIRMED the Board which affirmed the Law Judge’s ruling that an employer-employee relationship existed between claimant and the City of Rome. Claimant, after entering into an agreement with his alleged employer, the City of Rome, to provide guidance to certain community organizations and to develop and implement various urban renewal initiatives, was injured while at work and filed a comp claim. Although the City argued he was an independent contractor, the Board found an employer-employee relationship. The Court agreed that, “The record reflects that claimant was supervised by City employees and that the City had authority to discharge him. He was required by those supervisors to work certain hours and attend City department meetings, he received directives from the City’s mayor and other City officials, and he supervised City employees that were assigned to him. Claimant was paid by the City on a monthly basis, needed preapproval from the City for his expenses and used office equipment and supplies provided by it. In our view, these facts constitute substantial evidence supporting the Board’s determination, notwithstanding the presence of evidence that could support a contrary result.” Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for WCB, respondent. Click here to read the full decision of the Court…

October 1, 2009 Appellate Division, Third Department
Burns v Town of Colonie
Voluntary Withdrawal

AFFIRMED the Board’s ruling that claimant was entitled to reduced earnings benefits subsequent to November 3, 2004. Claimant, a police officer, sustained multiple injuries in a work-related automobile accident in January 2000, awarded accidental disability retirement benefits and workers’ comp benefits and, in July 2004 classified as permanently partially disabled. Thereafter, with the consent of the workers’ compensation carrier per WCL §29[5], he settled a 3rd-party negligence action against the driver of the vehicle that struck his car, resulting in accrued credits to the carrier against payment of future benefits per WCL §29[4], for which reason the carrier as not made any payments to claimant since November 2004. After that date, the claimant asserted an entitlement to additional compensation payments but was denied. When the Law Judge determine the claimant was not eligible because he had not sustained a sufficient attachment to the labor market, the Board Panel reversed; the carrier then requested a full Board review, which was denied. The Court determined that because the claimant’s involuntary retirement and classification are not in dispute, “an inference arises that his earning capacity is reduced by [his] disability and claimant is entitled to compensation until the inference is removed from the case” and the carrier failed to submit”direct and positive proof that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement.” Here, claimant testified that he has performed work as an accident investigator for insurance companies and attorneys since his retirement. Contrary to the carrier’s assertion, claimant’s failure to advertise or seek work other than by word of mouth is not sufficient to defeat the inference and the burden of proving that his reduced earning capacity is a result of his disability never shifted to claimant. In any event, claimant also testified that the injuries he sustained in the accident prevent him from working for extended periods of time, which was supported by records and testing to regular medical attention from the date of the accident 2007, which limited claimant’s ability to work. Prevailing party represented by: Kevin F. McCane of counsel to Erwin, McCane & Daly (Albany) for Owen F. Burns, respondent and Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the WCB. Click here to read the full decision of the Court…

Cali v Militello Concrete, Inc
Causal Relationship: Was there?

AFFIRMED the Board’s decision which denied pro-se claimant’s application for reconsideration and/or full Board review. Claimant, a cement mason, began experiencing fatigue and shortness of breath in November 1998 and immediately sought medical attention. He did not return to work and submitted an application for workers’ compensation benefits one year later, asserting that he suffered injuries to his internal organs as a result of exposure to cement dust. After the Law Judge initially concluded that there was no prima facie medical evidence to support the claim, a physician diagnosed claimant with mild small airways dysfunction caused by dust inhalation and a hearing was held. According to the WCLJ, claimant’s testimony at the hearing did “not sufficiently support an exposure history which would form a basis for any medical opinion on causal relationship,” and the matter was discontinued. Although claimant’s request to reopen the case was granted, the WCLJ’s identical determination was upheld by the Workers’ Compensation Board. Claimant did not appeal from that decision, but subsequently applied for reconsideration and/or full Board review. The Board denied claimant’s application, prompting this appeal. In affirming the Board’s decision the Court wrote “As claimant appeals only from the denial of his request for reconsideration and/or full Board review, the merits of the Board’s underlying decision are not properly before us, and our analysis is limited to whether the Board abused its discretion or acted arbitrarily or capriciously in denying claimant’s request. We conclude that it did not and now affirm.” Prevailing parties represented by: Prudence F. Philbin of counsel to Hamberger & Weiss (Buffalo) for E.J. Militello Concrete, Inc.; Frank S. Kedzielawa of counsel to Abbarno, McLaughlin & Kedzielawa (Buffalo) for BVR Construction; Ralph M. Visano of counsel to Gregory J. Allen, State Insurance Fund (Buffalo) for State Insurance Fund. respondents. Click here to read the full decision of the Court…

Ford v Fucillo
Apportionment: Medical

AFFIRMED the Board’s decision which, among other things, ruled that apportionment applied to claimant’s workers’ compensation award. Claimant suffered work-related injuries to his lower back while working for a previous employer in 1991 and 1992 and was found to be permanently partially disabled. Claimant settled the claims pursuant to WCL §32 and eventually returned to work. In 2002, claimant sustained an injury to his right hip and leg while employed at Fucillo. The Law Judge, affirmed by a Board Panel, awarded workers’ compensation benefits finding a moderate partial disability, to be apportioned equally between the 2002 claim and the prior claims. The court found that apportionment “is appropriate where the medical evidence establishes that the claimant’s current disability is at least partially attributable to a prior compensable injury“. Based on the fact that the employer’s medical expert testified towards apportionment in the claimants treating physician wasn’t able to get an opinion as to apportionment and the claimant did not give any event’s contradicting the conclusion of the employer’s witness court found that the board’s decision was supported by substantial others. Prevailing party represented by: Robert E. Geyer Jr. of counsel to Wolff, Goodrich & Goldman, L.L.P., (Syracuse) for Fucillo and another, respondents. Click here to read the full decision of the Court…

Person v LI Maintenance
Causal Relationship: Was there?

AFFIRMED the Board’s decision which ruled the pro-se claimant did not sustain an accident in the course of his employment and from a second decision which denied claimant’s application for reconsideration or for full Board to review. Claimant alleged that he sustained injuries as a result of a slip and fall at his work site. They Law Judge denied the claim, which was affirmed by a Board Panel after which claimant’s request for full Board review or reconsideration was denied. The record shows that coworkers testified they were with the claimant the day in question and did not witness an accident, the claimant did not inform them of an accident or his injury and he worked the day of his alleged injury, as well as the following day. Claimant was then informed that the lack of work he was not needed by the employer at which point the claimant informed them that he was leaving employment and the next day, three days after the alleged fall, claimant advises employer of the alleged fall and placed claim. Based on the issues of credibility, the court agreed with the board for the claimant failed to present any substantial evidence of a compensable accident. Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smith, O’Boyle & Weisman (Hauppauge) for LI Maintenance Ad and another, respondents. Click here to read the full decision of the Court...

LeFever v City of Cortland Fire Dept.
Voluntary Withdrawal

AFFIRMED the Board which, inter alia, ruled that claimant did not voluntarily withdraw from the labor market. The claimant suffered a compensable injury in 1999 later modified to include a consequential injury and ultimate classified as a permanent partial disability in 2005. In the interim, claimant had stopped working after suffering an unrelated cardiac arrest , which require implantation of a defibrillator, which disqualified the claimant from performing his work duties, and he accordingly retired in 2003, although it was not until his left elbow was classified as a permanent partial disability that he sought postretirement benefits, arguing that the elbow injury affected his decision to retire. The Law Judge and Board Panel awarded benefits and the self-insured employer appealed. Claimant here testified that he was having problems with his left elbow which affected his ability to work prior to his cardiac arrest, and he successfully applied for performance of duty disability retirement benefits based upon both his cardiac condition and arm injuries. In addition, claimant’s left elbow injury has already required three surgeries and his orthopedic surgeon testified both that additional surgery would likely be required and that the condition would progressively worsen over time. As such, the Board’s finding that claimant’s decision to retire was partially based upon his compensable disability is supported by substantial evidence. Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell, L.L.P., (Binghamton) for Bradley J. LeFever, respondent and Estelle Kraushar of counsel toAndrew M. Cuomo, Attorney General, New York City for the WCB respondent. Click here to read the full decision of the Court…

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September 24, 2009 Appellate Division, Third Department
Tucker v Fort Hudson Nursing Home
§ 25-a: True Closing

REVERSED and then castigated the Board for it’s decisions to rule that WCL §25-a is inapplicable to claimant’s award of workers’ compensation benefits and denied subsequent review of the facts. After suffering a back injury in 1999 with medical treatment beginning in 1999, the claimant ultimately found her job too strenuous, obtained other employment, and in March 2007 filed for compensation. The Board (1) disagreed with the carrier’s argument that the claim was closed and therefore liability should be shifted to the Special Fund for Reopened Cases per WCL §25-a and (2) denied a request for review.

In its reversal, the Court faulted the Board for “fail[ing] to resolve or even acknowledge the existence of such an issue, namely the employer and carrier’s contention that the medical records from 2000 onward refer to treatment for separate injuries and should not be considered in determining whether the present claim was truly closed. That omission is particularly troubling given that the Board expressly relied upon those documents in concluding that the claim was not truly closed. ‘The Board failed to engage in its fact-finding role, thereby depriving [the employer and carrier] of the opportunity to have the Board consider the merits of an issue that was properly preserved.’ ” Prevailing party represented by: Lauren E. Ryba of counsel to Walsh & Hacker (Albany) for the appellants. Click here to read the full decision of the Court…

Puig v New York Armenian Home, Inc.
Causal Relationship: Death

RESCINDED the Board’s decision that the death of claimant’s decedent was causally related to his employment. [ED. NOTE - Sept 29, 2009: The Court therefore supported the original finding of the Law Judge that the case was not compensable.] In November 2003, decedent was declared dead as a result of cardiopulmonary arrest after being discovered lying on the floor of a room that he had just cleaned in the nursing home where he was employed. The Law Judge denied the claim but a Board Panel reversed.

The Court, while acknowledging that presumption of compensability under WCL §21 arises when an unwitnessed or unexplained accident occurs during the course of employment, such a presumption may be rebutted by the employer with substantial evidence to the contrary. Moreover, in contrast to the articulated basis for the Board’s decision, rebuttal of the presumption does not require that the employer submit irrefutable proof excluding every other explanation as to potential causes of death. If the employer does rebut the presumption, the burden of proving that a death is causally related to the employment shifts back to claimant. In this case all the medical evidence, including that from the claimant’s own doctor, stated that the claimant died from cardiopulmonary arrest and myocardial infarction with hypertension and high cholesterol as contributing factors. Finally, evidence in the record suggests that decedent felt ill the night before the incident and went to work despite not feeling well that morning. He was advised to go home, but did not. The Court then sent the case back for a determination of whether claimant established that decedent’s work activities contributed to his death. Prevailing party represented by: Charlotte Flynn of counsel to Gregory J. Allen, State Insurance Fund, New York City for appellants. Click here to read the full decision of the Court…

September 22, 2009 Civil Court: Kings County
JJesa Med. Supply v. GEICOMedical Billing

Jesa Medical commenced this action against Geico to recover 1st party no-fault benefits pursuant to CPLR 5102 of the Insurance Law and Regulation of the New York State Insurance Department (11 NYCRR Sect. 65-1.1 et. Seq.), for medical services rendered, during the course of which both sides asked that the other’s documentation be rejected by the Court. The litigation started when Geico stated that the claims for no-fault benefits were timely denied based upon lack of medical necessity and fees charged in excess of the Workers Compensation Fee Schedule. In the course of the hearings, both sides argued that improper signatures on the reimbursement application and denials were done improperly, filing were done late, and therefore, each side argued that the other’s supporting documents should be disallowed. The court ruled that all documents were sufficiently up to par and resolved the bills, some for Jesa and some against. The Court cited many WC cases to explain its logic in making the decisions in this case, which could be cited at WC hearing when similar bill disputes and issues regarding proper medical documentation arise. Click here to read the full decision of the Court..

