WORKERS’ COMPENSATION CASE SUMMARIES – May 2018

Matter of Murtha v. Verizon N.Y. Inc., 161 A.D.3d 1440 (3rd Dept. 2018)

Facts: Accident, notice, and causal relationship (ANCR) had been established in this case for the neck, left shoulder and lower back. The claimant requested authorization for a total disc replacement surgery on the cervical spine. The carrier denied this request based on an IME from their doctor. The parties were directed to take depositions of each others doctors. The carrier subpoenaed the claimant’s two doctors, however, neither doctor made themselves available for testimony. Therefore, the WCLJ denied the surgery and issued a penalty against the claimant’s attorneys under Workers’ Compensation Law § 25( 3)(c) on the basis that the claimant’s counsel engaged in dilatory tactics by mischaracterizing the IME doctor’s testimony during her summation.

On appeal, the Board found that the WCLJ improperly assessed the penalty against the firm under Workers’ Compensation Law § 25 (3)(c), and opined that the penalty should have been made under Workers’ Compensation Law § 114-a (3)(i). The Board held that the claimant’s firm continued the proceedings without reasonable ground by using dilatory tactics of not having their doctors available for cross-examination.  Claimant’s counsel appealed the Board’s decision.

Issue: When a party’s doctors fail to make themselves available for testimony, has that party’s counsel instituted or continued proceedings without reasonable grounds, therefore making them liable for a penalty under WCL § 114-a (ii)?

Rule: When a party’s doctors fail to make themselves available for testimony, despite being subpoenaed by opposing counsel, the party whose doctors failed to appear is not liable for a penalty under WCL § 114-a(3)(ii) when they were not responsible for the doctor’s actions, and took affirmative steps to have their doctors appear for testimony.

Holding: Modified, and as so modified, affirmed.

Rationale: The Court opined that the Board has used the incorrect statute in assessing a penalty against claimant’s firm. The Board held that WCL §114-a (3)(i) gives the Board authority to assess a penalty against a party, but not a party’s counsel. Therefore, the Board held that the correct statute for assessing a penalty against a party’s counsel would be § 114-a(3)(ii).

However, the Court held that claimant’s counsel should not have been assessed a penalty in this case under WCL § 114-a(3)(ii). This statute allows for a penalty when an attorney or licensed representative has instituted or continued proceedings without reasonable grounds. The Court found that the claimant’s attorneys in this case were not responsible for their doctors being unavailable for testimony. Actually, the Court found that claimant’s counsel made efforts to help ensure that claimant’s doctors would be available for testimony. They did this by contacting claimant’s doctors by telephone and email. Therefore, the Court modified the Board’s decision and reversed the penalty assessed against claimant’s counsel.

Matter of Bloomingdale v. Reale Const. Co. Inc., 161 A.D.3d 1406 (3rd Dept. 2018)

Facts: A 55 year old male claimant was injured when he fell off an excavator. His workers’ compensation case was established for his neck, back, and post-concussion syndrome. A WCLJ classified the claimant with a permanent partial disability, found a 33% LWEC, but suspended awards based upon the finding that claimant was not attached to the labor market. The Board affirmed that decision and the claimant appealed.

Issue: Has claimant demonstrated an attachment to the labor market? Is there substantial evidence to support an assessment of a 33% loss of wage earning capacity?

Rule: A claimant fails to maintain an attachment to the labor market when his only efforts have been attending an orientation session at ACCESS-VR, filling out an application for a job program with the Department of Labor, and calling his union (from which he has retired) to inquire about work.

There is not substantial evidence to support a finding of a 33% LWEC when the medical evidence supports a finding of a B ranking to the neck and the back, and limits claimant’s functional capacity to sedentary work with restrictions. Additionally, there is not substantial evidence support a finding of 33% LWEC when the claimant is 55 years old, with a high school degree, limited vocational experience, an inability for the claimant to currently read or comprehend language or numbers, and an inability to personally take care of his own daily needs.

Holding: The case is modified by reversing the finding of a 33% LWEC and remitted to the Board for further proceedings.

Rationale: The Court reached the decision that there was substantial evidence that the claimant failed to maintain an attachment to the labor market. They based this on the following language.

