The Insider
Inside WorkersCompNY
PO Box 286353
New York,
NY 10128
212-734-9450
InsideWorkersCompNY is the creation of Michael T. Berns, a former Board Member/Commissioner of the New York State Workers Compensation Board, based on the insight developed during 12 years of service including participation in more than 40,000 decisions and 10,000 hearings.
Updated weekly, this website will impart an understanding of the New York State WCB that will help the workers comp community better understand why the WCB does what it does and how to deal its many inconsistencies and bureaucratic obfuscations as well as giving the community and Board staff an anonymous bulletin board.
Behind The Closed Doors:An insider’s look at how things really work at the NYS Workers Comp Board and how to fix them. Click here for details.
COURT DECISIONS: a weekly update of workers comp related decisions from the New York’s Appellate Division, Court of Appeals, and other jurisdictions, and a list of the “winningest” attorneys for the year. NEWSWIRE: a weekly listing of key developments from the media as well as various state agencies. COMMENTARY: my comments on key topics, work related injuries, major court decisions, new board policies, and answers to questions from my readers. BIOS: The commissioners’ official and unofficial biographies.
To be added to our weekly e-mail alert, or write comments, suggestions, and criticisms, published anonymously, contact:TheInsider@InsideWorkersCompNY.com.
Michael T. Berns, The Insider
Commissioner 1996-2008, New York State Workers Compensation Board
. . . .
February 3, 2012
Volume 163 Issue 1
. . .
2011 Review of Appellate Court Decisions
The fact that 2011 saw the worst performance by the NYS Workers Compensation Board at the New York State Appellate Court, Third Department only summarizes the obvious. This week I have gone into detail in my COMMENTARY as to the types of issues heard by the Court and how the Board fared in the 45 issues, in four categories, covered this year. The initial review shows that both claimants and carriers fared equally on review by the Court, with both losing more than half their appeals. What makes this increasing poor performance by the Board a real tragedy is the impact it has on injured workers and their families as well as their employers who rightfully feel their problems are being treated with disdain by the Board and thus are distrustful and angry at the Board. Unfortunately, it is the the examiners and clerical staff and law judges who face these people regularly while the commissioners and the executive hide in their ivy towers.
There were no workers comp-related decisions issued by the Courts this week.
Another Former Commissioner Agrees on Commissioner Salaries
Patronage, Commissioners, & Salaries
Judge Russak’s 7/25 Party
Six month review of 3rd AD Cases
PART III: Reducing Controverted Cases
Who’s minding the Candy Store?
Part II: ‘O pesce fete d’ ‘a capa
Part I: The WCB - An Amateur Archaeologist’s Dream
Temporary Total Industrial Disability
Are 5,000+ §32’s Null & Void?
Court’s Reversal Again Shows WCB Weaknesses
100th Anniversary of the Triangle Shirtwaist Fire
Awards for Minors: Who gets paid?
WCB seeks a new Claims Management System
Legal Fee Committee: Why? & Why Not!
Medical Guidelines: So much done - So far to go
Voluntary Withdrawal: A Review Of Recent Case Law
An Attorney Writes “Don’t Move the Buffalo Office”
An Attorney’s Review of Managed Adjudication Path (MAP)
Judge Hellerstein correct: Legal Fees for WTC Settlements Unreasonable
The Insider’s Recommendations to Improve Board Procedures
Eliminating Oral Arguments: A MAP or a PIG?
A Reader’s Opinion of the Appellate Court, Third Department
The Quality of WC Board Decisions Reviewed in 2009 by the Courts
Answers to Your E-Mails
Legals Fees On Medical Expenses?
Project 2015: The end of the WCB Board
The New Medical Guidelines(?!)
The Appellate Court’s Split Decision
Comp Board Blocks “The Insider” as Spam!
Part III: More Comments on “bench briefs”
Part II: Reader Comments on “bench briefs”
Reader Comments on “bench briefs”
Should the Board present “bench briefs” [pro and con opinions] to panels??
Who’s Left to Sign Decisions?
The Legacy of Zach Weiss
Judicial Economy vs Judicial Integrity
A Guest Commentary on Board Doctors
Mirror Mirror on the Wall! Who’s the Fairest Doctor of them all?
Who wins the most appeals: Claimants or Carriers
LEGAL FEES: What’s fair, history, Can Bd set fees, etc?
Legal Reasoning vs Intuition
How do get paid on medical bills with the HP-1J
Who actually decides the decisions?
Rebuttals: a waste of time?
To suggest a subject for a report or a commentary that you’d like to see on on this page dealing with New York Workers Compensation issues, injured workers, court decisions, or any other subject you would like to submit, by name or anonymously, send an email to TheInsider@InsideWorkersCompNY.com
2011 Review of Appellate Court Decisions
Part I
February 3, 2012: In its review of a Board’s administrative review decision, the Court wrote, “Regrettably, [the Board] has almost wholly failed to submit such evidence, and has often failed even to respond to [plaintiff’s] arguments. Whether this failure reflects a tactical error, laziness, an implicit concession that the Code cannot withstand constitutional scrutiny, an erroneous assumption that [the Board] is entitled to special treatment, or a mere oversight, the Court cannot say.”
Looking back on the Workers Compensation Board’s record for last year, this quote seems quite accurate. However, when it was published on December 19, 2011, U.S. District Judge Sam Sparks of Austin, Texas was referencing the Texas Alcoholic Beverage Code interpretation of its own codes.
As I noted last month, the Board’s decisions were rejected by the New York State Appellate Court, Third Department, more than 30% of the time in the 138 issues covered in 114 decisions, a failing grade in any college or law school.
Over the last few years, the Board’s record at the Appellate Court has been getting increasingly worse while the number of cases being heard on appeal by the commissioners is being reduced. When one considers that the number of commissioners has not changed and that it is now taking twice as long for them to complete a review of an appeal, one could only expect that the commissioners would be paying more attention to the details of each decision. Evidence proves otherwise as the following numbers show that the affirmance rate has been consistently dropping.
Based on the issue codes I assign to the cases (and some cases have more than one issue being reviewed), there were 49 issues reviewed last year; the Board’s decision was successfully challenged on 27 of these issues. The attached chart lists the issue codes and the results of the decisions for each issue code.
Some facts:
67 of the 114 cases involved claimant versus carrier, with carriers winning 35 and claimant 32.
The Board prevailed in 25 of 39 cases, claimants in 36 of 76, and carriers in 44 of 97.
In the four categories of issues, the Board was affirmed more often in those two categories in which the Court tends to give the Board discretion. The high rejection rate in the other two categories, “Who Pays” and “Legal Procedures Followed”, which require both a knowledge of the law and an understanding of the concept ‘precedent’, really demonstrate the Board’s failure to properly adjudicate.
Just as last year, this year’s initial analysis shows that the Board is inconsistent on a very wide variety of issues but it appears to have the most problems with the issues pertaining to the Special Funds (§15(8) and §25-a) and the interpretation of §23.
Equally important is the number of times that the Court addressed the Board’s failure to be consistent from case to case on the same issue and/or its failure to explain its reasoning in its decision-making process.
Having been at the Board during years when the affirmance rate was consistently well above 90%, it is my impression that the fault lies with three parties. The first party is those commissioners,the insouciants, who do not read the decisions and are therefore unaware of the fact that a decision they are signing Monday morning at 10:00am written by staff writer #1 contradicts a second decision they are signing at 10:01am on the identical issue written by staff writer #2. When these insouciants are on the same panel, there is apparently no one making sure that the decisions are legal, consistent, and coherent. The second party is the head of the Administrative Review Bureau, who more often than not has moved on elsewhere before these decisions, drafted under their oversight, have been formally reviewed by the Court. (The current head of the department who has only recently taken over certainly has his hands full.)
And the third party responsible for this real travesty is the Chairman who is responsible for making sure that the Board meets its responsibilities. As a former highly respected law judge, one would have assumed, apparently incorrectly, that the Chairman’s attention to judicial accuracy would be a top priority.
Unfortunately the statistics issued by the Board regarding the ‘affirm, reverse, modify’ results of the Board panel reviews of administrative law decisions gives totally inaccurate and unreliable information. For example, if a law judge’s decision regarding determination of five facts (date of injury, sites of injury, average weekly wage, employer’s name, and that the accident occurred of and in the course of employment) is appealed on the last and only major legal issue and the Board panel reverses it, the Board statistics show that the decision was ‘modified. ‘ Thus, this decision is categorized the same as the correction of a typo in a law judge’s decision. My personal records of approximately 15,000 cases shows a 10% to 20% discrepancy in the number of ‘affirm, reverse, modify’ decisions. it is likely that even the Board panels’ reviews the administrative law judges decisions, which are not appealed, also reflect a high “poorly done” rate.
Add to this the abuse of §114-a (3 ) penalties on many appeals, attorneys are placed in a difficult position of either having to face an angry client by not proceeding with an appeal or being hit by a penalty by the Board which apparently has neither the time or patience to consider that it is its own inconsistencies and incoherence that results in the dissatisfaction with both administrative decisions and Board panel decisions.
While it seems easy to attack the Board, the real emphasis has to be on both claimants and employers who really have no assurance that the Board has issued a fair decision in their case, let alone even reviewed it. This inconsistency and occasional incoherence leads not just to anxiety on the part of injured workers, but also gives them a justifiable distrust of the fairness of the system and the sense that nobody cares. It also places many attorneys in the unfortunate position of having to explain, usually without success, to their clients why the clients are correct even though the Board has ruled against them. This inconsistency by the Board forces many attorneys to appeal decisions because the Board’s record demonstrates that far too often it is luck of the draw (the writer and the panel) and not legality what justice which determines who gets a favorable decision.
Next week, I will review in detail some of the more contentious issues of the 2011 and analyze the Board’s direction for 2012.[22163-4060]
Reader Comments on my Zamora Analysis
Voluntary Withdrawal
December 8, 2011: My commentary on voluntary withdrawal from the labor market relative to the Zamora v New York Neurologic resulted in far more comments that any other posting I have done. But I was surprised that those who represented the claimant side were not as lengthy in their comments as those who favored the concept of VWLM. For those of you who would like to make a few points from the claimants’ perspective (as you do when we meet), I offer you space here.
While I am not much for ‘talking heads’ on the TV public opinion shows, I feel strongly that we really need some discussions around the state to, dispassionately as possible, consider how to solve the problems noted below. And as the economy, not only in New York but all over the U.S., continues on its current trend, it becomes increasingly difficult to draw clear lines what the injured worker must do to be considered having been involuntarily removed from the labor market and what are the responsibilities of the employer and the government to find employment opportunities.
The following are some of those comments, edited for brevity and anonymity.
Wonderful, Thanks!
A neighboring state faces the same problems of finding a fair ‘line in the sand’.
In Pennsylvania, this issue was before the Supreme Court in October in the case of Robinson v. City of Pittsburgh. Essentially, the rule had been that the burden shifted to the claimant after accepting retirement benefits to show either (1) total disability from any level of work; or (2) a good faith job search after retirement. However, in Robinson the Commonwealth Court imposed a nebulous “totality of the circumstances” test putting the onus on the employer to establish that it was the intent of the claimant to remove themselves from the workforce.
And again from New York:
All your “What if…” scenario’s are based on only one presumption about the injured worker - that they have a desire and motivation to return to work. You are missing a very large segment of the injured worker population…The one’s with no desire or motivation to work any longer.
The VR defense has been pursued heavily by carriers because they are seeing (through surveillance, activity checks, database and social media searches, etc.) a relatively alarming number of worker’s who for whatever reason simply don’t want to work any more. These reasons run the spectrum from a late 50’s year old who has been chronically under-employed or employed in low paying, physically demanding, unskilled and unfulfilling work to a 20-something college graduate who can’t find work or who is starting a family and has a need for one parent to stay at home - It’s less costly to stay at home on tax-free partial WC benefits (Plus extended unemployment that when added to the WC pays more than former wages) than it is to work and pay for child care.
The reasons are economic and if the economy in the state doesn’t improve to offer decent well paying jobs, this will only get worse as disaffected workers realize they can “go on” comp rather than continue a long-term struggle with demeaning, under-paying, and unfulfilling work.
But the issue is best summarized by one reader as follows:
Judge’s decision vary greatly from district to district and judge to judge. As you can imagine, we live and die by the rulings that come down from the courts. The contradictions make our job very difficult and the appellate process takes so long that I don’t think either party is served waiting for the final decision.
I would like add a couple of points of observations that I have made from working the system from my point of view:
Retraining: what is the responsibility of a person without a high school diploma or limited English to get the education they need to improve their chances to get a job. Same with computer skills – many high schools and libraries offer free courses. I have a 1995 case of a guy who says he can’t read or write – so in 15 years he couldn’t work on this?
Is it the employer’s responsibility to continue benefits for the overweight or morbidly obese person who can’t get a surgery or has other health problems that add to their physical restrictions? (I would say 90% of my cases are overweight people.)
Transportation: they were able to get to work before, but now they can’t afford to pay for a car or get it fixed. Is that responsibility of the employer?
Relocation: an injured worker worked in the Bronx and now moves to Nowheresville where there is little to no commerce. Wages are affected as well even if they can find a job.
And then there was the case about which the I wrote last week, the worker who due to a work injury became severely mentally disabled (and classified without controversy as totally permanently disabled), who after his minimum wage job in a non-for-profit mail room was terminated, was reclassified as partially disabled. And then he was expected to seek employment in order to keep his compensation!
Yes, there are extremes for every issue. But, like the Bell curve, within the standard deviation are 68% of the cases. We should be able to develop some sort of method/indicia/rules to resolve the 16% on each end and work to slowly close the gap on the other 68% rather than fighting to the death on every case.
I look forward to your additional comments. [1N155-4059]
The Court of Appeals’ Zamora Decision
December 1, 2011: In the next few weeks, the New York State Court of Appeals will issue a decision in one of the most hotly argued issues that has come before the Court in years:
voluntary withdrawal from the labor market
Although Appellate Court decisions on this issue, such as Okonsk, v Pollio Dairy Products Corporation et Al., 184 A.D.2d 871; 585 N.Y.S.2d 121; 1992 N.Y. App. Div. LEXIS 8001, predate my arrival at the Worker’s Compensation Board, as someone who has been given credit/blame for the proliferation of cases on this issue, I feel it is appropriate at this time for me to discuss this issue prior to what may be a precedent setting decision about to be issued by the Court of Appeals in the Matter of Zamora v New York Neurologic.
Philosophy
The purpose of workers compensation insurance is not to provide medical insurance or to supplement lost income to injured workers. It is to provide medical treatment and supplement lost income to workers whose need for medical treatment and supplementary income is a direct result of a work-related injury. This last point has been affirmed innumerable times by cases in which certain legitimate injuries of injured workers, wages lost due to them, and relevant medical expenses are denied coverage under workers compensation because those additional sites of injury are not accepted as either causally related or consequential.
This concept, lost on a number of my former colleagues as well as some practitioners on both sides of issue, raises two central questions:
Is there some point at which the loss of income and/or medical treatment is no longer the responsibility of the workers compensation insurance carrier?
And, if there is such a point, how is it determined and who determines it?
“[I]t is well established that a partially disabled claimant has an obligation to look for employment within her physical limitations, and that benefits may be discontinued if the claimant is unable to establish that the limitations on her employment due to the disability were a cause of her subsequent loss of wage-earning capacity or inability to obtain employment . .”
The above statement of purpose, often quoted in decisions from the Board and the Appellate Court, confirm that there is a responsibility by the claimant to return to the workplace. And there are other cases, i.e., Matter of Wilkins V. New York Power Auth., 3rd A.D. 2011-03-31, in which claimants can be denied compensation if they refuse medical treatment.
Policy
But the underlying problem is that the attorneys and very often members of the Board see this as a black-and-white issue. Yet there are several shades of gray. For during the history of the case and due to the changing economic climate which we have been experiencing the last few years, the responsibility of the injured worker and the employer for enabling a return to work is a pendulum that is swinging both ways, and erratically so. Thus, one must pose the following questions:
What happens if the job, employer, or industry in which the injured worker was employed at the time of the injury no longer exists when the injured worker is prepared, with or without a temporary or permanent disability, to return to the workplace?
What is the responsibility of the claimant to train for other types of employment that would be within their new restricted abilities? The Matter of Zamora involves the claimant who appears to no longer be able to do the job for which she was trained.
What is the responsibility of the claimant if they can only find a part-time job? The Matter of Leslie v Eastman Kodak (3rd A.D. 2011-11-17) deals with an injured worker who sought employment in a wide variety of positions in a wide variety of industries but could not find full-time work.
Is it the claimant’s fault and therefore sufficient reason for denial of benefits if his employer, the only one in economically deprived upstate New York, closes or reduces its staff by 80% and there is no other employment in the area? Should this claimant be treated the same as others who would now be going on unemployment or does the work injury and temporary removal from the labor market warrant special consideration?
Does the large employer who more often than not has many people doing the same work have a greater responsibility to seek a position for the injured worker then does a small company with only four or five employees?
What happens when an employer comes to town and seeks to hire 200 people but the worker cannot apply because he is not ready to return to work yet but, when he is ready, all those positions have been filled?
Does the employee’s union have a greater responsibility to an injured worker than other members when both are seeking reentry into the labor market?
I remember discussions on the issue of notice under §28 in which one of the Carey/Cuomo appointed commissioners would tell me that it is the purpose of the Worker’s Compensation Board to find a way around the time limits under §28 to make sure the claimants would be covered because we have a responsibility to help injured workers. Then again, I heard the very same philosophy in later years from some of the Pataki-appointed commissioners, that the workers compensation system was a safety net for injured workers in the State of New York.
But that is not correct. The mere fact that cases can be settled forever under a §32 waiver agreement implies that at some point during the course of the claim, the injured worker becomes removed from the safety net of the workers compensation system.
This next raises the additional question of what happens to those claimants who have a need for medical treatment for which there were insufficient medical set-asides in the agreement and/or were not covered by Medicare or Medicaid. And then there is the question of what happens to those claimants who are unable to find work and have used up the compensation portion of their settlement. Workers compensation is not available to them.
Although there have been 24 decisions on the issue of voluntary withdrawal from the labor market issued by the Appellate Court since the fall of 2009 and hundreds of decisions issued by the Commissioners at the Board, there really are no clear-cut guidelines as to what constitutes voluntary withdrawal from the labor market.
A great deal of the fault for this lies with the Commissioners too many of whom failed to read the cases, relying on the writers of whom there are somewhere between 50 and 70, to make that decision for them. As a result, there are dozens of contradictory decisions such that, if so inclined and having the time, one can find case law to support both sides of the issue in any case in which voluntary withdrawal from the labor market is being controverted; I am not talking about cases supporting the concept being argued, I am referring to prior cases in which the claimants have the same medical problems and same employment and yet the decisions are different. But I’m not going to further belabor the failure of the Commissioners and the Board to resolve that problem because history shows the current Board considers such issues unworthy of their attention.
Practice
If I were in charge of the Board, I would make it my business to visit all of the district offices and set aside time to meet with attorneys on both sides as well as having people from the Department of Labor, unions, and the business community discuss this issue and get a better sense of the many questions that must be answered. The purpose of these meetings would not be to solve the problem as I am afraid that lines would be drawn in the sand before the first words were spoken. It would be for the sole purpose of having an open-ended discussion without seeking a solution in the hope that in the course of these discussions some specific fact patterns or ideas may arise that would help get the injured worker back into the workplace thereby enhancing their own economic independence and minimizing the cost to not only to the employers in the State of New York but also to the taxpayers.
Prediction
As to the decision to be issued by the Court of Appeals in the matter of the Matter of Zamora v New York Neurologic, I would not all be surprised if it were either a very narrow decision or a general decision with at least one dissent and possibly one concurring opinion.
As a result, I do not see this issue being resolved. Yet the issue of helping the injured worker return to the work place and earn a living and maintain their self-respect is at the heart of the workers compensation system, a concept too often lost in the battles that take place in the hearing parts and appears to be outside the intellectual interest of the current Board.
Comments and criticisms are welcome from all parties as well as anyone interested in making a prediction as to how the Court will rule.[1D154-4058]
Raynor & ATF
More Questions than Answers?
With the matter of mandatory deposits into the ATF finally resolved by the Court of Appeals on November 15, 2011, perhaps this matter will come to a conclusion.
But it will not . . . .
On November 15, 2011, in the Matter of Raynor v Landmark Chrysler, the Court of Appeals ruled that the Board’s interpretation of the 2007 Amendments in §§27(2) and 15(3)(w) which mandates that private carriers make deposits into the Agrregate Trust Fund is correct. (The matters of Collins v Dukes Plumbing, Hardy v Trico, Parkhurst v United Rentals;, and Salgy v Halsted Communications were covered by the Raynor decision.)>
This will lead to two major issues: unpaid balances in the ATF and alleged unfair settlement options foisted off on the private carriers as compared to the State Insurance Fund and self-insureds.
UNPAID BALANCES
As I wrote in my Editor’s Note at the bottom of my summary of the case on the DECISIONS page, I see a potential legal issue arising when the ATF settles a claim with a §32 settlement for a sum less than what has been deposited. To whom does the balance of the money belong? The fund or the carrier? In its decision on Line #177, the Court of Appeals wrote:
The Takings Clause prohibits the government from taking private property for public use without providing just compensation. The amended statute, as applied, does not violate this clause. The statute neither increases the amount of compensation owed to claimant, nor does it appropriate the carrier’s assets for the use of the State (see Connolly v Pension Benefit Guar. Corp., 475 US 211, 225 [1986]; cf. Alliance of Am. Insurers v Chu, 77 NY2d 573, 577-578 [1991] [statute held unconstitutional because insurers had a property interest in the fund whose earnings were diverted to the State’s general fund]). Here, there is no such diversion, the mandatory deposit only reflects the present value of what is owed to an injured worker.
I read this to state that these funds are held in trust by the ATF for the beneficiary, the injured worker. When events transpire that end that relationship and the terms of the trust, i.e., the trustee’s responsibilities have been completed but the fund not depleted, it seems that the remaining balance of the fund is to be returned to the depositor and not the trustee.
For what other purpose would the ATF hold these funds? But with the State’s overreaching on ‘surplus’ insurance funds, such as those held by the State Insurance Fund, will the State simply move the unused funds into the general budget? This is a question I have been asking practitioners for months and not one of them, probably 40 in total, can answer that question other than to assume that the State will, one way or the other, keep the funds.
UNFAIR SETTLEMENT OPTIONS
Historically §32 settlements have been for payment of compensation equal to 4 to 7 years. But the mandatory deposits to the ATF are based on actuarial tables and can be for up to 20 years or more worth of payments. The mandatory payments, however, are limited to private carriers. Therefore the cost to a private carrier can be 4 to 5 times that of the cost to the State Insurance Fund or self-insured, thus putting the private carrier at a substantial financial disadvantage not just in terms of reserves but in the terms of the need to have higher rates to cover the additional financial exposure.
An interesting question which will undoubtedly occur within the next few months is a §32 settlement which has been apportioned, hypothetically, 50% either in one case or because it involved several cases, between a private carrier and the State Insurance Fund (SIF). What will happen when SIF offers five years ($30,000) and the carrier 10 years ($60,000)? Will be written into the agreement that SIF is to pay $30,000 and the private carrier $60,000?
