Workers’ Compensation Case Summaries – February 2018

Matter of Yonkosky v. Town of Hamburg, 2018 N.Y. Slip Op. 00586 (App. Div., 3rd Dept. 2/1/2018)

Facts: The claimant, employed as a seasonal laborer for a municipal highway department, filed a claim for a torn right rotator cuff that he alleged was sustained due to repetitive stress brought on by his employment. In January 2015, he filed the claim and was established for the right shoulder. The Board affirmed the decision and the employer appealed.

Issue: Whether the claimant’s shoulder injury was attributable to repetitive motions that occurred while working as a manual laborer.

Rule: In order to prove that a claimant has an occupational disease, the claimant must demonstrate a recognizable link between their affliction and a distinctive feature of their employment.

Holding: Reversed and remitted.

Rationale: The claimant alleged that the shoulder tear occurred while moving a wheelbarrow. The employer contended that the claimant’s evidence supported an accidental injury rather than an occupational disease. In reclassifying it as an accident, the employer argued that the claimant’s claim would be considered untimely under the WCL. In its determination, the court stated that the proof failed to demonstrate that the claimant’s shoulder injury was attributable to repetitive movements associated with moving heavy wheelbarrow loads of asphalt or any other manual duties. The evidence does prove, however, that the injury emanated from a single event (the emptying of a wheelbarrow).

Matter of Garcia v. MCI Interiors, Inc., 2018 N.Y. Slip Op. 00873 (App. Div., 3rd Dept. 2/8/2018)

Facts: Claimant, working as a plasterer, filed a claim for a neck and back injury due to repetitive stress. The date of disablement was set as of March 24, 2015 and the WCLJ set awards from March 24, 2015 to July 13 2015. On appeal, the Board rescinded the awards from aforementioned dates and continuing, pending further development of the record. ODNCR remained established. Carrier/employer appealed.

Issue: Whether the claimant’s neck and back injury was attributable to repetitive motions that occurred while working as a plasterer.

Rule: In order to prove that a claimant has an occupational disease, the claimant must demonstrate a recognizable link between their affliction and a distinctive feature of their employment.

Holding: Affirmed.

Rationale: The court stated the claimant gave sufficient credible medical evidence whereas the carrier did not. The claimant testified that his job required carrying and lifting containers that weighed 50 pounds for several hours a day, everyday of his work week. The doctors’ testimony stated that the claimant’s chronic neck and back pain and degenerative disc disease in his cervical and lumbar spine had a consistent connection with repetitive movement. The carrier/employer also contended that the claimant failed to file within two years. The court rejected the contention because the claimant provided a letter from his physician dated to March 24th 2015, thus the application was timely filed.

Matter of Dupont v. Quality Distrib., Inc., 2018 N.Y. Slip Op. 01109 (App. Div., 3rd. Dept 2/15/2018)

Facts: The claimant, working as a hazardous materials truck driver, filed a claim for work-related injuries he sustained in his neck and back. The injury occurred when, while driving along an interstate highway, he was forced to stop short and a container he was transporting hit him. The carrier argued that the claimant’s account of the injury is inconsistent with vehicle logs. The Law Judge disallowed the claim on those grounds. On appeal, the Board disagreed and found that the claimant sustained casually-related injuries. The Board restored the case for further development of the record. The carrier appealed.

Issue: Whether there is a causal relationship between the claimant’s neck and back injury and employment.

Rule: The claimant, in order to prove a causal relationship between his accidental injury and his employment, must offer medical evidence that demonstrates the significant possibility that the underlying cause of injury was their employment. It must be based on a rational basis and not upon a general expression of possibility.

Holding: Affirmed.

Rationale: The court found that the claimant had offered sufficient medical evidence to prove causation. The court rejected the contention that the claimant’s testimony was inconsistent with the vehicle logs. One of the employer’s witnesses, one familiar with the software used on the truck’s onboard computer, testified that the computer would register a “sudden stop” only if a deceleration threshold of nine miles per hour was met. They further testified that whether a sudden stop would be recorded by the computer would depend on how quickly claimant decelerated. The court reasoned that in light of that testimony, the lack of a recorded event in the truck’s computer is not dispositive of a causal relationship.

Matter of Usewicz v. Nozbestos Constr. Corp., 2018 N.Y. Slip Op. 01107 (App. Div., 3rd Dept. 2/15/2018)

Facts: The claimant, working as an asbestos handler who worked at Ground Zero during the recovery efforts in 2001, filed a claim on August 11, 2016 for depression, asthma, rhinitis, gastroesophageal reflux disease, and PTSD under WCL article 8-a. Employment with his last employer was terminated on July 28, 2012. The claimant filed a claim for lead exposure, alleging that he had continuously worked in lead-contaminated environment for 12 years. The WCLJ established the claim and set the date of disablement as July 28, 2012. The WCLJ further set that the claimant was last exposed to lead on November 3, 2011 while working for Nozbestos Construction Corporation. The lead exposure case and the instant case were set to travel together to determine the issue of proper awards. The WCLJ found that the claimant had no casually-related loss of earnings because his July 28, 2012 cessation of employment resulted from his 8-a claim and was unrelated to the occupational disease claim. The WCB upheld that determination and the claimant appealed.