“[T]he Board has found that a claimant remains attached to the labor market when he or she is actively participating in a job location service, a job retraining program, or a Board-approved rehabilitation program, or where there is credible documentary evidence he or she is actively seeking work within his or her medical restrictions through a timely, diligent and persistent independent job search.” Matter of King v. Riccelli Enters., 156 AD3d at 1096-1097. The Court found that claimant’s actions of attending an orientation session at ACCESS-VR, filling out an application for a job program with the Department of Labor, and inquiring with his union regarding work, did not rise to the level required by the above mentioned language.

The Court did not find substantial evidence to support a 33% LWEC. The Court opined that when determining a loss of wage earning capacity, the permanency guidelines require that medical impairment, functional ability/loss, and non-medical vocational factors all need to be taken into account.

The Court noted that the medical evidence finds that the claimant could not return to his work as a heavy equipment operator, and that he is only capable of sedentary work with restrictions. Additionally, the Court points out that claimant is only capable of operating a small motor vehicle for not longer than 10-15 minutes. The Court examined claimant’s vocational factors. They note that the claimant only has a high school degree, and is 55 years old. Additionally, they highlight that while the claimant can read and write English, he can not currently read or comprehend language or numbers as a result of his work related disability. Finally, they note that claimant’s wife currently attends to all of claimant’s general activities of daily living.

Matter of Pilacik v. Jacsa, LLC, 161 A.D.3d 1463 (3rd Dept. 2018)

Facts: The claimant applied for workers’ compensation benefits, alleging that he was injured when he fell of a scaffolding while working. The carrier controverted the claim contending that the claimant did not provide timely notice and did not suffer a compensable accident. The WCLJ established the case, the Board affirmed, and subsequently denied the carrier’s request for reconsideration and/or Full Board Review. The carrier appealed.

Issue: Whether the claimant has a compensable workers’ compensation accident. Whether the claimant provided timely notice to his employer.

Rule: Whether claimant has given adequate oral notice, and whether there was a compensable accident, are both issues to be decided by the Board. If there is substantial evidence to support those decisions, then they will not be disturbed.

Holding: Affirmed.

Rationale: The Court found that there was substantial evidence to support the Board’s decision that claimant gave timely notice. The claimant testified that he told his employer about his fall in person, on the day it occurred, and that he showed his employer his injuries. The employer testified that the claimant never gave notice of his injuries. The Board credited the claimant’s testimony over the employer’s testimony. The Court found that there was substantial evidence supporting the Board’s finding and therefore, it was affirmed.

The Court found that there was substantial evidence to support the Board’s decision that the claimant suffered a compensable accident. The claimant testified that his accident occurred on May 1, 2014. The claimant’s treating Neurologist opined that the subdural hematoma was causally-related to claimant’s fall. The hospital’s consulting physician gave causal relationship to the fall. Additionally, the carrier had claimant examined by both a Neurological and an Orthopedic IME, and both IME doctors found causal relationship.

Matter of Rodriguez v. New York City Tr. Auth., 161 A.D.3d 1501 (3rd Dept. 2018)

Facts: Claimant is a Train Conductor for the New York City Transit Authority. Claimant was on her way to work and waiting for a train. The claimant was wearing her uniform. Another passenger asked to be admitted into the station without paying. The claimant told the passenger that she could not let him in. The passenger jumped the turnstile and assaulted her. The WCLJ denied the claimant’s claim finding that her injuries did not arise out of and in the course of her employment. The Board affirmed. The claimant appealed.

Issue: Whether a claimant who is injured on her way to work has a compensable injury.

Rule: “’An injury is only compensable under the Workers’ Compensation Law if it arose out of and in the course of a workers’ employment and, in general injuries sustained in the course of travel to and from the place of employment do not come within the statute. . . .There are recognized exceptions but, here, substantial evidence supports the Board’s determination that claimant’s injuries sustained while commuting are not compensable, as none of the relevant exceptions to this rule applies.”

Holding: Affirmed.

Rationale: In reaching their conclusion, the Court noted that the claimant was assaulted almost an hour before the start of her shift. The claimant was not yet on duty, was not performing any duties of her employment, and was not performing an errand for her employer. The employer did not benefit from her commute route. Additionally, the Court points out that the claimant was not required to wear her uniform on her commute and was not required to take public transportation to get to work.

The Court found that there was substantial evidence to support the Board’s determination of a lack of nexus between claimant’s optional wearing of her uniform and the motivation behind claimant’s attack.  The Court also found that the Board rationally rejected the dual purpose exception. The Court noted that the dual purpose exception applies when the employee’s presence at a specific location serves both a personal and business purpose. The Court found that the only purpose the claimant’s commute had was personal.