If I were a claimant, I would want to know why SIF is only paying $30,000 while the private carrier is paying $60,000. Since the carrier is responsible for 50% and is paying $60,000, why am I being cheated by SIF? This is a question whose answer I shall leave to those with more wisdom than have I.
And what impact this will have on the ability of cases of this nature to be resolved, I do not know although I can anticipate there will be some sort of impact. As to whether or not this could result in another case going to the court I cannot anticipate.
CONCLUSION
While I know that I am preaching to the converted (the workers compensation community) who will consider this problem, it is the deaf (the Board) who should be looking at how these issues will be resolved since it is the Board’s law judges and, ultimately, commissioners will be responsible for making decisions on these issues.[1N151-4057]
The NYSBA CLE Report
Board Staff Should Attend These
October 27, 2011: I had the opportunity last week to attend the New York Bar Association’s CLE on workers compensation. And although I have attended about eight CLE courses at the Board, given by Board attorneys for Board staff, this was my first ‘independent’ CLE. It was also interesting that about half the attendees were attorneys who did not practice workers compensation law but were there to use the requirement that they get credits to learn a new area of practice. My impression?
V E R Y I M P R E S I V E
My first observation is that Board staff, including commissioners and law judges, should be required to attend the NYSBA’s CLE and not the Board’s internal CLE’s.
First of all I would like to thank Carl Copps from the NYSBA who helped organize this. And a thanks to the following speakers:
David Goldsmith: What is NYS Workers Compensation ** James McCarthy: Workers Compensation Issues ** Michael Chechanover: Ethical Consideration in a Workers’ Compensation Claim ** William Jones: Medical Treatment Guidelines ** Catherine Stanton: Section 32 Settlements ** Hal Friedman: 3rd Party Actions.
As to the presentation itself, it showed that all the practitioners, as noted on more than on occasion by the speakers, have difficulties dealing with the law and rules and regulations as currently interpreted by the Board. Equally frustrating to them was the fact that there does not appear to be any consistency in the way that the Board operates nor does there seem to be some direction in which the Board is heading, both of which need to be corrected so that the practitioners know how to best handle their claims.
Probably the area of workers compensation that attracted the most discussion dealt with not only the new medical guidelines but what appears to be an inability of the Board to develop a system that accurately reflects the degree of physical disability, degree of wage loss suffered by injured workers, and how to handle medical issues not properly addressed, if at all, in the medical guidelines. But there were other issues discussed at length, such as Medicare Off-sets. But these will be covered by me in future commentaries.
The reason that the Board attorneys and commissioners should attend is that they are currently hidden away in their ivy towers, made even more distant from the world by the Board’s trend to eliminating hearings. Added to the fact that the vast majority of commissioners only go to the Board offices for the one every other month oral argument or the once a month Full Board Meeting, they do not even have the opportunity of hearing differing points of view or interpretations on major issues in which they issue decisions every day. Fortunately the law judges do have the opportunity to speak to claimants but they are under time constraints and also, as one law judge put it in the minutes a few years ago, “I can do what is right but I know that I will be reversed so I have no choice in what I am about to do.”
Neither the papers presented to the commissioners for decisions nor the brief argument they hear at oral arguments touch upon the problems discussed by all the attorneys: from the blatant abuse of opiates to the difficulty getting the Board to understand that by setting a minimum of 10 visits to a chiropractor for a bad back, they have also set a maximum: the carrier informs the doctor to stop treating and the doctor, unless he is willing to take the financial risk of treating without authorization, then stops, even though many claimants still need treatment.
In discussing how to deal with certain Board rules and regulations, it was obvious that the participants have various interpretations of the Board’s rules. And any attempt to get a clarification from the Board resulted in the Board’s failure to respond.
The Board needs to meet regularly with practitioners for an exchange of ideas and thoughts in order to insure that the rules and regulations and the interpretation of the law are consistent and make sense. As I have argued for years and the Third Department of the New York State Appellate Court has opined quite frequently this year, the Board must be consistent in its interpretations and in its use of the underlying facts in the case.
I do remember being told, by someone further up the food chain than was I, that commissioners do not make policy. I responded that every time we interpret the law or move the gray line one way or the other, we are making policy. The law is not dry and deals with real people with real problems and it is important that we understand what happens out in the real world. That is why some of us felt that oral arguments and §32 hearings were so important: we got to see the face of the person whose fate in life we were determining. They would talk to us and let us know their concerns. After all, the difference between a 45% CLU and a PPD is not just a legal definition: it could be a life altering decisions. It was obvious from the lecture and Q&A that the attorneys for both sides understood this.
Attendance by board staff at these CLE would be a first step in the Board’s decisions makers understanding this as well.[11104056]
I Answer Your E-Mails
October 20, 2011
Oops - A Reader is Right
A reader writes:
I take umbridge at your characterization of the death tax as “more importantly” in comparison to the layoff issue. The layoff issue affects whether certain Board employees keep their jobs at all, while the “death tax” issue is only about valuation of benefits. Both issues are indeed important, but don’t devalue state workers.
My reply:
Point well taken and accepted. I certainly did not mean to disparage or minimize what could have been a serious problems for those effected by the budget games being played. Yes, there are a few ‘turkeys’ at the Board but the overwhelming number of the Board’s staff, as well as at most state agencies, do their jobs well. Unfortunately some of those who are positions of authority (but minimal responsibility) by virtue of their political connections often seem exempt from the games being played.
Getting Stats on MG-2 Variances
A reader writes:
many MG 2 variances have been filed for low back pain as of September 1, 2011?
b) How many MG 2 variances for back pain were from medical physicians?
c) How many MG 2 variances for back pain were from orthopedists? How many were approved?
d) How many MG 2 variances for back pain were for active therapies? How many were approved?
e) How many MG 2 variances for back pain were from chiropractors? How many were approved?
f) How many MG 2 variances for back pain were for spinal manipulation? How many were approved?
The data will speak for itself.
My reply:
No!
The Board will not publish any statistics that do not show results which meet the projections they made when they originally proposed changes in the polices and procedures. And this assumes that they even both to not only run reports internally but look at these numbers.
But if they did want to issue these statistics, it would be quite easy to do so. The Board uses a multi-relational database. What this means is that they can take the data off of one form and match it up to data from another form so that the combined data will give results that looking only at one form at a time will not. I know from my own ability to convert the date the Board gave me during my 12 years there, into something meaningful I could use to track not only decisions but the result of changes in the administrative practices of the Board. But should you be able to actually speak to someone who will tell you that they have the authority to answer you, they will tell you that the data people are very busying updating the system, doing reports for someone important, designing new security software, working on the budget, ….
Another comment on Medical Variances
A reader writes:
I recently read you September 1, 2011 edition of The Insider. I also read the newswire article quote in the Daily New from a Mr Brian Keegan regarding the recent treatment guidelines and variance requests. I was astonished to hear Mr Keegan state that more than two thirds of the variances have been approved. These approvals must be taking place outside the Albany district, as virtually every variance hearing that I have attended has been denied, and I hear that same result from attorneys, and other licensed hearing reps who represent claimants in the Albany district. His claim is in direct contrast to the reality that I experience at variance hearing in the Albany district.
Other than the first e-mail, these are a random selection of e-mails I receive. Keep them coming as they suggest new commentaries. Thanks.[11104055]
WCB Layoffs: A Charade
October 13, 2011: This week the New York State Workers Compensation Board is announcing layoffs, rumored at this time, to be 27 people, due to the need by Cuomo to find savings in this year’s state budget.
But this is a charade!
The cost of running the Board does not come out of NYS’ operating budget, a budget which is paid for with tax dollars (or debt, which is ultimately paid for with tax dollars).
It is paid for out of assessments against insurance companies and is, therefore, an ‘off the budget’ agency, one of the few that generates its own operating income.
Whether or not the Board’s income from assessment against carriers has decreased, just has the State’s income from taxpayers decreased, does not mean that the Board has to layoff workers to help balance the State budget. Whether the Board lays off 27 people, 200 people, or hires an additional 27 people will have no impact on the state’s budget.
Whether this be a sop to PEF or other unions or the state legislature remains to be seen but it is not going to have any dollar impact on the state budget.
Is there anyone at the Board who will stand up on this issue or are they keeping their heads low, hoping Governor Cuomo does not notice them and cut off some of those useless heads. [11104054]
WCL DEATH TAX!!
By Ron Balter, Louis Dauerer, and James McCarthy
September 22, 2011:Have you sensed a bit of unease in attempting to explain to your client the Surviving Spouse offset off WCL §16? “Well,” you might humbly state with your best attorney countenance, “it’s the law.”
LEGISLATIVE HISTORY
The offset provision [50%] on workers’ compensation of WCL §15.3(v) is based upon receipt or qualification for SS disability benefits and terminates the WC disability benefit upon receipt or entitlement to receive old-age SS benefits. This provision raises a question of age discrimination. Together with WCL §16, these reductions are characterized as “reverse offsets” as distinguished from the SS offset where the combination of workers’ compensation and SS benefits are greater than 80% of the historic earnings record when combined. This latter “default offset” was authorized by Congress in 1965.
Prior to the enactment of the 2007 [WCL 15.3(w)] duration limits on workers’ compensation, the 80% default offset often operated to spur a compromise of the workers’ compensation indemnity rate from total to a partial rate despite evidence of a higher indemnity rate. Commentators observed that the duration limits of the 2007 reform statute “effectively removes this possibility for compromise.” [NYS WC Handbook, 5.52(4)].
In 1981, Congress eliminated “reverse offset” provisions, but grandfathered those in NY and fourteen other states. WCL §16 was enacted in 1977. Among others, the legislative purposes cited: “tax incentives for employers“; “creates jobs“; and “dependents are not without other financial support.” In 1977, the maximum statutory indemnity for a death claim was $125 per week for an Average Weekly Wage [AWW] of $187.50 compared to the 2011 maximum of $772.96.
EFFECTS OF THE “REVERSE OFFSET”
Recent AWW data [Joint Report of the NYS Insurance Department and NYS Workers’ Compensation Board, (March, 2009, p. 21)] indicates that of 83,830 Claims With First Indemnity Benefits paid in 2007-08, 34,022 [69.1%] were male and 13,841 [28.1%] were female, or a ratio of more than two to one.
Thus, the “reverse offset” disproportionately affects the female surviving spouse likely in a similar ratio. [See Data Below]
DISTRIBUTION OF AWW BY GENDER
Based upon the criteria of WCL §16 [Table 1: Sole Surviving Spouse, no children] the workers’ compensation indemnity reduction ranges from 5% to 50% depending upon the AWW range from $$100 to $200 per week.The data further demonstrate that 78,339 claims have an AWW in excess of $224, representing 93.5% of the total number of claims potentially subject [in a death claim] to a “reverse offset.” If the AWW is $450 [$300 per week statutory benefit] , a sole surviving spouse [over age 60] with a SS Survivor Benefit of $1200 per month is subject to a “reverse offset” of $138.46 per week [$1200 x 12/52 x .50] or nearly $7200 per year. This represents a 46.15% reduction. In the national debate, this would be characterized as “confiscatory” or a death tax.
TIME TO ACT
It’s been over 30 years since Congress prohibited (and grandfathered) “reverse offsets” and thirty-four since New York passed its legislation. Rescission of New York’s “death tax” is long overdue and the Legislature needs to determine whether WCL §16 has met its purposes. It’s difficult to imagine those goals have been achieved. While death and taxes may be inevitable, they ought not be even more distressing and painful to surviving spouses.
Since the “reverse offset” is by operation of law, the reduction occurs without a hearing on the issue. Due Process is at stake:
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. . . . [Roth, 408 US at 577].
What do you think? Feel free to submit comments, take action, and offer your own “OpEd” column. As always, thank you for your support.
September 22, 2011: A review of the Board’s public records show that the Board is taking twice as long to do its work in 2011 as in 2009 but accomplishing only half as much.¹
During this past July, the Board issued 549 Memorandum of Decisions, decisions that were to resolve appeals made by injured workers or carriers dissatisfied with the decision of an administrative law judge. Two years earlier, in 2009, the Board issued 1,235 Memorandum of Decisions. Thus, in 2011 they issued only 44% as many Memorandums of Decision as they did two years earlier.
This certainly appears to be encouraging, perhaps a sign of less appeals, the Board’s oft pronounced goal … except for one additional fact:
The average MOD in 2011 took nearly nine months to get issued whereas in 2009, when there were more than twice as many appeals to review, the Board issued them in less than four months.
This explains why there is such a large backlog of cases: 17% of the July 2011 decisions took more than one full year to be issued whereas in 2009 only 1% of the decisions required more than nine months.
It is likely that the 2011 performance figures would have been far worse except for one anomaly: an inordinately large number of appeals from the month of April 2011 appear to have moved to the top of the pile and had their cases resolved by Board panels in July. As you can see from the chart, the 2009 figures (black) show a standard Bell curve whereas 2011 (blue) show a great degree of irregularity, aside from the longer duration to resolve appeals as compared to July 2009.
Unfortunately, the Board no longer publishes any numbers of this nature, number such as those I posted in my Commentary of September 8, 2011 “An Attorney Questions Board’s Response on ‘Variance Requests’” in my letter to the Board Chairman.
Basically, the Board is spending its time resolving issues by forcing cases to be closed rather than using its resources to make decisions. I do not know how many people are employed in the Administrative Review Bureau (a ‘state’ secret?!?) But the number of commissioners on the payroll has not changed although the number of working commissioners appears to have decreased.
Medical variances appear to be suffering from the same problem. Claimant attorneys are complaining about the delays that they are encountering in seeking to reopen cases when medical treatment is terminated because the Medical Guidelines have determined that the injured worker has been cured or perhaps only stabilized. One can only assume, since the Board issues no data, that the requests for medical variance are treated with the same case as the appeals of law judge decisions: months if not years in the making.
But rather than address the issue of why the decision making process has crawled to a virtual stop, the Board is pursing a new debacle for the coming year: MAPP.
When is Governor Cuomo going to step in and clean house? [11094052]
¹[ED. NOTE:] Detailed statistics are attached. The statistics are based on an analysis of 148 decisions for 2009 and 2011 for July 1 to July 31 as listed in Lexis and based on the difference between the date of the decision that was being appealed and the date the MoD was filed. The date of the underlying law judge decision was used as that date appears in all the MoD whereas the dates of the appeal are often not in the MoD. But since there are only 30 days to appeal the law judge decision, any adjustment that could be made, assuming it did not average out, would not significantly reduce the time differences between 2009 and 2011. In both 148 MoD’s review in 2009 and 2011, there are RFA’s (actually only showed up in the 2009 cases), Full Board Reviews and reconsideration of Appellate Court decisions, all of which were done faster than the average for cases in that time period but with a relatively minor effect on the final numbers. As I started with July 2011, I decided to take a 25% sample of the 549 cases, i.e. 148; as a result I used same absolute number, 148, for July 2009 rather than 25% of 1,235
Patient Died BUT the case is closed!
September 15, 2011: In its 2010 Annual Report, the New York State Workers Compensation Board states that the number of pending claims is going down every year for a seven-year average of 7.5% (Chart 2). And this is all due to the new procedures to force both sides to set the issues before a law judge so that these matters can be settled.
However, that same Annual Report shows that, while fewer cases are being indexed every year, down 25% from 2002 to 2010, the number of cases being reopened has increased by 25% in the same period of time. In fact, as my charts show (all using the statics from the Annual Report), the number of cases that require the Board’s attention each year is increasing. Equally important, whereas in 2002 reopened cases were only 49% of the total number of cases handled by the Board, by 2010, reopened cases were 62% of the total and are increasing every year.
More importantly, if you take a look at the last column in Chart 2, you will see that the Board claims to have closed 72% of all cases it had in 2010. At this rate, by 2014, the Board will be closing more cases than it has. Each chart on its own, one on page 3 of the Annual Report and the other on page 21 of the Annual Report show that the Board is accomplishing its goal of speeding up the process. But putting the charts together shows something different.
What does this really mean?
Essentially you can cut down the number of hospitals beds you need and improve the morbidity rate of your hospital by releasing every patient in 10 days, whether or not they are cured. Just state that they are. Hence, a smaller patient population, a need for fewer beds, and no reports of anyone dying in the hospital.
By closing cases as fast as they can, the claims pending is reduced and the number for claims resolved increases. This is done by closing a case if a question comes up that can not be answered at a hearing. “Don’t adjourn - just close.”
Unfortunately, when either party wants to reopen a workers compensation case, the Board, in order to cut down on paper work by cutting down on hearings, now requires all sorts of documents to support the request for a reopening. And after a few weeks, or more likely months, if the Board approves a reopening, the clerical staff must set up hearing dates, schedule a law judge, etc. How much easier would it have been for a law judge to say, “Let’s adjourn until 2:30 next Tuesday which should give you enough time to either settle this issue or have all the facts I need to make a decision.”
But the Oligarchic Cabal, in Albany, who trust (do they have a choice) the law judges to make what are sometimes complex medical and legal decision on cases do not feel confident that the law judges are capable of determining which cases should be adjourned to give the parties time to resolve a case and which cases should be closed.
Is this really true?
Near the end of time that the commissioners were doing §32’s, a complaint arose that was discussed at our monthly preboard meeting. The complaint from the Cabal was that some districts had too many §32 hearing adjourned, thus cluttering up the calendar. The hearings were supposed to either approve or reject the settlement. It was obvious from the districts mentioned that reference was being made to New York City and one update district office. (At that time, most districts, other than Brooklyn, only had one commissioner handle all the hearing.) I was the one commissioner pointed by name out for criticism.
I gave an example of an issue that came up at a hearing. It was a technical issue in which the agreement had to be redrafted to change a few words; the improper words could not simply be crossed out but had to be typed into the agreement as original text and not handwritten as was usually the case with changes. I adjourned the case for the agreement to be rewritten and set the next hearing for 10 days later when I was doing another §32 calendar. I instructed all the parties I would proceed now with the balance of the settlement hearing so that at the next hearing, we would need only a few minutes to tie up everything, that they could just show up during my calendar whether or not a Hearing Notice was ever issued and I would take them right away. Ten days later, the §32 was approved and the case closed.
At that preboard meeting, I was told I was supposed to have rejected the §32. The parties could then apply to reopen the case. When I raised the point that rejecting the agreement, closing the case, and then requiring them to formally seek a new hearing would take about four or five different filings, lots of board staff (examiner) time, and delay the settlement another two or three months, I was told that my argument did not address the issue. It simply did not look good that there were so many open cases and unresolved §32’s. I was to understand that the policy was “Approve or Reject”; there was no third option.
I have been told by several law judges as well as attorneys from both sides that this policy, ‘Approve or Reject’, still seems to be the rule.
And it is the case that this same policy applies to ordinary hearings as well. If the parties have just received some new information and need another week to resolve the issue, the judge is instructed to close the case: “There are no unresolved issues because neither side has presented conflicting information that requires a decision today.”
In the meantime, the number of open cases is skyrocketing. More often than not, claimants are being denied compensation or medical treatment while the Board awaits the proper filing of forms, and the Board proclaims “We have closed all ur cases and discharged all our patients/claimants. Look at our morbidity rare - No one has died in our hospital.”
The Invisible Gorilla
Too bad they do not leave their ivy towers and see all the bodies in the street. But then again, as noted in “The Invisible Gorilla” by Chabris and Simons, some people do not see that which is in front of their eyes even if they look at it: they have conditioned themselves to believe that what is in front of their eyes does not exist.
Next week, I will publish data from the Board regarding the time it takes for the Board to review an appeal. [11094051]
An Attorney Questions Board’s Response on ‘Variance Requests’
September 8, 2011 Last week I received the following letter from John Klee, Esq. With his permission, I sent a copy of that letter along with some Board statistics on time delays for Board panel reviews to the following staff at the New York State Workers’ Compensation Board: Chairman Robert Beloten, Vice Chairman Francis Libous (within whose area of responsibility is managing the commissioners), and Brian Keegan, the Board’s spokesman. While I expect that neither Beloten nor Libous will read the e-mails, I certainly hope that Keegan is not just a spokesman but also an ‘answerman’.
A Letter from Jonathan Klee, Esq.
“Keegan said 78,178 variance requests have been filed, and more than two-thirds were approved, although no reference was made to the time it took for the variance request to be approved by the Board. Keegan said 78,178 variance requests have been filed, and more than two-thirds were approved, although no reference was made to the time it took for the variance request to be approved by the Board.”
I find this statement by Mr. Keegan interesting and misleading. The interesting part is that based on the numbers provided by the Board at least 26,059 variances requests were denied. That is an exorbitant number of denials of treatment when compared to the system in place prior to December 2010. The misleading part is I’m sure these figures do not include the thousands of other requests for treatment which were denied because the medical provider failed to request the treatment properly since they failed to follow the complex rules of the variance process or medical providers who just refuse to treat patients who need care because they don’t want to deal with the complex rules of workers’ compensation anymore.
The approval time of variance requests by the Board is also an issue. We have had a number of cases where variances were requested. It took the Board a number of months to put the issue on calendar and decide the variance. Finally, after this delay, caused by the Board, the medical treatment was deemed necessary. However, all treatment rendered up to the Variance hearing was denied since it was not pre-approved. So, for example, variance for treatment was requested in January. The Board does not place the case on calendar and decide the issue until April. In April the Board approves the treatment from April forward as necessary and in the same Decision denies the medical provider payment of all medical bills rendered between January and April since they did not receive pre approval. Can anyone at the Board explain the logic of these Decisions? Last I looked, if treatment is necessary treatment is necessary. The only point of these decisions is to force medical providers out of the workers’ compensation system, force delay in treatment since maybe the claimant will just give up and deny payment of bills so Insurance Companies can pad their already bloated profits.
Mr. Keegan, what is the Board’s response to this issue? Please don’t tell me expediting variance hearings because the Board is already flooded and back logged with thousands of requests and thousands more still to come. Attorneys who practice Workers’ Compensation everyday at the Board know that is not a realistic response. That answer would just show how the Board does not really care about providing prompt and efficient treatment to injured workers (What you claim is the goal of the Variance process) and an insult to the medical providers who are underpaid already for the valuable services they provide.
Please Respond to: Jonathan Klee, Esq. Klee & Woolf, LLP 350 Willis Avenue Mineola, New York 11501 (516) 294-5775
My Letter to the Board’s Executive Staff
Dear Chairman Beloten, Vice-Chairman Libous, General Counsel Munnelly, and Executive Director Fenster
September 8, 2011: In response to Brian Keegan’s comments which appeared on the September ,2011 article in the New York Daily News about the delays in the NYS Workers Compensation Board’s handling of medical variance requests, John Klee, Esq. asked me to publish the attached letter [posted above], for which I am now asking for your response.
Even members of your own executive staff, when asked about expediting appeals, have told those phoning for assistance that there is an ever growing backlog in the appeals unit and that, as a result, variance requests are taking many months to review and relevant decisions to be issued.
In addition to responding to Mr. Klee’s letter, I also ask that you publish every month statistics showing the status of appeals per the attached worksheet which used to be distributed to the Commissioners at pre-board meetings when I was on the Board. The letter codes represent categories of cases, with death claims and requests for surgery being the top two.
When Carl Copps took over the review bureau (or whatever is name for this month), he cut the review backlog down to only a few months. Since his departure, it is alleged to have increased back up to 6-8 months.
