WORKERS’ COMPENSATION CASE SUMMARIES – MARCH 2018

Matter of Larosa v. ABC Supply Co., Inc., 2018 N.Y. Slip Op. 02232 (App. Div., 3rd Dept. 3/29/2018)

Facts: Claimant, a crane operator filed a claim for workers’ compensation benefits in April 2015 asserting that he had sustained a work-related injury to the right knee. The carrier controverted the claim contending that the claimant’s injury did not arise out of and in the course of employment. After various hearings, the Workers’ Compensation Law Judge found that claimant had sustained a work-related injury to the knee and set the matter for a calendar date for the purpose of awards. The Workers Compensation Board affirmed this decision, prompting an appeal by the employer.

Issue: Did claimant’s injury arise in and out of the course of employment?

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.” Matter of Quigley v. Concern for Indep. Living, 146 A.D.3d 1185, 45 N.Y.S.3d 658 (N.Y. App. Div. 2017).

Holding: Affirmed.

Rationale: The testimony from several physicians who concluded that the claimant sustained a causally-related right knee strain that exacerbated his preexisting arthritis in his right knee supported the Board’s determination that claimant’s injury arose out of and in the course of employment by substantial evidence.

Matter of Portlette v. Manhattan & Bronx Surface Tr. Operating Auth., 2018 N.Y. Slip Op. 01980 (App. Div., 3rd Dept. 3/22/2018)

Facts: Claimant, a bus driver, reported to her employer that she had sustained injuries when another bus backed into the bus in which she was standing, preparing to start her shift. Claimant sought medical care and her employer initially accepted and paid workers’ compensation benefits for multiple sites. However, the employer suspended payments upon receipt of video recordings of the incident reflecting that claimant’s account of the incident and her injuries had been inaccurate. The employer raised the issue of fraud under WC Law §114-a. After deposition of the medical witnesses, a Workers’ Compensation Law Judge found that based on the evidence, claimant failed to submit competent medical evidence that her injuries were causally-related to her work incident and disallowed the claim. The Law Judge also found that the claimant knowingly made false and material misrepresentations regarding the accident in violation of WC Law §114-a. The Board affirmed upon review of the conflicting medical and video evidence. The Board further agreed claimant knowingly made false and material misrepresentations in violation of WC Law §114-a. Claimant appealed, contending that the Board was precluded from considering the testimony of the IME chiropractor  on the ground that the employer never filed a notice of controversy under WC Law §25(2).

Issue: Should the IME doctor’s testimony be precluded on the ground that the employer never filed a notice of controversy, and did the Board abuse its discretion top the extent that it did not order preclusion of said testimony?

Rule: Claimant must specifically argue  that an employer’s proof should be precluded due to its failure to timely file a notice of controversy as required by WC Law §25(2). See Hillman v. Kohl’s New York D.C., 7 N.Y.S.3d 689, 127 A.D.3d 1488 (N.Y. App. Div. 2015).

Holding: Affirmed.

Rationale: Claimant never specifically argued  that an employer’s proof should be precluded due to its failure to timely file a notice of controversy as required by WC Law §25(2). The carrier paid the claimant until July 2015, when it suspended payments after it received video recordings that contradicted claimant’s account and reported injuries. Once this video was submitted to the Board, the employer controverted the claim, raised all issues, and raised fraud. Hearings were then held on the controverted medical evidence. As such, the IME doctor gave testimony. The Court held that this was not an abuse of the Board’s discretion

Matter of Fernandes v. Del Frisco’s Rest. Grp., 2018 N.Y. Slip Op. 02231 (App. Div., 3rd Dept. 3/29/2018)

Facts: Claimant, a bartender, applied for workers’ compensation benefits alleging that she sustained injuries to her neck, back, arms, knees and legs as the result of a fall at work that occurred on July 29, 2015. The employer’s workers’ compensation carrier opposed, alleging that the incident, as described by claimant, did not occur and that claimant made false representations in violation of Workers’ Compensation Law § 114–a. Following a hearing, a Workers’ Compensation Law Judge determined that a compensable accident had occurred and awarded workers’ compensation benefits. Upon review, the Workers’ Compensation Board reversed and disallowed the claim. The Board also found that claimant had made false representations to obtain benefits in violation of Workers’ Compensation Law § 114–a, but assessed no penalty as claimant was not awarded any benefits. Claimant appealed.