Matter of O’Connor v. SKF USA, Inc., 161 A.D.3d 1498 (3rd Dept. 2018)

Facts: The claimant filed an application for workers’ compensation benefits for alleged binaural hearing loss. The claimant filed a medical report diagnosing him with 4.06% causally related binaural hearing loss. At the pre-hearing conference, the carrier argued that the medical report submitted by the claimant was an Independent Medical Examination, that it did not comply with the statutory and regulatory requirements of an Independent Medical Examination, and therefore, it should be precluded. The WCLJ rejected the carrier’s motion to preclude the medical report and the Board affirmed.

Issue: Whether an appeal of admissibility of prima facie medical evidence (PFME) is interlocutory.

Rule: “[A] determination regarding the admissibility of prima facie medical evidence is interlocutory and should not be appealed until the claim is finally decided by the Board.”

Holding: The appeal is dismissed.

Rationale: The carrier’s appeal of the Board’s decision to admit the claimant’s PFME is dismissed for being interlocutory. The Board held that a determination on the admissibility of PFME should not be appealed until the claim is finally decided by the Board. The Court held that considering whether evidence was properly admissible would be a piecemeal review of the case and should be avoided.

Matter of Smith v. 129 Ave. D, LLC., 161 A.D.3d 1493 (3rd Dept. 2018)

Facts: The claimant is a construction and demolition worker who filed a claim for workers’ compensation benefits contending that he sustained an injury when he fell from a ladder while changing a light bulb.  When he was injured, the claimant was assisting Rolando Dominguez who was an employee of 129 Avenue D, LLC. There was a hearing in which both the claimant and employer testified and the WCLJ disallowed the claim, finding that the claimant was not an employee of 129 Avenue D, LLC. The Board affirmed, and the claimant appealed.

Issue: Whether the claimant was an employee of 129 Avenue D, LLC and whether the Board was required to consider whether claimant was an employee of Rolando Dominguez.

Rule: The Workers’ Compensation Board does not have an obligation to consider an issue that was not raised and developed at the hearing before the WCLJ. Additionally, the Court does not have an obligation to consider an issue that was not raised on a party’s application for Board Review.

“Whether an employer-employee relationship exists is a factual question for resolution by the Board and its determination must be upheld so long as it is supported by substantial evidence. . . .In making such a determination relevant factors to be considered include the right to control the claimant’s work, the method of payment, the right to discharge, the furnishing of equipment and the relative nature of the work.”

Holding: Affirmed.

Rationale: The claimant criticized the Board for not addressing whether the claimant could have been an employee of Rolando Dominguez or whether Rolando Dominguez was an agent of 129 Avenue D, LLC. The Court held that the Board was not required to address these issues as they were not addressed at the hearing, and were not addressed in claimant’s application for Board Review.

The Court held that there is substantial evidence to support the Board’s finding that the claimant was not an employee of 129 Avenue D, LLC. The principal of 129 Avenue D, LLC testified that claimant is not on the employer’s payroll and that he did not hire the claimant or directly assign tasks to the claimant.  Additionally, the record showed that, except for one incidence, the claimant was paid by Rolando Dominguez and not 129 Avenue D, LLC.

Matter of Garner v. Christian Contrs., Inc., 161 A.D.3d 1497 (3rd Dept. 2018)

Facts: The claimant is a Carpenter who filed a claim for workers’ compensation benefits. As part of his claim for benefits, the claimant alleged that his employer was Christian Contractors, Inc. The WCLJ found that the claimant was an independent contractor. The Board found that the claimant was an employee of Christian Contractors and restored the case to the calendar for further development of the record. Christian Contractors, Inc. appealed.

Issue: Whether the question of employer-employee relationship is a threshold issue as to permit review by the Court prior to the Board’s final decision of the claim.

Rule: No, the issue of employer-employee relationship is not a threshold issue that can be determined by the Court before the Board’s final decision on the claim.

Holding: Dismissed.