In view of your recent statement as to how well the new medical guidelines are working and considering Brian Keegan’s comments, I ask that an up-to-date set of statistics, similar to the attached, be made available monthly on the Board’s website and a statement made as to the specific steps to be taken by the Board to reduce the backlog.
It is a disservice to injured workers that their request for continued medical treatment be put on hold because the review bureau and the commissioners have other priorities.
Sincerely yours
Michael T. Berns
The Insider
Former Commissioner 1996-2008
New York State Workers Compensation Board [11094050]
MEDICARE SET ASIDE
An Issue Carriers & Injured Workers Can Agree On
Commentary courtesy of David J. Depaolo, President of WorkCompCentral which is a subscription based online publication of workers’ compensation news, education and data services and can be reached at david@workcompcentral.com
July 1, 2011: Typically employer/carriers and injured workers are on opposite sides of any given issue in workers’ compensation, but a recent move by the federal government should align the two interests.
In January the Obama Administration instructed federal agencies to identify regulations that place an unreasonable burden on businesses. The U.S. Department of Health and Human Services responded to that order on June 6 by publishing a list of dozens of regulations that it intended to review for possible streamlining or elimination.
Medicare Secondary Payer Act rules were not on the target list.
The American Insurance Association (AIA) sent a letter to the department on Tuesday, urging it to review the burdensome reporting rules imposed by Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA).
All states are affected by the MMSEA, and it is no secret that these provisions slow down, sometimes dramatically, the claims resolution process leaving injured workers hanging without compensation many times and employer/carriers incurring needless additional expense.
The regulations that the Centers for Medicare and Medicaid Services (CMS) operates under often lack clarity, are changed frequently without sufficient notice, and overall fail to reflect the operating standards in the insurance and workers’ compensation industries (e.g. what CMS considers a “mass tort claim” is substantially different than what the insurance industry does).
While the AIA deals with the regulators, a coalition of insurers and employers has also been lobbying Congress to reform Medicare reporting requirements. The Medicare Advocacy Recovery Coalition supports adoption of House Resolution 1063, known as The Strengthening Medicare and Repaying Taxpayers (SMART) Act, which would require CMS to give insurers and claimants firm guidance about how much money should be set aside in future medical settlements to protect Medicare’s interest.
The likelihood of getting Congress’ attention on this issue during this legislative session is not high, nevertheless the efforts of the insurance industry should be supported by groups advocating for the rights of injured workers.
I urge both insurance and injured worker lobbying groups to join the efforts to persuade the DHHS to include the MMSEA in the list of regulations that should be reviewed for efficiency modification.>[11084048]
Another Former Commissioner Agrees on Commissioner Salaries
August 18, 2011: After my first year at the Board, I felt as if I was the last of the Four Horsemen of the Apocalypse )who were appointed, along with Chairman Robert Snashall, to bring back energy to the Board and help newly elected Governor George Padaki achieve his goals for the agency. Vice chairman Jeff Sweet, Commissioner Karl Henry, and Commissioner Carol McManus were appointed prior to my arrival at the Board.
Unfortunately with only a few exception, most of the new appointees were examples of the complaints raised by Rick Karlin in the Albany Times Union, which, in turn, prompted my COMMENTARY last week after Governor Cuomo proposed cutting commissioner salaries
Weighing in in today’s COMMENTARY is Carol McManus, one of the Four Horsemen, whose letter speaks for itself.
As you must know, I agree with your commentary completely. However, I would add just a few notes, having participated in the Workers’ Compensation Commissioner’s role for a full 8 years, myself.
Oh, for the good old days, when Commissioners actually talked to one another (and even the draft writers) about any conflict(s) they perceived in agreeing with a draft decision. Even though some were less interested in dialogue than others (don’t confuse me with the facts, my mind is already made up!) most tough decisions were arrived at only after collegial discussion.
With the dawn of e-case, we know that Commissioners access their caseloads with a click of a computer button. They sit alone in front of their screens, clicking their agreement on individual cases and only rarely pick up the phone or write a comment to anther panel member to request further discussion on a matter.
While “signing” the case is the end goal, (thereby agreeing with the writer of the draft decision in all respects as to the content and conclusions drawn) actually reading and understanding the issue on appeal, reading and understanding the rationale(s) utilized by the drafter to reach his/her conclusions, and possessing enough information on the facts and the law pertaining to the matter to make a judgment and cogent decision to agree or disagree with the draft findings is the real goal of the Commissioners’ work.
No one, even a speed-reader, in my opinion, can access a case, read the draft decision, digest its contents and formulate a decision to agree or disagree in the span of 1 minute. If the Chair or his/her designee would only review the statistics (which are available to them) of how much time each Commissioner spends on 1 case, let alone an entire caseload or day’s work, it would become obvious that those who click through the entire computer queue of cases in 15 minutes should be called into account to answer for their amazing ability to complete the above-mentioned cognitive exercises in the blink of an eye. That is clearly a managerial responsibility which has not been exercised, to my knowledge, in the span of my history with the Board up until today.
When Commissioners are allowed to work or not work accountably by their own decision, mind-numbing mismanagement is the only conclusion I can reach. For those who do perform admirably, there is no incentive other than their own pride and work ethic to guide them. Real reform won’t come by just slashing salaries. True management oversight of agency Commissioners is the only path to better, more accurate, justifiable decisions.
Thanks for letting me “ring in” on this issue. You know it’s been a thorn in my saddle for a long time!
Regards,
Carol McManus
President
Carol G. McManus Consulting, LLC
17 Pine Cone Dr.
Pittsford, NY 14534
Ph: (585) 465-2365
www.CarolGMcManus.com
February 3, 2012: This data in this table is explained in more detail in the Commentary”2011 Review of Appellate Court Decisions - Part I”. Questions pertaining to this chart, the commentary itself, or any of the other information, commentaries, and opinions expressed in this website can be addressed to TheInsider@InsideWorkersCompNY.com
► The Insider’s look at the NYS Workers Compensation Board
February 3, 2012: There were no workers compensation-related decisions issued by any New York State court’s this week but I have posted under the COMMENTARY page 2011 REVIEW OF APPELLATE COURT DECISIONS, Part I, with some statistics. Part II which will discuss the impact of some of these cases will be posted next week.
And, if you have not already read it, see my announcement of the TOP ATTORNEYS FOR 2011 who will be listed at the link below.
These free weekly postings cover all workers compensation related cases issued since 2008, not only by the Third Department but also the New York State Appellate Division’s First, Second, and Fourth Departments, the New York State Court of Appeals, various Supreme Courts throughout the State, and relevant out-of-state cases. To receive our weekly e-mail alerts or post a comment, contact TheInsider@InsideWorkersCompNY.com.
No decisions issued Thursday February 2, 2012.
Capalbo v Stone & Webster January 26, 2012 NYS Appellate Division, Third Department Procedure: Denial FBR «»7050…Procedure: Denial FBR
AFFIRMED the Board’s ruling which denied the request of the carrier for reconsideration or full Board review (FBR). In seeking to deny the claim, the carrier requested in a February 10, 2010 hearing that it be allowed to submit its medical report well beyond the initial 45-day time period noted in the Law Judge’s November 2009 decision. After the Law Judge agreed, the claimant appealed and the Board reversed the Law Judge, determining that it was too late to submit the medical report. The carrier unsuccessfully sought FBR. The Court determined that the Board discretion was supported as “the record establishes that [the Board] addressed all relevant issues and the carrier did not present any evidence that was previously unavailable.” Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent and Joseph A. Romano of the Law Office of Joseph A. Romano (NYC) for Joseph Capalbo. Commissioners of Record: Lower, Williams, Finnegan WCB #017 0651 [21162-7696]
►Since October 2009, all 20 prior Appellate Court decisions on this issue have affirmed the Board, 8 favoring claimants, 11 for carriers and the 20th between two carriers.
PENDING CASES - Appellate Court 3rd Dept
January 26, 2012 - Thursday: There is no new listing for cases to be heard in February at the Appellate Court, Third Department, reducing the number of pending decisions to five.
Jan 06, 2012 Eccles v Truck Lite (consequential injuries) Nov 16, 2011 Jennings v Avanti Express (who was employer) Jan 13, 2012 Searchfield v Lowes Home Oct 19, 2011 Vilic v Granny’s Kitchen (degree of disability and med x-exams) Jan 09, 2012 Wheeler v Bloomingdales
PENDING CASES - Court of Appeals
January 26, 2012 - Thursday: No new workers compensation-related cases have been heard or added to the Court of Appeals hearing calendar but Cappellino has been heard and Zamora and Bissell are now scheduled to be heard withi the next three weeks.
Zamora v New York Neurologic Assoc. ▲Argument set for February 15, 2012▲- Attachment to the Labor Market: 79 AD3d 1471; 3rd Dept. App. Div. order of 12/23/10; Filed week of 01/28/11-02/03/11. On April 5, 2011, motions to dismiss the appeals, filed by the NYS WCB and by the NY Neurologic Assoc, were denied.
Cappellino v Baumann & Sons Bus Company - ▲Arguments were done January 5, 2012▲ Causal relationship between the death of claimant’s decedent and his employment: 52 AD3d 1058; 3rd Dept. App. Div. order of 6/19/08; filed week of 12/31/10-01/06/11.
Bissell v Town of Amherst, et al. ▲Argument set for February 8, 2012▲4th Dept. App. Div. order of 12/30/10; whether the appellate division erred in disallowing petitioner from presently recovering from the NYSIF those litigation costs traceable to the future medical expenses that petitioner recovered in a personal injury action - WCL §§13(a), 29(1/span>
Weiner v NYC: 2nd Dept. App. Div. Order of 4/26/11; reversal; leave to appeal; Granted by app. Div., 9/13/11; Municipal corporations - tort liability - whether NYC EMT injured in the line of duty on municipal property may maintain an action against his municipal employer under general municipal law § 205-a despite his eligibility for workers’ comp benefits - WCL §11. Supreme Court, Kings County denied defendants’ motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7) ; App. Div.reversed and granted defendants’ motion.
Schmidt v Falls Dodge, Inc. et al.: Workers’ compensation - award - whether schedule loss of use award is subject to non-schedule awards in other workers’ comp cases where awards were made at the maximum statutory rate and cover the same periods - WCL §15(6).
► Prior Postings ◄
Hroncich v Con Edison January 19, 2012 NYS Appellate Division, Third Department Apportionment: Death «»3070…Apportionment: Death
AFFIRMED the Board’s decision that that decedent’s death, causally related to his occupational illness, was not apportionable. In 1993, decedent was diagnosed with asbestosis and asbestos-related pleural disease ultimately found to have a permanent partial disability, and, as a result, developed thyroid cancer, which progressed into his lungs, dying in 2007. At the hearing on the death claim, a physician testified that decedent’s death was attributable 20% to his work-related illness and 80% to thyroid cancer. [ED. NOTE: not identified in the Board’s decision as being the claimant’s or the carrier’s.] A Law Judge found that decedent’s death was causally related to his work-related illness and that apportionment was not available. The employer argued that death benefits should be apportioned in the same manner as decedent’s lifetime benefits were apportioned.
“However, as the employer correctly notes, this Court rejected the identical argument in Matter of Webb v Cooper Crouse Hinds, explicitly holding that “apportionment is not available between work-related and non-work-related causes of death“. We are not persuaded by the employer’s arguments urging us to re-examine and overrule Webb. . . . Accordingly, inasmuch as the record concededly contains substantial evidence supporting the Board’s determination that decedent’s occupational illness contributed to his death, claimant is entitled to death benefits without apportionment. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent and Jill B. Singer of counsel to the Special Funds. Commissioners of Record: Foster, Higgins, Bargnesi WCB #2070 8165 [21161-7695]
►The prior case is Webb v Copper Crouse Hinds with the link noted above.
Ramadhan v Morgans Hotel January 19, 2012 NYS Appellate Division, Third Department Schedule Loss of Use v PTD «»5050…Schedule Loss of Use issues
REVERSED the Boards ruling that claimant was not entitled to a mandatory finding of permanent total disability (PTD) pursuant to WCL §15(1), based on the Board’s not infrequent failure to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so. After claimant, suffering injury to his eyes, was awarded a 100% schedule loss of use of both eyes, he unsuccessfully argued that he was entitled to a mandatory finding of PTD per §15(1). The Board concluded that claimant did not qualify for PTD because, even though he qualified for a 100% schedule loss of use of both eyes (WCL §15[3][p]), he still had some vision. Claimant, relying on a 1993 Board decision, argued that he sustained the “loss of both eyes” as required for total disability. The Court agreed that the 1993 Board decision found a PTD on facts that appear to be substantially similar to those in this case and concluded that the Board was required to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so. Prevailing party represented by: Michael K. Gruber of counsel to Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano (NYC) for appellant. Commissioners of Record: Ferrara, Libous, Paprocki WCB #0065 1079 [21161-7694]
►There have been no recent Appellate Court decisions on this issue.
Thomas v Warren County DPW January 19, 2012 NYS Appellate Division, Third Department §14(6): Concurrent Employment «»5170…§ 14(6): Concurrent Employment
AFFIRMED the Board’s decision that the employer was not entitled to §14(6) reimbursement from the Special Disability Fund (Fund). Claimant who was injured in 2009 concurrently had a second job working for a janitorial service. The employer in whose employment claimant was injured was directed to pay benefits based upon claimant’s average weekly wages from both employments per §14(6). Prior to the §14(6) being amended in 2007, the statute provided that an employer required to pay compensation to a concurrently employed worker based on the average weekly wages of all concurrent employments was eligible for reimbursement from the Fund for any additional benefits paid in excess of the benefits that would have been paid without concurrent employment. The 2007 amendment provided that the Fund would only be available for claims presented in accordance with the newly enacted §15(8)(h)(2)(A) which, as relevant here, bars an employer from filing a claim for reimbursement from the Fund for an injury with a date of accident or disablement on or after July 1, 2007. The employer contends that either (1) without the ability to be reimbursed by the Fund, it is no longer required to pay those additional benefits or (2) the Fund has not been closed to requests for reimbursements in that the amendment only places a time limit on applications for reimbursement. The Court noted that it has already considered and rejected these arguments, most recently in Hope v Warren County Bd Elec Prevailing party represented by: Michael S. Joseph of counsel to James Trauring & Associates (Schenectady) for William A. Thomas, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent Commissioners of Record: Ferrara, Williams, Higgins WCB #011 9384 [21161-7693]
Sangare v Edwards January 19, 2012 NYS Appellate Division, First Department §11: Election of Remedies «»3001…§ 11: Election of Remedies
AFFIRMED the Supreme Court, New York County denial of defendant (Dermer) motion to refer the matter to the Workers’ Compensation Board to determine whether plaintiff was Dermer’s special employee at the time of his injury. The Court’s denial was based on the late filing of the motion. Other than amending its defense ito include a workers’ comp defense, asserting that as a special employee of Dermer, plaintiff’s sole and exclusive remedy was workers’ compensation, Dermer did not otherwise raise or pursue the workers’ comp issue during the course of the litigation. The Appellate Court explained that “that Dermer was attempting to obtain via this motion relief it could no longer obtain by motion for summary judgment. Dermer may not, at this belated juncture, invoke the primary jurisdiction of the WCB as a means of further delaying the litigation.” [21161-7692]
Engoltz v Stewarts January 12, 2012 NYS Appellate Division, Third Department §114-a: Fraud «»5130…§114-a: Fraud
REVERSED the Board’s decision that claimant violated WCL § 114-a and was disqualified from receiving additional wage replacement benefits. The Court determined that the Board’s determination that the claimant “knowingly [made] a false statement or representation as to a material fact” for the purpose of receiving benefits” was based on the Board’s misinterpretation of the claimant’s response to the carrier questionnaire. The questionnaire asked if he had been “receiving any earnings”, to which he responded in the negative as he had not, even though the Board, based on the claimant’s own testimony, described his volunteer activities for which he did not get paid as the equivalent of work. The Court added a footnote which is basis for their reversal:
It is notable in this case that, instead of asking whether claimant was or had been employed or had returned to work in any capacity (see e.g. Matter of Bottieri v New York State Dept. of Taxation & Fin., 27 AD3d 1035 [2006]), the questionnaire here asked only whether claimant had been receiving “earnings,” which was specifically defined as “cash, wages, or salary received from self-employment, any employer other than the employer where you were injured, commissions or bonuses, cash value for all payments received in any other method other than cash (such as a building custodian receiving an apartment rent free).”
Prevailing party represented by: Mary J. Mraz of the Law Office of Mary J. Mraz & Associates (Albany) for appellant Commissioners of Record: Ferrara, Libous, Paprocki WCB #5941 2939 [21160-7691]
►The Appellate Court has affirmed the Board on the three §114-a fraud cases that came before it in 2011: two for the claimant and one for the carrier.
Johnson v Anheuser Busch January 12, 2012 NYS Appellate Division, Third Department Aggregate Trust Fund
Decision Inadequately/Poorly Written «»5250…Aggregate Trust Fund 7200…Decision Inadequately/Poorly Written
REVERSED the Board’s ruling that directed the carrier to make a deposit into the aggregate trust fund (ATF) pursuant to WCL §27(2). After a Law Judge in 2005 determined that claimant had a PPD and therefore, per §27(2) directed the carrier to make a mandatory deposit of the full present value of claimant’s future benefits into the ATF, the Special Disability Fund (Fund) conceded that it would be liable for reimbursement of 50% of the award per WCL §15[8]. [ED. NOTE: Although the appeal in this decision was on a November 3, 2010 MoD, the carrier and Fund also had appeals on this issue to which the Board responded in MoD’s on August 6, 2008 and February 2, 2010, the latter resulting in the non-FBR review but nonetheless amended decision subject to this appeal.] In light of the concession by the Fund, the Board found that, while a deposit into the ATF by the carrier was no longer mandatory, it was nevertheless within its discretion to order the carrier to deposit the full amount of the benefits into the ATF. However, finding that an order to deposit the full amount would not be “an equitable application of the statute,” the Board directed the carrier to deposit only its 50% share of the award into the ATF. The Court ruled, “While it is within the Board’s discretion to direct the carrier to make a deposit into the ATF in this case, it must iterate the basis for doing so in its decision. Here, as the Board did not provide any rationale for exercising its discretion to order the carrier to make a deposit into the ATF, its decision is insufficient to permit meaningful appellate review” and must be remitted for further findings. Prevailing party represented by: Robert E. Geyer of counsel to Wolff, Goodrich & Goldman (Syracuse) for appellants. Commissioners of Record: Lower, Foster, Bell WCB #6040 3990 [21160-7690]
►This is the frist time since this site has been tracking cases that the Board has been reversed on an ATF issue.
Blotko v Solomon Oliver January 5, 2012 NYS Appellate Division, Third Department Employment: Who is «»3030__Employment: Who is or dual
AFFIRMED the Board’s ruling that claimant was not an employee of Solomon Oliver Mechanical Contracting (SOMC). Claimant sustained injuries at a building that was being demolished by SOMC who won the contract with a lower bid than the claimant’s own firm. Claimant then spoke with SOMC’s about whether some of the laborers who had worked for his company could work at the demolition site to which SOMC agreed. Although claimant contended that SOMC also hired him, a Law Judge found that an employer-employee relationship did not exist between claimant and SOMC. Despite proof in the record that would support a contrary conclusion, the Court found no basis to disturb the Board’s decision that claimant was not SOMC’s employee. Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for SOMC and another, respondents. Commissioners of Record: Foster, Higgins, Libous WCB #0082 7054 [21158-7689]
►With the exception of Choto v Consolidated Lumber (3/10/2011), The Board has always been affirmed in its decisions on this issue.
Cary v Salem CSD January 5, 2012 NYS Appellate Division, Third Department Medical Exams: Frequency «»5200…Medical Exams: Appointments
REVERSED the Board’s decision which incorrectly rescinded awards made by a Law Judge and which denied claimant’s request for a Full Board Review because of gaps in medical reports. After suffering injuries in June 2003 and then returning to work with restrictions in November 2003, a Law Judge in 2009 awarded reduced earnings benefits from January 2004 to July 2009, with the awards to continue forward, a decision reversed by a Board panel who concluded that claimant had not submitted medical evidence in the form of progress reports from her treating physician supporting a finding of a continuing causally related disability every 45 days as required and, rescinded claimant’s R/E awards for various time periods between April 11, 2005 to July 10, 2009 representing gaps between the submission of the progress reports that were greater than 45 days.
The Court recognized that “there is no presumption of continuing disability under the Workers’ Compensation Law” and that a claimant’s treating physician is required to submit progress reports reflecting a continuing disability “at intervals of not less than three weeks apart or at less frequent intervals if requested on forms prescribed by the [C]hair” although “[t]he [B]oard may excuse failure to give such notices within the designated periods when it finds it to be in the interest of justice to do so” (WCL §13-a[4][a]). And while there were gaps between the submissions of the medical reports, the unequivocal and unchallenged medical evidence in the record establishes that claimant was disabled during that entire time period such that “The gaps in the reports, standing alone, do not constitute substantial evidence supporting the recision of claimant’s reduced earnings awards under these circumstances.” Prevailing party represented by: Christopher R. Lemire of counsel to Lemire & Johnson (Malta) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5030 9752 [21158-7688]
Catapano v Jaw January 5, 2012 NYS Appellate Division, Third Department § 29: 3rd Party/MVA liens «»3160…§ 29: 3rd Party/MVA liens
AFFIRMED the Board’s decision which, found that the Special Disability Fund’s (Fund) consent to a third-party settlement was required, a decision issued by the Board after this same Court on May 20, 2010 reversed the Board’s November 24, 2008 ruling against the Fund. After the claimant was injured, the claim established, and §15(8)(d) liability established, claimant settled a 3rd party law suit with the consent of the carrier but not the Fund. After the Board initially held that the Fund’s consent was not required, the Court returned it to the Board determining that its decision was inconsistent with Board precedent and because the Board did not set forth its reasons for deviating from the precedent. Now the Board ruled that the Fund’s consent to the settlement was required and the carrier’s failure to obtain such consent resulted in a forfeiture of further reimbursement from the Fund. The Court added, “Inasmuch as the Board’s decision [ED NOTE: this time] represents a rational, consistent interpretation and application of the relevant statute, we will not disturb it.“ Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee Commissioners of Record: Ferrara, Libous, Higgins WCB #0952 8461 [21158-7687]
►In 2010 and 2011, The Board has been affirmed only 3 times in its 9 decisions on §29 issues.
Eaton v Dellapenna Assoc January 5, 2012 NYS Appellate Division, Third Department Disability: Degree of «»5020…Disability: Degree of or R/E
AFFIRMED the Board’s decision that claimant sustained a permanent total disability. After claimant’s 2001 injury prevents him from returning to work, medical treatment authorized and awards were made at a tentative rate. In 2003, he began receiving Social Security disability benefits and underwent surgery, which only relieved his pain temporarily. After claimant was classified in 2009 with a permanent partial disability, the case was continued on the issue raised of claimant’s attachment to the labor market, after which a Law Judge modified claimant’s prior classification and determined that he had a permanent total disability. The claimant’s treating physician testified given, among other things, claimant’s detailed physical restrictions and the fact that his chronic pain is controlled by narcotic medications, it was his opinion that claimant was disabled from even sedentary employment, regardless of the fact that not all of these concerns were addressed by the Board’s medical guidelines. While claimant testified that he had sporadic good days when the pain was not as severe and the record contains medical proof that could support a finding that claimant continued to suffer only a permanent partial disability, the Board specifically found the physician’s testimony regarding claimant’s limitations and unemployability to be credible. Prevailing party represented by: Anna Dmitriev of counsel to Coughlin & Gerhart (Endicott) for Larry Eaton, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #9010 5224 [21158-7686]
►The Board’s decisions on this issue have always been confirmed (1 in 2011 and 5 in 2010).
