Workers’ Compensation Case Summaries – January 2018

Matter of Maloney v. Wende Corr. Facility, 157 A.D.3d 1155 (3rd Dept. 2018)

Facts: The claimant, a correction officer, injured his right shoulder. His claim for Workers’ Compensation benefits was uncontroverted and the case was established for a work-related injury to his right shoulder. In regards to permanency, the claimant’s treating orthopedist issued a report opining that claimant sustained a 90% schedule loss of use of the claimant’s right arm while the IME found a 50% SLU. The Law Judge ultimately ruled in favor of the carrier’s report, the Board affirmed the decision, and the claimant appealed.

Issue: Whether, in determining the SLU percentage applicable to a shoulder injury, it is appropriate to assign separate loss of use values for deficits in anterior flexion and abduction or if this is duplicative and results in an inflated SLU percentage.

Rule: Section 2.5 of the New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012) sets forth the parameters for medical experts to follow in formulating an SLU award for a shoulder injury. In the event that there is a conflicting medical opinion, the Board is vested with the authority to resolve conflicting medical opinions concerning SLU percentages to be assigned to a specific injury. The Board’s determination will stand provided that it is supported by substantial evidence.

Holding: Affirmed.

Rationale: It has been established by precedent that the anterior flexion and abduction deficits should be considered as a value, rather than each being its own value. The court found that the percentage determined by the claimant’s doctor does not accurately measure the claimant’s actual level of disability because it is inflated by combining the separate value for anterior flexion and abduction deficits. The court further stated that the record reflected that the claimant’s shoulder impairment was not totally disabling and that the IME had cleared the claimant to return to work at full duty without restrictions.

Matter of Corina-Chernosky v Dormitory Auth. Of State of N.Y., 157 A.D.3d 1067 (3rd Dept. 2018)

Facts: The claimant, whose job included but was not limited to data entry and the physical handling of large files, filed a workers’ compensation claim for injuries that arose out of repetitive stress. Specifically, the claimant alleged that she suffered from rotator cuff tendonitis and bilateral carpal tunnel syndrome because of her job. The claimant worked for their employer since 1995 and filed a claim in March 2012. The claim was controverted and  after the hearing, the matter was marked “no further action” pending claimant’s production of all medical records for prior treatment to the right shoulder and wrists. Following the production of certain medical records and the depositions of claimant’s treating physicians, a Workers’ Compensation Law Judge disallowed the claim and found that the claimant’s testimony was not credible and that there was insufficient medical evidence to support a causal connection between claimant’s job duties and her claimed occupational diseases. The claimant appealed.

Issue: Whether there is causation between the claimant’s occupational disease (the rotator cuff tendonitis and bilateral carpel tunnel syndrome) and her employment.

Rule: In order to be entitled to workers’ compensation benefits for an occupational disease, a claimant must establish a  recognizable link between his or her condition and a distinctive feature of his or her occupation through the submission of competent medical evidence. Medical proof must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility. The Board’s decision regarding the presence and classification of a medical condition is a factual consideration that will not be disturbed if it is supported by substantial evidence.

Holding: Affirmed.

Rationale: The court disregarded the claimant’s testimony regarding her medical history due to inconsistencies in her testimony. On the issue of causation, the court determined that the IME doctor’s testimony and findings were the most credible as he had access to the claimant’s medical records when he examined the claimant. The claimant’s physicians found a causal relationship solely on the claimant’s reported history and not on any prior records. Thus, the court affirmed the board’s decision.

Matter of Wallen v. Software Communications Sys. Inc., 157 A.D.3d 1143 (3rd Dept. 2018)

Facts: The claimant, a software engineer, filed a claim for a stroke he suffered while at a conference. The claim was controverted but the WCLJ established the claim for a work-related injury involving an intracerebral hemorrhage and awarded claimant benefits. After further hearings, the WCLJ reversed the decision establishing the claim. The claimant appealed the decision.

Issue: Whether the claimant’s intracerebral hemorrhage arose out of and in the course of employment.

Rule: In order for an injury to be compensable, it must arise out of and in the course of employment. This is a factual issue for the Board to resolve, and its decision will be upheld if supported by substantial evidence.

Holding: Affirmed.