Issue: Whether there was a causal relationship between the claimant’s occupational lead exposure and his loss of earnings.

Rule: Whether a claimant’s occupational disability in a given case is causally-related to his or her loss of earnings is a factual question for determination by the WCB and will be upheld if supported by substantial evidence.

Holding: Affirmed.

Rationale: The claimant’s treating physician admitted that the claimant could continue to work provided that he avoided lead exposure. Another of the claimant’s doctors opined that while the claimant might have suffered some cognitive deficiencies, it could not be sufficiently attributed to the lead exposure alone.

Matter of Park v. Corizon Health Inc., 2018 N.Y. Slip Op. 01110 (App. Div., 3rd Dept. 2/15/2018)

Facts: The claimant, working as a pharmacist in a prison, filed claim for an accidental exposure to pepper spray. In her claim, she alleged that she began to experience dizziness and chest tightness. The WCLJ established the claim for work-related injuries of PTSD and depression arising from exposure to pepper spray and awarded benefits. Following further proceedings, the WCLJ amended the claim to include work-related injury for the exacerbation of preexisting fibromyalgia and made additional awards. On appeal, the Board ruled that there was no causal relationship between the exacerbation of the fibromyalgia and the claimant’s accidental exposure to pepper spray. The claimant appealed the Board’s reversal of the WCLJ’s decision.

Issue: Whether the claimant offered sufficient evidence to demonstrate that her exposure to pepper spray exacerbated her preexisting fibromyalgia.

Rule: The WCB 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.

Holding: Affirmed.

Rationale: The court determined that the claimant did not provide substantial evidence proving that the pepper spray exacerbated the claimant’s fibromyalgia. The claimant proffered medical evidence showing that externalities could exacerbate fibromyalgia but offered no proof that it was evident in this case. The claimant’s doctors based their opinions on medical journals on the subject rather than objective testing with this particular claimant.

Matter of Galster v. Keen Transp., Inc., 2018 N.Y. Slip Op. 01105 (App. Div., 3rd Dept. 2/15/2018)

Facts: The decedent, a resident of New York, was hired by the employer, based in Pennsylvania. The decedent worked to deliver highway construction equipment throughout the contiguous United States. The decedent injured his shoulder in Illinois in 2013 while moving equipment. Thereafter, the decedent filed for workers’ compensation benefits in New York while his employer filed a claim on his behalf in Pennsylvania. The employer controverted the claim in New York on the grounds that New York lacked jurisdiction due to a lack of an adequate connection between the decedent’s employment and New York. The WCLJ determined that New York had jurisdiction and established the case; the Board affirmed the decision on appeal.

Issue: Whether there were sufficient contacts between the decedent’s employment and New York to establish the WCB’s jurisdiction over the proceedings.

Rule: The Board has jurisdiction over a claim for an injury occurring outside of New York where there are “sufficient significant contacts” between the employment and New York.

Holding: Affirmed.

Rationale: The decedent testified that he lived in NY and in the two years following the accident, he made several deliveries in New York. The decedent also described that his “home base” was situated in New York and that his employer got him medical care in New York. He also stated that he had light-duty assignments in New York, for which the employer paid him. The court determined that the Board was correct in determining that there were significant sufficient contacts.

Matter of Esposito v. Tutor Perini, 2018 N.Y. Slip Op. 00875 (App. Div., 3rd Dept. 2/8/2018)

Facts: Claimant appealed from a Workers’ Compensation case which ruled that the claimant did not sustain a compensable injury and denied his claim for Workers’ Compensation benefits. Claimant objected to the WCLJ’s preclusion of an Independent Medical Evaluation (IME) claimant argued was evidence of a compensable injury entitling claimant to Workers’ Compensation benefits.

Issue: At issue was whether an IME was properly precluded.

Rule: Workers’ Compensation Law § 137 (1) requires IME doctors to submit IME reports to the Board. In addition, 12 NYCRR 300.2(d)(3) provides that when an independent medical examiner is “provided with information such as documents, reports, records, and/or test results, for review in connection with an IME…,” that information must also be submitted to the Board for inclusion in the official file. See 12 NYCRR 300.2(d)(3), Matter of Perez v. SN Gold Corp., 155 A.D.3d 1298 (3rd Dept. 2017); Matter of Estanluards v. American Museum of Natural History, 53 A.D.3d 991 (3rd Dept. 2008).

Holding: Affirmed.

Rationale: Here, the IME doctor referenced documents in his report, including x-rays and reports from the treating physician, which were not contained in the Board file. Therefore, the IME was not in compliance with 12 NYCRR 300.2(d)(3) and was properly precluded.