Franco v Peckham Ind January 5, 2012 NYS Appellate Division, Third Department Disability: Further Causally Related «»5030…Disability: Further Causally Related/Comp
AFFIRMED the Board’s decision that claimant’s newly developed medical condition was not consequential and thus he had no further causally related disability. After injuring his back in April 2004, claimant’s case was established, and awards made. In September 2004, he received epidural steroid injections to relieve his back pain. After he was hospitalized and treated for tuberculosis myelitis in October 2004, he sought to amend his claim to include tuberculosis myelitis as a consequential injury. The Board, based on reports from an impartial specialist, concluded that there was insufficient evidence of a causal relationship to include tuberculosis myelitis. Then it determined claimant’s had no further work-related injury subsequent to June 9, 2006. The Court ruled that, “inasmuch as claimant did not appeal from the Board’s determination not to amend the claim to include consequential tuberculosis myeletis and did not re-present the issue in its application for Board review, such claim is unpreserved.” The Board’s final decision was that claimant’s present disability was not related to his workplace injury but was solely due to the subsequent, unrelated tuberculosis myeletis condition. Prevailing party represented by: Sara Thomas of counsel to Jones, Jones (NYC) for Peckham Industries, Inc. and another, respondents. Commissioners of Record: Ferrara, Libous, Paprocki WCB #3040 4511 [21158-7685]
►The Board’s decisions on this issue have been confirmed in 5 of 6 cases in 2011/2010 with one being rescinded.
Hosey v Central NY DDSO January 5, 2012 NYS Appellate Division, Third Department § 25-a: True Closing «»3140…§ 25-a: True Closing
AFFIRMED Board’s decision that WCL §25-a is not applicable. After receiving benefits for a 2000 back injury, in 2009 the carrier sought to have liability shifted to the Special Fund for Reopened Cases (Fund) per WCL §25-a. While a Law Judge agreed, a Board panel found that the case had not truly been closed and, reversed the Law Judge. In this case, even though the claimant had been working continuously with the same restrictions since 2002, had no compensable lost time, and was receiving ongoing payments for medical treatment, and his treating physician in 2002 indicated claimant had a permanent disability, the issue of permanency was not formally addressed and therefore remained unresolved and thus, legally, still open. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee. Commissioners of Record: Lower, Paprocki, Bell WCB #6011 2921 [21158-7684]
Jennings v Avanti Express January 5, 2012 NYS Appellate Division, Third Department Employment: Who is «»3030__Employment: Who is or dual
AFFIRMED the Board’s ruling that claimant’s decedent husband was an employee. After decedent died in an MVA, the employer contended that the claimant, a courier, was an independent contractor, not an employee. In affirming the Board, the Court noted that a Law Judge, affirmed by a Board panel, found there was an employer-employee relationship based on a record which revealed that the employer determined the decedent’s delivery schedule, provided decedent with a vehicle, an E-Z Pass for the payment of tolls, and GPS device. Further, the employer required decedent to dress in a certain manner and the employer paid decedent through a payroll service on a weekly basis according to a formula devised by the employer. Prevailing party represented by: Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #3080 6361 [21158-7683]
Nassar v Masri Furniture January 5, 2012 NYS Appellate Division, Third Department Causal Relationship: PFME, et al «»1030…Causal Relationship: PFME, et al
AFFIRMED the Board’s ruling that claimant sustained a causally related injury. Claimant injured his back in April 2005 while working the employer, a furniture company, monitoring warehouse stock and making deliveries while he was lifting furniture. The pain increased such that two weeks later, while claimant was unloading furniture from more containers, the pain was such that he was unable to continue working, after which he did not return to work and filed a workers comp claim. The Board ruled that claimant sustained a causally related injury. Both claimant and a coworker testified that claimant was working for the employer lifting furniture when he hurt his back and neck and both further stated that the pain continued thereafter, requiring claimant to cease working. The Court agreed with the Board that (1) inconsistencies in the testimony or contrary testimony given by the employer presented a credibility issue for the Board to resolve and (2) uncontradicted medical evidence established a causal relationship between claimant’s injury and the disability to his back and neck.. Prevailing party represented by: Mark Du of counsel to Law Office of Joseph A. Romano (NYC) for Sam Nassar, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Paprocki, Higgins WCB #0051 8317 [21158-7682]
►Because the Court gives discretion to the Board, the Court has affirmed the Board on all cases on this issue in 2010 and 2011, all but three for the claimant.
Nichols v Hale Creek ASACT January 5, 2012 NYS Appellate Division, Third Department Course of Employment: Special Events «»1110…Course of Employment: Special Events
AFFIRMED the Board’s decision that claimant’s injury, coaching company volleyball team, arose out of and in the course of his employment and awarded workers’ compensation benefits. Claimant, the superintendent of a correctional facility, suffered an injury while coaching an employee volleyball team preparing to compete in the “Department of Correction Olympics“, a claim unsuccessfully controverted by the carrier. Although WCL §10 states that an injury is not compensable when it is sustained during voluntary participation in an off-duty athletic activity that does not constitute part of an employee’s work-related duties, the record in this case supported the Board’s decision that this was not a purely voluntary participation, to wit, claimant was given specific direction to improve staff morale including encouraging employee participation and his coaching the volleyball team. Moreover, claimant’s supervisor testified that she evaluated staff morale as part of her assessment of superintendents’ leadership ability and that there is an expectation that superintendents be involved with as many facility-related events as possible. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #006 9793 [21158-7681]
►There were no cases on this issue in 2009 to 2011.
Potter v VM Paolozzi January 5, 2012 NYS Appellate Division, Third Department Course of Employment: in and out of «»1100…Course of Employment: in and out of
AFFIRMED the Board’s ruling that claimant’s injury, on a dinner ‘run’ arose out of and in the course of his employment. Claimant, an automobile salesperson, was injured while driving his personal car while on an authorized break for which he had requested and received permission from his supervisor to briefly leave work to go to pick up and bring back two spaghetti dinners for the employer’s finance manager. The finance manager had purchased the dinners as part of a fundraiser sponsored by a football team that claimant helped run on a voluntary basis. The Court wrote “Accidents that occur during an employee’s short breaks, such as coffee breaks, are considered to be so closely related to the performance of the job that they do not constitute an interruption of employment.” Among other indicia, claimant’s supervisor testified that it was customary to allow salespeople to leave the dealership on short paid breaks, thus providing substantial evidence to support the Board’s determination that claimant’s short break did not constitute an interruption of employment. Prevailing party represented by: Timothy J. McMahon of counsel to McMahon, Kublick & Smith (Syracuse) for Richard Potter, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #014 8055 [21158-7680]
►Because the Court gives discretion to the Board, the Court has affirmed the Board on all cases on this issue in 2009, 2010, and 2011, splits between claimants and carriers.
Richman v NYS Unified Court January 5, 2012 NYS Appellate Division, Third Department § 21: Unwitnessed Death/accident «»1001…§ 21: Unwitnessed Death/accident
AFFIRMED the Board’s ruling that §21 presumption supported establishing the claim despite the paucity of evidence. [ED. NOTE: As you can read below, this case has a rather interesting history.] Claimant, a court reporter, was found unconscious at her workplace and rushed to a local hospital, where she was diagnosed with a subarachnoid hemorrhage caused by a ruptured basilar artery aneurysm. Although she remains in a comatose state, a claim which was filed was controverted by the carrier, asserting that the ruptured aneurysm was not related to claimant’s employment. A Law Judge and the Board panel found that the employer did not overcome the presumption of compensability set forth in WCL §21(1). While the employer’s expert opined that claimant’s ruptured aneurysm was unrelated to her employment, the Board agreed with the Law Judge that the expert’s report and testimony were not credible – in large measure because he was evasive when questioned as to whether work-induced stress could raise a person’s blood pressure high enough to cause an aneurysm to rupture. Contrary to the employer’s argument, the Board, which “is the sole arbiter of witness credibility” was not required to wholly credit the expert’s opinion on this point simply because it was the only expert proof presented. Prevailing party represented by: Felice Sontupe of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #0074 3840 [21158-7679]
►The only other case on this issue in 2011 was also affirmed but favored the carrier.
[ED. NOTE: On April 23, 2008, a Law Judge denied the claim for lack for prima facie medical evidence (PFME). On November 24, 2008, the Board denied an appeal as being late: “Further, since the claimant’s attorneys fail to indicate why a timely application could not have been filed in this matter, the Board Panel declines to exercise its discretionary authority under Workers’ Compensation Law 123.” But then, in a Full Board Review, the Board, without giving any reason other than its continuing jurisdiction under §123, reversed itself, accepted the appeal, and returned it to the Law Judge to again reconsider the PFME, at which point the Law Judge did just that, accepting the claim. When I was at the Board, I was one of several commissioners who fought to keep a strict interpretation of 30 days for §23 appeals, unless there was some exceptional reason to excuse a late appeal, the exceptional reason to be clearly noted in the Board panel decision so as not to give the impression of arbitrariness or capriciousness by the Board. In this case, no reason was given for the Board’s total about face on this issue from which one can infer it was not any fact in this case that prompted the reconsideration,
Satalino v Dans Supreme January 5, 2012 NYS Appellate Division, Third Department Causal Relationship: PFME, et al «»1030…Causal Relationship: PFME, et al
AFFIRMED the Board’s ruling that claimant did not suffer a causally related disability. Working at a grocery store for 35 years, claimant’s duties included unloading delivery trucks, stacking boxes and stocking store shelves. In January 2009, he had the first of two surgeries on his lumbar spine, never returning to work and filing a comp claim in November 2009, alleging that his condition was causally related to his employment. Although a Law Judge determined that he suffered an occupational disease to his lumbar spine, a Board panel reversed. Pursuant to the WCL §2[15], an occupational disease is “a disease resulting from the nature of employment and contracted therein“. Further, to be entitled to benefits based upon an occupational disease, “the claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her employment” Finally, medical opinions regarding a causal relationship “must signify ‘a probability as to the underlying cause’ of the claimant’s injury which is supported by a rational basis”. Although claimant’s physicians found disc herniation, arthritis, spondylolisthesis and stenosis, one testified that he could not find a relationship between claimant’s condition and his employment and he could not opine whether the herniations were related to claimant’s work or chronic disc degeneration, further testifying that claimant’s arthritis, stenosis and spondylolisthesis could be related to claimant’s age and not his job. Although his surgeon suggested possible causal relationship, he had initially indicated in an application for disability benefits that claimant’s condition was unrelated to his employment. Noting that the Board is free to reject medical opinions where an expert does not testify convincingly in support of a causal relationship, The Court “conclude[d] that the Board did not abuse its discretion in determining that claimant failed to establish a recognizable link between his condition and his employment.” Prevailing party represented by: Elissa Landa of counsel to Fisher Brothers (NYC) for Dan’s Supreme Supermarket and another, respondents Commissioners of Record: Bargnesi, Higgins, Bell WCB #019 2244 [21158-7678]
►Because the Court gives discretion to the Board, the Court has affirmed the Board on all cases on this issue in 2010 and 2011, all but three for the claimant.
—— December 2011 ——
Morphew v Aero December 29, 2011 NYS Appellate Division, Third Department §29: Apportionment of legal fees
RESCINDED the Board’s decision that the claimant was not entitled to reimbursements for certain expenses from his 3rd party law suit. After being awarded comp benefits for a March 2004 work accident, claimant commenced a third-party action, received a settlement offer of $725,000, and then received the carrier’s consent. In its consent, the carrier asserted a lien in the amount of $132,002.63 for compensation payments already made [The total amount of the workers’ compensation payments to claimant prior to settlement was $201,053.98, and the carrier accepted the reduced amount to account for its equitable share of the litigation costs commensurate with that figure.]. Additionally, the carrier “specifically reserve[d] its rights to claim a credit and offset for the net amount of the settlement payable to [claimant] against any prior, subsequent or future claim for [w]orkers’ [c]ompensation indemnity and/or medical benefits arising out of this occurrence.” The carrier then suspended its indemnity payments to claimant based upon its offset against claimant’s proceeds from the settlement. After the Board classified claimant with a moderate to marked permanent partial disability, claimant requested further action and a Law required the carrier to contribute its share of the litigation costs associated with the offset amount by paying claimant a discounted rate of indemnity. On appeal, the Board reversed, finding that an award of such payments to claimant would alter the terms and conditions of the settlement consent agreement, which was beyond its jurisdiction.
Because “carriers are obligated to contribute the costs of litigation in proportion to the total benefit that they receive”, the carrier has a legal obligation to “pay its equitable share of litigation costs as benefits accrue” even in cases in which future benefits are too speculative to apportion the carrier’s litigation costs at the time of settlement. The Court essentially stated that, contrary to the Board’s position, Burns v Varriale, 9 NY3d 207, 214 [2007]did apply. “Although, in its consent to settlement, a carrier may seek to be released from its affirmative obligation to pay its share of litigation expenses, it is ‘required to express that release plainly and unambiguously in the consent to settlement agreement’. Thus, contrary to the Board’s determination that it lacked jurisdiction, whether the carrier ‘plainly and unambiguously’ absolved itself of its continuing responsibility to contribute to the litigation costs consistent with its offset is a question of fact for the Board to resolve and, accordingly, the matter must be remitted.” Prevailing party represented by: Justin S. Teff of counsel to Law Office of Ralph M. Kirk (Kingston) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #5040 5518 [1D158-7677]
Coyle v Midwest Steel December 22, 2011 NYS Appellate Division, Third Department Voluntary Withdrawal
REVERSED the Board’s decision that claimant’s lost earnings were not causally related to claimant’s work-related disability while also ruling that the claimant did not voluntarily withdraw from the labor market. As the result of an established claim for an injury to his left knee in 1998, claimant underwent multiple knee and hip replacement surgeries, and consequential compensable injuries to his back and right hip were established. After the light duty position to which he returned in June 2009 was eliminated in August 2009, claimant was offered a full-duty position as an ironworker, but feeling that he could not accept the position due to his medical restrictions, he retired. Payments were made to the claimant until December 2009 when the carrier raised the issue of claimant’s voluntary removal from the labor market. In December 2009, a law judge ruled that the claimant was entitled to continued benefits and, then in February 2010, ruled the claimant had involuntarily retired due to his causally related disability. A Board panel affirmed the December 2009 decision, but reversed the February 2010 decision, denying further benefits due to claimant’s failure to maintain a sufficient attachment to the labor market subsequent to December 12, 2009, prompting a pro-se appeal.
In reversing the Board, the Court wrote, “The Board’s finding that claimant’s retirement was involuntary ‘gave rise to an inference that his reduced earning capacity continued after retirement’. That inference is removed only by ‘direct and positive proof that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement’. Further, ‘[p]roof that the claimant has not sought work postretirement, by itself, does not defeat the inference or shift the burden to [the] claimant to show that the disability was a cause of the reduction’ . Rather, the employer or workers’ compensation carrier ‘must demonstrate that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement, such as age, economic conditions or other factors unrelated to the disability. Here, the Board relied solely on the fact that claimant failed to actively search for employment or avail himself of any employment services after retirement in denying him further benefits. Given the lack of any proof by the employer that something other than claimant’s disability was the sole cause of his reduced earnings after retirement, we conclude that the Board’s determination denying claimant further benefits is not supported by substantial evidence and must be reversed.” Prevailing party represented by: Mark Du of counsel to the Law Office of Joseph Romano (NYC) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0985 8460 [1D157-7676]
[ED. NOTE:] It seems that the Board did a review on its own motion of this same June 4, 2009 decision for which the 3rd Department has just issued the above opinion. Based on that review, issued September 29, 2011, the Board panel determined that Full Board Review was not warranted, had determined that the MOD should be amended, and, in effect, reversed itself, finding involuntary withdrawal from the labor market. While one can agree or disagree with the result of the Board panel’s ‘voluntary’ review of its own decision, one is prompted to ask, “At what point does a Board panel decision become final if the Board can change its mind when the fancy (or a politician’s phone call) generates an arbitrary review and reversal?”]
►While we await what will be a clarification on the issue of Voluntary Withdrawal From the Labor market, the record shows that the Board has a failing grade on this issue this year, getting only 7 of 11 affirmances (63%) of its decision to date.
Lewis v Stewarts Marketing December 22, 2011 NYS Appellate Division, Third Department Untimely Submissions/Defenses
REVERSED the Board’s ruling that claimant sustained a permanent total disability because the Board denied the carrier the right to cross examine witnesses. In 2008, the employer sought a hearing to determine the degree and permanency of claimant’s disability for injuries sustained in a compensable accident in 1997. After claimant provided an updated medical report indicating that he had a permanent total disability, the employer submitted an independent medical report indicating that claimant suffered a moderate partial disability of a permanent nature and was capable of performing some type of work. A law judged denied the employer’s request to cross-examine claimant and his physician concerning claimant’s ability to work, determined that claimant had a permanent total disability, and awarded benefits with videotapes proving §114-a fraud. In reversing the Board, the Court agreed with the carrier that its request to cross-examine claimant and his physician was improperly denied since they did make a timely request to do so (see 12 NYCRR 300.10 [c]). In its reversal the Court also noted that “Moreover, inasmuch as the record contains conflicting medical reports regarding the nature of claimant’s disability, denial of the employer’s request to cross-examine claimant’s physician clearly prejudiced the employer.” Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for appellants. Commissioners of Record: Higgins, Libous, Foster WCB #6980 0429 [1D157-7675]
[ED. NOTE:] The carrier had also sought a ruling on §114-a but the Law Judge and Panel determined that medical reports found the claimant totally disabled, and did not directly rule on the §114-a issue. The carrier then raised this issue again with new evidence and, in a December 8, 2009 decision, was hit by a Law Judge with a §114-a(3)(i) penalty for raising this issue, an issue for which no decision (certainly not noted in any of the Board panel MOD’s) had previously been rendered. The carrier’s appeal to the Board on this penalty was not only denied but the carrier was then hit with a $500 penalty under §23 for a frivolous appeal. Yet (1) the record show that the Board had yet to rule on the fraud issue and (2) the decision of the Appellate Court to remand for testimony on both degree of disability and work ability would appear to make the videotapes and investigator’s report, the basis of the fraud claim, neither a waste of the Board’s time nor a frivolous appeal. Or did I miss something?]
►This is the first case on this issue to make it to the Appellate Court since posting started here in late 2008
Carlineo v Snelling & Snelling December 15, 2011 NYS Appellate Division, Third Department Employment: Temp Worker
AFFIRMED the Board’s ruling that Snelling & Snelling (S&S), a temp agency, was solely liable for workers’ compensation benefits paid to claimant. Claimant obtained his position with F.T. Well Support, through S&S, LLC, a temporary employment agency. His claim was established after he injured both of his legs in a work-related motor vehicle accident while working at the location of Fortuna Energy, a client of FT Well. S&S was ordered to pay temporary awards and the case continued on the issue of general/special employment with S&S contending the either/or both Fortuna and FT Well were totally or partially liable for the claim. After claimant and FT Well testified, the Law Judge found that S&S was claimant’s employer and there was no special employment relationship with Fortuna. There were numerous appeals and Board panel decisions regarding testimony by S&S and its witnesses but ultimate the Board determined that S&S was provided a full and fair opportunity to develop the record. S&S’s appeal to the Appellate Court on this issue was dismissed as interlocutory. The Law Judge determined that claimant was a special employee of FT Well, and not any other entity, but that S&S was 100% liable for payment on the claim pursuant to the contract between S&S and FT Well. Although claimant and FT Well testified that FT Well set claimant’s hours, directed and supervised his work and provided the necessary equipment, substantial evidence supports the Board’s determination that S&S is solely liable for payment of the claim: S&S obtained workers’ compensation insurance for the temporary employees that it provided to FT Well and part of the fees that FT Well paid to S&S were intended to include the cost of such coverage. Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy respondent. Commissioners of Record: Ferrara, Finnegan, Bell WCB #5050 7422 [1D156-7674]
►This is the only case in 2009, 2010, and 2011 regarding the employment relationship and ensuing liability of a temp agency towards an injured worker.
Dudas v Town of Lancaster December 15, 2011 NYS Appellate Division, Third Department §18 notice to employer
AFFIRMED the Board’s ruling that denied the claim’s establishment [ED. NOTE: see ED. NOTE below] for what appears to be late notice, while rejecting the carrier’s argument that claimant did not give timely §18 notice of injury. Claimant allegedly injured his right ankle on February 28, 2007 when he slipped on a patch of ice at the employer’s Town Hall. He continued to work and did not seek medical treatment until March 9, 2007 when he presented at the local emergency room complaining of pain and swelling. A review of the March 9 emergency room report indicated that the claimant injured his right ankle when he fell off a porch whereas a review of additional medical records, including the medical opinion of the carrier’s consultant, show that the history provided by the claimant was that he injured himself at work, when he slipped on some ice. When these symptoms persisted, claimant sought treatment from an orthopedist in May 2007 following which the prospect of surgical intervention was discussed. Despite his ongoing difficulties and treatment, he did not report his injury to the employer until June 27, 2007.
The carrier initially authorized medical care, but then controverted the claim following receipt of the emergency room records, which indicated that claimant twisted his ankle falling off a porch, thus raising a question as to whether the underlying injury actually was work related, a question first brought to the Board’s attention by the carrier two months after receiving the emergency room report. Following a hearing, Law Judge found that claimant failed to timely report the accident and disallowed the claim.
While the claimant asserted that the employer waived the defense of timely notice, the carrier had shown that its receipt of the claimant’s emergency room records constituted “newly discovered evidence” sufficient to allow the late filing of its notice of controversy. The Board panel then addressed the issue of, “How soon after the receipt of newly discovered evidence must the notice of controversy be filed.” While the carrier argued that there is no time limit in the statute or regulations, the Board agreed with the Law Judge who found that the notice of controversy must be filed “within a reasonable period of time” after the newly discovered evidence is discovered, although neither of these decisions set a fixed date for such, finding that in this case that the notice of controversy was “unreasonably” late.
Nonetheless, the Court affirmed the Board’s denial of the claim, asserting, “Here, despite ongoing symptoms, claimant continued working and delayed both reporting the accident and seeking treatment, which may well have permitted claimant’s condition to worsen and, more to the point, prevented the employer from promptly investigating the underlying incident. Under these circumstances, we cannot say that the Board abused its discretion in disallowing the claim.” Prevailing party represented by: Russell D. Hall of counsel Hamberger & Weiss (Buffalo) for Town of Lancaster and another, respondents. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB# 8071 2755 [1D156-7673]
[ED. NOTE:] The Board panel decision states, “the WCLJ found that the evidence supported finding that the SIE failed to timely controvert the claim. . . In addition, the WCLJ also found that the claimant failed to timely provide notice to his employer and disallowed the claim.” I am still not clear as to how the Law Judge, Board, and Court would find that the insurer failed to timely controvert the claim on the issue of notice and then disallow the claims because there was no timely notice.
