Matter of McMillan v. Town of New Castle, 162 AD3d 1425 (3rd Dept. 6/28/2018)

Facts: This case concerns the claimant, who is a police officer, who filed a Workers’ Compensation Claim in August of 2015.   In his complaint, he alleged that he had a work related anxiety disorder with phobic features related to issues of blood.   In this case, the claimant submitted a report form his treating psychiatrist, who had opined that the claimant had a psychiatric disability of a marked degree.   At this same hearing, the claimant testified as to two incidents that had occurred in 2014.   During those incidents, he stated he had responded to calls and observed blood and subsequently experienced anxiety because of it, and specifically on the second occasion, it rendered him unable to assist the victim.   As a result of this second period, he claimed that he stopped working in 2015.   The Chief of Police in the claimant’s jurisdiction testified to the duties of police officers and specifically in regard to their exposure to bloody scenes.  Ultimately, the Workers’ Compensation Law Judge presiding over this case concluded that the claimant had an occupational disease that had aggravated his preexisting anxiety.   Thus, the claimant was entitled to Workers’ Compensation benefits. The employer later appealed, in which the Board reversed the Law Judge’s finding in that the claimant was not entitled to benefits, because work related stress that he was exposed to was not greater than that which usually occurs in the normal police work environment. The claimant subsequently applied for reconsideration and for a Full Board Review.  However, during these developments, the Workers’ Compensation Law had been amended, specifically Section 10, Subsection 3(b), which when amended was effective immediately.   It provided that, among other things, where a police officer files a claim for mental injury premised upon an ordinary work related stress incurred in a work related emergency, the Board may not disallow the claim upon a factual finding that the stress was not great than that which usually occurs in a normal work environment. Claimant’s Application for Full Board Review was denied, and the claimant subsequently appealed from both Board Decisions.  

Issues: Whether the Board erred in denying a Full Board Review to consider whether or not the claimant had a compensable occupational disease.

Rule: The Law as it exists at the time a decision is rendered on Appeal is controlling. Therefore, the amendment to the Workers’ Compensation Law was controlling when the Board denied the claimant’s Appeal.

Rationale: The Third Department determined that as the Law as it is controls while a proceeding is in progress, they found that the Board was bound to apply the laws that existed at the time it was considering determining the reconsideration and/or review application, notwithstanding the parties’ apparent failure to make supplement arguments and submissions to the Board addressing this change in the Law.  Ultimately, they found that although the Board’s decision was to grant the application was discretionary, they found it was improvident for the Board to deny the application given the apparent significant intervening change in the law.

Matter of Taher v. Yiota Taxi Inc., 162 AD3d 1288 (3rd Dept. 6/14/2018)

Facts: This case concerns the claimant, who while working as a taxi driver, was involved in a motor vehicle accident.   He subsequently filed a Workers’ Compensation claim for injuries to the neck, back, right knee and right shoulder, which were established thereafter. After this case was established, the issue over schedule loss of use came to the fore.  After many physicians examined the claimant, depositions were directed. There was also an issue of whether or not the claimant should be awarded a schedule loss of use or a classification to the neck and back. Claimant’s counsel argued that because the claimant had returned to work at pre-injury wages, the claimant should receive a schedule loss of use award for his permanent injuries to his extremities irrespective of whether the claimant also received permanent partial disability classification for the other injuries that he sustained in the same accident.   Ultimately, the Workers’ Compensation Judge classified the claimant with a non-schedule cervical spine condition, as well as a lumbar spine condition, and directed that the case proceed into LWEC testimony. The claimant subsequently filed an Appeal, arguing that he was entitled to both a permanent partial disability classification and a schedule loss of use award.   The Board denied the Appeal, stating that the claimant was not entitled to both.  The claimant appealed thereafter.

Issues: Whether the Court must consider both a schedule loss of use, as well as a permanent classification when determining loss of wage earning capacity.

Rule: All impairments sustained by a claimant, whether resulting from a schedule or non-schedule injuries must be considered in determining loss of wage earning capacity attributable to a non-schedulable permanent partial disability classification.

Rationale: The Court determined that while the claimant could not receive awards for both non-schedulable and schedulable sites, both must be taken into consideration when determining a loss of wage earning capacity due to a claimant’s permanent partial disability.