Rationale:  In this case, the Court dismissed the appeal. They found that the issue of employer-employee relationship was not, by itself, a threshold issue that can be determined by the Court before the Board’s final decision on the claim. The Court noted

“As a general rule ‘piecemeal review of issues in workers’ compensation cases should be avoided’ . . . . Where ‘a Board decision is interlocutory in nature and does not dispose of all of the substantive issues or reach a potentially dispositive threshold legal question, it is not appealable’”

Matter of Love v. Village of Pleasantville, 161 A.D.3d 1477 (3rd Dept. 2018)

Facts: The employer and its worker’s compensation carrier controverted a claim by filing a prehearing conference statement, which it served on claimant and a law firm that did not represent the claimant. On the same day, the claimant’s attorneys filed an attorney/representative certification indicating their representation.

A notice of the prehearing conference was sent to the parties. That notice had the name of claimant’s counsel and their address. The carrier served an amended prehearing conference statement the day before the prehearing conference, and again, they served the amended prehearing conference to a law firm that was not representing the claimant in this matter. The Board found that the carrier waived its defenses by not serving a prehearing conference statement on the claimant’s counsel.

Issue: Does a carrier waive their defenses when they send their prehearing conference to the incorrect claimant’s firm the day before the prehearing conference, even if this error does not prejudice the claimant?

Rule: “Workers’ Compensation Law § 25(2-a)(d) requires that a prehearing conference statement be filed 10 days prior to the conference­­­­ – which directive is also set forth in 12 NYCRR 300.38 (f)(1) and in the notice of prehearing conference sent to the parties by the Board.  Failure by the insurance carrier to timely serve upon all other parties the prehearing conference statement shall result in a waiver of defenses to the claim.”

Holding: Affirmed.

Rationale: The Court affirmed the Board’s decision that carrier had waived their defenses in this claim. The Court found that not only did the carrier serve their amended PH 16.2 by the appropriate deadline; they also failed to serve the claimant’s correct law firm.

The Court was not moved by the carrier’s position that because the claimant wasn’t prejudiced, that their errors should be excused. The Court held that the carrier’s failure to comply with the rules regarding proper prehearing conference statements can only be excused when the legal representative of the carrier submits an affidavit that the error was due to good cause and that the insurance carrier exercised good faith and due diligence. No such affidavit was submitted in this case and the Board decision was affirmed.

Matter of Pickerd v. Paragon Envtl. Constr. Inc., 161 A.D.3d 1470 (3rd Dept. 2018)

Facts: The claimant’s husband had a heart attack while assisting a co-worker with the removal of a gasoline tank. The decedent died three days later. The WCLJ found that the decedent’s work activities contributed to the heart attack and this caused his death. Therefore, the WCLJ found that the claimant’s death arose out of and in the course of his employment. The Board affirmed the WCLJ’s decision and the carrier appealed.

Issue: Does decedent’s work activities need to be the sole cause of their death in order for them to have a compensable workers’ compensation claim?

Rules: No. “A heart injury precipitated by work-related physical strain is compensable, even if a pre-existing pathology may have been a contributing factor and the physical exertion was no more severe than that regularly encountered by the claimant. . . .[D]ecedent’s work need not be the sole agent of death and need only be a contributing factor.”

Holding: Affirmed.

Rationale: The Board’s decision that claimant’s death arose out of and in the course of employment is supported by substantial evidence. The claimant’s co-worker testified that when he had the heart attack, the decedent had been using an excavator to break up concrete and scrape pea stones off the top of the gasoline tank. The claimant then collapsed shortly after retrieving a pipe wrench from his truck.

Claimant’s doctor testified that the claimant had preexisting risk factors. The claimant smoked and had high untreated cholesterol. However, the doctor also testified that claimant’s work activities were “significant precipitating factors that caused the plaque rupture leading to the fatal myocardial infarction.”

The carrier also had a doctor opine on causal relationship. Carrier’s doctor opined that that the heart attack was caused by the claimant’s cardiac risk factors.

The Court held that the work activities did not need to be the only factor leading to the heart attack, and that the Board had the power to resolve conflicting medical evidence in the claimant’s favor.

Owens v. Jea Bus Co., Inc., 161 A.D.3d 1188 (2nd Dept. 2018)

Facts: The plaintiff was a school bus matron who was injured when her bus was in an accident with defendant, Robin Williams. The plaintiff indicated that Smart Pick, Inc. was her employer, but the Workers’ Compensation Board found that Jea Bus was the plaintiff’s employer. The plaintiff did not appeal.

The claimant then began a personal injury action against Robin Williams, Jea Bus and Tebaldo A. Sibilia, the driver of the bus and an employee of Smart Pick Inc.