Pucci v DCH Auto Group December 15, 2011 NYS Appellate Division, Third Department Reopening by claimant
AFFIRMED the Board’s rulings (1) which denied claimant’s application to reopen his claim, and (2) denied claimant’s request for reconsideration or full Board review. In October 2003, claimant, after sustaining work-related injuries, was awarded workers’ compensation benefits. Although he returned to work in December 2003, he left his employment with DCH in May 2004 and accepted a position at another firm at a lower rate of pay. Two months later, claimant requested a reduced earnings award, denied in August 2005 by the Board, finding that claimant left his job at DCH for personal reasons unrelated to his compensable injuries. The case was closed and claimant did not appeal that decision. In April 2008, claimant sought to reopen his claim again seeking a reduced earnings award. The Board affirmed the Law Judge concluding that such claim merely was a reiteration of the original claim filed in 2004 and denied in 2005 and that claimant had not set forth sufficient facts to warrant reopening the claim. Claimant’s subsequent application for reconsideration or full Board review was then denied.
The Court stated that, because the Board had already denied his original request for reduced earning in a decision never appealed, the merits of that claim were not properly before the Court. Although the Board may reopen, modify or rescind a prior determination (see 12 NYCRR 300.14 [a] [2]) where claimant presents proof that a material change in condition has occurred, “here the claimant relied solely upon the fact that he underwent back surgery in 2007 as well as other of his and his employer’s submissions,” it concurred with the Board’s findings of an insufficient basis upon which to reopen. Claimant’s remaining arguments, to the extent not specifically addressed, were been examined and found to be lacking in merit. Prevailing party represented by: Jill M. Johnson of counsel to Ryan, Roach & Ryan (Kingston) for DCH Auto Group, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5031 5308 [1N156-7672]
Elrac Inc v Exum December 13, 2011 NYS Court of Appeals §11: Jurisdiction Uninsured Motorist
We hold that a self-insured employer whose employee is involved in an accident may be liable to that employee for uninsured motorist benefits, notwithstanding the exclusivity provision of the Workers’ Compensation Law. Exum, while driving a car owned by and in the course of his employment with his employer Elrac, was in an accident with another car, driven by a person without liability insurance. Elrac was legally self-insured and thus had not obtained an insurance policy to cover the car Exum was driving. Exum served a notice of intention to arbitrate on Elrac, seeking uninsured motorist benefits, a notice stayed by a lower court but affirmed by the Appellate Division.
“Insurance Law § 3420 (f) (1) requires every policy of motor vehicle liability insurance to contain a provision requiring payment to the insured of all sums that the insured is entitled to recover as damages from the owner or operator of an uninsured motor vehicle. In Matter of Allstate Ins. Co. v Shaw (52 NY2d 818 [1980]), we held that a self-insurer had the same liability for uninsured motorist coverage that an insurance company would have. There is no policy reason why Exum’s uninsured motorist protection should decrease because he happened to be driving the car of a self-insurer.”
“But there is a difference between this case and Shaw: here the person claiming uninsured motorist coverage was an employee of the self-insurer. It is undisputed that Exum was entitled to workers’ comp from Elrac, and Elrac claims that he is therefore barred from recovering uninsured motorist benefits. Exum points out that we permitted an employee of a self-insurer to recover in Matter of Country-Wide Ins. Co. (Manning) (62 NY2d 748 [1984]), which involved essentially indistinguishable facts. Because we did not discuss the workers’ compensation issue in Manning, however, we assume that the issue is open.”
“Workers’ Compensation Law § 11 says: ‘The liability of an employer [for workers’ compensation benefits] . . . shall be exclusive and in place of any other liability whatsoever, . . .’ Although the words “any other liability whatsoever” seem all-inclusive, there are cases of which this is one in which they cannot be taken literally. Specifically, the statute cannot be read to bar all suits to enforce contractual liabilities. An action against a self-insurer to enforce the liability recognized in Shaw is, in our view, essentially contractual. The situation is as though the employer had written an insurance policy to itself, including the statutorily-required provision for uninsured motorist coverage. This action is therefore not barred by WCL §11” and the order of the Appellate Division should be affirmed. [1D156-7671]
Grilikhes v Intl Tile & Stone December 13, 2011 NYS Appellate Division, First Department 3030…Employment: Who is or dual
Supreme Court granted defendants International Tile & Stone Show Expos’s and Metropolitan Exposition Services’ motions for summary judgment dismissing the Labor Law §241(6) cause of action as against them. The plaintiff worked for a contractor (MES) who was on a list approved by the New York Convention Center Operating Corporation (NYCCOC), the operator of Javits. The terms of that between the exhibitor, New York Convention Center Operating Corporation (NYCCOC), the operator of Javits, allegedly gave MES all “Obligation to control the work site, and the responsibility of ensuring that the work contemplated by the permit was performed in a safe and proper manner.”
Plaintiff, who worked at the Javits Center and was injured while dismantling one of the exhibit booths, received his paycheck from NYCCOC as were the workers’ comp benefits he began to receive after the subject accident. He signed in at an NYCCOC desk and was then sent to an MES desk, to sign in there as well. MES gave plaintiff a list of tasks to complete each day and supplied him with all necessary work materials, including safety equipment, for which among other reasons, plaintiff considered MES his supervisor during the tile show.
Plaintiff commenced this action against MES and ITSS alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). MES moved for summary judgment dismissing the complaint on the ground that plaintiff was its special employee and therefore his claim was barred by Workers’ Compensation Law § 29(6). ITSS also moved for summary judgment, on the ground that it was neither an owner nor a contractor and therefore could not be held liable. The lower court granted both motions finding that (1) MES was plaintiff’s employer for workers’ compensation purposes since it told him what to do, and when and where to do it, and (2) because there was no evidence that NYCCOC retained any control over plaintiff once he left the NYCCOC sign-in desk in the morning. As for ITSS, The Appellate Court found that “[T]he key criterion is the right to insist that proper safety practices were followed. . . . Because ITSS had no authority or ‘Obligation to control the work site, and the responsibility of ensuring that the work contemplated by the permit was performed in a safe and proper manner . . ., it cannot be deemed an owner for purposes of Labor Law liability.’ ” Accordingly, its motion for summary judgment dismissing the § 241(6) claim was properly granted. [1D156-7670]
Like the case above involving a claimant working for a temp agency, the specific of this case are unlike any which have been to the Appellate Division in the last three years.
Smith v TWA December 8, 2011 NYS Appellate Division, Third Department Voluntary Withdrawal
AFFIRMED the Board’s ruling that the claimant voluntarily withdrew from the labor market. After filing a claim for injuries sustained while working as a baggage handler in 2001, claimant was awarded compensation benefits. Although a Law Judge determined that she had a permanent partial disability and had not voluntarily withdrawn from the labor market, a Board panel reversed. In this case, medical experts opined that claimant was capable of returning to work with some restrictions and claimant acknowledged that she had not worked since August 2001, she refused to return to work when her employer offered her the opportunity to do so, she made no efforts to seek other employment within her restrictions, and she failed to pursue available vocational or employment services. The Court agreed that, “Substantial evidence supports the Board’s determination that claimant voluntarily withdrew from the labor market.” Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for TWA and another, respondents. Commissioners of Record: Foster, Bell, Higgins WCB #0015 3845 [1N155-7669]
►In view of the upcoming Court of Appeals decision in the Matter of Zamora v New York Neurologic, the listing of prior cases for reference may well become moot.
Maye v Alton Mfg December 8, 2011 NYS Appellate Division, Third Department Hearing Loss
REVERSED the Board’s ruling by finding that the pro-se claimant had a further causally related disability. After claimant retired in March 1994, his work-related occupational hearing loss was established with a 59.5% binaural hearing schedule loss of use and the case was closed in 1997. In 2005,the claimant contended that the causally-related binaural hearing loss had increased to 71.56%. Although the Law Judge agreed, a Board panel in an amended decision reversed. Bearing the burden of establishing that a causal relationship exists between his injury and his employment, the claimant relied on the medical report of his treating otalaryngologist, who stated unequivocally that “[claimant’s] hearing loss is 100% causally related to his job.” The Court then noted that, “Inasmuch as there was no conflicting medical evidence presented here, the Board’s rejection of the treating physician’s uncontroverted medical opinion on causation was improper.”[ED. NOTE:] The Board panel, and subsequently, the full board apparently determined, incorrectly, that once the hearing loss was established, no further modification in the degree of disability would be accepted if they fell outside the time lines in §49-bb, a point emphasized in the amended decision. Prevailing party represented by: Bobby C. Maye Rochester, appellant pro se. Commissioners of Record: Finnegan, Paprocki, Bell WCB #7941 6753 [1N155-7668]
►No prior cases on this increase of a change in disability under §49-bb. The other two hearing loss cases in 2010 dealt with establishing the case.
Ortiz v Rose Nederlander December 8, 2011 NYS Appellate Division, First Department Employment: special employee
DENIED defendants’ motion for summary judgment dismissing the complaint as defendants failed to demonstrate that plaintiff was their special employee and, thus, barred from maintaining this personal injury action under the WCL. The claimant brought this civil action after being injured during the course of her employment cleaning defendants’ theater. The record shows that plaintiff was compensated by nonparty Nederlander Producing Company of America (NPCA), which was also her supervisor’s employer. Although identifying the entity which controlled the work of plaintiff’s supervisor is highly probative of who controlled the injured plaintiff’s work, the record does not support defendants’ assertion that they controlled the work of plaintiff’s supervisor. Moreover, the fact that defendants and NPCA appear to be affiliated, does not establish, as a matter of law, that they were “alter egos or joint venturers for the purpose of barring plaintiff’s claims under the Workers’ Compensation Law“. The argument that NPCA was merely a “common paymaster” is not dispositive of the special employer issue as the record showed that NPCA also entered into an employment contract with plaintiff’s supervisor. Furthermore, even if one defendant funded NPCA’s payroll, such fact is just a single factor militating in favor of a special employment relationship. Standing alone, and without, inter alia, the additional showing that, defendants directed and controlled plaintiff’s duties, or the existence of a contract by which defendants directly undertook duties in relation to plaintiff, the funding-source element is not dispositive. [1N155-7667]
Zamora v New York Neurologic Decision dated :not yet issued NYS Court of Appeals Voluntary Withdrawal from the Labor Market
Because of the potential impact of the decision in this case on those thousands of injured workers whose fate rests on the Board’s determination if they have or have not voluntarily withdrawn from the labor market, I have written a COMMENTARY on this case along with my prediction of the ultimate decision. Click here for the link.
Sauers v K-Mart Corp December 1, 2011 NYS Appellate Division, Third Department 25-a: True Closing
RESCINDED and returned to the Board for proper review the Board’s ruling that §25-a did not apply. The basic question was whether or not the deferral of a medical procedure commended during a medical examination just prior to the end of a seven-year period which would have transferred the case under §25-a. In this case, the claimant’s medical provider recommended surgery during an exam on March 17, 2009,two weeks prior to the seven-year anniversary of her April 1, 2002 injury, the date after which the claim would have been transferred under §25–a. The claimant shortly thereafter decided to defer what she considered to be very serious surgery and opted for remediation of her pain through prescriptions rather than surgery. A few weeks later, after the seven-year period elapsed, she decided that medication was not working and requested the surgery. The carrier argued that the case was closed based on the March 17 exam in the claimant did not pursue surgery. The Board determined that the March 17, 2009 report kept the case open whereas the carrier argued that the case was closed when the claimant decided not to proceed with surgery and was then reopened after the seven-year period when the claimant decided to pursue surgery. The court determined that the Board could not consider whether or not the claimant’s deferral and then reconsideration constituted a form of closing and reopening and therefore sent it back to the Board review. [ED. NOTE:] In my opinion, the claimant’s deferral to await the results of using medication meant that a clearly foreseeable event (her decision) would be forthcoming in the immediate future which meant that the case was not closed. Had the board taken the time to review the carriers appeal rather than focusing on a daily March 17 exam, there would have been no delays in resolving this case nor the cost of thousands of dollars incurred by both sides as a result of this totally unnecessary appeal.] Prevailing party represented by: John M. Cordon Jr. of counsel to Hamberger & Weiss(Buffalo) for appellants. Commissioners of Record: Ferrara, Libous, Paprocki WCB #4020 8675 [1D154-7666]
InsideWorkersCompNY is the creation of Michael T. Berns, a former Board Member/Commissioner of the New York State Workers Compensation Board, based on the insight developed during 12 years of service including participation in more than 40,000 decisions and 10,000 hearings.
Updated weekly, this website will impart an understanding of the New York State WCB that will help the workers comp community better understand why the WCB does what it does and how to deal its many inconsistencies and bureaucratic obfuscations as well as giving the community and Board staff an anonymous bulletin board.
Behind The Closed Doors:An insider’s look at how things really work at the NYS Workers Comp Board and how to fix them. Click here for details.
COURT DECISIONS: a weekly update of workers comp related decisions from the New York’s Appellate Division, Court of Appeals, and other jurisdictions, and a list of the “winningest” attorneys for the year. NEWSWIRE: a weekly listing of key developments from the media as well as various state agencies. COMMENTARY: my comments on key topics, work related injuries, major court decisions, new board policies, and answers to questions from my readers. BIOS: The commissioners’ official and unofficial biographies.
To be added to our weekly e-mail alert, or write comments, suggestions, and criticisms, published anonymously, contact:TheInsider@InsideWorkersCompNY.com.
Michael T. Berns, The Insider
Commissioner 1996-2008, New York State Workers Compensation Board
. . . .
January 19, 2012
Volume 161 Issue 1
. . .
Board reversed 3rd week in a row!
Anyone in charge?
Three weeks into the year and the Board’s legal review process seems to be going in a rather predictable direction this year. With a number of reversals, not on the interpretation of the law but for the Board’s continual failure to explain its reasoning or justify contradictory decisions, one has to question who was in charge of this process in late 2009 through late 2010 when these decisions were being issued? And this runs from the Chair to the commissioners to those in the Administrative Review Division.
And if you have yet looked, now is the time to read about THE TOP ATTORNEYS FOR 2011 - Sean Nicolette and Robert Golan.
DECISIONS: Another bad week for the Board, although it won two affirmances, the Board was again castigated by the Appellate Court, Third Department for its failure to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so
► The Insider’s look at the NYS Workers Compensation Board
January 19, 2012: Another bad week for the Board, although it won two affirmances, the Board was again castigated by the Appellate Court, Third Department for its failure to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so. In this case, the claimant won a reversal by citing an earlier Board decision, one which was readily accessible by the claimant’s attorney but apparently beyond the Board’s research capability in this case of SLY versus PTD. The issued in which the Board was upheld were §14(6) reimbursement and apportionment in a death case. The fourth case is from the First Department which agreed with the lower court that the plaintiff waited too long to seek a workers compensation defense.
NEW I am now adding a link to the original WCB Board panel’s Memorandum of Decision as published by Lexis/Nexis. BUT you must have access to Lexis in order to get to the MoD itself, which will open once you enter your user name and password.
And, if you have not already read it, see my announcement of the TOP ATTORNEYS FOR 2011 who will be listed at the link below.
These free weekly postings cover all workers compensation related cases issued since 2008, not only by the Third Department but also the New York State Appellate Division’s First, Second, and Fourth Departments, the New York State Court of Appeals, various Supreme Courts throughout the State, and relevant out-of-state cases. To receive our weekly e-mail alerts or post a comment, contact TheInsider@InsideWorkersCompNY.com.
Hroncich v Con Edison January 19, 2012 NYS Appellate Division, Third Department Apportionment: Death «»3070…Apportionment: Death
AFFIRMED the Board’s decision that that decedent’s death, causally related to his occupational illness, was not apportionable. In 1993, decedent was diagnosed with asbestosis and asbestos-related pleural disease ultimately found to have a permanent partial disability, and, as a result, developed thyroid cancer, which progressed into his lungs, dying in 2007. At the hearing on the death claim, a physician testified that decedent’s death was attributable 20% to his work-related illness and 80% to thyroid cancer. [ED. NOTE: not identified in the Board’s decision as being the claimant’s or the carrier’s.] A Law Judge found that decedent’s death was causally related to his work-related illness and that apportionment was not available. The employer argued that death benefits should be apportioned in the same manner as decedent’s lifetime benefits were apportioned.
“However, as the employer correctly notes, this Court rejected the identical argument in Matter of Webb v Cooper Crouse Hinds, explicitly holding that “apportionment is not available between work-related and non-work-related causes of death“. We are not persuaded by the employer’s arguments urging us to re-examine and overrule Webb. . . . Accordingly, inasmuch as the record concededly contains substantial evidence supporting the Board’s determination that decedent’s occupational illness contributed to his death, claimant is entitled to death benefits without apportionment. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent and Jill B. Singer of counsel to the Special Funds. Commissioners of Record: Foster, Higgins, Bargnesi WCB #2070 8165 [21161-7695]
►The prior case is Webb v Copper Crouse Hinds with the link noted above.
Ramadhan v Morgans Hotel January 19, 2012 NYS Appellate Division, Third Department Schedule Loss of Use v PTD «»5050…Schedule Loss of Use issues
REVERSED the Boards ruling that claimant was not entitled to a mandatory finding of permanent total disability (PTD) pursuant to WCL §15(1), based on the Board’s not infrequent failure to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so. After claimant, suffering injury to his eyes, was awarded a 100% schedule loss of use of both eyes, he unsuccessfully argued that he was entitled to a mandatory finding of PTD per §15(1). The Board concluded that claimant did not qualify for PTD because, even though he qualified for a 100% schedule loss of use of both eyes (WCL §15[3][p]), he still had some vision. Claimant, relying on a 1993 Board decision, argued that he sustained the “loss of both eyes” as required for total disability. The Court agreed that the 1993 Board decision found a PTD on facts that appear to be substantially similar to those in this case and concluded that the Board was required to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so. Prevailing party represented by: Michael K. Gruber of counsel to Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano (NYC) for appellant. Commissioners of Record: Ferrara, Libous, Paprocki WCB #0065 1079 [21161-7694]
►There have been no recent Appellate Court decisions on this issue.
Thomas v Warren County DPW January 19, 2012 NYS Appellate Division, Third Department §14(6): Concurrent Employment «»5170…§ 14(6): Concurrent Employment
AFFIRMED the Board’s decision that the employer was not entitled to §14(6) reimbursement from the Special Disability Fund (Fund). Claimant who was injured in 2009 concurrently had a second job working for a janitorial service. The employer in whose employment claimant was injured was directed to pay benefits based upon claimant’s average weekly wages from both employments per §14(6). Prior to the §14(6) being amended in 2007, the statute provided that an employer required to pay compensation to a concurrently employed worker based on the average weekly wages of all concurrent employments was eligible for reimbursement from the Fund for any additional benefits paid in excess of the benefits that would have been paid without concurrent employment. The 2007 amendment provided that the Fund would only be available for claims presented in accordance with the newly enacted §15(8)(h)(2)(A) which, as relevant here, bars an employer from filing a claim for reimbursement from the Fund for an injury with a date of accident or disablement on or after July 1, 2007. The employer contends that either (1) without the ability to be reimbursed by the Fund, it is no longer required to pay those additional benefits or (2) the Fund has not been closed to requests for reimbursements in that the amendment only places a time limit on applications for reimbursement. The Court noted that it has already considered and rejected these arguments, most recently in Hope v Warren County Bd Elec Prevailing party represented by: Michael S. Joseph of counsel to James Trauring & Associates (Schenectady) for William A. Thomas, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent Commissioners of Record: Ferrara, Williams, Higgins WCB #011 9384 [21161-7693]
Sangare v Edwards January 19, 2012 NYS Appellate Division, First Department §11: Election of Remedies «»3001…§ 11: Election of Remedies
AFFIRMED the Supreme Court, New York County denial of defendant (Dermer) motion to refer the matter to the Workers’ Compensation Board to determine whether plaintiff was Dermer’s special employee at the time of his injury. The Court’s denial was based on the late filing of the motion. Other than amending its defense ito include a workers’ comp defense, asserting that as a special employee of Dermer, plaintiff’s sole and exclusive remedy was workers’ compensation, Dermer did not otherwise raise or pursue the workers’ comp issue during the course of the litigation. The Appellate Court explained that “that Dermer was attempting to obtain via this motion relief it could no longer obtain by motion for summary judgment. Dermer may not, at this belated juncture, invoke the primary jurisdiction of the WCB as a means of further delaying the litigation.” [21161-7692]
PENDING CASES - Appellate Court 3rd Dept
January 19, 2012 - Thursday: Until the Appellate Court, Third Department, posts February’s hearing schedule, there are only six cases which await a ruling by the Third.
Nov 17, 2011 Capalbo v Stone & Webster
Jan 06, 2012 Eccles v Truck Lite
Nov 16, 2011 Jennings v Avanti Express
Jan 13, 2012 Searchfield v Lowes Home
Oct 19, 2011 Vilic v Granny’S Kitchen
Jan 09, 2012 Wheeler v Bloomingdales
PENDING CASES - Court of Appeals
January 19, 2012 - Thursday: No new workers compensation-related cases have been heard or added to the Court of Appeals hearing calendar but Zamora, Cappellino,and Bissell are now scheduled,as noted below, for argument.
Zamora v New York Neurologic Assoc. ▲Argument set for February 15, 2012▲- Attachment to the Labor Market: 79 AD3d 1471; 3rd Dept. App. Div. order of 12/23/10; Filed week of 01/28/11-02/03/11. On April 5, 2011, motions to dismiss the appeals, filed by the NYS WCB and by the NY Neurologic Assoc, were denied.
Cappellino v Baumann & Sons Bus Company - ▲Argument set for January 5, 2012▲ Causal relationship between the death of claimant’s decedent and his employment: 52 AD3d 1058; 3rd Dept. App. Div. order of 6/19/08; filed week of 12/31/10-01/06/11.
Bissell v Town of Amherst, et al. ▲Argument set for February 8, 2012▲4th Dept. App. Div. order of 12/30/10; whether the appellate division erred in disallowing petitioner from presently recovering from the NYSIF those litigation costs traceable to the future medical expenses that petitioner recovered in a personal injury action - WCL §§13(a), 29(1/span>
Weiner v NYC: 2nd Dept. App. Div. Order of 4/26/11; reversal; leave to appeal; Granted by app. Div., 9/13/11; Municipal corporations - tort liability - whether NYC EMT injured in the line of duty on municipal property may maintain an action against his municipal employer under general municipal law § 205-a despite his eligibility for workers’ comp benefits - WCL §11. Supreme Court, Kings County denied defendants’ motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7) ; App. Div.reversed and granted defendants’ motion.
Schmidt v Falls Dodge, Inc. et al.: Workers’ compensation - award - whether schedule loss of use award is subject to non-schedule awards in other workers’ comp cases where awards were made at the maximum statutory rate and cover the same periods - WCL §15(6).