Rationale: The court determined that the claimant’s injury did not arise out of out his employment.  By his own admission, the claimant was at the conference for his own gain and not for the furtherance of his employer’s interests. The claimant’s testimony was also found to be inconsistent, which created a credibility issue to be determined by the Board. The Court affirmed the Workers’ Compensation Board’s decision as it was supported by substantial evidence.

Matter of Colamaio-Kohl v. Task Essential Corp., 157 A.D.3d 1103 (3rd Dept. 2018)

Facts: The claimant, while working as a skin care specialist and spokesmodel, filed a claim for an injury he sustained when he fell on his way to a restroom. In his claim, he alleged that he was an employee of Task Essential Corp., the owner of the skin care line. Following a hearing, the Workers’ Compensation Board found, among other things, that claimant sustained an accidental injury arising out of and in the course of his employment with Task Essential and awarded workers’ compensation benefits. Task Essential appealed.  

Issue: Whether there was an employee-employer relationship at the time of the accident.

Rule: Whether there exists an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its determination will be upheld when supported by substantial evidence. Relevant factors to this determination include the right to control the work and set the work schedule, the method of payment, the furnishing of equipment, the right to discharge and the relative nature of the work at issue.

Holding: Affirmed.

Rationale: The court ruled that there was an employer-employee relationship between the claimant and Task Essential. The claimant testified that Task Essential acted as his employer through his supervisor, who was a Task Essential employee. He testified that his supervisor set his schedule, trained him, set sales goals, performed spot checks, paid him his hourly wage and would nee to grant the claimant permission to use the restroom. Further, he testified that after he fell, his supervisor informed him that he could not leave because no one could cover his station.  Thus, there was substantial evidence demonstrating that there was an employer-employee relationship.

Matter of Joseph v. Atelier Consulting LLC, 157 A.D.3d 1116 (3rd Dept. 2018)

Facts: The claimant, working as a construction worker, filed a claim for workers’ compensation benefits after he slipped and fractured his right foot at a construction site, listing George Villar/AtelierConsulting LLC as his employer and Rick Mullady as his supervisor. An investigation by the Workers’ Compensation Board’s Bureau of Compliance determined that Atelier, having reported that it had no employees, was listed as exempt from coverage and, therefore, had no workers’ compensation coverage in place at the time of the accident. In addition to finding jurisdiction over Atelier and Villar, a subsequent investigation into which contractors were at the construction site, as well as an attempt to locate Mullady, resulted in jurisdiction and notice being sent to Recony Construction LLC . Following a hearing at which only the claimant and a representative of Omega Construction Group, Inc., the general contractor, testified, the Workers’ Compensation Law Judge determined that an employer-employee relationship existed between Atelier and claimant at the time of the accident, and that Omega was the general contractor and, therefore, responsible for the payment of workers’ compensation awards. The WCLJ also imposed against Atelier a penalty of $36,000 for failing to secure workers’ compensation insurance during the period that claimant was employed. The Workers’ Compensation Board affirmed that decision. Atelier appealed.

Issue: Whether there is an employer-employee relationship between Atelier and the claimant.

Rule: Whether there exists an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its determination will be upheld when supported by substantial evidence. Relevant factors to this determination include the right to control the work and set the work schedule, the method of payment, the furnishing of equipment, the right to discharge and the relative nature of the work at issue.

Holding: Affirmed.

Rationale: The court determined that the claimant provided significant evidence to demonstrate an employer-employee relationship. Claimant testified that he had been hired by Mullady and worked at the construction site for about a year before the accident. He further testified that he worked directly under Villar, was paid by Villar, and would be assigned work by Villar. He also testified that Villar promised to pay for his medical bills from the accident.

With regard to testimony from the Omega representative, he testified that Omega performed construction management services at the construction site and obtained the construction permit for the project listing itself as the general manager. Other than indicating that Omega was paid for its services by Villar, the representative was unable to provide any further information regarding any contractors working at the construction site. The testimony was not-controverted and the court therefore ruled that an employer-employee relationship existed.