Issue: Did the Board err in ruling that claimant did not sustain an accident in the course of her employment and denying her claim for workers’ compensation benefits?

Rule: “Whether a compensable accident occurred presents a question of fact for the Board, and the resolution thereof will be upheld if supported by substantial evidence.” Caballero v. Fabco Enterprises, 77 A.D.3d 1028, 1029, 909 N.Y.S.2d 167, 168 (2010).

Holding: Affirmed.

Rationale: According to claimant, the shelf collapsed and she fell to the floor. She reported that she was falling backward and landed on her knees and was unable to get up, and that she suffered injuries to her neck, back and knees. Claimant further reported that the incident occurred at approximately 9:00 p.m. and that a fellow employee helped her to her feet and assisted her in cleaning up the bottles that had fallen as a result of the incident.

The carrier submitted a video of the bar the day of the incident that depicted claimant stepping on the cabinet shelf, causing the shelf to collapse. In the video, claimant does not fall down, but rather lands on her feet and continues working. The video further shows that her fellow employee did not need to help her up, but he did help pick up bottles after the shelf collapsed. The employee consistently testified that he witnessed the incident, that the shelf that collapsed was a foot off the ground, that claimant landed on her feet and that he helped clean up the area after the bottles fell. Claimant argues that, because the video depicts the bar from approximately 7:00 p.m. to 8:00 p.m., and she reported that the incident occurred at 9:00 p.m., the video did not depict the incident that allegedly resulted in her injuries. This created a credibility issue for the Board to resolve and the Board was entitled to reject the claimant’s otherwise unsupported timeline of the incident.

The Court held that substantial evidence supports the Board’s rejection of claimant’s testimony and medical proof, and its conclusion that claimant was not injured in a work-related accident. As such, the Board’s determination was not disturbed.

Matter of Turner v. New York City Dept. of Juvenile Justice, 2018 N.Y. Slip Op. 01968 (App. Div., 3rd Dept. 3/22/2018)

Facts: Claimant worked as a juvenile counselor at a detention facility operated by the New York City Department of Juvenile Justice. On December 1, 2001, she was injured while attempting to restrain two residents. On August 28, 2005, she was injured when she was physically assaulted by another resident. She filed claims for workers’ compensation benefits with respect to both incidents. The 2001 claim was established for injuries to her back and left pinky finger, and the 2005 claim was established for injuries to her neck, back and left shoulder. The 2005 claim was subsequently resolved by stipulation of the parties awarding claimant a 21.25% schedule loss of use of her left arm, effectively closing the case.

On November 28, 2005, claimant was involved in a motor vehicle accident and commenced a third-party action to recover for injuries sustained therein that was later settled. In March 2009 and July 2009, she had surgeries on her back and sought to reopen the 2005 claim to obtain compensation for them. In connection therewith, a Workers’ Compensation Law Judge (“WCLJ”) directed claimant to produce documents related to the motor vehicle accident, including medical records and the pleadings in the legal action, and also directed the parties to conduct depositions of various physicians. However, not all records were produced and not all physicians were deposed. After reviewing the evidence that was submitted, the WCLJ ruled that claimant’s two surgeries were causally-related to the back injury that she sustained during the 2005 incident at work. The Workers’ Compensation Board reversed and determined, among other things, that claimant did not have a causally-related disability to her back and that, therefore, the surgeries were not compensable. Claimant’s request for reconsideration and/or full Board review of this decision was denied. Claimant appealed from both decisions.

Issue: Did the Board err in holding that the medical evidence offered established a lack of a causal relationship between claimant’s injuries and her work related accidents.