September 10, 2009 Supreme Court: Richmond County
Perry v AHRC NYC New Projects Inc
§ 11 Election of Remedies

ORDERED that alleged employer‘s motion for summary judgment is hereby granted and that the claimant’s complaint is hereby dismissed in its entirety. The claimant allegedly sustained injuries when she fell while descending stairs at the owned and utilized as a home for developmentally disabled consumers by defendant AHRC NYC New Projects, Inc, an injury for which she successfully sought workers compensation. At the time of the accident the plaintiff contends that she was employed by AHRC NYC as distinct from AHRC NYC New Projects. The Court determined that New Projects presented evidence sufficient to establish that it and AHRC were operating as a single integrated entity, therefore entitling them to summary judgment on the ground that claimant’s action is barred by WCL §§ 11 and 29(6), which restricts an employee’s ability to sue her employer after she receives workers compensation. The claimant contended that AHRC NYC is her employer, not defendant New Projects, and that summary judgment is inappropriate. (No attorney are noted in the decision.) Click here to read the full decision of the Court...

August 20, 2009 Appellate Division, Third Department

D’Errico v New York City Dept. of Corrections
Procedure: Denial Full Board Review
§ 23 Late Appeal
Causal Relationship: Stress

AFFIRMED BY 3-2 VOTE OF THE COURT the Board’s determination (1) to reverse the Law Judge by denying the claimant’s application for benefits and (2) to deny claimant’s request for reconsideration or full Board review (FBR). Claimant sought workers’ compensation benefits, asserting that his severe major depressive disorder with psychotic features, posttraumatic stress disorder and panic disorder with agoraphobia were caused by his exposure to violent incidents in the course of his employment as a maintenance worker for the NYC Department of Corrections. The Board ultimately denied the claim, concluding that claimant was not exposed to a greater amount of work-related stress than that normally experienced by similarly situated employees at correctional facility.

Both the Majority and the Dissent agreed to deny review of the denial of the underlying claim because the claimant failed to timely perfect his appeal from the underlying decision.

As to the claimant’s request for FBR, the Majority held that the issue being appealed in this case was the same as others in which the Board properly rejected applications for reconsideration or full Board review, where such evidence did not exist or the relevant issues were considered in the original decision. The Dissent disagreed, writing that the Board in its rejection did not explain its reasoning on a key issue in this case:

As a matter of law in which class of employees was the claimant to be considered? Although the Law Judge found the claimant to be part of a ‘large’ class and established the claim, the Board reversed, ruling in favor of a ‘narrow’ class, disallowing the claim. The Dissent ruled that the Board failed to properly decide as it did note explain why it chose the narrow class rather than the wider one, and determined the case should be sent back to the Board for a clarification on this issue.

[ED.NOTE: See this week’s COMMENTARY & REPORTS for a discussion of this case.] Prevailing party represented by: Susan Choi-Hausman of counsel to Michael A. Cardozo, Corporation Counsel, New York City for NYC Dept of Corrections, respondent. Click here to read the full decision of the Court…

August 13, 2009 Appellate Division, Third Department
Feliciano v New York City Health & Hosps. Corp.

§ 28 time bar

Affirmed the Board which ultimately ruled that claimant’s application for workers’ compensation benefits for left carpal tunnel syndrome was time-barred by WCL § 28. In December 2003, claimant sought medical treatment for pain in her left hand from carpal tunnel syndrome caused by her work. She continued to work until February 2006 when she underwent surgery for that condition. After she began to feel similar pain in her right hand, surgery was performed on that hand on August 28, 2006. Approximately one month later, claimant submitted an application for benefits for bilateral hand injuries. At a December 3, 2007 hearing, a Workers’ Compensation Law Judge (hereinafter WCLJ) stated that the claimant’s application for the injury to her left hand was time-barred pursuant to WCL §28 while accepting the claim for the right hand. On appeal to the Board, claimant, inter alia, that the claim for her left hand should not be considered time-barred and August 28, 2006 should be found to be the date of disability for both hands. The Board, while declining to disturb the conclusion that August 28, 2006 was the proper date of disability for claimant’s right hand, noted that the WCLJ had failed to establish a date of disability for claimant’s left hand and, on its own motion, set December 2003 as the date of such disability. Consequently, the Board modified the WCLJ’s decision to the extent of finding that the application for benefits with respect to claimant’s left hand was untimely, prompting this appeal.

 

The Court then added a very important footnote: “We note that while claimant contends that the Board failed to adhere to precedent it set forth on this point in Matter of New York State Dept. of Social Servs. (2000 WL 33395667 [WCB No. 5942 3590, July 13, 2000]), the employer correctly notes that this case does not involve ‘essentially the same facts’ as is set forth therein (Matter of Teal v Albany Capitaland Enters., 259 AD2d 859, 860 [1999], lv dismissed 93 NY2d 1041 [1999]). Specifically, in Matter of New York State Dept. of Social Servs. (supra), the claim involved a bilateral carpal tunnel syndrome diagnosis where the injuries to the respective hands began at approximately the same time and, therefore, one date of disablement was appropriate.” Prevailing party represented by: Susan B. Eisner of counsel to Michael A. Cardozo, Corporation Counsel, New York City for NYC Health and Hospitals Corporation and another, respondents. Click here to read the full decision of the Court…

July 28, 2009 Appellate Division, Second Department
LMK Psychological Serv. v American Tr. Ins. Co.
§ 11 Election of Remedies

LMK, as assignees of no-fault benefits (see Insurance Law § 5101, et seq.), brought this action to recover for health services rendered to the beneficiaries of the American Transit’s no-fault insurance contracts. Each assignor received medical treatment from LMK following separate automobile accidents. The Appellate Court determined that the Supreme Court should not have entertained American’s contention that LMK was barred from recovery pursuant to Workers’ Compensation Law § 11. Those claims must be referred to the Workers’ Compensation Board for a determination as to whether the plaintiffs have a valid cause of action to recover no-fault benefits, or whether they are relegated to benefits under the Workers’ Compensation Law. And the Court agreed with the lower court that the medic al provider’s motion for summary judgment on the complaint, as the they failed to demonstrate, prima facie, their entitlement to judgment as a matter of law. Click here to read the full decision of the Court…

July 23, 2009 Supreme Court, Queens County
Imperial Structured Settlements v Angelillo
§ 11 Election of Remedies

The Court found that the proposed transfer of structured settlement payment rights from Vincent Daniel Angelillo to Imperial Structured Settlements is neither in Mr. Angelilli’s “best interest” nor that the rate is “fair and reasonable.”Title 17 of New York’s General Obligations law, known as The Structured Settlement Protection Act (SSPA) requires judicial approval before a plaintiff can sell their rights to future structured settlement payments to a third party. In addition, General Obligations Law §5-1706, states that the Court must make the following findings before a transfer can be effectuated. These are “that (a) the transfer complies with the requirements of this title; (b) the transfer is in the best interest of the payee, taking into account the welfare and support of the payee’s dependants; and whether the transaction, including the discount rate used to determine the gross advance amount and the fees and expenses used to determine the net advance amount, are fair and reasonable. Provided the court makes the findings as outlined in this subdivision, there is no requirement for the court to find that an applicant is suffering from a hardship to approve the transfer of structured settlement payments under this subdivision; (c) the payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received such advice or knowingly waived such advice in writing; (d) the transfer does not contravene any applicable statute or the order of any court or other government authority; and, (e) is written in plai/n language and in compliance with section 5-702 of this article.” Click here to read the full decision of the Court…

July 6, 2009 Civil Court Of The City Of New York, Richmond County

Lenox Hill Radiology v Global Liberty Ins. Co. of NY

Lennox Hill, as assignees of no-fault benefits (see Insurance Law § 5101, et seq.), brought this action to recover for health services rendered to the beneficiaries of the Global Liberty’s no-fault insurance contracts. Each assignor received medical treatment from Lennox Hill following separate automobile accidents. Unlike the majority of cases on the issue of WCL §11, election of remedies, in this case, Global failed to raise the defense that claimant is eligible for workers compensation or that workers compensation is primary in a timely denial, Lennox Hill is entitled to summary judgment that Global is the responsible party, although the matter proceeded to trial on the issue of medical necessity. Click here to read the full decision of the Court…

July 23, 2009 Appellate Division 3rd Judicial Department
Porcelli v Pma Assoc.
[ED.NOTE: A conclusion to this case has taken 11 years from the date of the claimant’s death.]

AFFIRMED the Board, which reversed the Law Judge, which precluded the written reports and testimony of claimant’s medical expert, resulting in the claim being disallowed.

Claimant’s husband (hereinafter decedent), employed as a printer for over 30 years, died in 1998 as a result of respiratory failure. Claimant applied for death benefits, claiming that the death was attributable to inhalation of toxic chemicals during the course of employment. Although a Law Judge determined, et alia, that decedent’s death resulted from an occupational disease and awarded claimant benefits, the Board found that claimant’s failure to timely furnish her medical expert’s original report to the Board and other parties pursuant to 12 NYCRR 300.2 (d) (12) required preclusion of the report as well as an addendum to the report and the expert’s hearing testimony. Thereupon, the Board found that claimant failed to establish a causal relationship between decedent’s death and his employment.

Here, the original report was not filed prior to the hearing where the claimant expert was to testify, the employer objected, and the matter was adjourned. On the new hearing date two months later, the report still had not been filed with the Board. Based upon claimant’s failure to file the report with the Board (i.e., furnish it to the WCLJ), as well as the uncertainty concerning whether the report was provided to all parties prior to the hearing, the record supports the Board’s conclusion to preclude the report. Without claimant’s expert proof, the Board’s determination that claimant failed to establish a causally-related death is supported by substantial evidence.

Prevailing parties represented by: David W. Faber of counsel to Edson & Kelly (Carle Place) for Fireman’s Fund Insurance Company, respondent; Patrick M. Conroy of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for EMR Systems and another, respondents; Louis R. Salvo of counsel to Weiss, Wexler & Wornow (New York City) for Hartford Excelsior Insurance, respondent. Click here to read the full decision of the Court…

July 9, 2009 Appellate Division 3rd Judicial Department
Chmura v T&j Painting Co., Inc.

RESCINDED the decision of the Board and the Law Judge by finding that Traveler’s Indemnity Company was not the liable workers’ compensation carrier.
The employer, a NJ corporation with its sole office located in NJ, maintains NJ compensation insurance through Travelers. Claimant fell while working as a painter for the employer in New York and filed a workers’ compensation claim in NY. The Board found that the work done by claimant in NY was temporary and, thus, covered under the employer’s insurance policy. While the Court agreed that the work was temporary, that conclusion does not end the inquiry; all conditions must be met for the policy’s endorsement to apply. Because the Board only addressed one condition before holding that Travelers was the proper carrier, The Court returned the case to the Board for it to determine whether all of the policy endorsement’s conditions were met, in particular a “limited other states insurance endorsement.” Some condition were listed in the Court’s decision: “the employee claiming benefits must have been hired in New Jersey; at the time of the injury the employee must have been principally employed in New Jersey; the employer must not be required by law to have separate workers’ compensation insurance coverage in the state where benefits are being sought; and the work being performed in the other state must be temporary.“ Prevailing party represented by: Beverly M. Barr of counsel to Reger, Rizzo & Darnall (White Plains) for Appellant. Travelers Indemnity Company. Click here to read the full decision of the Court…

July 7, 2009 Appellate Division 2nd Judicial Department
State Ins. Fund v American Hardware Mut. Ins

IN AFFIRMING the lower court, the Appellate Court found the SIF was corrected in demanding that American Hardware Mutual Ins Com (American), the carrier for the employer, had to pay their proportionate share of the settlement and defense costs incurred in an underlying action to recover damages for injuries sustained by its employee. American provided two insurance policies in effect at the time of the accident: a commercial general liability policy and a garage policy. Although the American initially defended the employer, SIF took over the defense after American disclaimed coverage on the ground that both policies excluded coverage for bodily injury to an employee arising out of and in the course of employment.

Since the disclaimer was based on policy exclusions, America was required to provide the employer with timely notice of its disclaimer under Insurance Law § 3420(d) but the Supreme Court properly found that the defendants’ disclaimer, issued more than four months after receiving notification of the third-party action, was untimely as a matter of law. In addition, the Court rejected American’s argument that the injury did not arise out of and in the course of employment. Prevailing party represented by: Donald S. Neumann of counsel to Montfort, Healy, McGuire & Salley, LLP (Garden City) for respondent. Click here to read the full decision of the Court...