► Prior Postings ◄
Engoltz v Stewarts January 12, 2012 NYS Appellate Division, Third Department §114-a: Fraud «»5130…§114-a: Fraud
REVERSED the Board’s decision that claimant violated WCL § 114-a and was disqualified from receiving additional wage replacement benefits. The Court determined that the Board’s determination that the claimant “knowingly [made] a false statement or representation as to a material fact” for the purpose of receiving benefits” was based on the Board’s misinterpretation of the claimant’s response to the carrier questionnaire. The questionnaire asked if he had been “receiving any earnings”, to which he responded in the negative as he had not, even though the Board, based on the claimant’s own testimony, described his volunteer activities for which he did not get paid as the equivalent of work. The Court added a footnote which is basis for their reversal:
It is notable in this case that, instead of asking whether claimant was or had been employed or had returned to work in any capacity (see e.g. Matter of Bottieri v New York State Dept. of Taxation & Fin., 27 AD3d 1035 [2006]), the questionnaire here asked only whether claimant had been receiving “earnings,” which was specifically defined as “cash, wages, or salary received from self-employment, any employer other than the employer where you were injured, commissions or bonuses, cash value for all payments received in any other method other than cash (such as a building custodian receiving an apartment rent free).”
Prevailing party represented by: Mary J. Mraz of the Law Office of Mary J. Mraz & Associates (Albany) for appellant Commissioners of Record: Ferrara, Libous, Paprocki WCB #5941 2939 [21160-7691]
►The Appellate Court has affirmed the Board on the three §114-a fraud cases that came before it in 2011: two for the claimant and one for the carrier.
Johnson v Anheuser Busch January 12, 2012 NYS Appellate Division, Third Department Aggregate Trust Fund
Decision Inadequately/Poorly Written «»5250…Aggregate Trust Fund 7200…Decision Inadequately/Poorly Written
REVERSED the Board’s ruling that directed the carrier to make a deposit into the aggregate trust fund (ATF) pursuant to WCL §27(2). After a Law Judge in 2005 determined that claimant had a PPD and therefore, per §27(2) directed the carrier to make a mandatory deposit of the full present value of claimant’s future benefits into the ATF, the Special Disability Fund (Fund) conceded that it would be liable for reimbursement of 50% of the award per WCL §15[8]. [ED. NOTE: Although the appeal in this decision was on a November 3, 2010 MoD, the carrier and Fund also had appeals on this issue to which the Board responded in MoD’s on August 6, 2008 and February 2, 2010, the latter resulting in the non-FBR review but nonetheless amended decision subject to this appeal.] In light of the concession by the Fund, the Board found that, while a deposit into the ATF by the carrier was no longer mandatory, it was nevertheless within its discretion to order the carrier to deposit the full amount of the benefits into the ATF. However, finding that an order to deposit the full amount would not be “an equitable application of the statute,” the Board directed the carrier to deposit only its 50% share of the award into the ATF. The Court ruled, “While it is within the Board’s discretion to direct the carrier to make a deposit into the ATF in this case, it must iterate the basis for doing so in its decision. Here, as the Board did not provide any rationale for exercising its discretion to order the carrier to make a deposit into the ATF, its decision is insufficient to permit meaningful appellate review” and must be remitted for further findings. Prevailing party represented by: Robert E. Geyer of counsel to Wolff, Goodrich & Goldman (Syracuse) for appellants. Commissioners of Record: Lower, Foster, Bell WCB #6040 3990 [21160-7690]
►This is the frist time since this site has been tracking cases that the Board has been reversed on an ATF issue.
Blotko v Solomon Oliver January 5, 2012 NYS Appellate Division, Third Department Employment: Who is «»3030__Employment: Who is or dual
AFFIRMED the Board’s ruling that claimant was not an employee of Solomon Oliver Mechanical Contracting (SOMC). Claimant sustained injuries at a building that was being demolished by SOMC who won the contract with a lower bid than the claimant’s own firm. Claimant then spoke with SOMC’s about whether some of the laborers who had worked for his company could work at the demolition site to which SOMC agreed. Although claimant contended that SOMC also hired him, a Law Judge found that an employer-employee relationship did not exist between claimant and SOMC. Despite proof in the record that would support a contrary conclusion, the Court found no basis to disturb the Board’s decision that claimant was not SOMC’s employee. Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for SOMC and another, respondents. Commissioners of Record: Foster, Higgins, Libous WCB #0082 7054 [21158-7689]
►With the exception of Choto v Consolidated Lumber (3/10/2011), The Board has always been affirmed in its decisions on this issue.
Cary v Salem CSD January 5, 2012 NYS Appellate Division, Third Department Medical Exams: Frequency «»5200…Medical Exams: Appointments
REVERSED the Board’s decision which incorrectly rescinded awards made by a Law Judge and which denied claimant’s request for a Full Board Review because of gaps in medical reports. After suffering injuries in June 2003 and then returning to work with restrictions in November 2003, a Law Judge in 2009 awarded reduced earnings benefits from January 2004 to July 2009, with the awards to continue forward, a decision reversed by a Board panel who concluded that claimant had not submitted medical evidence in the form of progress reports from her treating physician supporting a finding of a continuing causally related disability every 45 days as required and, rescinded claimant’s R/E awards for various time periods between April 11, 2005 to July 10, 2009 representing gaps between the submission of the progress reports that were greater than 45 days.
The Court recognized that “there is no presumption of continuing disability under the Workers’ Compensation Law” and that a claimant’s treating physician is required to submit progress reports reflecting a continuing disability “at intervals of not less than three weeks apart or at less frequent intervals if requested on forms prescribed by the [C]hair” although “[t]he [B]oard may excuse failure to give such notices within the designated periods when it finds it to be in the interest of justice to do so” (WCL §13-a[4][a]). And while there were gaps between the submissions of the medical reports, the unequivocal and unchallenged medical evidence in the record establishes that claimant was disabled during that entire time period such that “The gaps in the reports, standing alone, do not constitute substantial evidence supporting the recision of claimant’s reduced earnings awards under these circumstances.” Prevailing party represented by: Christopher R. Lemire of counsel to Lemire & Johnson (Malta) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5030 9752 [21158-7688]
Catapano v Jaw January 5, 2012 NYS Appellate Division, Third Department § 29: 3rd Party/MVA liens «»3160…§ 29: 3rd Party/MVA liens
AFFIRMED the Board’s decision which, found that the Special Disability Fund’s (Fund) consent to a third-party settlement was required, a decision issued by the Board after this same Court on May 20, 2010 reversed the Board’s November 24, 2008 ruling against the Fund. After the claimant was injured, the claim established, and §15(8)(d) liability established, claimant settled a 3rd party law suit with the consent of the carrier but not the Fund. After the Board initially held that the Fund’s consent was not required, the Court returned it to the Board determining that its decision was inconsistent with Board precedent and because the Board did not set forth its reasons for deviating from the precedent. Now the Board ruled that the Fund’s consent to the settlement was required and the carrier’s failure to obtain such consent resulted in a forfeiture of further reimbursement from the Fund. The Court added, “Inasmuch as the Board’s decision [ED NOTE: this time] represents a rational, consistent interpretation and application of the relevant statute, we will not disturb it.“ Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee Commissioners of Record: Ferrara, Libous, Higgins WCB #0952 8461 [21158-7687]
►In 2010 and 2011, The Board has been affirmed only 3 times in its 9 decisions on §29 issues.
Eaton v Dellapenna Assoc January 5, 2012 NYS Appellate Division, Third Department Disability: Degree of «»5020…Disability: Degree of or R/E
AFFIRMED the Board’s decision that claimant sustained a permanent total disability. After claimant’s 2001 injury prevents him from returning to work, medical treatment authorized and awards were made at a tentative rate. In 2003, he began receiving Social Security disability benefits and underwent surgery, which only relieved his pain temporarily. After claimant was classified in 2009 with a permanent partial disability, the case was continued on the issue raised of claimant’s attachment to the labor market, after which a Law Judge modified claimant’s prior classification and determined that he had a permanent total disability. The claimant’s treating physician testified given, among other things, claimant’s detailed physical restrictions and the fact that his chronic pain is controlled by narcotic medications, it was his opinion that claimant was disabled from even sedentary employment, regardless of the fact that not all of these concerns were addressed by the Board’s medical guidelines. While claimant testified that he had sporadic good days when the pain was not as severe and the record contains medical proof that could support a finding that claimant continued to suffer only a permanent partial disability, the Board specifically found the physician’s testimony regarding claimant’s limitations and unemployability to be credible. Prevailing party represented by: Anna Dmitriev of counsel to Coughlin & Gerhart (Endicott) for Larry Eaton, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #9010 5224 [21158-7686]
►The Board’s decisions on this issue have always been confirmed (1 in 2011 and 5 in 2010).
Franco v Peckham Ind January 5, 2012 NYS Appellate Division, Third Department Disability: Further Causally Related «»5030…Disability: Further Causally Related/Comp
AFFIRMED the Board’s decision that claimant’s newly developed medical condition was not consequential and thus he had no further causally related disability. After injuring his back in April 2004, claimant’s case was established, and awards made. In September 2004, he received epidural steroid injections to relieve his back pain. After he was hospitalized and treated for tuberculosis myelitis in October 2004, he sought to amend his claim to include tuberculosis myelitis as a consequential injury. The Board, based on reports from an impartial specialist, concluded that there was insufficient evidence of a causal relationship to include tuberculosis myelitis. Then it determined claimant’s had no further work-related injury subsequent to June 9, 2006. The Court ruled that, “inasmuch as claimant did not appeal from the Board’s determination not to amend the claim to include consequential tuberculosis myeletis and did not re-present the issue in its application for Board review, such claim is unpreserved.” The Board’s final decision was that claimant’s present disability was not related to his workplace injury but was solely due to the subsequent, unrelated tuberculosis myeletis condition. Prevailing party represented by: Sara Thomas of counsel to Jones, Jones (NYC) for Peckham Industries, Inc. and another, respondents. Commissioners of Record: Ferrara, Libous, Paprocki WCB #3040 4511 [21158-7685]
►The Board’s decisions on this issue have been confirmed in 5 of 6 cases in 2011/2010 with one being rescinded.
Hosey v Central NY DDSO January 5, 2012 NYS Appellate Division, Third Department § 25-a: True Closing «»3140…§ 25-a: True Closing
AFFIRMED Board’s decision that WCL §25-a is not applicable. After receiving benefits for a 2000 back injury, in 2009 the carrier sought to have liability shifted to the Special Fund for Reopened Cases (Fund) per WCL §25-a. While a Law Judge agreed, a Board panel found that the case had not truly been closed and, reversed the Law Judge. In this case, even though the claimant had been working continuously with the same restrictions since 2002, had no compensable lost time, and was receiving ongoing payments for medical treatment, and his treating physician in 2002 indicated claimant had a permanent disability, the issue of permanency was not formally addressed and therefore remained unresolved and thus, legally, still open. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee. Commissioners of Record: Lower, Paprocki, Bell WCB #6011 2921 [21158-7684]
Jennings v Avanti Express January 5, 2012 NYS Appellate Division, Third Department Employment: Who is «»3030__Employment: Who is or dual
AFFIRMED the Board’s ruling that claimant’s decedent husband was an employee. After decedent died in an MVA, the employer contended that the claimant, a courier, was an independent contractor, not an employee. In affirming the Board, the Court noted that a Law Judge, affirmed by a Board panel, found there was an employer-employee relationship based on a record which revealed that the employer determined the decedent’s delivery schedule, provided decedent with a vehicle, an E-Z Pass for the payment of tolls, and GPS device. Further, the employer required decedent to dress in a certain manner and the employer paid decedent through a payroll service on a weekly basis according to a formula devised by the employer. Prevailing party represented by: Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #3080 6361 [21158-7683]
Nassar v Masri Furniture January 5, 2012 NYS Appellate Division, Third Department Causal Relationship: PFME, et al «»1030…Causal Relationship: PFME, et al
AFFIRMED the Board’s ruling that claimant sustained a causally related injury. Claimant injured his back in April 2005 while working the employer, a furniture company, monitoring warehouse stock and making deliveries while he was lifting furniture. The pain increased such that two weeks later, while claimant was unloading furniture from more containers, the pain was such that he was unable to continue working, after which he did not return to work and filed a workers comp claim. The Board ruled that claimant sustained a causally related injury. Both claimant and a coworker testified that claimant was working for the employer lifting furniture when he hurt his back and neck and both further stated that the pain continued thereafter, requiring claimant to cease working. The Court agreed with the Board that (1) inconsistencies in the testimony or contrary testimony given by the employer presented a credibility issue for the Board to resolve and (2) uncontradicted medical evidence established a causal relationship between claimant’s injury and the disability to his back and neck.. Prevailing party represented by: Mark Du of counsel to Law Office of Joseph A. Romano (NYC) for Sam Nassar, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Paprocki, Higgins WCB #0051 8317 [21158-7682]
►Because the Court gives discretion to the Board, the Court has affirmed the Board on all cases on this issue in 2010 and 2011, all but three for the claimant.
Nichols v Hale Creek ASACT January 5, 2012 NYS Appellate Division, Third Department Course of Employment: Special Events «»1110…Course of Employment: Special Events
AFFIRMED the Board’s decision that claimant’s injury, coaching company volleyball team, arose out of and in the course of his employment and awarded workers’ compensation benefits. Claimant, the superintendent of a correctional facility, suffered an injury while coaching an employee volleyball team preparing to compete in the “Department of Correction Olympics“, a claim unsuccessfully controverted by the carrier. Although WCL §10 states that an injury is not compensable when it is sustained during voluntary participation in an off-duty athletic activity that does not constitute part of an employee’s work-related duties, the record in this case supported the Board’s decision that this was not a purely voluntary participation, to wit, claimant was given specific direction to improve staff morale including encouraging employee participation and his coaching the volleyball team. Moreover, claimant’s supervisor testified that she evaluated staff morale as part of her assessment of superintendents’ leadership ability and that there is an expectation that superintendents be involved with as many facility-related events as possible. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #006 9793 [21158-7681]
►There were no cases on this issue in 2009 to 2011.
Potter v VM Paolozzi January 5, 2012 NYS Appellate Division, Third Department Course of Employment: in and out of «»1100…Course of Employment: in and out of
AFFIRMED the Board’s ruling that claimant’s injury, on a dinner ‘run’ arose out of and in the course of his employment. Claimant, an automobile salesperson, was injured while driving his personal car while on an authorized break for which he had requested and received permission from his supervisor to briefly leave work to go to pick up and bring back two spaghetti dinners for the employer’s finance manager. The finance manager had purchased the dinners as part of a fundraiser sponsored by a football team that claimant helped run on a voluntary basis. The Court wrote “Accidents that occur during an employee’s short breaks, such as coffee breaks, are considered to be so closely related to the performance of the job that they do not constitute an interruption of employment.” Among other indicia, claimant’s supervisor testified that it was customary to allow salespeople to leave the dealership on short paid breaks, thus providing substantial evidence to support the Board’s determination that claimant’s short break did not constitute an interruption of employment. Prevailing party represented by: Timothy J. McMahon of counsel to McMahon, Kublick & Smith (Syracuse) for Richard Potter, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #014 8055 [21158-7680]
►Because the Court gives discretion to the Board, the Court has affirmed the Board on all cases on this issue in 2009, 2010, and 2011, splits between claimants and carriers.
Richman v NYS Unified Court January 5, 2012 NYS Appellate Division, Third Department § 21: Unwitnessed Death/accident «»1001…§ 21: Unwitnessed Death/accident
AFFIRMED the Board’s ruling that §21 presumption supported establishing the claim despite the paucity of evidence. [ED. NOTE: As you can read below, this case has a rather interesting history.] Claimant, a court reporter, was found unconscious at her workplace and rushed to a local hospital, where she was diagnosed with a subarachnoid hemorrhage caused by a ruptured basilar artery aneurysm. Although she remains in a comatose state, a claim which was filed was controverted by the carrier, asserting that the ruptured aneurysm was not related to claimant’s employment. A Law Judge and the Board panel found that the employer did not overcome the presumption of compensability set forth in WCL §21(1). While the employer’s expert opined that claimant’s ruptured aneurysm was unrelated to her employment, the Board agreed with the Law Judge that the expert’s report and testimony were not credible – in large measure because he was evasive when questioned as to whether work-induced stress could raise a person’s blood pressure high enough to cause an aneurysm to rupture. Contrary to the employer’s argument, the Board, which “is the sole arbiter of witness credibility” was not required to wholly credit the expert’s opinion on this point simply because it was the only expert proof presented. Prevailing party represented by: Felice Sontupe of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #0074 3840 [21158-7679]
►The only other case on this issue in 2011 was also affirmed but favored the carrier.
[ED. NOTE: On April 23, 2008, a Law Judge denied the claim for lack for prima facie medical evidence (PFME). On November 24, 2008, the Board denied an appeal as being late: “Further, since the claimant’s attorneys fail to indicate why a timely application could not have been filed in this matter, the Board Panel declines to exercise its discretionary authority under Workers’ Compensation Law 123.” But then, in a Full Board Review, the Board, without giving any reason other than its continuing jurisdiction under §123, reversed itself, accepted the appeal, and returned it to the Law Judge to again reconsider the PFME, at which point the Law Judge did just that, accepting the claim. When I was at the Board, I was one of several commissioners who fought to keep a strict interpretation of 30 days for §23 appeals, unless there was some exceptional reason to excuse a late appeal, the exceptional reason to be clearly noted in the Board panel decision so as not to give the impression of arbitrariness or capriciousness by the Board. In this case, no reason was given for the Board’s total about face on this issue from which one can infer it was not any fact in this case that prompted the reconsideration,
Satalino v Dans Supreme January 5, 2012 NYS Appellate Division, Third Department Causal Relationship: PFME, et al «»1030…Causal Relationship: PFME, et al
AFFIRMED the Board’s ruling that claimant did not suffer a causally related disability. Working at a grocery store for 35 years, claimant’s duties included unloading delivery trucks, stacking boxes and stocking store shelves. In January 2009, he had the first of two surgeries on his lumbar spine, never returning to work and filing a comp claim in November 2009, alleging that his condition was causally related to his employment. Although a Law Judge determined that he suffered an occupational disease to his lumbar spine, a Board panel reversed. Pursuant to the WCL §2[15], an occupational disease is “a disease resulting from the nature of employment and contracted therein“. Further, to be entitled to benefits based upon an occupational disease, “the claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her employment” Finally, medical opinions regarding a causal relationship “must signify ‘a probability as to the underlying cause’ of the claimant’s injury which is supported by a rational basis”. Although claimant’s physicians found disc herniation, arthritis, spondylolisthesis and stenosis, one testified that he could not find a relationship between claimant’s condition and his employment and he could not opine whether the herniations were related to claimant’s work or chronic disc degeneration, further testifying that claimant’s arthritis, stenosis and spondylolisthesis could be related to claimant’s age and not his job. Although his surgeon suggested possible causal relationship, he had initially indicated in an application for disability benefits that claimant’s condition was unrelated to his employment. Noting that the Board is free to reject medical opinions where an expert does not testify convincingly in support of a causal relationship, The Court “conclude[d] that the Board did not abuse its discretion in determining that claimant failed to establish a recognizable link between his condition and his employment.” Prevailing party represented by: Elissa Landa of counsel to Fisher Brothers (NYC) for Dan’s Supreme Supermarket and another, respondents Commissioners of Record: Bargnesi, Higgins, Bell WCB #019 2244 [21158-7678]
►Because the Court gives discretion to the Board, the Court has affirmed the Board on all cases on this issue in 2010 and 2011, all but three for the claimant.
Morphew v Aero December 29, 2011 NYS Appellate Division, Third Department §29: Apportionment of legal fees
RESCINDED the Board’s decision that the claimant was not entitled to reimbursements for certain expenses from his 3rd party law suit. After being awarded comp benefits for a March 2004 work accident, claimant commenced a third-party action, received a settlement offer of $725,000, and then received the carrier’s consent. In its consent, the carrier asserted a lien in the amount of $132,002.63 for compensation payments already made [The total amount of the workers’ compensation payments to claimant prior to settlement was $201,053.98, and the carrier accepted the reduced amount to account for its equitable share of the litigation costs commensurate with that figure.]. Additionally, the carrier “specifically reserve[d] its rights to claim a credit and offset for the net amount of the settlement payable to [claimant] against any prior, subsequent or future claim for [w]orkers’ [c]ompensation indemnity and/or medical benefits arising out of this occurrence.” The carrier then suspended its indemnity payments to claimant based upon its offset against claimant’s proceeds from the settlement. After the Board classified claimant with a moderate to marked permanent partial disability, claimant requested further action and a Law required the carrier to contribute its share of the litigation costs associated with the offset amount by paying claimant a discounted rate of indemnity. On appeal, the Board reversed, finding that an award of such payments to claimant would alter the terms and conditions of the settlement consent agreement, which was beyond its jurisdiction.
Because “carriers are obligated to contribute the costs of litigation in proportion to the total benefit that they receive”, the carrier has a legal obligation to “pay its equitable share of litigation costs as benefits accrue” even in cases in which future benefits are too speculative to apportion the carrier’s litigation costs at the time of settlement. The Court essentially stated that, contrary to the Board’s position, Burns v Varriale, 9 NY3d 207, 214 [2007]did apply. “Although, in its consent to settlement, a carrier may seek to be released from its affirmative obligation to pay its share of litigation expenses, it is ‘required to express that release plainly and unambiguously in the consent to settlement agreement’. Thus, contrary to the Board’s determination that it lacked jurisdiction, whether the carrier ‘plainly and unambiguously’ absolved itself of its continuing responsibility to contribute to the litigation costs consistent with its offset is a question of fact for the Board to resolve and, accordingly, the matter must be remitted.” Prevailing party represented by: Justin S. Teff of counsel to Law Office of Ralph M. Kirk (Kingston) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #5040 5518 [1D158-7677]
Coyle v Midwest Steel December 22, 2011 NYS Appellate Division, Third Department Voluntary Withdrawal
REVERSED the Board’s decision that claimant’s lost earnings were not causally related to claimant’s work-related disability while also ruling that the claimant did not voluntarily withdraw from the labor market. As the result of an established claim for an injury to his left knee in 1998, claimant underwent multiple knee and hip replacement surgeries, and consequential compensable injuries to his back and right hip were established. After the light duty position to which he returned in June 2009 was eliminated in August 2009, claimant was offered a full-duty position as an ironworker, but feeling that he could not accept the position due to his medical restrictions, he retired. Payments were made to the claimant until December 2009 when the carrier raised the issue of claimant’s voluntary removal from the labor market. In December 2009, a law judge ruled that the claimant was entitled to continued benefits and, then in February 2010, ruled the claimant had involuntarily retired due to his causally related disability. A Board panel affirmed the December 2009 decision, but reversed the February 2010 decision, denying further benefits due to claimant’s failure to maintain a sufficient attachment to the labor market subsequent to December 12, 2009, prompting a pro-se appeal.