Was denial of claimant’s request for full Board review proper?

Rule: “[C]laimant bears the burden of establishing, by competent medical evidence, a causal relationship between his or her employment and a disability.” Guz v. Jewelers Machinist, Inc., 896 N.Y.S.2d 267, 268, 71 A.D.3d 1272 (2010). “The Board is the sole and final judge of witness credibility, and it alone can evaluate the factors relevant to determining whether the testimony of a party or witness is worthy of belief.” McCabe v. Peconic Ambulance & Supplies, Inc., 475 N.Y.S.2d 578, 580, 101 A.D.2d 679 (1984). To that end, the Board is free to reject an expert’s opinion where it finds that the expert “did not testify convincingly or credibly in support of a finding of [a] causally related disability” Guz v. Jewelers Machinist, Inc., at 1272.

Holding: Affirmed.

Rationale: The Board was free to, and did, credit the medical testimony establishing the lack of a causal relationship between claimant’s back injury, including her surgeries, and the work-related incidents over the contrary medical testimony. The Board further found claimant’s account of the 2005 motor vehicle accident and the injuries she sustained to be incredible and, in that regard, properly drew a negative inference from her nonproduction of court filings, as directed by the WCLJ that could presumably have been obtained from the court clerk.

In addition, the closure of the 2005 claim upon the issuance of a schedule loss of use award for claimant’s left arm suggests that any work-related injury to claimant’s back had been resolved well before the 2009 surgeries. Thus, assuming without deciding that claimant could ever be reimbursed for the 2009 surgeries despite her failure to obtain preapproval for them, substantial evidence supported the Board’s finding that she did not have a causally-related disability to her back that would warrant such reimbursement. Finally, Claimant did not advance any arguments with respect to the denial of her request for reconsideration and/or full Board review. The Court affirmed that decision as well.

Matter of Deleon v. Elghanayan, 2018 N.Y. Slip Op. 01972 (App. Div., 3rd Dept. 3/22/2018)

Facts: Claimant was employed as a housekeeper for Frederick Elghanayan and Diana Elghanayan (the employer) and worked at their private residences located in Manhattan and the Hamptons. On August 15, 2014, claimant arrived at the Hamptons residence for the purpose of working a party to be held there the following evening. She stayed overnight in an upstairs bedroom and, when she went to use the bathroom early the next morning, she fell down the stairs and sustained multiple injuries. She filed a claim for workers’ compensation benefits as a result. The employer did not maintain workers’ compensation coverage and controverted the claim. Following various hearings, a Workers’ Compensation Law Judge established the claim for injuries sustained by claimant. The employer filed an application for review asserting, among other things, that claimant’s injuries were not the result of an accident arising out of and in the course of employment. The Workers’ Compensation Board disagreed and upheld the award of benefits. An appeal by the employer ensued.

Issue: Did claimant’s injuries arise out of and in the course of employment?

Rule: In order to be compensable, a claimant’s injuries must arise out of and in the course of his or her employment. Workers’ Comp. Law § 10(1). This is a factual issue for the Board to resolve, and its determination will be upheld if supported by substantial evidence.

Holding: Affirmed.

Rationale: Claimant worked for the employer for a number of years, primarily at the Manhattan residence, but occasionally at the Hamptons residence in the summer to assist with entertaining. Although claimant had her own residence in Queens where she stayed during the week when she was not working at the Manhattan residence, she customarily stayed overnight at the Hamptons residence when she worked there on weekends. Claimant was scheduled to help with a party at the Hamptons residence on Saturday, August 16, 2014 and arrived by train on the morning of the day before. After the employer retrieved her from the train station, claimant performed some housekeeping duties until around 5:00 p.m. before later going to bed. According to claimant, she did not have set working hours as she did when she worked at the Manhattan residence, but was expected to be available when needed. This clearly included assisting with preparations for the party that was scheduled the next day.