July 2, 2009 Appellate Division 3rd Judicial Department
Torre v Logic Tech., Inc.

AFFIRMED the Board and the Law Judge decision that claimant’s injury arose out of and in the course of his employment and awarded workers’ compensation benefits. The Court noted that “The notice of appeal states that both the employer and its workers’ compensation carrier are appellants, but the employer opposed the carrier’s application for Board review below and has not submitted any brief on this appeal. As such, we deem the appeal to have been taken by the carrier alone.” Claimant, employed by a firm that performed on-site contracting work for G.E., suffered a spinal cord injury while participating in an exercise class at the G.E. Fitness Center during work hours. Although as a rule claims for injuries incurred during “voluntary participation in an off-duty athletic activity” are usually not accepted, this case was one of the exceptions. Claimant was both encouraged to join the gym, with the employer reimbursing the claim 50% of the fee, in order that the claimant develop contacts with current and prospective clients. Based on the substantial evidence offered, the Court affirmed the decision. Prevailing party represented by: John T. Dall Vechia of counsel to Dall Vechia & Kraft, L.L.P. (Kingston) for Frank P. Torre; David J. Wukitsch of counsel to McNamee, Lochner, Titus & Williams, P.C. (Albany) for Logic Technology, Inc.; and Iris Steel of counsel to Andrew M. Cuomo, Attorney General, New York City for the WCB. Click here to read the full decision of the Court…

Hassanein v Yankee Stop Corp.

AFFIRMED the Board and Law Judge who ruled that claimant was not an employee of Yankee Stop Corporation and denied his claim for workers’ compensation benefits. And this was after the Board had reopened the case, after the Judge’s first disallowance, to allow the introduction of new evidence by the claimant. The Court ruled, as often occurs in such cases, that “Whether an employer-employee relationship exists is a factual issue for the Board and its determination will be upheld if supported by substantial evidence.” The Court also ruled that “nothing in the record substantiates claimant’s assertion that the WCLJ who decided his case was biased against him.” Prevailing party represented by: Paul D. Jaffe, White Plains, for Yankee Stop Corporation, respondent. Click here to read the full decision of the Court…

Dory v New York State Elec. & Gas

AFFIRMED the Board and Law Judge’s decision that claimant did not knowing commit fraud when he denied that “he ‘engaged[d] in squat pressing’ as a follow-up question inquiring whether he lifted weights. He was not asked if he had ever used a squat press machine. In explaining his negative answer, claimant admitted that he had used the machine in question twice, at most, but did not know its actual name. Moreover, he stated that his conception of a squat press involved the use of free weights.” Accordingly the Board determined that claimant did not willfully misrepresent the facts. [Editor’s note: As Clinton said, “It depends on your definition of ‘is’”.] Prevailing party represented by: Mary Jo Long (Afton) for George M. Dory, respondent; Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the WCB. Click here to read the full decision of the Court…

Defayette v Verizon

AFFIRMED the Board’s decision not to reopen the case, “inasmuch as the additional evidence proferred by claimant was either available at the time of the prior determinations or failed to indicate a material change in his condition.” Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead, L.L.P. (Albany) for Verizon and another, respondents. Click here to read the full decision of the Court…

June 18, 2009 Appellate Division 3rd Judicial Department

Gardner v Nurzia Constr. Corp.

AFFIRMED the Board and Law Judge that claimant’s injury did not arise out of and in the course of his employment and (2) two decisions of the Board which denied claimant’s requests for reconsideration or full Board review. Claimant filed for benefits, alleging that he had fallen from a ladder sustaining disabling head injuries while working alone at the employer’s construction site. Finding claimant’s testimony incredible, the Law Judge disallowed his claim and the WCB affirmed. The Court disagreed with the claimant’s argument that the statutory presumption of WCL §21(1) that an unwitnessed accident at the time and place of employment arose out of that employment applies here. “Here, the central issue is whether an accident occurred at work. As this is a factual question for the Workers’ Compensation Board, its determination will not be disturbed if supported by substantial evidence.” The Court also noted, in detial, that the claimant presented no witnesses or evidence and, while the employer’s evidence largely consisted of hearsay, the WCLJ nonetheless rejected claimant’s account, deeming his alleged actions to be unusual, inconsistent and uncorroborated. Inasmuch as the Board had broad authority to credit the testimony of the employer’s witness and discredit claimant’s testimony and given that hearsay testimony was admissible in this proceeding, the Board properly found that claimant failed to establish that his injuries were sustained in the course of his employment. Further, in light of this, the Court could not agree with claimant that the Board’s denials of his applications for full Board review were arbitrary and capricious or an abuse of discretion. Prevailing Parties represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead, L.L.P.(Albany) for Nurzia Construction Corporation and another, respondents. Click here to read the full decision of the Court…

Baker v Horace Nye Home

Affirmed the Board’s decision which ruled that the employer is entitled to reimbursement for certain benefits paid to claimant. The self-insured employer and its third-party administrator did not dispute a WCB decision that claimant suffered a 17.5% schedule loss of use to her left foot, but did request reimbursement for wages paid to claimant while she was absent from work. Although otherwise satisfied with the Board’s proposed decision granting that request, the employer objected to language in the decision describing circumstances under which an employer would not be entitled to reimbursement, and asked that a hearing be held to resolve the matter; the Board declined to disturb that decision. Having successfully obtained the relief it sought “the employer requested and received reimbursement in the amount of $1,146.89” the employer is not an aggrieved party with standing to appeal the Board’s decision. Prevailing Parties represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the WCB, respondent. Click here to read the full decision of the Court..

Curley v Binghamton-Johnson City Joint Sewage Bd.

Affirms the Board’s two decisions which, among other things, granted the employer’s request for reimbursement. Although the employer received reimbursement from its third-party administrator, the Public Employers Risk Management Association, for the wages it had paid claimant during this period, the WCLJ determined that for the period during which the employer continued to pay claimant wages, it should be reimbursed, except for any wages paid “pursuant to a contract of employment, for the use of non-restorable leave credits.” Taking issue only with the language in the decision regarding claimant’s leave credits, the employer applied for Board review. The Board affirmed the WCLJ and later denied Full Bard Review. The court agreed with the WCB that the employer is not an aggrieved party and has no standing to appeal that decision. Prevailing Parties represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the WCB, respondent. Click here to read the full decision of the Court…

June 11, 2009 Appellate Division 3rd Judicial Department
Donovan v Boces Rockland County

Affirmed the Board which, among other things, rescinded a prior finding of a causally related left shoulder injury. Claimant filed a claim for workers’ compensation benefits asserting that she sustained a right shoulder injury when a student grabbed her. An MRI of her right shoulder revealed a rotator cuff tear, which was surgically repaired after which she was released to return to work but remained at her job less than a week. Thereafter, she continued to seek medical care for both shoulders and had surgery on the left shoulder and was also being treated for anxiety and depression. Her claim was eventually amended to include adjustment disorder with anxious and depressed mood and a left shoulder injury.

Both before and after the amendments, various hearings were conducted that included, among other things, claimant’s testimony and the viewing of a surveillance videotape of claimant, as well as depositions and reports of several physicians and psychologists. In June 2006, a WCLJ rendered a detailed determination that rejected the claim of a causally related psychological condition, found that the credible medical evidence established that the left shoulder surgery was necessary, and concluded that claimant voluntarily withdrew from the labor market in 2002. Awards included, among others, lost wages for 24.6 weeks as a consequence of the October 2003 surgery on the left shoulder.

The employer and its third-party administrator appealed seeking review of the lost wages award related to the left shoulder, arguing that such award was not proper in light of the determination that claimant had voluntarily withdrawn from the labor market before the surgery. After discussing at some length its review of the record, the Board stated that it was exercising its discretion pursuant to Workers’ Compensation Law § 123 and reversing the determination of a causally related injury to claimant’s left shoulder. It did so “without prejudice to the claimant producing contemporaneous medical evidence to document that such an injury actually occurred.”

As to the claimant’s argument that the Board erred in finding that she lacked credibility, the Court quoted precedent, “Upon our review of a Board decision, we will not disturb such if it is supported by substantial evidence, despite the existence of evidence that may have supported a different result“, citing specific examples in the Board’s decision. Prevailing Parties represented by Ralph E Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown), for Boces Rockland County and another, respondents. Click here to read the full decision of the Court…

Durkee v Renaud

Affirmed an order of the Supreme Court in Schenectady County, which, among other things, granted defendant’s motion for summary judgment dismissing the complaint. In 2003, the parties were both employed by Raymond Renaud, boss and president of Keystone Masonry & Remodeling, Inc. Plaintiff, employed as a mason, fell and injured himself. He thereafter collected workers’ compensation benefits and also commenced this negligence and Labor Law action. The Court agreed with the Supreme Court dismissal of the action on the grounds that it was barred by the exclusivity provisions of WCL§ 29 (6). Prevailing Parties represented by: Paul J. Campito of counsel to Flink Smith, L.L.C. (Lathami) for respondent. Click here to read the full decision of the Court…

Hopkins v Alcas Corp., Cutco Cutlery

Affirmed the Board that Zurich North America is responsible for claimant’s workers’ compensation benefits. Claimant was injured at work in June 2003 while pulling a brake lever on a machine. Although he immediately reported the injury to his supervisor, the incident was apparently not documented by the employer. Shortly thereafter, claimant presented to his primary care physician with complaints of shoulder and arm pain, but did not provide a history of the injury until January 2004, when the physician with whom he had been treating for continuing pain and numbness ordered him not to return to work and the appropriate forms were filed which identified Liberty Mutual Insurance Company as the workers’ compensation carrier. Based upon claimant’s testimony that the injury actually occurred in 2003, Liberty contested liability for the accident and requested that Zurich North America, the carrier which provided workers’ compensation coverage during 2003, be placed on notice.The WCLJ ultimately concluded that Liberty remained the proper carrier and set the date of accident as January 21, 2004, finding that Liberty was estopped from denying payment on the claim because it had been paying for two years and had shown no new evidence, and determined that claimant’s injury gradually accrued over a reasonably definite period after the 2003 work accident. Upon review, the Workers’ Compensation Board reversed, finding that the doctrine of laches did not preclude Liberty from disputing coverage and there was substantial evidence that claimant’s injury occurred in June 2003 during Zurich’s period of coverage. The Court found that Liberty’s delay in contesting coverage was both explained and reasonable. In any event, even assuming an inexcusable delay, we find substantial evidence [listed in the decision] to support the Board’s determination that Zurich failed to demonstrate that it suffered actual prejudice as a result.

Zurich also asserted that Liberty is the proper carrier because claimant’s injury gradually occurred over a period of months. Here, claimant consistently maintained, both in his reports to his various treating physicians and his testimony at the hearings, that when he reached forward to apply a brake lever in the summer of 2003 he heard a “pop” and suffered immediate pain in his shoulder/back. Given the wide latitude afforded to the Board in resolving factual questions such as this, we are satisfied that substantial evidence supports its determination that the occurrence of claimant’s compensable injury was sudden, rather than gradual. Prevailing Parties represented: Jared L. Garlipp of counsel to Williams & Williams (Buffalo) for Liberty Insurance Company, respondent. Click here to read the full decision of the Court…

Manticoff v American Bldg. Maintenance

Affirmed the Board’s decision that the doctrine of laches was not applicable against Reliance National Indemnity Company. Claimant, in June 2000 lifting heavy boxes, had a C-2 form was filed by his employer indicating RSKCo as the employer’s workers’ comp carrier. The WCB indexed the case, serving notice on Reliance National Indemnity Company identifying it as the carrier on the claim instead of RSKCo. In July and August 2000, RSKCo filed multiple forms including a C-7 form indicating that claimant was not entitled to compensation under the policy. Despite these filings on this claim, the Board continued to notice Reliance, rather than RSKCo, as the carrier responsible for covering the claim and, on October 17, 2000, provided Reliance, and not RSKCo, with notice of a hearing scheduled for November 15, 2000.At tis hearing Reliance raised all issues but the WCLJ directed Reliance to pay benefits. At the same time, RSKCo, unaware of what transpired, continued to file monthly requests with the Board for a priority hearing on the medical claims it was receiving for claimant. In January 2002, Reliance and claimant appeared before the WCLJ and again discussed coverage issues. At that time, the WCLJ agreed with Reliance that RSKCo should be given notice of the proceedings and RSKCo was notified to appear with its file on March 4, 2002. RSKCo filed an appeal from the WCLJ’s decision, asserting that Reliance should be barred by laches from denying coverage, a position with which the WCLJ and a Board Panel ultimately agreed. But a Full Board review ultimately reversed this position, finding that RSKCo, and not Reliance, was the proper carrier.