Matter of Murrah v. Jain Irrigation, Inc., 157 A.D.3d 1088 (3rd Dept. 2018)

Facts: The claimant, while working for Jain Irrigation, Inc. in 2010, filed a claim alleging injury to his right rotator-cuff while lifting a heavy object. The claimant was awarded workers’ compensation benefits. The rotator cuff was surgically repaired and he was thereafter found to have a 35% loss of use of his right arm. In May 2014, claimant was working for a different employer when he jarred his right shoulder swinging a sledgehammer and felt pain radiating down his right arm. The Law Judge determined that the claimant suffered from ulnar neuritis in the right arm with right cubital tunnel syndrome that was causally-related to the 2010 incident and amended the 2010 claim accordingly. On appeal, the WCB modified the Law Judge’s decision in which they found that the claimant had not established causally related ulnar neuritis but affirmed the finding with respect to right cubital tunnel syndrome. The carrier appealed.

Issue: Whether it was proper to amend the complaint to include right cubital tunnel syndrome.

Rule: The Board’s determination will be upheld if supported by substantial record evidence.

Holding: Affirmed.

Rationale: The court found that it was proper to affirm the amended claim. The claimant offered evidence that demonstrated that ulnar neuritis and cubital tunnel syndrome were two distinct diseases. Although the employer cites to two websites that indicate that the conditions are one and the same, this appears to conflict with evidence in the record. The court determined that they would not take judicial notice that both diseases were synonymous as the employer requested and ruled that there was significant evidence to show that that the claimant suffered from cubital tunnel syndrome

Matter of Devis v. Mountain States Rosen LLC, 157 A.D.3d 1148 (3rd Dept. 2018)

Facts: The claimant, who worked as a butcher, filed a claim alleging he suffered from a causally related ischemic stroke. In his complaint, the claimant alleged that he  met his supervisor around 3:30 a.m. in order to drive to Pennsylvania for a special assignment of instructing a group of workers on the proper method to cut meat. Following the instructional demonstration, which lasted approximately from 7:15 a.m. until 2:00 p.m., claimant went to the locker room to change his clothes, at which point he suffered an ischemic stroke. The claim was controverted. Following a hearing, the Workers’ Compensation Law Judge ruled that there was a causal relationship between claimant’s injury and his employment. Upon review, however, the Workers’ Compensation Board reversed and disallowed the claim, finding that there was insufficient evidence to establish that claimant’s injury arose out of and in the course of his employment. Claimant appealed.

Issue: Whether there was a presumption of compensability set forth in WCL 21.

Rule: In order for an injury to be compensable, it must arise out of and in the course of employment. Pursuant to WCL 21, absent substantial evidence to the contrary, injuries that occur at a claimant’s workplace during work hours are presumed to be work-related. The determination as to whether or not an injury arose in the course of the claimant’s employment is a factual determination within the province of the Board the Board’s decision on that issue will not be disturbed if supported by substantial evidence.

Holding: Affirmed.

Rationale: The court affirmed the WCB’s decision and determined that no causal relationship was established. The claimant’s medical expert made the contention that the claimant’s stroke was causally-related to his employment because the claimant had a prolonged lack of sleep, had to commute to Pennsylvania, and had performed arduous labor while teaching a class. The record, however, establishes that on a regular work day, claimant awoke around 2:00 a.m., drove to work in the Bronx and worked from approximately 4:00 a.m. until 1:30 p.m. cutting meat. Although claimant drove to Pennsylvania on the day in question, the record establishes that he worked substantially the same hours as a normal work day. In addition, the general manager testified that the drive to Pennsylvania was divided and included stops along the way. Furthermore, although claimant did not typically teach, the manner of cutting meat was substantially similar to his regular duties in the Bronx, where he did assist others in their technique of cutting meat. The carrier’s medical expert demonstrated through credible evidence that the claimant’s stroke was due to the claimant’s poor medical history. The Board’s decision was based upon the credibility, or lack thereof, of the medical testimony with regard to the events leading to claimant’s stroke. The Court deferred to the Board with respect to credibility determinations and affirmed the Board’s decision.

Matter of Bain v. New Caps, LLC, 157 A.D.3d 1146 (3rd Dept. 2018)

Facts: The claimant, while working as a production assistant, filed a claim alleging that he suffered a work-related injury to his neck and back when the vehicle he was in was hit from behind. The employer and its workers’ compensation carrier submitted a wage earnings statement reflecting that claimant earned $2,950 during the 52-week period preceding the accident, as well as $2,121.81 from other employers. Based upon claimant’s total earnings, the employer asserted that claimant’s average weekly wage should be calculated using a 52-week divisor, resulting in an average weekly wage of $97.531. The Workers’ Compensation Board, finding that claimant had worked for the employer for 16 days in the preceding 52-week period and noting the absence of proof that claimant  was not fully available for employment, used the 200 multiplier set forth in Workers’ Compensation Law § 14 (3) and set claimant’s average weekly wage at $709.15. The employer and the carrier appealed.