Given the nature of claimant’s work assignment and the benefit conferred upon the employer by her continued availability, the Board could reasonably conclude that her injuries arose out of and in the course of her employment. The fact that the injuries occurred while on a bathroom break following an extended period of sleep does not establish an interruption of employment under the circumstances presented. Therefore, the Court found that substantial evidence supported the Board’s decision.

Matter of Brennan v. New York State Dept. of Health, 2018 N.Y. Slip Op. 01974(App. Div., 3rd Dept. 3/22/2018)

Facts: Claimant, who is employed by a state agency, reportedly tripped and fell while walking on a public sidewalk to her office in June 2014, sustaining injuries to her chin and right hand. Claimant had parked her vehicle in a state-owned parking garage one block away from her office that she paid for via biweekly payroll deductions, and was about 20 feet away from one of the entrances to the building where she worked when the incident occurred. Claimant filed a claim for workers’ compensation benefits, which the employer and its workers’ compensation carrier controverted. Following a hearing, a Workers’ Compensation Law Judge awarded claimant benefits and a divided panel of the Workers’ Compensation Board affirmed. On mandatory review, the full Board reversed, finding that claimant’s accident did not arise out of and in the course of her employment. Claimant appealed.

Issue: Did claimant’s injuries arise out of and in the course of employment?

Rule: An employee’s injury is compensable only if it “arise[s] out of and in the course of the employment.” Workers’ Compensation Law §§2(7); 10(1). As a general rule, “accidents that occur in public areas away from the workplace and outside of work hours are not compensable” (Matter of Stratton v. New York State Comptroller, 977 N.Y.S.2d 430, 112 A.D.3d 1081, 1082 (2013) (internal quotation marks and citation omitted); see Matter of McLeod v. Ground Handling, Inc., 937 N.Y.S.2d 750, 92 A.D.3d 1074, 1075, (2012)) and thus, “injuries sustained during travel to and from the place of employment” are not compensable. Matter of Neacosia v. New York Power Auth., 85 N.Y.2d 471, 474, 649 N.E.2d 1188 (1995).

Holding: Affirmed.

Rationale: Here, there is no evidence that there was any special hazard on the uneven sidewalk where claimant fell, which was open to and used by the public, as the danger existed to any passerby traveling along the street in that location. The sidewalk was near the privately-owned building where claimant worked, but the building housed many businesses and a restaurant and was open to the public, and there was “no showing that it was otherwise controlled by the employer, that workers were encouraged to use it or that it existed solely to provide access to her workplace. The Court found that substantial evidence supported the Board’s determination that claimant’s accident did not occur in the course of her employment and affirmed.

Matter of Wolfe v. Ames Dep’t Store, Inc., 2018 N.Y. Slip Op. 02224 (App. Div., 3rd Dept. 3/29/2018)

Facts: Claimant suffered a work-related accident in April 2002, and her resulting workers’ compensation claim was established for injuries to her right shoulder, neck and upper back in May 2003. In 2009, the employer’s workers’ compensation carrier was discharged and the claim became the responsibility of the Special Funds Conservation Committee. Due to her causally-related injuries, claimant ceased working altogether in November 2011.

Additional proceedings on the question of permanency ensued, after which a Workers’  Compensation Law Judge (“WCLJ”) issued an amended reserved decision in June 2014 finding that claimant was permanently totally disabled as a result of her 2002 injuries and that, as a result, a defense of labor market attachment did not apply. Upon Special Funds’ application for review, the Workers’ Compensation Board, in February 2015, held the WCLJ’s decision in abeyance and referred claimant for evaluation by an impartial specialist — with a directive that such specialist render an expert opinion on the issues of permanency and whether there was support for a finding of permanent total disability.