In fact, it is uncontroverted that Reliance was only involved in this claim due to an administrative error by the Board in which it served notice on Reliance regarding the claim. Moreover, Reliance denied coverage of the claim when it first appeared on the matter at the initial November 2000 hearing. At the same time, RSKCo received the initial notice of the claim and, throughout this process, never denied its status as insurer, but instead, filed numerous forms that, in effect, claimed that it was not responsible for payment of claimant’s medical treatment under the policy. Therefore, the Board’s determination that there was no inexcusable delay by Reliance upon which the doctrine of laches would apply was supported by substantial evidence. Prevailing Parties represented by: Patrick M. Conroy of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Reliance National Indemnity Company, respondent. Click here to read the full decision of the Court..

VanWinkle v Harden Furniture

Affirmed the Board’s decision that claimant did not voluntarily withdraw from the labor market. Claimant after sustaining a work-related injury in October 2004, returned to work in January 2005 with the restriction that she not lift anything over 10 pounds. Claimant continued her employment under that restriction until the summer of 2005 when she requested a transfer to a less physically demanding office position. After being informed that such positions were not available, claimant resigned and obtained employment with lower pay but less strenuous physical requirements, thus earning a temporary award of reduced earnings. The employer challenged the award, raising the issue of whether claimant voluntarily withdrew from the labor market as a result of her resignation to pursue other employment. The WCLJ found that claimant did not voluntarily remove herself from the labor market and the WCB affirmed.

The Court determine that “Whether a claimant has voluntarily withdrawn from the labor market is a factual issue for the Board to resolve and, if supported by substantial evidence in the record, the Board’s resolution of that issue will not be disturbed. Inasmuch as the record supports a finding that claimant’s back injury motivated her to resign and seek new employment, we decline to disturb the Board’s decision.” Prevailing Parties represented by: William W. Crossett IV of counsel to Meggesto, Crossett & Valerino (Syracuse) for Melissa VanWinkle, respondent and Iris Steel of counsel to Andrew M. Cuomo, Attorney General, New York City for Workers’ Compensation Board, respondent. Click here to read the full decision of the Court…

May 28, 2009 Appellate Division 3rd Judicial Department
Renteria v Santino’s Café

AFFIRMED the Board and Law Judge that the claimant exacerbated an earlier injury rather than suffering a new one and did not voluntarily withdraw from the labor market. Claimant, a chef, sustained a work-related back injury in May 2007 and did not return to work. Five months later, worsening pain prompted him to seek medical attention at an emergency room. Inasmuch as a report completed at the time of his examination included a notation that claimant “twisted his back again,” the carrier asserted that he had suffered a new accident /injury unrelated to his employment, and had also voluntarily withdrawn from the labor market as his physician authorized his return to light duty work as of July 24, 2007. The Board and the Court were satisfied when the claimant testified that his efforts to find work were unsuccessful because prospective employers were hesitant to give him a job until he was “fully cleared to work” even though his efforts were limited to employment in the restaurant industry inasmuch as the 34-year-old claimant had been working in restaurants for the previous 15 years. The Board’s determination that claimant exacerbated an existing injury, rather than a new accident, is similarly supported by substantial evidence. Given the Board’s exclusive authority to evaluate if witness credibility and witness testimony are worthy of belief, the Court declined to disturb its decision. Prevailing Parties represented by: Karen Arndt of counsel to Buckley, Mendleson, Criscione & Quinn, (Albany) for Jose M. Renteria, respondent and Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full decision of the Court…

May 19, 2009 Supreme Court, New York County
Lovell Safety Management v Cardinal Tank

 

Ordered that the Plaintiff motion to dismiss the counterclaim against it is granted. In the underlying action, Lovell sought to recover group manager’s fees allegedly owed to it by Cardinal who then countersued seeking indemnification for what they claim were inflated premiums paid to NYSIF and a number of other related issues regarding premiums paid by Cardinal to NYSIF through the safety group managed by Lovell. In favoring Lovell, the Court ruled that some of Cardinal’s allegations were speculative, failed to properly address the issues at hand, and in general failed to present any evidence in support of it claim. The inference is that, had Cardinal better prepared its case at the administrative appeals level, it may have received a better reception, although not necessarily a better result, from the Court. Click here to read the full decision of the Court…

May 21, 2009 Appellate Division 3rd Judicial Department
Hanna v Able Body Labor

AFFIRMED the Board, who reversed the Law Judge, which ruled the death of claimant’s decedent was not causally related to his employment. Not having been seen for 30 minutes, coworkers found the decedent unresponsive and not breathing. He died shortly thereafter. Both the autopsy report and the death certificate list the cause of death as cardiac arrhythmia due to atherosclerotic coronary artery disease. Following a hearing at which the employer failed to appear, a Law Judge found that decedent’s death was unwitnessed and that the presumption contained in WCL §21(1) applied. Upon review, the Board reversed and disallowed the claim. Although a presumption of compensability exists when an unwitnessed or unexplained death occurs during the course of the decedent’s employment, the presumption may be rebutted by substantial evidence to the contrary. The Court agreed with the Board that “the autopsy report and death certificate indicate that decedent’s death was caused by factors unrelated to his work and, thus, the Board could determine that the presumption of compensability had been overcome.” The Court also denied the claimant’s request to submit further proof that decedent’s death was work related given her failure to request such relief before the Board. Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for Able Body Labor and another, respondents. Click here to read the full decision of the Court…TS

EDITOR’S NOTES: This is the third case this year in which the Board, after reversing the Law Judge on the issue of an unwitnessed death, disallowed the claim and was affirmed by the Appellate Court. See Ruper v Transport System (January 9, 2009) and Wheeler v Mail Contractors of America (March 26, 2009) further down this page

Govan v New York City Health & Hosps. Corp.

AFFIRMED the Board that the pro-se claimant had sustained a permanent partial disability. The Law Judge also ordered the self-insured employer to withhold $2,800 pending a determination on the issue of counsel fees. On appeal, the Board affirmed the finding of a permanent partial disability but did not consider the issue of counsel. Claimant appealed seeking a permanent total disability and payment of the fees. The Court affirmed the level of disability, “Substantial evidence supports the Board’s finding that claimant was properly classified as permanently partially disabled, as opposed to permanently totally disabled.” and because no other medical expert testified that claimant, as of the hearing, was permanently totally disabled. The appeal on the legal issue was denied as there is no indication that the Board itself has yet rendered any decision or that claimant timely filed a notice of appeal from any such Board decision. Prevailing party represented by: Marta Ross of counsel to Michael A. Cardozo, Corporation Counsel, New York City for New York City Health and Hospitals Corporation, respondent. Click here to read the full decision of the Court…TS

May 14, 2009 Appellate Division 3rd Judicial Department

Bowersox v Prime Time Express, Inc.

AFFIRMED the Board’s decision to deny claimant’s application for review and then the claimant’s request for full Board review. In October 2005, a Law Judge awarded benefits. By letter dated November 22, 2005, claimant’s attorney advised the Board of claimant’s desire to appeal this decision. The Board then advised claimant that the application for review failed to comply with 12 NYCRR 300.13 and that the application may be denied if claimant failed to submit the prescribed cover sheet indicating proper service to all parties within 30 days. Although claimant provided a cover sheet to the Board on December 19, 2005, he failed to indicate proper proof of service upon all interested parties. The Board denied claimant’s request to review citing 12 NYCRR 300.13 (a). Claimant thereafter sought full Board review, which was denied. In its response to the claimant’s appeal, the Court wrote that they were unable to conclude that the Board abused its discretion in denying review of claimant’s application claimant’s or subsequent application for full Board review. Prevailing party represented by: Kevin R. Doering of counsel to Hamberger & Weiss (Buffalo) for Prime Time Express, Inc. and another, respondents. Click here to read the full decision of the Court…

May 14, 2009 Appellate Division 3rd Judicial Department
Miraglia v H & L Holding Corp.

AFFIRMED the 2007 decision of the Bronx County Supreme Court awarding plaintiff damages against both defendant (H&L Holding) and third-party defendant (Lane & Sons) in the principal amount of $18 Million on the basis that the defendants failed to timely raise the defense of exclusivity under WCL. After the 2007 decision, the 3rd party defendant asserted for the first time that since it was plaintiff’s employer, the court could not enter a judgment in which plaintiff was granted a right to recover directly against it because the worker’s compensation paid to plaintiff was his exclusive remedy. The first judgment, affirmed in the 2007 appeal also provided plaintiff with a direct recovery against third-party defendant, which failed to raise any objection based on worker’s compensation exclusivity at that time. A defense of worker’s compensation exclusivity is waived if the employer ignores the issue “to the point of final disposition itself” especially where belated assertion of the defense will prejudice the party opposing the assertion. Here, the 3rd party defendant fail to raise this objection to the judgment on the 2007 appeal but it committed a number of other procedural errors.[To now allow this defense] is unacceptable. Worker’s compensation exclusivity is important as a matter of state public policy, but so is the finality of the result when a party charts its own course. Prevailing party represented by: Brian J. Isaac of counsel to Pollack, Pollack, Isaac & DeCicco (New York) for Frank Miraglia, respondent-appellant. Click here to read the full decision of the Court…

May 7, 2009 Appellate Division 3rd Judicial Department

 

Lynch v Buffalo Bills v Special Funds

AFFIRMED that Board and Law Judge that liability under WCL §25-a did shift to the Special Fund for Reopened Cases but REVERSED so much thereof as directed payment of reduced earning benefits by the self-insured employer. Claimant was classified with a permanent partial disability in 1984 and all payments stopped on September 24, 2001 due to new and higher earnings, with the case being formally closed July 11, 2002. On April 27, 2005, the Self-Insured employer (SIE) sought §25-a relief which as granted, transferring liability to the Fund effective September 24, 2009, three years after the formal closing. The real issue arose when prior to the hearing transferring §25-a liability, the claimant filed for reduced earnings for January 1, 2003 to January 1, 2006. The Board bifurcated the new claim for reduced earnings. But the Court ruled that “claimant’s recovery was limited to payment by the Special Fund for the two-year period prior to the April 27, 2005 application“. Prevailing party represented by: Jill B. Waldman of counsel to Steven M. Licht, Special Funds Conservation Committee, appellant. [EDITOR NOTES: (1) The date of the application by the claimant to reopen and the specific periods of reimbursement supported by the Board Panel decision were omitted in the Appellate Court decision. (2) This a case in which the WCB will in its annual report count this decision as a MODIFICATION and not a REVERSAL, (3) Because the finding of §25-a liability was so clear, I do not consider this the real issue for which reason I consider the only prevailing argument that presented by Ms Waldman.] Click here to read the full decision of the Court…

May 5, 2009 Court of Appeals

Passante v Agway Consumer Prods., Inc.

MODIFIED with a DISSENT the cause of action for failure of the manufacturer and installer of the equipment to properly warn a user of the equipment who was injured should be reinstated. Claimant was injured when a device used to connect a loading dock with the back of a truck making deliveries fell while the claimant was standing on it, causing an injury. The claimant sued his employer (Agway), the manufacturer of the ‘bridge’ (Rite-Hite Corporation) and the firm which sold and then installed the device (Mullen Industrial Handling Corp.). In its summary, the Court of Appeals wrote, “on this record, we cannot conclude as a matter of law that Passante was fully aware of the danger of standing on the dock leveler lip /after/ it had engaged the trailer bed, or that site-of-operation warnings of the type recommended by the industrial engineer would have been superfluous. ‘[I]n cases where reasonable minds might disagree as to the extent of plaintiff’s knowledge of the hazard, the question is one for the jury.’”