Matter of Kaplan v. New York City Transit Authority, 162 AD3d 1194 (3rd Dept. 6/7/2018)

Facts: This Appeal stems from a Workers’ Compensation claim for Workers’ Compensation death benefits.  The decedent was previously employed to perform equipment maintenance for the Transit Authority.  On the date of accident, 7/11/15, the decedent was working and collapsed in the locker room at work.   He was later taken to the hospital and was pronounced dead upon arrival.   Hospital records attributed the decedent’s death to sudden cardiac arrest secondary to cardiovascular disease due to old age.   The decedent’s estate filed for death benefits, and the Law Judge soon established the case thereafter, finding that the employer’s proof submitted to the Court did not rebut the presumption of compensability under Workers’ Compensation Law Section 21.  An Appeal soon followed filed by the employer, and the Board reversed the Law Judge’s decision, concluding that even if the presumption applies, it was rebutted, and the claimant had not submitted a medical opinion to support a finding that the decedent’s death was causally related to his employment. The decedent’s estate subsequently appealed.

Issues: Whether there was a presumption of compensability when the decedent dies at work.

Rule: A presumption of compensability exists where an unwitnessed or unexplained death occurs during the course of employment, which relieves the claimant of an obligation to submit prima facie medical evidence of a causal relationship. The presumption may be rebutted as substantial evidence demonstrates that the death was not work related.

Rationale: The Court ultimately reversed the Board Panel’s decision, as the lower Courts relied on a November 2014 medical report filed by the decedent in an earlier Workers’ Compensation claim, and the decedent’s estate was prejudiced by not being on notice at the Board would be relying on those documents.  The Court determined that the decedent’s estate deserved the opportunity to provide medical evidence pertaining to this incident and not an earlier one, and, thus, remanded the case back down to the Workers’ Compensation Board for further development of the record.

Matter of Tobin v. Finger Lakes DDSO, 162 AD3d 1286 (3rd Dept. 6/14/2018)

Facts: This Appeal arises out of a work related injury that occurred in April of 2012, where the claimant, while working as a support aide for persons with developmental disabilities, sustained injuries after being punched in the face by a client. The claimant filed a claim for Workers’ Compensation benefits, and the claim was established for injuries to the right eye, right optic nerve, and neck, as well as post-traumatic headache disorder, reflex sympathetic dystrophy, as well as complex regional pain syndrome of the right side of her face, a nasal contusion, a right orbital contusion, and ringing in the ears and tinnitus.  Later, the issue of permanency and schedule loss of use was addressed.  The Workers’ Compensation Law Judge found that the claimant’s vision loss was amenable to a 100% schedule loss of use and that she was entitled to a schedule loss of use for her facial disfigurement. An Appeal by the employer soon followed, and the Board reversed, finding that the claimant’s reflex sympathetic dystrophy and complex regional pain syndrome and ptosis of the right eyelid were subject to a non-schedulable permanent disability classification under Workers’ Compensation Law Section 15-3(w).   The Board rescinded the schedule and remitted the matter for development of the record for loss of wage earning capacity.  The claimant subsequently filed an Appeal.

Issues: The issue here is whether the claimant’s eyes and facial disfigurements warranted a schedule loss of use award.

Rule: An SLU award for permanent disability resulting from a loss of specific body parts or functions pertains to all other cases of permanent partial disability.   Whether a schedule loss of use award or non-schedulable permanent partial disability classification is appropriate constitutes a question of fact for the Board’s resolution.  A non-schedulable classification is indicted where there is a continuing condition of pain or a continuing need for medical treatment, or the medical condition remains unsettled.

Rationale: The Court affirmed the Board’s decision. The claimant’s complex regional pain syndrome, as well as her facial disfigurement, involve ongoing chronic pain that will reoccur throughout the rest of her life.   The ptosis of the eyebrow is also considered a permanent partial disability for the same reasons, and, thus, a non-schedulable permanent partial disability is appropriate.

