Matter of Gullo v. Wireless Northeast, 160 A.D.3d 1106 (3rd Dept. 2018)

Facts: Claimant was employed as a quality assurance supervisor and spent the majority of her workday using a computer. She sought treatment for right wrist pain in 2015, which led to an eventual diagnosis of bilateral carpal tunnel syndrome and a claim for workers’ compensation benefits. A Workers’ Compensation Law Judge found that claimant suffered from an occupational disease involving left carpal tunnel syndrome and an aggravation of right carpal tunnel syndrome. The Workers’ Compensation Board reversed, finding that claimant had not demonstrated that her condition was related to her employment. Claimant appealed.

Issue: Did claimant demonstrate that her condition was related to her employment?

Rule: “While the factual determination of the Board regarding the causality of a disabling condition 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.” Simpson v. New York City Transit Auth., 136 A.D.3d 1192, 1193, 25 N.Y.S.3d 710, 711 (N.Y. App. Div. 2016) (emphasis added) (internal quotations omitted).

Holding: Reversed.

Rationale:  The court opined that the Board had misread the record regarding claimant’s treating hand surgeon, Dr. Jeffrey Fink, when the Board held that Fink could not offer an opinion on causation because he was not “familiar with” claimant’s work duties, overlooking that Fink maintained his opinion of causation after being advised of specific work duties described by claimant in her testimony. In addition, the Board further ignored, in concluding that Fink could not opine on the cause of claimant’s left carpal tunnel syndrome due to the absence of a personal examination, a November 2015 progress note in which Fink relates his review of a nerve conduction study establishing left carpal tunnel syndrome and his “examination of claimant’s hands” during her second office visit. Since the appellate court lacks the authority to independently weigh the conflicting proof in this case and discern what role, if any, this inaccurate reading of the record played in the Board’s decision. The decision was reversed.

Adebiyi v. New York City Hous. Auth., 160 A.D.3d 420 (1st Dept. 2018)

Facts: Petitioner was injured on the job while in the employ of respondent New York City Housing Authority, and received workers’ compensation benefits after being classified by the Workers’ Compensation Board (the “Board”) as permanently partially disabled. He commenced federal actions against the manufacturer and lessor of the ultra-high pressure washer that malfunctioned and caused his injuries. He settled with the lessor for $800,000 and obtained a jury verdict and judgment against the manufacturer in excess of $1.6 million. Due to a dispute concerning whether or not respondents had consented to the settlement of the federal action, petitioner moved for judicial approval of the settlement. Respondents cross-moved for a lien on the proceeds of the settlement, after deduction for the equitable share of the attorneys’ fees and costs. In a December 2013 order, Supreme Court approved the settlement and granted respondents’ cross motion for a lien in the amount of $222,049.27, after a credit to petitioner for litigation costs.

Petitioner moved for renewal and/or reargument, asserting that the amount of the lien should not be determined until the Board decided whether or not to reclassify him as permanently totally disabled. New York Supreme Court granted the motion and, upon reargument, vacated its prior determination to the extent it granted respondents’ cross motion.

Based on the language of WCL 29, the amount of respondents’ lien on petitioner’s third-party recovery should be ascertained as of when the settlement was obtained, without consideration of a potential reclassification of petitioner’s disability status by the Board. At the time of the settlement, the amount of past benefits paid to petitioner was easily quantifiable, and he does not dispute the figure claimed by respondents.

Issue: (1) Did the court err in granting respondent’s cross-motion for reimbursement of the lien for past benefits that were paid at the time of the settlement? (2) Did the court err in deferring the lien issue until the Board determined whether to classify petitioner’s disability status?

Rule: The amount of respondents’ lien on petitioner’s third-party recovery should be ascertained as of when the settlement was obtained, without consideration of a potential reclassification of petitioner’s disability status by WCB. Workers’ Compensation Law § 29.

If the future benefit is speculative, it is not appropriate for a court to apportion attorney’s fees incurred in third party action based on such benefit. Burns v. Varriale, 9 N.Y.3d 207, 215, 849 N.Y.S.2d 1, 879 N.E.2d 140 (2007).