What is interesting is that the Majority stated “Mullen and Rite-Hite rely on our decision in the Matter of Scarangella v Thomas Built Buses, Inc./ (93 NY2d 655 [1999])” in reversing the decision whereas the Dissenting Justice wrote “[I] think both the majority’s holdings are wrong. But the more troubling of the two is the evisceration of Scarangella, which I fear will have real economic consequences. The predictability that was offered until today to manufacturers and distributors of equipment in this State is gone, and the result can only be an increase in cost: in the cost of liability insurance, and in the cost of safety features that buyers will no longer have the option to refuse. In much of this State, our economy struggles in the best of times, and these are not the best of times. Decisions like today’s can only make things worse.” You can find all the details in this 12 page decision by clicking here....

 

May 5 , 2009 Appellate Division 1st Judicial Department

AIU Insurance Company v Nationwide Mutual Insurance Company

The Supreme Court ruled that the parties have an equal obligation to indemnify their mutual insured in the underlying action. The underlying action giving rise to the coverage claims in this action involved a fatal accident at a construction site. Under a so-called wrap-up insurance policy, plaintiff insured both the owner of the site and the subcontractor that employed the decedent; defendant also insured the employer under a workers’ compensation policy that provided coverage for damages claimed by a “third party as a result of injury to your employee.” After the decedent’s wife was granted summary judgment against the owner on the issue of liability, plaintiff caused the owner to commence a third-party action against the employer, but plaintiff settled the main action after a trial on damages was held, and the employer was not involved in either the trial or the subsequent settlement. There is no merit to plaintiff’s present claim that, because the employer was the only possible active tortfeasor, defendant is obligated to reimburse it for half of the settlement. Although the third-party action did not go forward after the settlement of the main action, the anti-subrogation rule would have required its dismissal, and thus any attempt by plaintiff, having paid the settlement, to obtain reimbursement from a co-insurer must fail. Click here to read the full decision of the Court..

April 30, 2009 Appellate Division 1std Judicial Department

Rathbun v D’Ella Pontiac & SFCC

REVERSED both the Board and the Law Judge by finding that the case had been closed and that WCL §25a did apply. In February 2000, the carrier accepted a claim and approved payments for medical treatment for Carpel Tunnel Syndrome. In 2003 the carrier agreed to her doctor’s request for surgery but claimant decided not to undergo surgery. In October 2006, despite not having missed any work, the claimant decided to have the surgery done. This time the carrier denied authorization, concluding that the case fell within WCL §25-a: liability for medical treatment shifting to the Special Fund. The WCLJ determined, and the Board affirmed, that § 25-a was inapplicable. The Court determined that “Here, there is no evidence to support the Board’s finding that further proceedings were contemplated once authorization for the surgical procedure was given in July 2003. While it is true that claimant’s medical condition remained uncertain and unresolved throughout this period, we note that she continued to work, no payments of compensation were made and no evidence exists that other issues remained outstanding and required action either by the carrier or the Board. In such a circumstance, a finding that a case has been truly closed can be made ‘where symptomatic medical treatment is authorized, even if the claimant’s condition may change or worsen in the future’ and could bring about a reopening of the case. When the carrier authorized payment for the surgical procedure 2003, all that remained to be resolved was whether claimant herself would decide to undergo this surgical procedure. No action by the Board was contemplated or required and the claim, as a result, was truly closed.” Prevailing party represented by: Nancy E. Wood of counsel to Gregory J. Allen, State Insurance Fund for appellants. Click here to read the full decision of the Court…

Nkrumah v Thomas v UEF

AFFIRMED the Board’s ruling that an employer-employee relationship existed between claimant and Venesen Dispatch Company. Claimant was injured while driving a passenger for hire in a vehicle with NYC Taxi and Limousine Commission (hereinafter TLC) license plates registered to Venesen. Claimant leased the vehicle from Venesen and had a hack license. Although he and Venesen were only authorized to pick up passengers by prearrangement through a licensed radio base, the vehicle did not have a dispatch radio and claimant picked up passengers through street hails. Because Venesen did not carry WC insurance, the Uninsured Employers’ Fund (hereinafter UEF) would be responsible per WCL §26-a [1] [a]). The Board’s determination that Venesen and claimant had an employer-employee relationship is supported by substantial evidence. Also, UEF asserted that claimant engaged in illegal activity by picking up street hails, thus removing his actions from the scope of his employment. The Board determined that, because the vehicle was without a dispatch radio and claimant testified that his employer expected him to pick up street hails, Venesen was aware of, and either tolerated or outright encouraged, violation of TLC rules. The Court finished its decision writing, “Under the circumstances, we find disingenuous any argument on behalf of the employer that claimant’s conduct should be considered outside the scope of employment and preclude him from receiving workers’ compensation benefits.” Prevailing party represented by: Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full decision of the Court…

Metal Goods Mfg Insurance Trust Fund V Advent Tool & Mold, Inc., et al
April 24, 2009 Appellate Division 4th Judicial Department

AFFIRMED that the Board could not hold the members of a self-insured trust liable for assessments made due to any deficiencies in the plan. On January 15, 2009 in the Matter of Held v New York State Workers’ Compensation Bd.(2009 NY Slip Op 00159 [58 AD3d 971]), attempts by the Board to collect additional assessments were denied, although the grounds in the Matter of Held were different. The reason behind the decision in the Appellate Courts affirmance of the Erie County Supreme Court in the Matter of Metal Goods can be found by Clicking here to read the full decision of the Court… For the full decision on the Matter of Held v New York State Workers’ Compensation Bd, click here ….

April 21, 2009 Appellate Division 2nd Judicial Department

Turner v Irving Finkelstein & Meirowitz, LLP

The court dismissed an action by a pro-se claimant to recover damages, inter alia, for legal malpractice. The plaintiff’s workers compensation claim based on an assault by a coworker was was disallowed, the Board affirmed that decision, and Full Board Review was denied. No later than May 2002, the defendant informed the plaintiff that its representation was complete. It also advised him of his right to appeal the Board’s decision to the Appellate Division, and referred him to an attorney who might have been able to represent him on the appeal. The plaintiff, pro se, unsuccessfully pursued an appeal of the denial of his Workers’ Compensation claim to the Appellate Division. In November 2006, the plaintiff, pro se, commenced the instant action, alleging that, after he was denied Full Board Review, the defendant failed to advise him of “any other legal remedies” relating to the workplace incident. The defendant moved to dismiss and the Court agreed, that pursuant to CPLR 3211(a)(1) dismissal is warranted if documentary evidence conclusively establishes a defense as a matter of law. Here, the defendant submitted the parties’ retainer agreement, which clearly stated that its representation was limited to the proceeding before the Board. Prevailing party represented by: Jonathan B. Bruno and Bain R. Loucks of counsel to Kaufman Borgeest & Ryan LLP (New York) for respondent Click here to read the full decision of the Court…

April 23, 2009 Appellate Division 3rd Judicial Department

Andryshak v Town of Goshen

Affirmed the Board and the Law Judge which found that because the claimant had no compensable lost time from work, the claim could be transferred to the Special Fund for Reopened Cases (SFCC) pursuant to WCL §25-a. Claimant suffered a work-related injury in 1987 and 2003, receiving benefits in both. Finding that claimant had no compensable lost time on the 1987 claim from December 2006 to May 2007 and on the 2003 claim from March 2003 to May 2007, the WCLJ transferred the claim under WCL §25a and the Board affirmed. From at least 2003 forward, claimant was an elected town highway superintendent, testifying that he did not go into work on some days due to his injuries but that he had no regular work hours, continued to be paid his salary, and did not use any annual or sick leave as a result of his. Given the lack of proof that “the employer paid for something [it] did not get in the way of service,” the Board’s finding that claimant had no compensable lost time during the periods at issue was supported by substantial evidence. The SFCC’s appeal on a second issue was denied as it never sought review by the Board on that issue. The prevailing party represented by: Sean J. McKinley of counsel to Vecchione, Vecchione & Connors (Williston Park) for Town of Goshen, respondent. Click here to read the full decision of the Court…

Littles v NYS Dept. of Corrections

AFFIRMED the Board, who reversed the Law Judge, which ruled that claimant did not sustain an accidental injury arising out of and in the course of her employment. While en route to her job at a prison, claimant was injured when she was involved in an automobile accident approximately 10 feet from the entrance to the facility. She had not yet reached the entrance gate. After the WCLJ established the claim, the Board reversed finding that while the street where the accident occurred was in close proximity to the employer’s premises, no evidence was provided to show that the street was closed to the public or otherwise controlled by the employer, that workers were encouraged to use it or that it existed solely to provide access to the prison, nor that there was a risk related to a special hazard connected to claimant’s employment as opposed to a risk shared by the general public. The prevailing party represented by: Jeremy B. Davis of counsel to Gregory J. Allen, State Insurance Fund for NYS Dept. Of Corrections and another, respondents. Click here to read the full decision of the Court…

April 16, 2009 Appellate Division 3rd Judicial Department

Ogbuagu v Ngbadi v Uninsured Employers Fund

APPEAL DISMISSED. Claimant filed a claim alleging that he sustained personal injuries during the course of his employment as a driver for Sophisticated Express Service (SES). The Law Judge disallowed the claim on the ground that claimant was not an employee of SES at the time of the accident. The Board reversed, finding that a statutory employer-employee relationship existed and restored claimant’s case to the calendar for further development of the record on all outstanding issues, including accident, notice and causal relationship. The UEF then appealed. The Court ruled that, “Inasmuch as the Board’s decision herein regarding the employer-employee relationship is interlocutory in nature and does not dispose of all substantive issues nor reach legal threshold issues that may be determinative of the claim, that decision is not the proper subject of an appeal.” The prevailing party: Iris Steel of counsel to Andrew M. Cuomo, Attorney General, New York City for WCB, respondent. Click here to read the full decision of the Court…

State Ins. Fund v Hallmark Operating, Inc.

REVERSED the Supreme Court on a case in which the WCB was not a direct party but was generated by a Board decision on a consequential death claim. An employee suffered an injury in 1996 and subsequently died in 2000 as a result of the 1996 injury. The employer had a policy in 1996 that was a retrospective rating plan (RRP) for which the rates were based on actual retroactive costs. In 2o00, they changed to a guaranteed cost plan (GCP) which was a fixed rate regardless of experience. The issue was whether or not the costs relating to the death case could be retroactively billed under RRP as part f the 1996 claim or under already covered in the premium under the GCP which was in effect at the time of death. While the WCB always consider these as two separate claims with two separate dates (per §15 and WCL §16), the Court ruled the death benefits claim was payable under the RRP policy. In a four-page decision, the Court ruled, in summary that “the character of the administrative proceedings does not define the contractual relationship between the insured and insurer under a workers’ compensation insurance policy. . . . the 1996 accident date was the actual date of loss for both the original injury and the causally related death.” The prevailing party: Jan Ira Gellis of counsel to Gregory J. Allen, State Insurance Fund (NYC), appellant. Click here to read the full decision of the Court…

April 9, 2009 Appellate Division 3rd Judicial Department

Torrance v Loretto Rest Nursing Home

AFFIRMED the Board, who reversed the Law Judge (WCLJ), which ruled that claimant’s discharge was not in violation of Workers’ Compensation Law § 120. Claimant who had an established workers comp claim was a member of the New York Health and Human Service Union, 1199 SEIU, AFL-CIO and was subject to its collective bargaining agreement with Loretto. While receiving partial disability benefits, claimant secured a light duty position with another company. When the income from her light duty position was taken into account, she received an additional reduced earnings award.
After Loretto learned of claimant’s light duty position, it terminated her employment in accordance with the terms of the collective bargaining agreement. In response, claimant filed a discrimination claim pursuant to WCL §120. The WCLJ found discrimination and directed reinstatement. The Board, however, reversed this decision and claimant appealed. In this case, claimant had not demonstrated discharge in retaliation for filing a claim for benefits. Rather, the discharge was necessitated by the provision of the collective bargaining agreement, to which Loretto was contractually bound, requiring the termination of employees who work for another employer while on an authorized leave of absence. Here, the collective bargaining agreement provision at issue provided a reasonable basis for claimant to refuse the light duty position with the other employer. Prevailing party represented by: Patrick V. Melfi of counsel to Bond, Schoeneck & King (Syracuse) for Loretto Rest Nursing Home, respondent. Click here to read the full decision of the Court..