Matter of Haughton v. Victoria Secret, 162 AD3d 1272 (3rd Dept. 6/14/2018)

Facts: This Appeal arises out of an accident that occurred in September of 2013.   The claimant was working as an assistant store manager, when he became dizzy and fell from a ladder while working in the store’s stockroom. The claimant subsequently filed a Workers’ Compensation claim, wherein he alleged injuries to his head, right shoulder, left hip, and low back.   Over the course of litigation, the claimant indicated he had previously sustained a work related injury to his right shoulder in June of 2013 but did not report another accident which had occurred in February of 2014, where he slipped on a patch of ice outside of his home and fell, injuring his head.   The Workers’ Compensation Law Judge established the claim for causally related injuries to the head and right shoulder, and directed deposition testimony regarding raised consequential psychological injuries.   Following such a development of the record, the Law Judge amended the case to include the aforementioned psychological injuries.  However, the issue of WCL Section 114-A was raised because there was a question of whether or not the claimant had committed fraud by failing to report the slip and fall injury that hurt his head that was not work related.   The employer subsequently appealed, objecting to the fact that the Law Judge did not immediately rule in their favor and, instead, directed that the record be developed further on the issue. The Board affirmed the Law Judge’s decision, and, thus, this Appeal followed.

Issues: The issue is whether the Board abused its discretion in affirming the Law Judge’s decision that the record needed to be developed further.

Rule: The Board did not abuse its discretion as to the issue of Section 114-A fraud, and, thus, a further direction to develop the record further on the issue was appropriate.

Rationale: The Court reasoned that because a finding of Section 114-A fraud could lead to precluding the claimant from receiving benefits regardless of whether he is able to establish a work related disability merited further development of the record. Thus, the Board was correct in directing it so.

Matter of O’Donnell v. Erie County, 162 AD3d 1278 (3rd Dept. 6/14/2018)

Facts: The claimant, a probation officer, was injured while forking for the municipal employer for approximately 28 ½ years. On December 14, 2010, she injured her back, knees, and elbows when she slipped and fell on a wet floor at work. The claimant was briefly absent from work and returned to light duty in January 2011. A workers’ compensation claim soon followed and was established to the above referenced sites of injury. In 2015, the claimant was found to have a permanent partial disability with an 81% loss of wage-earning capacity. A Board Panel later amended this to 65% and found that the claimant’s retirement constituted an involuntary removal from the labor market. The Employer filed for a full Board review on the basis that the Board panel failed to address the issue of the claimant’s post-retirement attachment to the labor market pursuant to  Matter of Zamora v New York Neurologic Assoc. (19 NY3d 186, 970 N.E.2d 823, 947 N.Y.S.2d 788 [2012]). The Board panel denied the application for full Board Review but issued an amended finding that found that the claimant was not required to demonstrate an ongoing attachment to the labor market following her retirement given the recent amendments to the WCL section 15(3)(w). Thus, an appeal was filed.

Issue: Whether the claimant must show ongoing attachment to the labor market following her retirement..

Rule: No, 15(3)(w) states that benefits shall be made “without necessity for the claimant…to demonstrate ongoing attachment to the labor market.”

Rationale: The court found that the amendment to the Workers’ Compensation Law was applicable here because the statutory language provided so, either expressly or by necessary implication. In this case the later is true and is backed up by the legislative history behind the law as well as other language present in the law.

Matter of Elias-Gomez v Balsam View Dairy Farm, 162 AD3d 1356 (3rd Dept. 6/21/2018)

Facts: The claimant, while working as a farmhand, filed a claim for an injury that occurred in May 2015. The claimant asserted that he injured his right shoulder approximately one year earlier while assisting in a “particularly difficult” birthing of a calf. The claim was controverted by the employer, who contended that the claimant failed to provide timely notice and that no compensable accident occurred. After deposing both parties’ doctors, the Workers’ Compensation Law Judge established the claim ANCR for the right shoulder. After administrative review, the decision was modified and the Board found that the claimant did not sustain a work related injury. Claimant filed an appeal thereafter.

Issue: Whether the claimant had a work-related injury in May 2015.

Rule: Whether a compensable accident has occurred is a question of fact to be resolved by the Board and its determination will not be disturbed when supported by substantial evidence.

Rationale: The claimant did not meet the burden of proof demonstrating that an accident occurred on the alleged date of injury. Employer records indicated that no calves were born on the day in question.

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