Robin Williams asserted cross claims against Jea Bus and Tebaldo A. Sibilia for common law contribution and indemnification. Jea Bus and Tebaldo A. Sibilia filed for summary judgement to dismiss the complaint and all cross claims against them. They argue the exclusivity provision of the Workers’ Compensation Law. The Supreme Court denied the motion for summary judgement, Jea Bus, Sibilia, Smart Pick Inc., and Smart Pick Bus, Inc., appeal.

Issue: Can a plaintiff in a personal injury law suit, sue the employer from whom they are also receiving workers’ compensation benefits?

Rule: No. “In general, workers’ compensation benefits are the sole and exclusive remedy of an employee against an employer for injuries sustained in the course of employment. Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law had been has been vested in the Workers’ Compensation Board.  . . .The findings of the Board are final and binding, and a plaintiff may not maintain an action against a defendant from which he or she has accepted workers’ compensation benefits by arguing that he or she was employed by a different entity.”

Holding: Affirmed as modified.

Rationale: The Appellate Division found that the Supreme Court should have granted Jea Bus’s motion for summary judgement dismissing the complaint. The Workers’ Compensation Board has already determined that Jea Bus was the claimant’s employer. Therefore, the claimant’s exclusive remedy against them was workers’ compensation benefits.

Additionally, the Appellate Division found that the Supreme Court should have granted Jea Bus’s motion for summary judgement dismissing all cross-claims. The Appellate Division held that Jea Bus would only be responsible for common-law contribution and indemnification if the claimant had a grave injury, which she did not in this case.

The Appellate Division upheld the Supreme Court’s decision to deny the motion for summary judgement dismissing the complaint and all cross claims against Tebaldo A. Sibilia. The Appellate Division found that Tebaldo had not made a prima facie showing that he was a special employee of Jea Bus, and therefore he did not make a prima facie showing that he was a co-employee of the plaintiff. Because he did not make a prima facie showing that he was a co-employee of the plaintiff, he was not entitled to the protections of Workers’ Compensation Law § 29(6) which states that a plaintiff who receives workers’ compensation benefits may not sue his or her co-employee based on the same injuries.

Hernandez v. Seadyck Realty Co. LLC, 161 A.D.3d 711(1st Dept. 2018)

Facts: The plaintiff injured his right hand while at work for P.A. Painting. The plaintiff received workers’ compensation benefits as a result of this injury. The Supreme Court granted P.A. Painting’s motion for summary judgment dismissing the causes of action for common-law contribution and indemnification.

Issue: Whether the plaintiff suffered a grave injury to his hand as defined in Workers’ Compensation Law § 11.

Rule: In order to constitute a grave injury to the hand under Workers’ Compensation Law § 11, there must be evidence that the plaintiff “suffered a total loss of use, or that he was limited to just passive use. . .”

Holding: Affirmed.

Rationale: The claimant did not have a grave injury as defined by Workers’ Compensation Law § 11 because there was no evidence that plaintiff suffered total loss of use or that he was limited to just passive use. Because claimant did not suffer a grave injury, plaintiff’s employer is not responsible for common-law contribution and indemnification.

National Union Fire Ins. Co. of Pittsburgh, PA v. Mission Design & Mgmt.,2018 NY Slip Op 30931 (Sup. Ct., New York 2018)

Facts: The Judge granted National Union Fire Insurance’s motion for summary judgement. The Judge found that National Union Fire Insurance had no obligation to defend or indemnify Mission Design & Management Inc. for the common law indemnity and contribution claims asserted against it in the third party actions. Mission was the employer of Juan Maurisaca who was injured when he fell from scaffolding. National Union Fire Insurance had issued workers’ compensation and employers’ liability insurance policy to Mission.

Issues: What constitutes a grave injury as defined by Workers’ Compensation Law § 11?

Rule: Workers’ Compensation Law § 11 defines a grave injury as “one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia total and permanent blindness deafness, [or] an acquired injury to the brain caused by an external physical force resulting in permanent total disability. The legislature intended for this list to be exhaustive.”

Holding: Motion for summary judgement is granted.

Rationale: The individual in question does not have a grave injury. The individual had disc herniations and accompanying surgeries, but they did not have a Traumatic Brain Injury. Additionally, the individual was found to be capable of light duty work in a wide range of occupations. The Judge found that this did not constitute a grave injury, and therefore National Union was not responsible to defend or indemnify Mission for the common law indemnity and contribution claims asserted against it in the third-party actions.”

 

 

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