McHugh v Daily Freeman

AFFIRMED the Board which ruled that the employer’s carrier may be entitled to future reimbursement from the Special Disability Fund pursuant to WCL§14(6) and §15(8)(l) and from a January 26, 2007 decision, which, among other things, directed the parties to submit further medical evidence. Claimant who suffered work-related injuries and began receiving workers’ compensation benefits had a second job at the time of his injury and benefits were increased as a result. Carrier sought reimbursement for those additional benefits from the Fund. The WCLJ denied that application, noting that the carrier had failed to file a necessary form with the Board prior to requesting reimbursement, after which the carrier appealed and filed the required form. The Board affirmed the WCLJ’s decision, but noted that the carrier would be entitled to reimbursement on any subsequent concurrent award given the belated filing of the form. The Fund appealed from that decision as well as from a WCLJ’s January 26, 2007 decision. As to the Fund’s appeal from the January 26, 2007 decision, the Fund failed to seek Board review of that decision and the appeal therefrom must also be dismissed. As both appeals are dismissed, the Court stated it need not reach the merits of the Special Disability Fund’s underlying claims. Prevailing party represented by: Nancy E. Wood of counsel to Gregory J. Allen, State Insurance Fund (Albany) for Daily Freeman and another, respondents Click here to read the full decision of the Court..

Neville v Magazine Distribs., Inc.

AFFIRMED the Board which ruled that claimant’s application for workers’ compensation benefits was barred by WCL §28. The claimant asserted that his disabling membranous nephropathy was an occupational disease caused by exposure to chemicals at his workplace. At the conclusion of his direct examination before a WCLJ, however, his counsel conceded that the claim was for an accident rather than an occupational disease and that the date of the accident was more than two years prior to the filing of the claim. Accordingly, the Board found that claimant had sustained an accidental injury and that his claim was untimely under §28 because he did not assert it until more than two years after the accident. On appeal, the claimant contended that the employer waived the defense of untimeliness by not specifically raising it at the first hearing and that, in any event, the tolling provision for occupational diseases in §28 should be applied to his injury. As the employer’s counsel stated at the first hearing that it was raising “all . . . issues” in the C7 form which included a reference to §28, the Court agreed that the timeliness objection was not waived. Inasmuch as the parties then discussed the threshold issue of whether claimant had an occupational disease, the Board rationally concluded that “all issues” included the timeliness of a claim filed in November 2006 for an accidental injury allegedly sustained no later than August 2004. As to the claimant’s argument regarding tolling the provisions of §28 for accidental exposure to hazardous materials, it was never raised before the WCLJ or the Board and is unpreserved for the Court’s review. Prevailing party represented by: Daniel L. Millman of counsel to Goldstein & Avrutine (Syosset) for Magazine Distributors, Inc. and another, respondents. Click here to read the full decision of the Court..

April 2, 2009 Appellate Division 3rd Judicial Department
Shea v Iceland Air

 REVERSED the Board and the Law Judge who denied the application of claimant’s counsel for an award of counsel fees. Essentially the case was a ‘no lost time’ case in which the claimant ligated for out-of-pocket medical and travel expenses, litigation ultimately resolved by a §32 settlement. “The WCLJ approved the agreement except for the provision pertaining to counsel fees, which was not approved on the ground that an award of medical and travel expenses is not an award of compensation subject to a lien for counsel fees. . . . Construing the law in claims involving disputes about only medical benefits such that claimants are essentially left to find an attorney willing to undertake their cases on a pro bono basis will make it more difficult to find representation in such situations.” The court concluded that “our state’s statutes permit such a construction and that doing so will best foster the purposes of the Workers’ Compensation Law. Potential abuse by counsel in requesting fees is minimized by the fact that all such requests are subject to approval by the Board Here, the Board incorrectly concluded that counsel fees were precluded by the germane statutes, and thus did not exercise its broad discretionary review of counsel’s requested fee. We remit to the Board for an exercise of its review power in such regard.” A second issue under appeal, that denied the request of claimant’s counsel for reconsideration and/or full Board review, was rendered moot. Prevailing party represented by: Patrick M. Quinn of counsel to Alan W. Clark & Associates, LLC (Levittown) for appellant. Click here to read the full decision of the Court..

Western Bldg. Restoration Co., Inc. v Lovell Safety Mgt. Co., LLC

The Court agreed with the defendant that the workers compensation policy issued to the plaintiff did NOT cover employees in another state. There were a number of issues raised in this case but, in essence, the plaintiff made a number of assumptions as to the coverage, assumptions which the Court ruled that “aside the fact that no one within plaintiff’s employ could have been confused by language in a policy that was never read, we find the disputed phrase, when read in complete context, is not ambiguous here. . . . Thus, any alleged ambiguity in the excised phrase “regular New York employees” is sophistry.” This case should serve as a warning to firms who have contracts outside of New York State to insure, certainly in writing, that those employees are covered under their NYS comp policy. Prevailing party represented by: Scott C. Paton of counsel to McNamee, Lochner, Titus & Williams, (Albany) Lovell Safety Group. Click here to read the full decision of the Court..

March 27, 2009 Appellate Division 4th Judicial Department

Shumway v Kelley

Court determined that the plaintiff claim could proceed. Shumway was injured when Kelley, in an act which the Court ruled was horseplay, injured Shumway. The Appellate Court reversed the Surpeme Court ruling “that defendant failed to meet his burden of establishing that he was ‘acting within the scope of his employment’. . . . In addition, defendant submitted his deposition testimony in which he admitted that he approached plaintiff from behind without any warning, and he thus surprised plaintiff by colliding with him. We therefore conclude that, by his own submissions, defendant failed to establish that his actions occurred within the scope of his employment.” In essence, the Appellate Court in the 4th Department determined that, pursuant to WC Law, the injury was caused by horseplay and not within the jurisdiction of the WC Board Prevailing party represented by E Robert Russell of counsel to Plaintiffs-Appellants. Click here to read the full decision of the Court..

 

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March 26, 2009 Appellate Division 3rd Judicial Department

Monzon v Sam Bernardi Construction

AFFIRMED the Board and the Law Judge who ruled that claimant did not violate WCL §114-a. After the claimant testified that he had been unable to work since the accident, the employer requested an adjournment so that it could present a surveillance videotape which allegedly would show that claimant had worked since his accident. Per established Board policy regarding surveillance videotapes, the Board barred the employer from offering its videotape and related materials because it had not informed claimant of their existence before his testimony. At the next hearing, the employer’s counsel failed to appear. Further, the Court noted that there is no evidence in the record that the employer was denied an opportunity to cross-examine claimant as to when he returned to work or regarding any other matter which claimant allegedly misrepresented. Essentially because the carrier failed to follow board rules and procedures, the Court agreed that the Board’s decision was correct. Prevailing Party represented by: Les Jarmol of counsel to Polsky, Shouldice & Rosen (Rockville Center) for Monzon, respondent and Estelle Krausher of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court…

Rios v Goodwill Industries

AFFIRMED the Board and the Law Judge that the claimant did not sustain an accidental injury arising out of and in the course of his employment. After being physically accosted by a coworker, claimant filed a claim for injuries allegedly suffered. The Board found that claimant had exaggerated the incident and that no credible medical evidence demonstrated compensable injuries arising from it.Prevailing Party represented by: Patrick M. Conroy of counsel to Greenblatt, Manning & Baez (Syosset) for Goodwill Industries and another, respondents, and Fay Ng of counsel to Michael A. Cardozo, Corporation Counsel, New York City for New York City Board of Education, respondent. Click here to read the full decision of the Court…

Wheeler v Mail Contractors of America

AFFIRMED the Board, who reversed the Law Judge, which ruled that the death of claimant’s decedent was causally related to his employment. While returning a truck tractor to the lot in Buffalo, decedent pulled to the side of the road. He suffered a cardiac arrest shortly thereafter and was found slumped over in the cab. The Law Judge disallowed the claim, finding that the carrier had rebutted the presumption contained in WCL §21 and that decedent’s death was not causally linked to his employment. The employer’s medical expert testified that decedent’s death was directly related to a preexisting heart condition but admitted that stress could have caused decedent’s sudden death given his heart condition. Additional evidence established that, on the day in question, decedent did experience work-related stress. The Court ruled, as “it was the province of the Board to weigh the conflicting evidence and determine whether the presumption of compensability had been rebutted.“, the Board should be affirmed. Prevailing Party represented by:Estelle Krausher of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court…

[EDITOR’S NOTE] Lauritano v. Con Edison

This case, in which the Appellate Court on February 5, 2009 unanimously affirmed the Board’s finding that §25-a applied, is now the subject of the Special Fund’s Motion to the 3rd Department for reconsideration or permission to proceed to the Court of Appeals. All papers have been submitted. Click here to read the original decision from the Court …

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March 19, 2009 Appellate Division 3rd Judicial Department
Colley v Endicott Corp(Case#1) and MCS Carriers (Case #2)

AFFIRMED the Board and the Law Judge who ruled that the claim was barred by Workers’ Compensation Law § 123 in Case No. 1 and that New York does not have jurisdiction over the claim in Case No. 2. In 2004, the claimant allegedly injured his back while working in Ohio as a truck driver for MCS Carriers, prompting him to file a new claim and asking for his 1985 case to be reopened.

In Case No.1, the 1985 case was closed in March 1986, albeit without payment of compensation. Insofar as claimant did not appeal that decision and failed to submit a further application to reopen prior to the tolling of the time limits, the Court concluded that the Board properly determined that WCL §123 was applicable. In Case No. 2, the Court concluded that the Board did not err in determining that there were not enough significant contacts to confer New York jurisdiction over this claim. Although the claimant resided in NY and his initial job interview was conducted by phone from his NY residence, the call came from the employer in Ohio and the hiring process was completed in Ohio. It is in Ohio where all the truck terminals are located and from where control over claimant’s employment was exercised, and only 5% of MCS’s total business is in New York. Although the claimant lived in NY and his commute was between the two states, these last two factors were insufficient to reverse the Board’s decision. Prevailing Party represented by: Jill Waldman of Counsel to the Special Funds Conservation Committee and Jeffrey A Brown of counsel to Coughlin & Gerhardt (Binghamton) for MCS Carriers, respondent. Click here to read the full decision of the Court..

Henderson v New York City Transit Authority

AFFIRMED the Board, rather than the Law Judge, finding that claimant did not sustain a causally related injury and disallowed her claim. The Law Judge found a work-related exacerbation of claimant’s preexisting conditions and established the claim. The employer appealed and the Board directed that claimant be examined by an impartial medical specialist (IMS) on the basis of whose opinion the Board disallowed the claim. First the claimant contended that the Board improperly referred the matter to an impartial specialist but the Court agreed that the divergence of opinions between the claimant’s and carrier’s medical experts warranted an IMS. The claimant also argued that the Board’s rejection of her claim is not supported by substantial evidence. The Court agreed with the Board that the IMS made a diagnosis fundamentally different than that of the parties’ experts and attributed her condition not to her work activities, but to her morbid obesity and possible lung disease. “Thus, there is substantial medical evidence in the record supporting the Board’s determination that there is no causal relationship between her disabling condition and her employment”. Prevailing Parties represented by: Louis R. Salvo of counsel to Weiss, Wexler & Wornow (New York City) for New York City Transit, respondent. Click here to read the full decision of the Court..

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March 12, 2009 Appellate Division 3rd Judicial Department
VanDermark v Frontier Insurance

AFFIRMED the Board which (1) modified the Law Judge’s (WCLJ) decision increasing the degree of disability to total permanent and (2) denied the request for reconsideration and/or full Board review. In December 2006, a WCLJ issued a decision finding a permanent partial disability. The WCB, however, concluded that claimant had a permanent total disability (PTD). Initially, the employer argued that insufficient evidence was presented to support the WCB’s finding of PTD. The Court stated, “Conflicting medical evidence was presented concerning the extent of claimant’s disability. This Court accords great deference to the Board’s resolution of issues concerning conflicting medical evidence and witness credibility.” As to the WCB’s decision denying carrier its applications for reconsideration and/or full Board review, the Court found, “[t]here is no indication that new evidence germane to this issue was not previously available as the medical reports cited by the employer were in existence prior to the close of the hearings [such that] we do not find that the Board’s denial of the employer’s applications was arbitrary, capricious or an abuse of discretion.” Prevailing Party represented by: Steven Segall of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court..