Holding: The value of future benefits was speculative. The court’s deferral of the lien issue was erroneous.

Rationale: Since petitioner was classified by WCB as partially, rather than totally disabled, at the time of the settlement, the value of the future benefits which respondents were relieved of paying due to the recovery was speculative. Thus, the court’s December 2013 order correctly granted respondents’ cross motion with respect to reimbursement of the lien for the past benefits that were paid at the time of the settlement. The court’s deferral of the lien issue until the Board determined whether or not to reclassify petitioner’s disability status was erroneous in that the only relevant factor was his disability status at the time of the settlement.

Buchwald v. 1307 Porterville Rd., LLC, 160 A.D.3d 1464 (4th Dept. 2018)

Facts: Plaintiff commenced an action seeking damages for injuries he allegedly sustained when he fell from the hayloft of a barn located on property owned by defendant. Plaintiff was employed by Fox Run Horse Farms, LLC (“Fox Run”), which leased the property from defendant and operated a horse farm business on the property. Defendant moved for summary judgment dismissing the complaint, contending, inter alia, that defendant and Fox Run were alter-egos and, as a result, plaintiff’s action against defendant was barred by the exclusive remedy provisions of Workers’ Compensation Law §§ 11 and 29(6). Supreme Court granted the motion for summary judgment on that ground.

Issue: Were the two companies alter egos, making plaintiff’s exclusive remedy subject to the provisions of Workers’ Compensation Law §§ 11 and 29(6)?

Rule: As a general rule, when employees are injured in the course of their employment, their sole remedy against their employer lies in their entitlement to a recovery under the Workers’ Compensation Law. Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 156 (1980), rearg. denied 52 N.Y.2d 829 (1980). The protection against lawsuits brought by injured workers also extends to entities which are alter egos of the entity which employs the plaintiff’. Ciapa v Misso, 103 A.D.3d 1157, 1159 (4th Dept. 2013); see also Cleary v. Walden Galleria LLC, 145 A.D.3d 1524, 1525 (4th Dept. 2016) (internal quotations and parentheticals omitted).

Holding: Affirmed.

Rationale: Defendant established as a matter of law that it was the alter ego of Fox Run. Defendant and Fox Run were single-member-owned LLCs that were created on the same day for a single purpose, to operate a horse stable business. Both defendant and Fox Run had the same individual owner, reported their taxes on the same tax return, and shared the same insurance policy. Defendant had no separate set of financial books and no separate accounting or tax reporting. In addition, defendant had no employees and was formed solely for the purpose of owning the premises upon which plaintiff’s employer operated its horse farm. Fox Run leased property from no one other than defendant, there was no written lease agreement, and Fox Run did not pay any rent to defendant. Finally, Fox Run’s owner paid defendant’s property taxes as well as the operating expenses of the property.

Those facts establish that defendant, which had no employees, was controlled by the individual that controlled plaintiff’s employer, and that the two entities “functioned as one company.” For these reasons, the summary judgment dismissing the complaint was proper.

Clarke v. First Student, Inc., 160 A.D.3d 921 (2nd Dept. 2018)

Facts: In November 2012, the plaintiff, who was then an employee of First Student Management, LLC (“FSM” or the “employer”), allegedly was injured when she fell due to a defective condition at FSM’s place of business. She commenced this action against the defendant, First Student, Inc., which owned the premises, seeking damages for negligence. After earlier motion practice and an appeal, discovery proceeded, and the defendant moved for summary judgment dismissing the amended complaint. The defendant contended that it and the plaintiff’s employer were functionally the same entity with respect to the exclusivity provisions of the Workers’ Compensation Law (see Workers’ Compensation Law §§ 11, 29[6] ). The Supreme Court denied the defendant’s motion. Defendant appealed.

Issue: Did the Supreme Court err when it held that First Student, Inc. was not the alter-ego of First Student Management, LLC, thereby allowing the plaintiff to seek recovery in tort instead of designating workers’ compensation as the exclusive right to benefits for the plaintiff?