In reversing the Board, the Court wrote, “The Board’s finding that claimant’s retirement was involuntary ‘gave rise to an inference that his reduced earning capacity continued after retirement’. That inference is removed only by ‘direct and positive proof that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement’. Further, ‘[p]roof that the claimant has not sought work postretirement, by itself, does not defeat the inference or shift the burden to [the] claimant to show that the disability was a cause of the reduction’ . Rather, the employer or workers’ compensation carrier ‘must demonstrate that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement, such as age, economic conditions or other factors unrelated to the disability. Here, the Board relied solely on the fact that claimant failed to actively search for employment or avail himself of any employment services after retirement in denying him further benefits. Given the lack of any proof by the employer that something other than claimant’s disability was the sole cause of his reduced earnings after retirement, we conclude that the Board’s determination denying claimant further benefits is not supported by substantial evidence and must be reversed.” Prevailing party represented by: Mark Du of counsel to the Law Office of Joseph Romano (NYC) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0985 8460 [1D157-7676]
[ED. NOTE:] It seems that the Board did a review on its own motion of this same June 4, 2009 decision for which the 3rd Department has just issued the above opinion. Based on that review, issued September 29, 2011, the Board panel determined that Full Board Review was not warranted, had determined that the MOD should be amended, and, in effect, reversed itself, finding involuntary withdrawal from the labor market. While one can agree or disagree with the result of the Board panel’s ‘voluntary’ review of its own decision, one is prompted to ask, “At what point does a Board panel decision become final if the Board can change its mind when the fancy (or a politician’s phone call) generates an arbitrary review and reversal?”]
►While we await what will be a clarification on the issue of Voluntary Withdrawal From the Labor market, the record shows that the Board has a failing grade on this issue this year, getting only 7 of 11 affirmances (63%) of its decision to date.
Lewis v Stewarts Marketing December 22, 2011 NYS Appellate Division, Third Department Untimely Submissions/Defenses
REVERSED the Board’s ruling that claimant sustained a permanent total disability because the Board denied the carrier the right to cross examine witnesses. In 2008, the employer sought a hearing to determine the degree and permanency of claimant’s disability for injuries sustained in a compensable accident in 1997. After claimant provided an updated medical report indicating that he had a permanent total disability, the employer submitted an independent medical report indicating that claimant suffered a moderate partial disability of a permanent nature and was capable of performing some type of work. A law judged denied the employer’s request to cross-examine claimant and his physician concerning claimant’s ability to work, determined that claimant had a permanent total disability, and awarded benefits with videotapes proving §114-a fraud. In reversing the Board, the Court agreed with the carrier that its request to cross-examine claimant and his physician was improperly denied since they did make a timely request to do so (see 12 NYCRR 300.10 [c]). In its reversal the Court also noted that “Moreover, inasmuch as the record contains conflicting medical reports regarding the nature of claimant’s disability, denial of the employer’s request to cross-examine claimant’s physician clearly prejudiced the employer.” Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for appellants. Commissioners of Record: Higgins, Libous, Foster WCB #6980 0429 [1D157-7675]
[ED. NOTE:] The carrier had also sought a ruling on §114-a but the Law Judge and Panel determined that medical reports found the claimant totally disabled, and did not directly rule on the §114-a issue. The carrier then raised this issue again with new evidence and, in a December 8, 2009 decision, was hit by a Law Judge with a §114-a(3)(i) penalty for raising this issue, an issue for which no decision (certainly not noted in any of the Board panel MOD’s) had previously been rendered. The carrier’s appeal to the Board on this penalty was not only denied but the carrier was then hit with a $500 penalty under §23 for a frivolous appeal. Yet (1) the record show that the Board had yet to rule on the fraud issue and (2) the decision of the Appellate Court to remand for testimony on both degree of disability and work ability would appear to make the videotapes and investigator’s report, the basis of the fraud claim, neither a waste of the Board’s time nor a frivolous appeal. Or did I miss something?]
►This is the first case on this issue to make it to the Appellate Court since posting started here in late 2008
Carlineo v Snelling & Snelling December 15, 2011 NYS Appellate Division, Third Department Employment: Temp Worker
AFFIRMED the Board’s ruling that Snelling & Snelling (S&S), a temp agency, was solely liable for workers’ compensation benefits paid to claimant. Claimant obtained his position with F.T. Well Support, through S&S, LLC, a temporary employment agency. His claim was established after he injured both of his legs in a work-related motor vehicle accident while working at the location of Fortuna Energy, a client of FT Well. S&S was ordered to pay temporary awards and the case continued on the issue of general/special employment with S&S contending the either/or both Fortuna and FT Well were totally or partially liable for the claim. After claimant and FT Well testified, the Law Judge found that S&S was claimant’s employer and there was no special employment relationship with Fortuna. There were numerous appeals and Board panel decisions regarding testimony by S&S and its witnesses but ultimate the Board determined that S&S was provided a full and fair opportunity to develop the record. S&S’s appeal to the Appellate Court on this issue was dismissed as interlocutory. The Law Judge determined that claimant was a special employee of FT Well, and not any other entity, but that S&S was 100% liable for payment on the claim pursuant to the contract between S&S and FT Well. Although claimant and FT Well testified that FT Well set claimant’s hours, directed and supervised his work and provided the necessary equipment, substantial evidence supports the Board’s determination that S&S is solely liable for payment of the claim: S&S obtained workers’ compensation insurance for the temporary employees that it provided to FT Well and part of the fees that FT Well paid to S&S were intended to include the cost of such coverage. Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy respondent. Commissioners of Record: Ferrara, Finnegan, Bell WCB #5050 7422 [1D156-7674]
►This is the only case in 2009, 2010, and 2011 regarding the employment relationship and ensuing liability of a temp agency towards an injured worker.
Dudas v Town of Lancaster December 15, 2011 NYS Appellate Division, Third Department §18 notice to employer
AFFIRMED the Board’s ruling that denied the claim’s establishment [ED. NOTE: see ED. NOTE below] for what appears to be late notice, while rejecting the carrier’s argument that claimant did not give timely §18 notice of injury. Claimant allegedly injured his right ankle on February 28, 2007 when he slipped on a patch of ice at the employer’s Town Hall. He continued to work and did not seek medical treatment until March 9, 2007 when he presented at the local emergency room complaining of pain and swelling. A review of the March 9 emergency room report indicated that the claimant injured his right ankle when he fell off a porch whereas a review of additional medical records, including the medical opinion of the carrier’s consultant, show that the history provided by the claimant was that he injured himself at work, when he slipped on some ice. When these symptoms persisted, claimant sought treatment from an orthopedist in May 2007 following which the prospect of surgical intervention was discussed. Despite his ongoing difficulties and treatment, he did not report his injury to the employer until June 27, 2007.
The carrier initially authorized medical care, but then controverted the claim following receipt of the emergency room records, which indicated that claimant twisted his ankle falling off a porch, thus raising a question as to whether the underlying injury actually was work related, a question first brought to the Board’s attention by the carrier two months after receiving the emergency room report. Following a hearing, Law Judge found that claimant failed to timely report the accident and disallowed the claim.
While the claimant asserted that the employer waived the defense of timely notice, the carrier had shown that its receipt of the claimant’s emergency room records constituted “newly discovered evidence” sufficient to allow the late filing of its notice of controversy. The Board panel then addressed the issue of, “How soon after the receipt of newly discovered evidence must the notice of controversy be filed.” While the carrier argued that there is no time limit in the statute or regulations, the Board agreed with the Law Judge who found that the notice of controversy must be filed “within a reasonable period of time” after the newly discovered evidence is discovered, although neither of these decisions set a fixed date for such, finding that in this case that the notice of controversy was “unreasonably” late.
Nonetheless, the Court affirmed the Board’s denial of the claim, asserting, “Here, despite ongoing symptoms, claimant continued working and delayed both reporting the accident and seeking treatment, which may well have permitted claimant’s condition to worsen and, more to the point, prevented the employer from promptly investigating the underlying incident. Under these circumstances, we cannot say that the Board abused its discretion in disallowing the claim.” Prevailing party represented by: Russell D. Hall of counsel Hamberger & Weiss (Buffalo) for Town of Lancaster and another, respondents. Commissioners of Record: Bargnesi, Higgins, Finnegan WCB# 8071 2755 [1D156-7673]
[ED. NOTE:] The Board panel decision states, “the WCLJ found that the evidence supported finding that the SIE failed to timely controvert the claim. . . In addition, the WCLJ also found that the claimant failed to timely provide notice to his employer and disallowed the claim.” I am still not clear as to how the Law Judge, Board, and Court would find that the insurer failed to timely controvert the claim on the issue of notice and then disallow the claims because there was no timely notice.
Pucci v DCH Auto Group December 15, 2011 NYS Appellate Division, Third Department Reopening by claimant
AFFIRMED the Board’s rulings (1) which denied claimant’s application to reopen his claim, and (2) denied claimant’s request for reconsideration or full Board review. In October 2003, claimant, after sustaining work-related injuries, was awarded workers’ compensation benefits. Although he returned to work in December 2003, he left his employment with DCH in May 2004 and accepted a position at another firm at a lower rate of pay. Two months later, claimant requested a reduced earnings award, denied in August 2005 by the Board, finding that claimant left his job at DCH for personal reasons unrelated to his compensable injuries. The case was closed and claimant did not appeal that decision. In April 2008, claimant sought to reopen his claim again seeking a reduced earnings award. The Board affirmed the Law Judge concluding that such claim merely was a reiteration of the original claim filed in 2004 and denied in 2005 and that claimant had not set forth sufficient facts to warrant reopening the claim. Claimant’s subsequent application for reconsideration or full Board review was then denied.
The Court stated that, because the Board had already denied his original request for reduced earning in a decision never appealed, the merits of that claim were not properly before the Court. Although the Board may reopen, modify or rescind a prior determination (see 12 NYCRR 300.14 [a] [2]) where claimant presents proof that a material change in condition has occurred, “here the claimant relied solely upon the fact that he underwent back surgery in 2007 as well as other of his and his employer’s submissions,” it concurred with the Board’s findings of an insufficient basis upon which to reopen. Claimant’s remaining arguments, to the extent not specifically addressed, were been examined and found to be lacking in merit. Prevailing party represented by: Jill M. Johnson of counsel to Ryan, Roach & Ryan (Kingston) for DCH Auto Group, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5031 5308 [1N156-7672]
Elrac Inc v Exum December 13, 2011 NYS Court of Appeals §11: Jurisdiction Uninsured Motorist
We hold that a self-insured employer whose employee is involved in an accident may be liable to that employee for uninsured motorist benefits, notwithstanding the exclusivity provision of the Workers’ Compensation Law. Exum, while driving a car owned by and in the course of his employment with his employer Elrac, was in an accident with another car, driven by a person without liability insurance. Elrac was legally self-insured and thus had not obtained an insurance policy to cover the car Exum was driving. Exum served a notice of intention to arbitrate on Elrac, seeking uninsured motorist benefits, a notice stayed by a lower court but affirmed by the Appellate Division.
“Insurance Law § 3420 (f) (1) requires every policy of motor vehicle liability insurance to contain a provision requiring payment to the insured of all sums that the insured is entitled to recover as damages from the owner or operator of an uninsured motor vehicle. In Matter of Allstate Ins. Co. v Shaw (52 NY2d 818 [1980]), we held that a self-insurer had the same liability for uninsured motorist coverage that an insurance company would have. There is no policy reason why Exum’s uninsured motorist protection should decrease because he happened to be driving the car of a self-insurer.”
“But there is a difference between this case and Shaw: here the person claiming uninsured motorist coverage was an employee of the self-insurer. It is undisputed that Exum was entitled to workers’ comp from Elrac, and Elrac claims that he is therefore barred from recovering uninsured motorist benefits. Exum points out that we permitted an employee of a self-insurer to recover in Matter of Country-Wide Ins. Co. (Manning) (62 NY2d 748 [1984]), which involved essentially indistinguishable facts. Because we did not discuss the workers’ compensation issue in Manning, however, we assume that the issue is open.”
“Workers’ Compensation Law § 11 says: ‘The liability of an employer [for workers’ compensation benefits] . . . shall be exclusive and in place of any other liability whatsoever, . . .’ Although the words “any other liability whatsoever” seem all-inclusive, there are cases of which this is one in which they cannot be taken literally. Specifically, the statute cannot be read to bar all suits to enforce contractual liabilities. An action against a self-insurer to enforce the liability recognized in Shaw is, in our view, essentially contractual. The situation is as though the employer had written an insurance policy to itself, including the statutorily-required provision for uninsured motorist coverage. This action is therefore not barred by WCL §11” and the order of the Appellate Division should be affirmed. [1D156-7671]
Grilikhes v Intl Tile & Stone December 13, 2011 NYS Appellate Division, First Department 3030…Employment: Who is or dual
Supreme Court granted defendants International Tile & Stone Show Expos’s and Metropolitan Exposition Services’ motions for summary judgment dismissing the Labor Law §241(6) cause of action as against them. The plaintiff worked for a contractor (MES) who was on a list approved by the New York Convention Center Operating Corporation (NYCCOC), the operator of Javits. The terms of that between the exhibitor, New York Convention Center Operating Corporation (NYCCOC), the operator of Javits, allegedly gave MES all “Obligation to control the work site, and the responsibility of ensuring that the work contemplated by the permit was performed in a safe and proper manner.”
Plaintiff, who worked at the Javits Center and was injured while dismantling one of the exhibit booths, received his paycheck from NYCCOC as were the workers’ comp benefits he began to receive after the subject accident. He signed in at an NYCCOC desk and was then sent to an MES desk, to sign in there as well. MES gave plaintiff a list of tasks to complete each day and supplied him with all necessary work materials, including safety equipment, for which among other reasons, plaintiff considered MES his supervisor during the tile show.
Plaintiff commenced this action against MES and ITSS alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). MES moved for summary judgment dismissing the complaint on the ground that plaintiff was its special employee and therefore his claim was barred by Workers’ Compensation Law § 29(6). ITSS also moved for summary judgment, on the ground that it was neither an owner nor a contractor and therefore could not be held liable. The lower court granted both motions finding that (1) MES was plaintiff’s employer for workers’ compensation purposes since it told him what to do, and when and where to do it, and (2) because there was no evidence that NYCCOC retained any control over plaintiff once he left the NYCCOC sign-in desk in the morning. As for ITSS, The Appellate Court found that “[T]he key criterion is the right to insist that proper safety practices were followed. . . . Because ITSS had no authority or ‘Obligation to control the work site, and the responsibility of ensuring that the work contemplated by the permit was performed in a safe and proper manner . . ., it cannot be deemed an owner for purposes of Labor Law liability.’ ” Accordingly, its motion for summary judgment dismissing the § 241(6) claim was properly granted. [1D156-7670]
Like the case above involving a claimant working for a temp agency, the specific of this case are unlike any which have been to the Appellate Division in the last three years.
Smith v TWA December 8, 2011 NYS Appellate Division, Third Department Voluntary Withdrawal
AFFIRMED the Board’s ruling that the claimant voluntarily withdrew from the labor market. After filing a claim for injuries sustained while working as a baggage handler in 2001, claimant was awarded compensation benefits. Although a Law Judge determined that she had a permanent partial disability and had not voluntarily withdrawn from the labor market, a Board panel reversed. In this case, medical experts opined that claimant was capable of returning to work with some restrictions and claimant acknowledged that she had not worked since August 2001, she refused to return to work when her employer offered her the opportunity to do so, she made no efforts to seek other employment within her restrictions, and she failed to pursue available vocational or employment services. The Court agreed that, “Substantial evidence supports the Board’s determination that claimant voluntarily withdrew from the labor market.” Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for TWA and another, respondents. Commissioners of Record: Foster, Bell, Higgins WCB #0015 3845 [1N155-7669]
►In view of the upcoming Court of Appeals decision in the Matter of Zamora v New York Neurologic, the listing of prior cases for reference may well become moot.
Maye v Alton Mfg December 8, 2011 NYS Appellate Division, Third Department Hearing Loss
REVERSED the Board’s ruling by finding that the pro-se claimant had a further causally related disability. After claimant retired in March 1994, his work-related occupational hearing loss was established with a 59.5% binaural hearing schedule loss of use and the case was closed in 1997. In 2005,the claimant contended that the causally-related binaural hearing loss had increased to 71.56%. Although the Law Judge agreed, a Board panel in an amended decision reversed. Bearing the burden of establishing that a causal relationship exists between his injury and his employment, the claimant relied on the medical report of his treating otalaryngologist, who stated unequivocally that “[claimant’s] hearing loss is 100% causally related to his job.” The Court then noted that, “Inasmuch as there was no conflicting medical evidence presented here, the Board’s rejection of the treating physician’s uncontroverted medical opinion on causation was improper.”[ED. NOTE:] The Board panel, and subsequently, the full board apparently determined, incorrectly, that once the hearing loss was established, no further modification in the degree of disability would be accepted if they fell outside the time lines in §49-bb, a point emphasized in the amended decision. Prevailing party represented by: Bobby C. Maye Rochester, appellant pro se. Commissioners of Record: Finnegan, Paprocki, Bell WCB #7941 6753 [1N155-7668]
►No prior cases on this increase of a change in disability under §49-bb. The other two hearing loss cases in 2010 dealt with establishing the case.
Ortiz v Rose Nederlander December 8, 2011 NYS Appellate Division, First Department Employment: special employee
DENIED defendants’ motion for summary judgment dismissing the complaint as defendants failed to demonstrate that plaintiff was their special employee and, thus, barred from maintaining this personal injury action under the WCL. The claimant brought this civil action after being injured during the course of her employment cleaning defendants’ theater. The record shows that plaintiff was compensated by nonparty Nederlander Producing Company of America (NPCA), which was also her supervisor’s employer. Although identifying the entity which controlled the work of plaintiff’s supervisor is highly probative of who controlled the injured plaintiff’s work, the record does not support defendants’ assertion that they controlled the work of plaintiff’s supervisor. Moreover, the fact that defendants and NPCA appear to be affiliated, does not establish, as a matter of law, that they were “alter egos or joint venturers for the purpose of barring plaintiff’s claims under the Workers’ Compensation Law“. The argument that NPCA was merely a “common paymaster” is not dispositive of the special employer issue as the record showed that NPCA also entered into an employment contract with plaintiff’s supervisor. Furthermore, even if one defendant funded NPCA’s payroll, such fact is just a single factor militating in favor of a special employment relationship. Standing alone, and without, inter alia, the additional showing that, defendants directed and controlled plaintiff’s duties, or the existence of a contract by which defendants directly undertook duties in relation to plaintiff, the funding-source element is not dispositive. [1N155-7667]
Zamora v New York Neurologic Decision dated :not yet issued NYS Court of Appeals Voluntary Withdrawal from the Labor Market
Because of the potential impact of the decision in this case on those thousands of injured workers whose fate rests on the Board’s determination if they have or have not voluntarily withdrawn from the labor market, I have written a COMMENTARY on this case along with my prediction of the ultimate decision. Click here for the link.
Sauers v K-Mart Corp December 1, 2011 NYS Appellate Division, Third Department 25-a: True Closing
RESCINDED and returned to the Board for proper review the Board’s ruling that §25-a did not apply. The basic question was whether or not the deferral of a medical procedure commended during a medical examination just prior to the end of a seven-year period which would have transferred the case under §25-a. In this case, the claimant’s medical provider recommended surgery during an exam on March 17, 2009,two weeks prior to the seven-year anniversary of her April 1, 2002 injury, the date after which the claim would have been transferred under §25–a. The claimant shortly thereafter decided to defer what she considered to be very serious surgery and opted for remediation of her pain through prescriptions rather than surgery. A few weeks later, after the seven-year period elapsed, she decided that medication was not working and requested the surgery. The carrier argued that the case was closed based on the March 17 exam in the claimant did not pursue surgery. The Board determined that the March 17, 2009 report kept the case open whereas the carrier argued that the case was closed when the claimant decided not to proceed with surgery and was then reopened after the seven-year period when the claimant decided to pursue surgery. The court determined that the Board could not consider whether or not the claimant’s deferral and then reconsideration constituted a form of closing and reopening and therefore sent it back to the Board review. [ED. NOTE:] In my opinion, the claimant’s deferral to await the results of using medication meant that a clearly foreseeable event (her decision) would be forthcoming in the immediate future which meant that the case was not closed. Had the board taken the time to review the carriers appeal rather than focusing on a daily March 17 exam, there would have been no delays in resolving this case nor the cost of thousands of dollars incurred by both sides as a result of this totally unnecessary appeal.] Prevailing party represented by: John M. Cordon Jr. of counsel to Hamberger & Weiss(Buffalo) for appellants. Commissioners of Record: Ferrara, Libous, Paprocki WCB #4020 8675 [1D154-7666]
InsideWorkersCompNY is the creation of Michael T. Berns, a former Board Member/Commissioner of the New York State Workers Compensation Board, based on the insight developed during 12 years of service including participation in more than 40,000 decisions and 10,000 hearings.
Updated weekly, this website will impart an understanding of the New York State WCB that will help the workers comp community better understand why the WCB does what it does and how to deal its many inconsistencies and bureaucratic obfuscations as well as giving the community and Board staff an anonymous bulletin board.
Behind The Closed Doors:An insider’s look at how things really work at the NYS Workers Comp Board and how to fix them. Click here for details.
COURT DECISIONS: a weekly update of workers comp related decisions from the New York’s Appellate Division, Court of Appeals, and other jurisdictions, and a list of the “winningest” attorneys for the year. NEWSWIRE: a weekly listing of key developments from the media as well as various state agencies. COMMENTARY: my comments on key topics, work related injuries, major court decisions, new board policies, and answers to questions from my readers. BIOS: The commissioners’ official and unofficial biographies.
To be added to our weekly e-mail alert, or write comments, suggestions, and criticisms, published anonymously, contact:TheInsider@InsideWorkersCompNY.com.
Michael T. Berns, The Insider
Commissioner 1996-2008, New York State Workers Compensation Board
. . . .
January 12, 2012
Volume 160 Issue 1
. . .
2011’s BEST ATTORNEYS
Board loses two including an ATF case
Well, like all of us who start off the year with great New Year’s’s resolutions and then break them, the Board has ended its 11 for 12, one-week winning streak. But more importantly, today I name THE TOP ATTORNEYS FOR 2011 - Sean Nicolette and Robert Golan - as well as listing all those attorneys who prevailed in arguments before the Appellate Court and Court of Appeals, along with their cases.
DECISIONS: This week the Board was handed two reversals. In one the Court decided for a claimant improperly accused of §114-a fraud. In the second case, the Board suffered it first reversal on an ATF case “because the Board did not provide any rationale for exercising its discretion.”
COMMISSIONER BIOS: These have some updates including David Dudley and Loren Lobban. Lobban’s bio on the Board’s website is blank; my bio of him is not.
January 12, 2012: Congratulations are in order to Sean Nicolette and Robert Golan who exemplify the high quality of legal representation in the workers compensation community in the State of New York.
While there are just over 10,000 administrative law judge decisions appealed every year in which workers compensation attorneys argue the merits of their respective sides for resolution by a panel of three commissioners, it is at the Appellate Court and Court of Appeals that major issues are argued and cases decided.
The WINNINGEST Attorney: SEAN NICOLETTE
As the “Winningest” Attorney of the Year, Sean Nicolette of counsel to Walsh & Hacker (Albany) represented employers and carriers in prevailing arguments in four cases during the calendar year 2011, with three affirmances and one reversal.
In Falkouski v City of Rensselaer, that the decedent, who died while performing the duties of a firefighter, was an employee and not a volunteer, thus not subject to death benefits pursuant to the provisions of the Volunteer Firefighters’ Benefit Law.
