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CLAIMANT’S FAILURE TO SUBMIT MEDICAL RECORDS TO THE EMPLOYER PRIOR TO THE HEARING REQUIRED PRECLUSION OF THE RECORDS; HOWEVER THE CASE SHOULD NOT HAVE BEEN CLOSED; CLAIMANT MAY REMEDY THE OMISSION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the case should not have been closed because claimant failed to provide a copy of the medical records to the employer before the hearing, but rather the case should have been marked “no further action” which allows claimant to submit the medical records:

Pursuant to 12 NYCRR 300.2 (d) (4) (iv), copies of written reports of medical experts made based on a records review to be used for reference at a hearing must be filed with the Board and submitted to all other parties three days prior to the hearing. It is uncontested that the employer was not provided a copy of the report pursuant to the regulation and, therefore, the report was properly precluded … . …

As to the Board’s decision to disallow the claim and close the case after rescinding the WCLJ’s finding of prima facie medical evidence, it should be noted that if the WCLJ [Workers’ Compensation Law Judge], in the first instance, had found that claimant had not proffered prima facie medical evidence, the WCLJ would have been required to have marked the case as “no further action” … . Claimant then would have been provided an opportunity to “submit additional information on an amended or other medical report, upon which submission the case shall be scheduled for another pre-hearing conference” … . Thus, under these circumstances, where there has been no finding by the WCLJ as to the establishment or disallowance of the claim, the Board’s decision to find no admissible evidence of a causally-related death and close the case based solely upon the rescission of the WCLJ’s finding of prima facie medical evidence was improper. Rather, the matter should now be marked as no further action, thereby providing claimant with an opportunity to proffer additional information to satisfy her burden of submitting prima facie medical evidence … . Matter of Barton v Consolidated Edison Co. of New York, Inc., 2020 NY Slip Op 06190, Third Dept 10-29-20

 

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CLAIMANT PURCHASED OFFICE FURNITURE AFTER HE WAS HIRED TO WORK FROM HOME AND WAS INJURED CARRYING THE FURNITURE TO HIS HOME OFFICE; THE WORKER’S COMPENSATION BOARD SHOULD NOT HAVE ANALYZED THE CASE UNDER A RIGID NEW STANDARD FOR EMPLOYEES WORKING FROM HOME; MATTER REMITTED FOR APPLICATION OF THE LONG-ESTABLISHED STANDARD (THIRD DEPT). ​

The Third Department, reversing the denial of benefits and remitting the matter to the Workers’ Compensation Board, determined claimant, who was hired to work from home, may be entitled to workers’ compensation benefits stemming from moving boxes during claimant’s lunch hour. Claimant was told by his employer the company would not pay for office furniture. Claimant purchased the office furniture and was injured when carrying the boxes upstairs to his home office. The court addressed how workers’ compensation principles should be applied to working from home:

… [T]he Board eschewed the foregoing principles in favor of a rigid new standard for employees working from home under which injuries are only compensable if occurring during regular work hours and while the employee is actively engaged in work duties as opposed to, for example, taking a short break or using the bathroom. This novel standard is unsupported by precedent, is inconsistent with “the remedial nature of the Workers’ Compensation Law” and cannot be countenanced … . A “regular pattern of work at home” renders the employee’s residence “a place of employment” as much as any traditional workplace maintained by the employer … . As a result, inasmuch as the Board determined that claimant was injured during his regular work shift … , the compensability of his injury should have been determined using the long-established standard.

We accordingly remit for the Board to apply that standard and determine whether claimant, when moving the boxes, was engaged in a “purely personal” activity that was not “reasonable and sufficiently work related under the circumstances” … . Matter of Capraro v Matrix Absence Mgt., 2020 NY Slip Op 06000, Third Dept 10-22-20

 

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ALTHOUGH THERE WAS EVIDENCE CLAIMANT MADE A FALSE STATEMENT ABOUT THE LEVEL OF HER INVOLVEMENT IN AN ONLINE BUSINESS WHILE SHE WAS RECEIVING WORKERS’ COMPENSATION BENEFITS, SHE WAS FORTHRIGHT ABOUT HER INVOLVEMENT WHEN QUESTIONED; PERMANENT DISQUALIFICATION FROM FUTURE BENEFITS WAS NOT WARRANTED (THIRD DEPT).