Robbins V Mesivtha Tifereth

AFFIRMED the Board, which reversed the Law Judge (WCLJ), finding that claimant violated WCL §114-a, disqualifying him from receiving compensation. Due to a May 1999 injury, a WCLJ found the claimant permanently, totally disabled. Subsequently, the carrier raised an issue of fraud, requesting benefits be suspended per WCL §114-a, asserting that claimant had misrepresented his degree of disability but the WCLJ found no violation. Upon review, the WCB reversed, finding that claimant intentionally misrepresented the degree of his disability in order to obtain compensation benefits, imposed a mandatory disqualification penalty of $35,059.10, and permanently disqualified claimant from receiving any further compensation. The Court found that “the testimony of the independent medical examiner, fully supported the carrier’s assertion that claimant misrepresented his daily activities [as shown on] surveillance videos. Moreover, claimant’s treating physician, indicated that based upon claimant’s representations, he was under the impression that claimant was unable to perform the types of activities [just noted]“. The Court found that the WCB set forth an adequate explanation for its imposition of a discretionary sanction, and its determination that disqualification is not disproportionate to the offense is supported by substantial evidence. Prevailing Party represented by: Tommasino S Conte of counsel to the State Insurance Fund, for Mesivtha Tifereth and another, respondents. Click here to read the full decision of the Court…

March 3, 2009 Appellate Division 2nd Judicial Department
Ascencio v Briarcrest

Although the majority of the argument dealt with the injuries sustain by the injured worker and whether or not the claim was covered by Labor Law §241(6), the Court ruled that the Supreme Court erred and should have granted the third-party defendant’s cross motion for summary judgment dismissing the third-party cause of action for contractual indemnification. “Where the plaintiff has not sustained a grave injury, WCL §11 section Law bars third-party actions against employers for indemnification or contribution unless the third-party action is for contractual indemnification pursuant to a written contract in which the employer expressly agreed’ to indemnify the claimant” and, in this case, the orders governing the plaintiff’s work contained no contractual indemnification provisions. Click here to read the full decision of the Court…

Franco v Carriel

AFFIRMED Carriel and Lopez were injured in a motor vehicle accident in a car owned by Lopez but driven by Carriel. Carriel and Lopez sought and were awarded Workers’ Compensation benefits. They then commenced the instant personal injury action against the defendants, alleging that they were injured as a result of the defendants’ negligence. As to the exclusivity provision of WCL §11, the court ruled that the appellants failed to demonstrate that the exclusivity provisions of the Workers’ Compensation Law provided Lopez with a complete defense, as it is not clear what Lopez’s relationship is to the plaintiffs’ employer. Click here to read the full decision of the Court…

 

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March 5, 2009 Appellate Division 3rd Judicial Department
Petrillo V Walter B Cook

AFFIRMED the Board, and the law judge, that claimant voluntarily withdrew from the labor market. After her injury, she was (1) out of work for one month, (2) then returned to light duty, (3) subsequently filed a claim for workers’ compensation benefits and (4) was awarded benefits. Almost two years after her accident, claimant was laid off due to downsizing. Claimant did not look for another funeral director position because of her injury and, as a result of her injury, she was found to be permanently partially disabled. After receiving training at VESID, she earned a Bachelor’s degree in legal assistant studies in 2001. In 2005, the carrier filed a request for further action to reopen the case and suspend or reduce claimant’s continuing disability payments because she had failed to secure any employment, claiming she voluntarily withdrew from the workplace. While she initially did send out resumes, she told her doctor she was not interested in working and admitted the same at a hearing. As such, the Court found that the Board was within its discretion to find voluntary withdrawal. Prevailing Party represented by:Nance L. Schick, New York City, for Walter B. Cooke and another, respondents. Click here to read the full decision of the Court…

Webb v Cooper Crouse Hinds

AFFIRMED the Board, and the Law Judge (WCLJ), that decedent’s death was causally related to his occupational illness and that there was to be no apportionment. The decedent was found to have a permanent partial disability, which was apportioned 75% to an occupational lung disease and 25% to noncompensable causes. While the decedent suffered from a number of medical conditions in the years prior to his death, the Board found that, based on reference to his work-related illnesses, that there was sufficient causal relation to make its finding. As to the carriers’ claim that the benefits had to be apportioned 75%/25%, the Court reiterated its and the Board’s long standing position that, in the absence of any indication in WCL §16, death benefits are not apportioned in the same manner as disability. “Inasmuch as substantial evidence supports the Board’s determination that decedent’s illness was a contributing factor in his death, claimant is entitled to benefits without apportionment.” Prevailing parties represented by: Steven Segall of the Office of Andrew Cuomo, Attorney General of the State of New York for the WCB, respondent. Click here to read the full decision of the Court…

Cagle v Judge Motor Corp

AFFIRMED the Board on decisions to deny pro-se claimant’s (decedent’s estate) request (1) to reopen two cases seeking workers’ compensation benefits, and (2) for reconsideration for full Board review. The decedent filed a claim in 1988 but, in 1990 before that case was resolved, he died from ventricular fibrillation, resulting in the filing of a consequential death claim. A WCLJ found no medical evidence of causally related death, closing that case in June 1991. In 1993, decedent’s estate filed a second claim alleging that decedent’s death was caused by occupational stress which was disallowed as time-barred pursuant to WCL §28, and the Court affirmed that decision (Matter of Cagle v White Auto Parts, 297 AD2d 897 [2002]. In 2003 and again 2007, the decedent’s estate requested that the first claim be reopened based on newly discovered evidence of various medical documents. In all these cases the Board denied the applications as untimely per WCL §123. Remaining issues raised by the pro-se claimant were deemed “unavailing” by the Court. Prevailing Party represented by: Joseph P. DeCoursey of counsel to Hamberger & Weiss (Buffalo), for Judge Motor Corporation and another, respondents. Click here to read the full decision of the Court…

 

Cipriani v Onondaga County Corrections

AFFIRMED the Board, and the Law Judge (WCLJ), that the claimant sustained a permanent total disability. The claimant suffered a heart attack in 1987 and was awarded workers’ compensation benefits in 1989. In 1990, he stopped working due to stress-related angina episodes, also accepted. Claimant was found to have a permanent partial disability, which was apportioned equally between the two claims. Beginning in 2005, after the claimant underwent further treatment,the carrier alleged that, among other things, it was not causally related to his employment. The WCLJ rejected that allegation and determined that claimant sustained a permanent total disability. Prevailing parties represented by: Michael P Daly (Syracuse) for Peter A Cipriani, respondent and Steven Segall of the Office of Andrew Cuomo, Attorney General of the State of New York for the WCB, respondent. Click here to read the full decision of the Court..

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(Seminerio, claimant): Glen Partitions v Special Disability

REVERSED the Board and Law Judge’s (WCLJ) decision, by finding that employer’s workers’ compensation carrier (SIF) was, in fact, entitled to reimbursement from the Special Disability Fund. After a series of decisions the claimant was found to have asbestos-related pleural disease and dust disease of asbestosis. In 1997, the WCLJ found that the establishment of occupational disease for the dust disease of asbestosis rendered the Special Disability Fund subject to liability to the carrier for reimbursement pursuant to WCL§15(8)(ee). After the claimant’s death in 2003, the WCLJ determined it to be causally related but also found and was affirmed by the Board, that the carrier was not entitled to reimbursement for the payment of death benefits because it failed to comply with WCL§15(8)(f) by filing a separate notice of claim. However, the Court ruled, “Under most circumstances, strict compliance with the filing provisions for separate disability and death benefit reimbursement applications pursuant to WCL§15(8)(f) is required. However, in the limited context of dust disease claims, this Court has held that, ‘[i]n light of the expressed purposes of WCL§15(8)(f)] to make [dust disease] cases compensable without limit . . . and to impose a substantial part of the burden upon [the] industry as a whole.’ ” the Board should not deny reimbursement to the carrier because of its failure to file a formal, written notice in accordance with WCL§15(8)(f). Prevailing Party: Charlotte Flynn of counsel to the State Insurance Fund, New York City, for appellants. Click here to read the full decision of the Court…

Norton v N. Syracuse School District

REVERSED the Board and law judge’s (WCLJ) decision, by finding that the claimant did not suffer a work-related injury. Claimant alleged that during the course of her employment as a school bus attendant, she sustained an injury to her left foot when she fell trying to assist a wheelchair-bound student. The WCLJ, affirmed by the Board, found sufficient evidence of a causal relationship between the nature of claimant’s employment and her disability, establishing the case. The Court ruled that “Even giving deference to the Board’s credibility determinations and crediting claimant’s testimony as to the December 2005 accident and resulting injury to her foot, the medical evidence did not demonstrate a reasonable probability that her fracture was linked to this accident….and the Board’s resulting determination lacked a rational basis and was not supported by substantial evidence.” Prevailing Party: Robert E. Geyer of Counsel to Wolff, Goodrich & Goldman (Syracuse) for appellant. Click here to read the full decision of the Court…

Lamantia v Midland Elevator

REVERSED the Board and the law judge (WCLJ), ruling that under certain conditions a schedule loss of use (SLU) in one case can NOT overlap a non-schedule award in another, further refining its decision in the Matter of LaCroix v Syracuse Exec. Air Serv., Inc., 8 NY3d at 357. The WCLJ awarded a non-schedule temporary disability award (back injury) at the maximum rate of $400 per week. Two years later, he determined that claimant was entitled to a schedule loss of use award based upon his original carpal tunnel claim. This award entitled claimant benefits over the period of March 10, 2005 to July 14, 2006 at $400 per week. On the same day, the WCLJ found permanently partially disability due to the established back injury, continuing the maximum $400 per week rate for life. The carrier argued that these awards resulted in an overlap, impermissibly enabling claimant to collect weekly compensation of $800 per week, or double the statutorily allowed maximum under WCL §15(6). The Court stated “Because we agree that the combined schedule and non-schedule awards would result in claimant receiving more than the weekly maximum allowed pursuant to WCL §15(6), we reverse.” The Court gives a detailed explanation and comparison between this case and LaCroix in its 5-page decision. Prevailing Party: Janis M. Riekstins of counsel to the State Insurance Fund, for appellants. Click here to read the full decision of the Court…

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February 19, 2009 Appellate Division 3rd Judicial Department
Hayes v Nassau County Police Dept

RESCINDED the Boards’ decision which ruled that claimant voluntarily removed himself from the labor market and denied his claim for workers’ compensation benefits due to the Board’s failure to consider all the evidence. Although the doctor did not testify as to whether or not the claimant could have returned to the labor market, the Court stated it can not weight the evidence as it can not “ surmise what decision the Board would have reached had it not overlooked Lesniewski’s testimony.” Prevailing Party: John F. Clennan (Ronkonkoma) for Ronald Hayes, respondent. Click here to read the full decision of the Court…

April 4, 2007 Appellate Division 2nd Judicial Department
and the subsequent
February 12, 2008 Court of Appeals

Castillo v 711 Group, Inc.

AFFIRMED the Appellate Division 2nd Judicial Department’s as to the definition of the loss of a finger under WCL §11 in so far as whether or not how much loss constitutes a grave injury. The claimant suffered from the complete loss of both interphalangeal joints on an index finger, leaving less than the bottom one-third of the index finger. Both courts found that 100% ‘loss of use’ and the physical amputation of two joints of his finger met the definition. Click here to read the full decision of the Court of Appeals and here for the Appellate Court…

January 23, 2007 Appellate Division 2nd Judicial Department

Mentesana v Bernard Janowitz Constr. Corp.