Consistent with the Board’s decision, claimant was evaluated by a physiatrist in October 2015 who concluded that it was premature to classify claimant as permanently totally disabled and that claimant suffered from a marked medical impairment (85%). In a May 2016 decision, the Board agreed with Salerno’s assessment — finding that claimant suffers from a temporary partial disability, deeming it premature to classify claimant with a permanent disability and directing that claimant undergo an MRI and nerve conduction study. In light of its finding of a partial disability and claimant’s testimony as to her efforts to find employment or pursue vocational training, the Board further concluded that claimant was not attached to the labor market as of December 16, 2013. Claimant appealed.

Issue: Claimant’s degree of disability, and further, whether this affected claimant’s ability to be attached to the labor market.

Rule: To establish a total disability, a claimant must demonstrate that he or she is totally disabled and unable to engage in any gainful employment.” Matter of Wohlfeil v. Sharel Ventures, LLC, 64 N.Y.S.3d 751, 752, 155 A.D.3d 1264 (N.Y. App. Div. 2017).

Holding: Affirmed.

Rationale: Confronted with the conflicting medical opinions of claimant’s physician, and, an orthopedist who conducted an independent medical examination of claimant, the Board sought the opinion of an impartial specialist. Based upon his physical examination of claimant and a review of her various medical records, the impartial specialist diagnosed claimant with “chronic cervical spine pain secondary to degenerative changes with left upper extremity neurologic symptoms” and determined that she suffered a class 4 impairment under table 11.1 of the 2012 New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity. During his subsequent deposition testimony, the impartial specialist reiterated that further testing was required before he could render an opinion as to permanency. The Court viewed the finding that claimant suffers from a partial disability to be supported by substantial evidence in the record and, as such, did not disturb the Board’s decision.

With regard to the Labor Market Attachment issue, “whether a claimant has demonstrated an attachment to the labor market is a factual issue for the Board, and its decision in this regard will be upheld if supported by substantial evidence. Matter of King v. Riccelli Enterprises, 66 N.Y.S.3d 727, 156 A.D.3d 1095, 1096 (N.Y. App. Div. 2017).  Claimant acknowledged that her employment search efforts ceased in August 2013 and that she did not avail herself of any educational or retraining programs. The Court found that substantial evidence supported the Board’s finding that claimant was not attached to the labor market as of December 16, 2013 and declined to disturb the Board’s finding.

Matter of Brasher v. Sam Dell’s Dodge Corp., 2018 N.Y. Slip Op. 01967 (App. Div., 3rd Dept. 3/22/2018)

Facts: Claimant established two separate claims for workers’ compensation benefits for injuries suffered in 1986 and 2002. In 2015, a Workers’ Compensation Law Judge determined that claimant had a 75% permanent partial disability, but suspended awards based upon a finding that he was not attached to the labor market. By a decision filed on January 21, 2016, the Workers’ Compensation Board affirmed, and claimant applied for reconsideration and/or full Board review. The application was denied by the Board in a decision filed April 22, 2016. Claimant appealed.

Issue: Whether the Board’s denial of claimant’s application for full Board review was arbitrary or capricious or otherwise constituted an abuse of discretion.

Rule: When challenging a denial for full Board review, “the movant must generally show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination.” D’errico v. New York City Dep’t of Corr., 883 N.Y.S.2d 828, 829–30, 65 A.D.3d 795, 796, (2009).

Holding: Affirmed.

Rationale: Since claimant only appealed from the Board’s April 2016 decision denying his application for reconsideration and/or full Board review, the merits of the underlying decision were not before the court. Instead, the court’s inquiry was limited to whether the Board’s denial of claimant’s application was arbitrary or capricious or otherwise constituted an abuse of discretion. Claimant did not show (1) that newly discovered evidence exists, (2) that there has been a material change in condition, or (3) that the Board improperly failed to consider the issues raised in the application for review in making its initial determination. To the contrary, claimant maintained that he was totally disabled because he could not fill out applications and should not have to be attached to the labor market, a contention inconsistent with the findings of his own physicians that he had a 75% permanent partial disability. Accordingly, the court could not conclude that the Board acted in an arbitrary or capricious manner or abused its discretion in denying claimant’s application.

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