Rule:  WC Law § 29(6) expressly provides that “[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee.” Isabella v. Hallock, 22 N.Y.3d 788, 792–793, 10 N.E.3d 673 (2014).

Holding: Reversed. The Supreme Court should have granted the defendant’s motion for summary judgment dismissing the amended complaint.

Rationale: Here, the defendant established, prima facie, that it was an alter ego of the plaintiff’s employer by submitting evidence that, among other things, in addition to owning the premises, it was the sole owner and manager of the limited liability company that was the plaintiff’s employer, that the plaintiff’s employer was formed to provide bus drivers for the defendant’s pupil transportation business, and that the two entities shared the same Workers’ Compensation insurance policy. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the amended complaint.

Dube v. Cty. of Rockland, 160 A.D.3d 807 (2nd Dept. 2018)

Facts: The plaintiff Richard Dube, a police officer employed by the Town of Ramapo, was selected as a candidate for the Rockland Regional Rescue, Entry and Counter-Terrorism Team (“REACT”), a part-time SWAT team comprised of specially trained police officers from participating law enforcement agencies in Rockland County. During a physical fitness test in connection with his candidacy for REACT, Dube suffered heat stroke and sustained personal injuries. Dube, and his wife suing derivatively, commenced an action against the County, the Rockland County Sheriff’s Department, and REACT (collectively the “County”). The action was consolidated with an action the plaintiffs commenced against USPLabs, LLC, the manufacturer of a vitamin supplement Dube was taking at the time he fell ill.

The County defendants moved for summary judgment dismissing the complaint asserted against them, contending that Dube was their special employee and therefore barred from commencing an action against them pursuant to WC Law §§11 and 29(6). The County defendants also contended that they were entitled to summary judgment dismissing the complaint based upon governmental immunity, the “firefighter’s rule,” and the doctrine of primary assumption of risk. The Supreme Court granted the motion, determining that Dube was a special employee of the County defendants, but without addressing the other grounds for summary judgment. The plaintiffs appealed.

Issue: Was claimant a special employee of Rockland County for purposes for receiving Workers’ Compensation benefits?

Rule: An employee who is entitled to receive workers’ compensation benefits may not sue his or her general employer or special employer for injuries occurring during the course of employment (see WC Law §§11, 29(6); Bostick v. Penske Truck Leasing Co., L.P., 140 A.D.3d 999, 1000 (2016); Franco v. Kaled Mgt. Corp., 74 A.D.3d 1142 (2010).

The determination as to whether a special employment relationship exists is generally an issue of fact requiring consideration of many factors, including who controls and directs the manner of the employee’s work, who is responsible for payment of wages and benefits, who furnishes equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business. See Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 558 (1991).

Holding: Affirmed.

Rationale: The County defendants did not submit sufficient evidence to rebut the presumption that Dube remained a general employee under the control of the Town at the time of the incident. Dube was under the control of the County defendants for the limited purpose of the physical test to evaluate his ability to join REACT. However, his general employer, the Town, paid his wages, gave him permission to attend the REACT test on his regular work day, paid his workers’ compensation benefits, and retained the authority to discharge or discipline him. Because the County defendants failed to meet their prima facie burden, denial of their motion was required regardless of the sufficiency of the plaintiffs’ papers submitted in opposition.

Matter of Derouchie v. Massena W.-WC-Smelter, 160 A.D.3d 1310 (3rd Dept. 2018)

Facts: This case was an appeal from a decision of the Workers’ Compensation Board, filed September 9, 2016, which ruled that claimant’s need for total right knee replacement surgery and total left hip replacement surgery was causally-related to a compensable accident.

On February 18, 2015, the claimant sustained injuries to his right knee, right arm, right shoulder, left hip and neck when he stepped into a pothole on the employer’s premises while walking to his car. He filed a claim for workers’ compensation benefits and his case was established for injuries to his neck, right shoulder, right knee and bilateral hips. Claimant had two prior workers’ compensation claims arising from incidents occurring on January 31, 2001 and April 29, 2008, both involving injuries to his right knee and requiring surgery.