The Third Department, modifying the Workers’ Compensation Board, determined there was support in the record for the finding claimant omitted from her application for benefits that she was selling items online while receiving benefits, but the record did not support a permanent disqualification from future benefits. Claimant omitted the information because she had not turned a profit, but she was forthright about the online business when questioned about it:

“The fact that claimant had not yet realized a profit from [the activities] does not diminish [her] obligation to provide true and accurate information regarding [her] employment activities and such misrepresentations are clearly material to [her] claim” … . The evidence here revealed that claimant failed to accurately disclose her level of activity … . …

We note that claimant was readily forthcoming about her activities when questioned and declined to cash benefits checks after she resumed part-time work with the employer … . Based on all the circumstances presented, we do not find adequate support for the Board’s determination that claimant engaged in “an egregious pattern of conduct,” thus warranting permanent disqualification from future wage replacement benefits … . Matter of Conliffe v Darden Rest., 2020 NY Slip Op 06001, Third Dept 10-22-20

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AN UNPAID PENALTY ASSESSED FOR DEFENDANT’S FAILURE TO MAINTAIN WORKERS’ COMPENSATION COVERAGE WAS ENTERED AS A SUPREME COURT JUDGMENT BY THE COUNTY CLERK IN ACCORDANCE WITH THE WORKERS’ COMPENSATION LAW; BY THE TERMS OF THE STATUTE, SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION AND DEFENDANT COULD NOT MOVE TO VACATE THE DEFAULT JUDGMENT (THIRD DEPT).

The Third Department determined a judgment entered in Supreme Court by the county clerk pursuant to the Workers’ Compensation Law 26  is not reviewable by Supreme Court. The Workers’ Compensation Board assessed a penalty against defendant for failure to maintain workers’ compensation coverage. When the penalty was not paid the judgment was entered by the county clerk as a ministerial act which cannot be addressed by a motion in Supreme Court to vacate a default judgment:

Defendants … ignore the peculiar statutory scheme by which only this Court may review a final determination by plaintiff with respect to, among other things, assessments ordered pursuant to Workers’ Compensation Law § 52 (5) up until the time that a judgment against an employer is entered. At that point, no appeal is permitted … .

Workers’ Compensation Law § 26 provides that where an employer fails to pay an assessment imposed pursuant to Workers’ Compensation Law § 52 (5) within 20 days after it is due, plaintiff’s chair may file a certified copy of the order imposing such assessment with the county clerk where the employer’s principal place of business is maintained. “[T]hereupon[,] judgment must be entered in the [S]upreme [C]ourt, by the clerk of such county in conformity therewith immediately upon such filing. . . . Such judgment shall be entered in the same manner, have the same effect and be subject to the same proceedings as though rendered in a suit duly heard and determined by the [S]upreme [C]ourt, except that no appeal may be taken therefrom” (Workers’ Compensation Law § 26 …). The entry of such judgment is “merely a ministerial act” made pursuant to Workers’ Compensation Law § 26 … . Indeed, the statute provides that the court shall “vacate or modify” the judgment only “to conform to any later award or decision of [plaintiff]” and “[t]he award may be so compromised [only] by [plaintiff and] in the discretion of [plaintiff]” (Workers’ Compensation Law § 26). Inasmuch as the entry of plaintiff’s order here by the County Clerk was “merely a ministerial act” … , Supreme Court lacked the authority to vacate the judgment because the underlying order was not issued by the court … . …

To allow defendants to petition a different court to vacate its default after judgment has been entered would undermine this statutory scheme by allowing a court other than this one to, in effect, review a final decision of plaintiff. Workers’ Compensation Bd. of the State of N.Y. v Williams Auto Parts Inc., 2020 NY Slip Op 05261, Third Dept 10-1-20

 

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CLAIMANT WAS SIMULTANEOUSLY ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD AND A PERMANENT PARTIAL DISABILITY CLASSIFICATION (THIRD DEPT).