Issue: Whether the claimant’s average weekly wage was properly set.

Rule: An employee’s annual average earnings must be computed based on “such sum as . . . shall reasonably represent the annual earning capacity of the injured claimant in the employment in which he was working at the time of his accident and consist of not less than two hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.” That total is then divided by 52 weeks to reach the average weekly wage.

Holding: Affirmed.

Rationale: The Claimant worked for the employer sporadically and on an as-needed basis in the 52-week period before the accident. Although the employer submitted checks that related to additional earnings by claimant during the 52-week period, no evidence was presented to demonstrate that claimant voluntarily limited his availability for work with the employer. Absent such evidence, the Board’s use of the 200 multiplier in determining claimant’s average weekly wage is supported by substantial evidence.

Matter of Parody v. Old Dominion Frgt. Line, 157 A.D.3d 1118 (3rd Dept. 2018)

Facts: The claimant filed a claim for an injury he sustained to his right knee in December 2013. He was diagnosed with a lateral meniscus tear, a medial meniscus tear, chondromalacia of three compartments of the knee (medial femoral condyle, lateral femoral condyle and patella) and synovitis. He underwent knee surgery in March 2014 and was cleared to return to work in April 2014. Once established, a Law Judge conducted proceedings to determine permanency. The claimant’s doctor reported that the claimant suffered a 25% SLU to the right knee. The IME reported that the claimant had a 50% SLU. The IME’s opinion was given greater weight and the WCLJ gave the claimant 50% SLU. On appeal, the Workers’ Compensation Board modified the WCLJ’s decision and awarded claimant benefits based upon a 55% SLU of his right leg. The employer/carrier appealed the WCB decision.

Issue: Whether the SLU was properly set.

Rule:  In a case where there is a conflicting medical opinion, the Board is vested with the authority to resolve conflicting medical opinions concerning SLU percentages to be assigned to a specific injury. The Board’s determination will not be disturbed as long as it is supported by substantial evidence.

Holding: Affirmed.

Rationale: The court affirmed the decision that set the SLU at 55%. The court found that the IME was more credible than the claimant’s doctor and thus went with the former’s rate. The court utilized the limited range of motion found by the IME with the impairments indicated by the claimant’s physician. Because the Board’s findings comports with and is supported by substantial medical evidence, the decision stands.

Matter of Oyola v. New York City Dept. of Sch. Food & Nutrition Servs., 157 A.D.3d 1145 (3rd Dept. 2018)

Facts: The claimant, working as a cafeteria worker, filed a claim for back, left elbow, left knee, and left shoulder injuries that were sustained when she tripped and fell while at work. The case was established for the aforementioned injuries and proceedings were held on the issue of permanency. The WCLJ classified the claimant with a permanent partial disability and found that she had a 70% loss of wage-earning capacity and would be entitled to wage loss benefits for 375 weeks should she stop working. The employer appealed and argued that the claimant could not be found to have a loss of wage-earning capacity given that she had returned to work and was earning her pre-accident wages. The Workers’ Compensation Board disagreed and affirmed. The employer appealed.

Issue: Was the claimant’s loss of wage earning capacity set properly?

Rule:  Loss of wage-earning capacity is set at the time of classification and refers to the maximum number of weeks over which a claimant with a permanent partial disability is entitled to receive benefits. As such, despite the fact that a claimant is working at full wages, the Board is entitled to establish loss of wage-earning capacity, which sets a fixed durational limit on potential benefits in the event that a claimant incurs a subsequent reduction of wages as the result of his work-related injuries.

Holding: Affirmed.

Rationale: The Board’s decision falls squarely within this rule, and the employer’s argument that this Court has left any ambiguity on the issue is without merit.

Want to share this article?
  • Twitter
  • Facebook
  • email
  • LinkedIn
    Let's Get Started Close
    Let's Get Started