And he convinced the Court to reverse the Board in Lewis v Stewarts Marketing, by successfully arguing that the Board made a reversible error when it denied the carrier the right to cross examine witnesses.
The FIERCEST Attorney: ROBERT GOLAN
As the “FIERCEST” Attorney of the Year, Robert Golan, a partner in Golan & Masiakos (Mineola), successfully convinced the Appellate Court to reverse two Board decision, winning his cases on behalf of injured workers:
In Funke v Eastern Suffolk Boces, that the carrier had no direct and positive proof that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement, thus finding no voluntary withdrawal fro the labor market.
In Nickel v Pilgrim Psychiatric, that the Board, by not holding a hearing before approving the claimant’s §32 agreement, may have resulted in the claimant not understanding the terms of the agreement.
And, just as I did last year, I again this year give an Honorable Mention to Jill B. Singer of Special Funds, not because she prevailed in 13 cases but because she prevailed over the Board with three reversals and two rescissions on issues pertaining to §25 and §15(8), virtually identical to her record from last year.
This does not in any way take away from the excellent work done by the other attorneys who also presented prevailing arguments in a wide range of cases, representing claimants, carriers, employers, and various state agencies, including winning an unprecedented number of reversals (22) and rescissions (11) of Board decisions.
And a note of recognition to all those who helped the attorneys on both sides prepare the arguments for presentation before the Justices at the Appellate Court and the Court of Appeals. As all of our prior winners have said, they did not do all the work on their own - they could not have done it without their staff.
Sean Nicolette and Robert Golan will be sent, in recognition of their meritorious service, Award Certificates, and a $10 gift certificate to Starbucks.
The letters following the attorneys’ names indicate Private practice, AG (Attorney General), SIF (State Insurance Fund) and SF (Special Funds). The letters in the third column are Affirm, Reverses, Send back (Rescind), and Deny.
Aujla, Avninder (P)
Barr, Beverly (P)
Bocek, Timothy (P)
Burke III, George (P)
Buttridge, Joseph (P)
Caligiuri, Joseph (P)
Carlton, Jason (P)
Carole Ramsey, Leith (P)
Carolton, Jason (P)
Centone, Anthony (P)
Chase, Glenn (P)
Clennan, John (P)
Cordon, John (P)
Curvin, Carrie (P)
Daly, Michael (P)
DeCurtis, Peter (P)
Delorbe, Jacqueline (P)
Druker, Elina (NYC)
Du, Mark (P)
Duffy, Susan (P)
Dunne, John (P)
Ferro, George (P)
__
__
Fischer, Carol (AG)
__
__
__
__
Flynn, Charlotte (SIF)
__
Forman, Glenn (SIF)
Golan, Robert (P)
__
Goldsmith, David (P)
Gorman, Kenneth (P)
Groenwegen, Paul (AG)
Heitger, Renee (P)
Hvozda, John (P)
Johnson, Jill (P)
Kaufmann, Thomas (P)
Kraushar, Estelle (AG)
__
__
__
__
__
__
Kuhn, Daniel (P)
Leonardo, Matthew (P)
Magnetti , Ralph (P)
Marris, Susan (SIF)
Maye, Bobby (PS)
McDonald, Kevin (P)
McKinley, Sean (P)
__
Meranda, Jacob (P)
Nicolette, Sean (P)
__
__
__
Obertubbesing, Edward (SIF)
__
O’Connor, Kelly (P)
Oliver, John (P)
Oot, Michael (P)
Osborne, Alexander (P)
Pizza, Anthony (P)
Quinn, Brenda (P)
__
Ramsey, Leith (P)
__
Rella, Gerarda (P)
Reynolds, Michael (P)
Riekstins, Janis (SIF)
Romano, Joseph (P)
Rosa DiSant, Rudolph (SIF)
__
Rossillo, Vincent (P)
Rubin, Bruce (P)
Ruina, Michael (P)
Segall, Steven (AG)
__
__
__
__
__
__
Silver, Marc (SIF)
Singer, Jill (SF)
__
__
__
__
__
__
__
__
__
__
__
__
Sonnenshein, Larry (NYC)
Steel, Iris (AG)
__
__
__
__
__
__
__
__
__
__
Tabor, George (P)
Teff, Justin (P)
Tyler, Gary (P)
Tyler, Gary (P)
Violando, Michael (P)
Weerth, Matthew (P)
__
Wolinski, Theresa (P)
__
Wood, Nancy (SIF)
Wu, Steven (SF)
A__Cuffe v Supercuts
R__Chmura v T&J Painting
A__Walton v Lin Dot
A__Steadman v Albany County
A__Alm v Natural Health Fmly
R__Warner v Franklinville CSD
A__Walton v Lin Dot
A__Longo v Graphic Packaging
R__Appley v America Food
R__Choto v Consolidated Lumber
S__Coleman v Schenectady County
S__Rodgers v NYC Fire Dept
S__Sauers v K-Mart Corp
A__Machajewski v Town of Cambria
R__Stenson v NYS DOT
A__DeGennaro v Island Fire
A__Levy v Plainview Fire Dept
A__McFadden v NYC Dept of Corr
R__Coyle v Midwest Steel
A__Hester v Homemakers Upstate
A__Cassaro v Horton
S__DeFayette v Verizon
A__Garti v The Salvation Army
A__Smith v Albany Cty Sheriff
A__Messina v Hudson News Co
A__Hardy v Trico
A__Salgy v Halsted Comm.
A__Bouyea v McLane Northeast
A__Beardsley v Walmart
A__Palermo v Primo Coat
A__Cooper v Cosmopolitan Care
A__Witkowich v SUNY
R__Funke v Eastern Suffolk Boces
R__Nickel v Pilgrim Psychiatric
D__Dow v Silver Constr Corp
A__Eber v Jawanio
R__Held v NYS WCB
A__Carroll v Fagan Inc
R__Wilkins v NY Power Authority
A__Pucci v DCH Auto Group
A__McCarthy v Verizon
A__Fayo v Crystal Run Health
A__Fischer v Kaleida Health
A__Kwadzogah v NYC Health-Hosp
A__Rondon v Manhattan/Bronx Tr.
A__Heckerman v Daimler Chrysler
A__Hamza v Steinway & Sons
A__Machajewski v Town of Cambria
A__Leslie v Eastman Kodak
S__Carr v Cairo Fire Dist
A__Siliverdis v Sea Breeze Servs
R__Beder v Big Apple Circus
R__Maye v Alton Mfg
S__Fischer v UPS
A__Hayes v Nassau County P.D.
A__Amacio v Tully Construction
A__Cicciarelli v Westchester HCC
A__Falkouski v City/ Rensselaer
A__O’Neil v City of Albany P.D.
A__Longo v Graphic Packaging
R__Lewis v Stewarts Marketing
R__Fitzgerald v Berkshire Farm
R__Pacatte v SUNY Cobleskill
A__Maw v Wal-Mart
A__Grugan v The Record
R__Whittaker v Central Sq CSD
A__Quagliata v Starbucks Coffee
A__Sillitti v Liberty Travel
S__Veeder v NYS Police Dept
R__Plew-Jourdanais v Adirondack
A__Lavigne v Peru CSD
A__Bobbit v Chardbonneau Constr
A__Grasso v Brewster CSD
A__Smith v TWA
A__Baxter v TG Peppe
A__Klamka v Con Ed
A__Poli v Taconic Correctional
S__Gardner v Triple R Transp
R__Burke v Verizon
A__Conyers v Van Rensselaer
A__Pratt v LI Jewish Medical
A__Conyers v Van Rensselaer
A__Garti v The Salvation Army
A__Smith v Albany Cty Sheriff
A__McCarthy v Verizon
A__Castelli v NRG
A__Hope v Warren County Bd Elec
A__Jii v Chen
R__Krausa v Totales Debevoise
A__Lloyd v New Era Cap Co.
R__Kakuriev v Home Services
A__Albano v Waldbaum
A__Copak v Our Lady of Victory
A__Pinter v Louis Kennedy Trkg
S__Brown v Guilderland CSD
A__Hammond v Dutchess Bldg
A__Donnelly v Alden CSD
A__Castelli v NRG
R__Burley v Theriault Transp
A__Hunt v Price Chopper Golub
R__Gaddis v Niagara Mohawk
S__Guidice v Herald Co
A__Williams v NYC
A__York-Gunning v St Johns Hosp
A__Quagliata v Starbucks Coffee
A__Albano v Waldbaum
A__Ortiz v MartinViette Nursery
A__Duma v Gentian Baca
D__Dow v Silver Constr Corp
A__Klamka v Con Ed
A__Butler v General Motors
A__Gillan v NYS Dept of Corr
A__Bran v Wimbish
A__Borgeat v C & A Bakery
D__Dow v Silver Constr Corp
S__Morphew v Aero
A__Fazzary v Niles
A__Carlineo v Snelling/Snelling
A__Hope v Warren County Bd Elec
A__Huggins v Masterclass Masonry
A__Dipippo v Accurate Signs
D__Cucinella v NYC Transit Auth
A__Browne v Medford Multicare
A__Becker v Rauli & Sons
A__Raynor v Landmark Chrysler
► The Insider’s look at the NYS Workers Compensation Board
January 12, 2012: Appears that the Board is like most of us when it come sot New Year’s resolutions. It said it would be good and got 12 wins last week bt broker it resolution in the second week with two reversals including one because “the Board did not provide any rationale” for its decision.
And I am pleased to announce the TOP ATTORNEYS FOR 2011 who will be listed at the link below.
These free weekly postings cover all workers compensation related cases issued since 2008, not only by the Third Department but also the New York State Appellate Division’s First, Second, and Fourth Departments, the New York State Court of Appeals, various Supreme Courts throughout the State, and relevant out-of-state cases. To receive our weekly e-mail alerts or post a comment, contact TheInsider@InsideWorkersCompNY.com.
Engoltz v Stewarts January 12, 2012 NYS Appellate Division, Third Department §114-a: Fraud «»5130…§114-a: Fraud
REVERSED the Board’s decision that claimant violated WCL § 114-a and was disqualified from receiving additional wage replacement benefits. The Court determined that the Board’s determination that the claimant “knowingly [made] a false statement or representation as to a material fact” for the purpose of receiving benefits” was based on the Board’s misinterpretation of the claimant’s response to the carrier questionnaire. The questionnaire asked if he had been “receiving any earnings”, to which he responded in the negative as he had not, even though the Board, based on the claimant’s own testimony, described his volunteer activities for which he did not get paid as the equivalent of work. The Court added a footnote which is basis for their reversal:
It is notable in this case that, instead of asking whether claimant was or had been employed or had returned to work in any capacity (see e.g. Matter of Bottieri v New York State Dept. of Taxation & Fin., 27 AD3d 1035 [2006]), the questionnaire here asked only whether claimant had been receiving “earnings,” which was specifically defined as “cash, wages, or salary received from self-employment, any employer other than the employer where you were injured, commissions or bonuses, cash value for all payments received in any other method other than cash (such as a building custodian receiving an apartment rent free).”
Prevailing party represented by: Mary J. Mraz of the Law Office of Mary J. Mraz & Associates (Albany) for appellant Commissioners of Record: Ferrara, Libous, Paprocki WCB #5941 2939 [21160-7691]
►The Appellate Court has affirmed the Board on the three §114-a fraud cases that came before it in 2011: two for the claimant and one for the carrier.
Johnson v Anheuser Busch January 12, 2012 NYS Appellate Division, Third Department Aggregate Trust Fund
Decision Inadequately/Poorly Written «»5250…Aggregate Trust Fund 7200…Decision Inadequately/Poorly Written
REVERSED the Board’s ruling that directed the carrier to make a deposit into the aggregate trust fund (ATF) pursuant to WCL §27(2). After a Law Judge in 2005 determined that claimant had a PPD and therefore, per §27(2) directed the carrier to make a mandatory deposit of the full present value of claimant’s future benefits into the ATF, the Special Disability Fund (Fund) conceded that it would be liable for reimbursement of 50% of the award per WCL §15[8]. [ED. NOTE: Although the appeal in this decision was on a November 3, 2010 MoD, the carrier and Fund also had appeals on this issue to which the Board responded in MoD’s on August 6, 2008 and February 2, 2010, the latter resulting in the non-FBR review but nonetheless amended decision subject to this appeal.] In light of the concession by the Fund, the Board found that, while a deposit into the ATF by the carrier was no longer mandatory, it was nevertheless within its discretion to order the carrier to deposit the full amount of the benefits into the ATF. However, finding that an order to deposit the full amount would not be “an equitable application of the statute,” the Board directed the carrier to deposit only its 50% share of the award into the ATF. The Court ruled, “While it is within the Board’s discretion to direct the carrier to make a deposit into the ATF in this case, it must iterate the basis for doing so in its decision. Here, as the Board did not provide any rationale for exercising its discretion to order the carrier to make a deposit into the ATF, its decision is insufficient to permit meaningful appellate review” and must be remitted for further findings. Prevailing party represented by: Robert E. Geyer of counsel to Wolff, Goodrich & Goldman (Syracuse) for appellants. Commissioners of Record: Lower, Foster, Bell WCB #6040 3990 [21160-7685]
►This is the frist time since this site has been tracking cases that the Board has been reversed on an ATF issue.
PENDING CASES - Appellate Court 3rd Dept
January 12, 2012 - Thursday: After last week’s blitz of 12 decisions and two more this week, there are only nine cases which, at the time you read this (Friday the 13th!), have been argued but whose decisions are pending. The Appellate Court’s February calendar has yet to be scheduled.
Nov 17, 2011 Capalbo v Stone & Webster
Jan 06, 2012 Eccles v Truck Lite
Nov 14, 2011 Hroncich v Con Edison Nov 16, 2011 Jennings v Avanti Express
Nov 14, 2011 Ramadhan v Morgans Hotel Group
Jan 13, 2012 Searchfield v Lowes Home
Nov 14, 2011 Thomas v Warren County Dpw
Oct 19, 2011 Vilic v Granny’S Kitchen
Jan 09, 2012 Wheeler v Bloomingdales
PENDING CASES - Court of Appeals
January 12, 2012 - Thursday: No new workers compensation-related cases have been heard or added to the Court of Appeals hearing calendar but Zamora, Cappellino,and Bissell are now scheduled,as noted below, for argument.
Zamora v New York Neurologic Assoc. ▲Argument set for February 15, 2012▲- Attachment to the Labor Market: 79 AD3d 1471; 3rd Dept. App. Div. order of 12/23/10; Filed week of 01/28/11-02/03/11. On April 5, 2011, motions to dismiss the appeals, filed by the NYS WCB and by the NY Neurologic Assoc, were denied.
Cappellino v Baumann & Sons Bus Company - ▲Argument set for January 5, 2012▲ Causal relationship between the death of claimant’s decedent and his employment: 52 AD3d 1058; 3rd Dept. App. Div. order of 6/19/08; filed week of 12/31/10-01/06/11.
Bissell v Town of Amherst, et al. ▲Argument set for February 8, 2012▲4th Dept. App. Div. order of 12/30/10; whether the appellate division erred in disallowing petitioner from presently recovering from the NYSIF those litigation costs traceable to the future medical expenses that petitioner recovered in a personal injury action - WCL §§13(a), 29(1/span>
Weiner v NYC: 2nd Dept. App. Div. Order of 4/26/11; reversal; leave to appeal; Granted by app. Div., 9/13/11; Municipal corporations - tort liability - whether NYC EMT injured in the line of duty on municipal property may maintain an action against his municipal employer under general municipal law § 205-a despite his eligibility for workers’ comp benefits - WCL §11. Supreme Court, Kings County denied defendants’ motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7) ; App. Div.reversed and granted defendants’ motion.
Schmidt v Falls Dodge, Inc. et al.: Workers’ compensation - award - whether schedule loss of use award is subject to non-schedule awards in other workers’ comp cases where awards were made at the maximum statutory rate and cover the same periods - WCL §15(6).
► Prior Postings ◄
Blotko v Solomon Oliver January 5, 2012 NYS Appellate Division, Third Department Employment: Who is «»3030__Employment: Who is or dual
AFFIRMED the Board’s ruling that claimant was not an employee of Solomon Oliver Mechanical Contracting (SOMC). Claimant sustained injuries at a building that was being demolished by SOMC who won the contract with a lower bid than the claimant’s own firm. Claimant then spoke with SOMC’s about whether some of the laborers who had worked for his company could work at the demolition site to which SOMC agreed. Although claimant contended that SOMC also hired him, a Law Judge found that an employer-employee relationship did not exist between claimant and SOMC. Despite proof in the record that would support a contrary conclusion, the Court found no basis to disturb the Board’s decision that claimant was not SOMC’s employee. Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for SOMC and another, respondents. Commissioners of Record: Foster, Higgins, Libous WCB #0082 7054 [21158-7689]
►With the exception of Choto v Consolidated Lumber (3/10/2011), The Board has always been affirmed in its decisions on this issue.
Cary v Salem CSD January 5, 2012 NYS Appellate Division, Third Department Medical Exams: Frequency «»5200…Medical Exams: Appointments
REVERSED the Board’s decision which incorrectly rescinded awards made by a Law Judge and which denied claimant’s request for a Full Board Review because of gaps in medical reports. After suffering injuries in June 2003 and then returning to work with restrictions in November 2003, a Law Judge in 2009 awarded reduced earnings benefits from January 2004 to July 2009, with the awards to continue forward, a decision reversed by a Board panel who concluded that claimant had not submitted medical evidence in the form of progress reports from her treating physician supporting a finding of a continuing causally related disability every 45 days as required and, rescinded claimant’s R/E awards for various time periods between April 11, 2005 to July 10, 2009 representing gaps between the submission of the progress reports that were greater than 45 days.
The Court recognized that “there is no presumption of continuing disability under the Workers’ Compensation Law” and that a claimant’s treating physician is required to submit progress reports reflecting a continuing disability “at intervals of not less than three weeks apart or at less frequent intervals if requested on forms prescribed by the [C]hair” although “[t]he [B]oard may excuse failure to give such notices within the designated periods when it finds it to be in the interest of justice to do so” (WCL §13-a[4][a]). And while there were gaps between the submissions of the medical reports, the unequivocal and unchallenged medical evidence in the record establishes that claimant was disabled during that entire time period such that “The gaps in the reports, standing alone, do not constitute substantial evidence supporting the recision of claimant’s reduced earnings awards under these circumstances.” Prevailing party represented by: Christopher R. Lemire of counsel to Lemire & Johnson (Malta) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5030 9752 [21158-7688]
Catapano v Jaw January 5, 2012 NYS Appellate Division, Third Department § 29: 3rd Party/MVA liens «»3160…§ 29: 3rd Party/MVA liens
AFFIRMED the Board’s decision which, found that the Special Disability Fund’s (Fund) consent to a third-party settlement was required, a decision issued by the Board after this same Court on May 20, 2010 reversed the Board’s November 24, 2008 ruling against the Fund. After the claimant was injured, the claim established, and §15(8)(d) liability established, claimant settled a 3rd party law suit with the consent of the carrier but not the Fund. After the Board initially held that the Fund’s consent was not required, the Court returned it to the Board determining that its decision was inconsistent with Board precedent and because the Board did not set forth its reasons for deviating from the precedent. Now the Board ruled that the Fund’s consent to the settlement was required and the carrier’s failure to obtain such consent resulted in a forfeiture of further reimbursement from the Fund. The Court added, “Inasmuch as the Board’s decision [ED NOTE: this time] represents a rational, consistent interpretation and application of the relevant statute, we will not disturb it.“ Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee Commissioners of Record: Ferrara, Libous, Higgins WCB #0952 8461 [21158-7687]
►In 2010 and 2011, The Board has been affirmed only 3 times in its 9 decisions on §29 issues.
Eaton v Dellapenna Assoc January 5, 2012 NYS Appellate Division, Third Department Disability: Degree of «»5020…Disability: Degree of or R/E
AFFIRMED the Board’s decision that claimant sustained a permanent total disability. After claimant’s 2001 injury prevents him from returning to work, medical treatment authorized and awards were made at a tentative rate. In 2003, he began receiving Social Security disability benefits and underwent surgery, which only relieved his pain temporarily. After claimant was classified in 2009 with a permanent partial disability, the case was continued on the issue raised of claimant’s attachment to the labor market, after which a Law Judge modified claimant’s prior classification and determined that he had a permanent total disability. The claimant’s treating physician testified given, among other things, claimant’s detailed physical restrictions and the fact that his chronic pain is controlled by narcotic medications, it was his opinion that claimant was disabled from even sedentary employment, regardless of the fact that not all of these concerns were addressed by the Board’s medical guidelines. While claimant testified that he had sporadic good days when the pain was not as severe and the record contains medical proof that could support a finding that claimant continued to suffer only a permanent partial disability, the Board specifically found the physician’s testimony regarding claimant’s limitations and unemployability to be credible. Prevailing party represented by: Anna Dmitriev of counsel to Coughlin & Gerhart (Endicott) for Larry Eaton, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #9010 5224 [21158-7686]
►The Board’s decisions on this issue have always been confirmed (1 in 2011 and 5 in 2010).
Franco v Peckham Ind January 5, 2012 NYS Appellate Division, Third Department Disability: Further Causally Related «»5030…Disability: Further Causally Related/Comp
AFFIRMED the Board’s decision that claimant’s newly developed medical condition was not consequential and thus he had no further causally related disability. After injuring his back in April 2004, claimant’s case was established, and awards made. In September 2004, he received epidural steroid injections to relieve his back pain. After he was hospitalized and treated for tuberculosis myelitis in October 2004, he sought to amend his claim to include tuberculosis myelitis as a consequential injury. The Board, based on reports from an impartial specialist, concluded that there was insufficient evidence of a causal relationship to include tuberculosis myelitis. Then it determined claimant’s had no further work-related injury subsequent to June 9, 2006. The Court ruled that, “inasmuch as claimant did not appeal from the Board’s determination not to amend the claim to include consequential tuberculosis myeletis and did not re-present the issue in its application for Board review, such claim is unpreserved.” The Board’s final decision was that claimant’s present disability was not related to his workplace injury but was solely due to the subsequent, unrelated tuberculosis myeletis condition. Prevailing party represented by: Sara Thomas of counsel to Jones, Jones (NYC) for Peckham Industries, Inc. and another, respondents. Commissioners of Record: Ferrara, Libous, Paprocki WCB #3040 4511 [21158-7685]
►The Board’s decisions on this issue have been confirmed in 5 of 6 cases in 2011/2010 with one being rescinded.
Hosey v Central NY DDSO January 5, 2012 NYS Appellate Division, Third Department § 25-a: True Closing «»3140…§ 25-a: True Closing
AFFIRMED Board’s decision that WCL §25-a is not applicable. After receiving benefits for a 2000 back injury, in 2009 the carrier sought to have liability shifted to the Special Fund for Reopened Cases (Fund) per WCL §25-a. While a Law Judge agreed, a Board panel found that the case had not truly been closed and, reversed the Law Judge. In this case, even though the claimant had been working continuously with the same restrictions since 2002, had no compensable lost time, and was receiving ongoing payments for medical treatment, and his treating physician in 2002 indicated claimant had a permanent disability, the issue of permanency was not formally addressed and therefore remained unresolved and thus, legally, still open. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee. Commissioners of Record: Lower, Paprocki, Bell WCB #6011 2921 [21158-7684]