Matter of Williams v. New York State Off. Of Temporary Disability & Assistance, 2018 N.Y. Slip Op. 01108 (App. Div., 3rd Dept. 2/15/2018)

Facts: Claimant’s claim for workers compensation benefits resulting from being struck by closing elevator doors was denied by a WCLJ after the WCLJ viewed the relevant evidence and determined claimant was exaggerating the accident. The Board affirmed; claimant appealed.

Issue: At issue is whether claimant sustained accidental injury arising out of and in the course of her employment.

Rule: The Board has broad authority to resolve factual issues based on credibility of witnesses and draw any reasonable inferences from the evidence in the record.

Holding: Affirmed.

Rationale: Following extended proceedings and a review of video surveillance of the incident, the WCLJ disallowed the claim upon finding that the claimant had exaggerated the incident and that her injuries were not the result of the accident arising out of and in the course of her employment. Claimant had previously testified that she was “squeezed like a jelly donut” between the elevator doors, however, the video surveillance showed the door lightly bumping claimant and not knocking her off balance. The Board has broad authority to resolve factual issues based on the credibility of witnesses and the Board held that the WCLJ’s disallowance of the claim should not be disturbed. The Appellate court affirmed.

Matter of Seck v. Quick Trak, 2018 N.Y. Slip Op. 00877 (App. Div., 3rd Dept. 2/8/2018)

Facts: Claimant was injured in 1993 and had a Workers’ Compensation claim established and received benefits at a rate of $200 per week. Claimant’s payments ceased in October 1998 when claimant returned to work full-time. Claimant remained employed in those capacities through July 2007. In 2014, claimant filed a C-27 asserting he was now permanently disabled due to his previous work-related injury. Following a hearing, a WCLJ granted awards retroactively for the period of 1/1/2008-2/3/2015. Upon administrative appeal, the Board rescinded awards finding that Workers’ Compensation Law § 123 barred further proceedings because there had been a lapse of 18 years since the date of injury and eight years since the date of last compensation payment. Claimant applied for full Board reconsideration and was denied. Claimant appealed the denial of full Board reconsideration.

Issue: At issue is whether the Board’s denial of claimant’s application for reconsideration and/or full Board review was arbitrary and capricious or otherwise constituted an abuse of discretion.

Rule: To establish that the Board’s denial of claimant’s application for reconsideration and/or full board review was arbitrary and capricious or an abuse of discretion, the claimant must adduce new evidence that was previously unavailable or demonstrate that the Board improperly failed to consider any relevant evidence in making its decision. Matter of Cozzi v. American Stock Exch., 148 A.D.3d 1500 (3rd Dept. 2017).

Holding: Affirmed.

Rationale: The courts inquiry was limited to whether the Board’s denial of claimant’s application for full Board reconsideration was arbitrary and capricious or otherwise constituted an abuse of discretion. Claimant argued that the issue of the applicability of Workers’ Compensation Law § 123 had not been properly developed because the case granting claimant awards in October 1998 was never truly closed and there was no evidence of when payments stopped. However, claimant’s remedy for those claims would have properly been asserted in an appeal from the Board’s 2015 decision, which claimant did not do. Since claimant appealed the denial of his application for full board review instead of the Board’s actual December 2015 decision, the Third Department found that the merits of the underlying Board decision were not before it for consideration. With respect to the claimant’s application for reconsideration and/or full Board review, the court held that the claimant failed to show any new evidence that was previously unavailable or establish that the Board failed to consider relevant evidence in making its determination. The Court therefore affirmed the Board’s decision.

Matter of Estate of James Yoo v. Rockwell Compounding Assoc., Inc., 2018 N.Y. Slip Op. 00878 (App. Div., 3rd Dept. 2/8/2018)

Facts: James Yoo (hereinafter “decedent”), a doctor of pharmacy student was found unconscious in defendant Rockwell Compounding Associates’ laboratory where he was participating in an externship. Plaintiff, decedent’s estate, brought a claim on behalf of decedent in Supreme Court alleging decedent was negligently exposed to certain chemicals that resulted in his death. Rockwell moved to dismiss for lack of subject matter jurisdiction, and argued in the alternative that the exclusive remedy available to plaintiff was workers compensation benefits. The court granted the motion in part with regard to the Workers’ Compensation benefits, reasoning that the issue of employer-employee relationship was an issue for the Board to resolve. The court denied the motion in part regarding subject matter jurisdiction. The Supreme Court directed each party to get a ruling from the Board on that issue and the Board determined decedent was an employee of Rockwell. The case was continued to address all outstanding issues. Claimant appealed.

Issue: At issue is whether an interlocutory Board decision is appealable.

Rule: Where “a Board decision is interlocutory in nature and does not dispose of all the substantive issues or reach a potentially dispositive threshold legal question, it is not appealable.” Matter of Covert v. Niagara County, 146 A.D.3d 1065 (3rd Dept. 2017) (internal quotations brackets and citations omitted).

Holding: Appeal dismissed.

Rationale: The Board’s determination of whether an employer-employee relationship exists does not create a threshold legal issue so as to permit interlocutory review.

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