Due to the injuries sustained by claimant in the February 2015 accident, claimant sought medical authorization for total right knee replacement surgery and total left hip replacement surgery. The employer, through its carrier, denied these requests.

Issue: Were claimant’s injuries at issue causally related to his February 2015 accident?

Rule: “The Board is empowered to determine the factual issue of whether a causal relationship exists based upon the record, and its determination will not be disturbed when supported by substantial evidence.” Matter of Virtuoso v. Glen Campbell Chevrolet, Inc., 66 A.D.3d 1141, 1142 (2009).

Holding: Affirmed.

Rationale: Dr. John Savage, the orthopedist who treated claimant following the February 2015 accident, explained that although claimant’s preexisting arthritis rendered him a candidate for eventual total left hip and right knee replacements, the February 2015 accident was the triggering event that caused him to seek the surgeries in order to improve his quality of life. Thus, it was his opinion that claimant’s need for the surgeries was causally-related to the February 2015 accident.

Dr. Bedros Bakirtzian, the orthopedic surgeon who performed a prior surgery on claimant’s right knee, also testified that claimant had arthritis in his right knee and left hip, that these joints were bone on bone without cartilage, and that these conditions were attributable to claimant’s prior injuries and surgeries. He acknowledged, however, that the February 2015 accident aggravated claimant’s preexisting conditions and may have hastened the need for the surgeries by causing him to have increased pain, which is a major factor in determining if joint replacement surgery is appropriate.

The testimony of Dr. Louis Benton, an orthopedic specialist who conducted an independent medical examination of claimant on behalf of the carrier, was substantially in accord with Bakirtzian’s testimony.

The Board was free to credit Savage’s medical opinion with respect to causation over the contrary medical opinion and could choose to accept those portions of Bakirtzian’s and Benton’s testimony that acknowledged that the February 2015 accident hastened claimant’s decision to undergo the replacement surgeries. Deferring to the Board’s evaluation of the proof presented, the Third Department concluded that substantial evidence supported the Boards finding that claimant’s need for the total left hip replacement surgery and the total right knee replacement surgery was causally-related to the February 2015 accident.

Matter of Nock v. New York City Dept. of Educ., 160 A.D.3d 1238 (3rd Dept. 2018)

Facts: This case was an appeal from a decision of the Workers’ Compensation Board, filed August 24, 2016, which ruled that claimant did not sustain a causally-related injury and denied her claim for workers’ compensation benefits.

Claimant, a school lunch helper, filed a claim for workers’ compensation benefits claiming that she had sustained injuries to her spinal cord, lower back, legs, feet and thighs while standing, cleaning tables and lifting heavy pans at work. The self-insured employer controverted the claim. Following a hearing, a Workers’ Compensation Law Judge found that the employer’s notice of controversy was untimely and established the claim for a work-related injury to claimant’s back. On administrative review, the Workers’ Compensation Board reversed, determining that claimant had not submitted proof that she had sustained a causally-related injury, and disallowed her claim.

Issue: Whether the Board properly disallowed the claim for failure to provide a causal link between claimant’s injury and her employment.

Rule: In order to establish her claim for benefits, claimant bears the burden of demonstrating, “by competent medical evidence, that a causal connection existed between her injuries and her employment.” Matter of Hansen v Saks Fifth Ave., 145 A.D.3d 1257, 1257 (3rd Dept. 2016) (internal quotation marks, brackets and citation omitted).

Holding: Affirmed.

Rationale: Claimant’s medical evidence consisted solely of an August 2015 report from a physician indicating that she had a spinal injury and underwent surgery in November 2014, and recorded her subjective complaints and physical findings. The report contained no specific diagnosis, made no mention of the history of her injury or how it related to her work for the employer. Given claimant’s failure to submit any medical evidence providing a causal link between her injury and her employment, the court found no basis upon which to disturb the Board’s finding that she failed to establish her claim.

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