This Court held that, while “loss of an index finger” is an injury enumerated by Workers’ Compensation Law § 11 as a “grave injury” that allows a nonemployer defendant in a tort action to seek contribution from the plaintiff’s employer, the partial amputation of an index finger to just above the proximal interphalangeal joint (i.e., leaving intact both the bottom one-third of the finger and the first joint) does not constitute the “loss” of the index finger. Click here to read the full decision …

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February 11, 2009 Appellate Division 3rd Judicial Department
Green v Kimber Mfg., Inc.

AFFIRMED the Boards’ decision to deny claimant’s application for reconsideration and/or full Board review in as much as claimant appeals from only the denial of his request for reconsideration and/or full Board review, the merits of the Board’s underlying decision were not before the Court. The Court also noted that “proffered evidence, however, was not new evidence that was previously unavailable at the time of the hearing . . .”. Prevailing Party: Louis R. Salvo of to Weiss, Wexler & Wornow, P.C.,(New York City) for Kimber Manufacturing, Inc.,respondent. ISSUES: Procedure- Denial of FBR, Procedure –Appeal, Issue not raised before Click here to read the full decision of the Court…

Delee v Crouse Hinds Div. of Cooper Indus

AFFIRMED the Board’s decision, which reversed the law judge, that claimant’s permanent partial disability contributes to her reduced earnings and made an award of reduced earnings. The claimant returned to work but her disability prevented her from satisfying the job requirements and her employment was terminated shortly thereafter. Then claimant obtained other employment within her physical limitations until seven years later when she developed neuropathy and cardiomyopathy as the result of the chemotherapy for cancer and has not returned to work. Then, the carrier contended that claimant’s inability to work was now due solely to complications arising from the cancer and, consequently, she was no longer entitled to reduced earnings. The Court agreed with the Board that supervening nonindustrial causes of disability do not relieve an employer of responsibility for a permanent partial disability that was previously established and continued to contribute to a claimant’s reduced earning capacity. Prevailing Party: Iris A. Steel of the office Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Issue: Voluntary Withdrawal from the Labor Market. Click here to read the full decision of the Court…

Droogan v Raymark Indus., Inc.

AFFIRMED the Board which ruled that the death of claimant’s decedent was causally related to his employment by finding that decedent’s established injury for asbestosis was a contributing factor in his death and awarded benefits. Quoting from a prior case, the Court ruled that the illness “need not be the sole or even the most direct cause of death, provided that the claimant demonstrates that the compensable illness was a contributing factor in the decedent’s demise”. Citing the contradictory medical evidence and testimony, the Court concluded, as it usually does in these cases that “mindful of the Board’s discretion to resolve conflicts in medical opinion, we conclude that the Board’s determination in claimant’s favor was supported by substantial evidence and it will not be disturbed.” Prevailing Party: Estelle Krausher of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Issue Causal Relationship - Death Click here to read the full decision of the Court…

 

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January 31, 2008 Appellate Division 2nd Judicial Department

Bellamy v Columbia Univ.

AFFIRMED the order of the Supreme Court, Bronx County denying defendant’s motion for summary judgment dismissing the complaint. Bellamy was temporarily assigned by his employer, Troy Associates, a temporary employment agency, to work in one of defendant University’s kitchens in which he was subsequently injured. Chief Judge Nominee Jonathan Lippman writing for the majority ruled that the indicia did not support ‘special employee relationship’ with Columbia, that WCL §§ 11 and § 29 (6) did not bar this action. An interesting dissent was filed in this case. Prevailing party:(Kevin J. Quaranta and Virginia D. Mallon of counsel to Quaranta & Associates (Mount Kisco) for respondent. Issue: Special Employee Click here to read the full decision of the Court…

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February 5, 2009 Appellate Division 3rd Judicial Department

 

Peterec-Tolino v Commercial Electrical Contractors, Inc, et al

AFFIRMED the decision that the pro-se claimant did not suffer a compensable injury. BUT because this case proceeded under WCL §25 (2-c), the Alternate Dispute Resolution program, the Court in its affirmance stated “A court may not vacate an arbitration award except in those limited situations where the award ‘has been procured by fraud, corruption or misconduct, or is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power“. And they added, the Court of Appeals has repeatedly stated “that an arbitrator’s award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice” Prevailing Party:Matthew E. Weerth of counsel to Weiss, Wexler & Wornow (NYC) for Commercial Electrical Contractors, Inc. and another, respondents. Issue Alternate Dispute Resolution. Click here to read the full decision of the Court…

Mills v J.C. Penney

AFFIRMED the Board and the law judge that ruled that the pro-se claimant voluntarily withdrew from the labor market and denied her claim for further workers’ compensation benefits. The WCB affirmed the WCLJ’s decision finding that claimant, although classified with a permanent partial disability, was not entitled to further lost wages because she failed to demonstrate an attachment to the labor market. An important actor was that, altough the claimant did offer extensive testimony about her attempt to re-enter the labor market. after under cross-examination and lack of supporting evidence, the Board was entitled to discredit claimant’s testimony.Prevailing Party: Sean Denvir of counsel to Ryan, Roach & Ryan (Kingston) for J.C. Penney and another, respondents. Issue: Voluntary withdrawal Click here to read the full decision of the Court…

Lauritano & Consolidated Edison Co. of N.Y., Inc v Special Fund

AFFIRMED the Board, which reversed the law judge, finding that liability transferred to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a. The SFCC had argued that there advance payments made to the claimant but the Court stated “We note that this Court has repeatedly and expressly rejected the Special Fund’s contention that all payments made by a self-insured employer constitute payments of compensation.” As is often he case, these payment in question were done per a union contract and not as compensation. Prevailing Party: Leonard B. Feld (Jericho) for Consolidated Edison Company of N.Y., Inc. and another, respondents Issue: §25a: Advance Compensation Click here to read the full decision of the Court…

Banner v Anheuser-busch Cos., Inc.

AFFIRMED Board decision which ruled that claimant did not sustain a causally related disability and denied his claim. The Board (my panel) overruled the law judge who established the claim, sending it back for review by an impartial specialist. Following submission of the specialist’s report and additional testimony, the Board concluded that claimant’s disabling hip condition was not causally related to the 2005 work injury and, among other things, rescinded all prior awards. Prevailing party: Robert E. Geyer Jr. of counsel to Wolff, Goodrich & Goldman (Syracuse) for Anheuser-Busch Companies, Inc. and another, respondents. Issue: Causal relationship Compensation Click here to read the full decision of the Court…

 

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January 29, 2009 Appellate Division 3rd Judicial Department

Curren v Carbonic Sys., Inc.

In this case in which neither the WCB nor any carrier were a party of interest, the Appellate Court reviewed an Appeal from an order of the Supreme Court (Mulvey, J.), entered April 15, 2008 in Chemung County, which granted defendants’ motion for summary judgment dismissing an amended complaint. At issue were allegedly defamatory comments made by the employer in terminating the plaintiff. The Appellate Court write in its decision, “Despite finding questions of fact regarding whether the Caseys [owners of Carbonic Systems] published defamatory statements, Supreme Court found that the statements to Carbonic employees were protected by the qualified common interest privilege and all claims against Carbonic were barred by the Workers’ Compensation Law.” Next week we will have tracked down and reviewed the underlying decision to learn why workers compensation law was referenced in the underlying decision and the reason that the Appellate Court affirmed this case’s exclusion from WC law coverage. Click here to read the full decision of the Court…

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January 22, 2009 2009 Appellate Division 3rd Judicial Department

Booth v NYS Department of Corrections

AFFIRMED the Board and the law judge that claimant’s injury did not arise out of and in the course of his employment. Claimant, a correction officer, was injured while practicing basketball off-duty at the facility. The WCB disallowed the claim for benefits, finding that the accident did not occur during an athletic event sponsored by the employer. “As claimant’s participation in the event was neither required nor compensated by the employer, his injury is compensable only if the employer overtly encouraged his participation. While the actual competition was held in another of the employer’s facilities, the use of those facilities, without any other encouragement to participate or control by the employer, is more a matter of convenience for the competitors than an overt sponsorship of the event by the employer. As substantial evidence [including other indicia] supports a finding that claimant’s injury did not arise out of and in the course of his employment, the Board’s determination must be affirmed.” Prevailing parties: Gregory J Allen of State Insurance Fund (New York City) and Charlotte Flynn of counsel for the NYS Department of Corrections and another, respondents. Issue: Course of Employment – special events. _⁷²⁶³

Bradley v US Airways

AFFIRMED: The Board and the law judge ruled that pro-se claimant did not sustain a consequential psychiatric injury and denied her claim for further workers’ compensation benefits. During the pendency of the claim, she stopped working and raised the issue of a consequential psychiatric injury arising from her established injuries. As her treating psychiatrist provided no credible medical evidence to establish a causal relationship between claimant’s established injuries and her depression, detailed in the Court’s decision, the Board’s decision there was insufficient credible medical evidence to establish that claimant’s depression was causally related to either of her prior compensable injuries must be affirmed. Also, the Appellate Court ruled that other issues raised in the claimant’s brief never appealed to the WCB and, therefore, not properly before Appellate Court. Prevailing party: David W Faber of counsel to Cherry, Edson & Kelly (Carle Place) for US Airways and another, respondents. Issue: Causal Relationship. ^₇₂₆₂

January 15, 2009 Appellate Division 3rd Judicial Department

Held/Contractors Compensation Trust, et al. v Workers Compensation Board

 Prevailing party: Because of the nature of the case and the decision, one can consider that everyone won and everyone lost - see the link below for the names of the attorneys.

In a kind of legal Pyrrhic victory, the Workers Compensation Board (WCB) argument prevailed to the extent that the appeal by the Contractors Compensation Trust (CCT) for a declaratory judgment was denied. CCT appealed “(1) from an order of the Supreme Court in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, denied petitioners’ motion for leave to serve certain discovery requests, and (2) from a judgment of said court which, among other things, partially granted CCT’s application to vacate certain assessments made pursuant to Workers’ Compensation Law § 50(5) (former [f]).” The Appellate Court primary ruling found that the ultimate relief CCT sought was a judgment declaring that the assessments made against them are invalid. The petition did not explicitly request a declaration that the statute is invalid. Inasmuch as Supreme Court found the assessments to be invalid and annulled them, albeit on one of the alternate grounds asserted by petitioners, they received the relief requested and are not aggrieved. In effect, the 3rd Department considered the matter closed. Bottom line is the WCB was overruled in its attempt to increase assessments. Issues: Article 78, Assessments §50(5). ^₇₂₆₁

January 9, 2009 Appellate Division 3rd Judicial Department
Ruper v Transport System of Western NY

Prevailing party represented by: Jared L Garlipp of counsel to Williams & Willams (Buffalo) for Transport Systems of Western NY and another, respondents

Affirmed the WCB decision, which reversed the law judge, that the presumption of a casually related death pursuant to WCL §21 had been rebutted. After no one had seen or heard from the decedent during the day, a search ensued and his body was found slumped against a flatbed trailer in the employer’s parking lot. The employer presented decedent’s death certificate, the results of an autopsy, and the report and testimony of a cardiologist who concluded that his death was not work related but due to a preexisting heart condition. “Inasmuch as the record evidence supports the Board’s determination that decedent’s death was not work related,” the A.D. declined to disturb it. Issue : §21(1) Unwitnessed Death. ^₇₂₅₉

January 9, 2009 Superior Court of New Jersey, Appellate

Doris Sexton v County of Cumberland / Cumberland Manor & The 2nd Injury Fund

REVERSED the law judge and ruled in favor of Sexton who filed a claim that her total permanent disability is the direct result of a co-worker applying perfume at work. Sexton alleged that her preexisting COPD was aggravated by her “inhaling a particular perfume sprayed by a co-employee in her employer’s workplace on three occasions on the same day [thus] arising out of employment.” The law judge decided it was an accident and not an occupational disease, citing a number of grounds for his decision. Both the Appellate Court and the law judge did note that the claimant was diagnosed with COPD in 1989 but continued her 43-year habit of smoking one pack of cigarettes a day until the January 3, 2004 incident in this case. Prevailing party: Christine DiMuzio Sorochen of counsel to Hoffman DiMuzio for Doris Sexton Issues: Accident vs Occupation Disease.  ^₇₂₆₀