The Third Department, reversing (modifying) the Workers’ Compensation Board, determined claimant was simultaneously entitled to an award for a schedule loss of use [SLU] and a permanent partial disability classification:

For the reasons more fully discussed in Matter of Arias v City of New York (182 AD3d 170, 172 [2020]), we agree with claimant’s contention that the Board erred in disregarding or attempting to distinguish Matter of Taher [162 AD3d 1288] … . Under Matter of Taher, a claimant who sustains both schedule and nonschedule permanent injuries in the same work-related accident and returns to work at preinjury wages — and, thus, has not received a reduced-earnings award based upon a nonschedule permanent partial disability classification (see Workers’ Compensation Law § 15 [3]) — is entitled to an SLU [schedule loss of use] award for permanent partial impairments to the statutorily enumerated body parts, here, claimant’s knee and possibly his left elbow (see Workers’ Compensation Law § 15 [3] [a] …). Matter of Garrison-Bey v Department of Educ., 2020 NY Slip Op 05273, Third Dept 10-1-20

 

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CLAIMANT DID NOT TRY TO HIDE THE DOG-WALKING BUSINESS AND WAS ONLY TANGENTIALLY INVOLVED IN THE OPERATION OF THE BUSINESS; THEREFORE THE EVIDENCE DID NOT SUPPORT THE CONCLUSION SHE HAD MADE A MATERIAL FALSE STATEMENT IN HER CLAIM FOR WORKERS’ COMPENSATION BENEFITS STEMMING FROM HER FORMER EMPLOYMENT AS A BARTENDER (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant did not make a material false claim about her involvement in a dog-walking business after the injuries for which she sought Workers’ Compensation benefits. The Board had reversed the Workers’ Compensation Law Judge’s (WCLJ’s) finding to that effect. The Third Department held the evidence did not support the conclusion that claimant was involved in the dog-walking business, run by her brother, and therefore the evidence did not support the conclusion claimant had violated Workers’ Compensation Law 114-a by making a false statement

… [T]he record does not establish that claimant knowingly made a material false statement to influence her claim for compensation in violation of Workers’ Compensation Law § 114-a … . There is no indication that claimant actively participated in the business after she began receiving temporary total disability payments. Her involvement was tangential at best. Although the business remained intact, it was claimant’s brother who ran the day-to-day operations. Significantly, there is nothing to indicate that claimant attempted to hide the business, as the Board was well aware of its existence at the time that the WCLJ made the reduced earnings award. Accordingly, the Board’s decision finding that claimant violated Workers’ Compensation Law § 114-a and imposing penalties is not supported by substantial evidence and must be reversed. Matter of Nikac v Joal Rest. Corp., 2020 NY Slip Op 05274, Third Dept 10-1-20

 

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THE APPLICATION FOR REVIEW OF THE WORKERS’ COMPENSATION LAW JUDGE’S DECISION WAS PROPERLY DENIED BECAUSE THE APPLICATION DID NOT SPECIFY WHEN THE OBJECTIONS TO THE DECISION WERE MADE (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly refused review of the award of benefits sought by the carrier. The application form (requesting Board review) did not specify when the objections to the contested decision by the Workers’ Compensation Law Judge (WCLJ) were made:

… [B]oth the application (form RB-89) and the instructions in effect at the time that it was filed required the carrier to “specify the objection or exception that was interposed to the ruling, and when the objection or exception was interposed” … . This information was to be supplied by the carrier in question number 15 of the application. In response to this question, the carrier stated, “Objections were noted during the course of the hearing and at the conclusion of the hearing regarding the [WCLJ’s] finding that no additional development of the record was necessary on the issue of attachment to the labor market prior to directing awards based solely on the amendment to [s]ection 15 (3) (w) that took effect 04/10/17.” Significantly, the carrier failed to identify the hearing at which the objection was raised, and the record discloses that there was more than one hearing at which claimant’s labor market attachment was addressed. As the carrier failed to provide the temporal information required by the regulations, we cannot conclude that the Board abused its discretion in finding the application to be incomplete and declining to review the WCLJ’s decision … . Matter of Demarco v Trans Care Ambulance, 2020 NY Slip Op 04895, Third Dept 9-3-20

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING CLAIMANT’S INJURY WAS WORK-RELATED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the evidence that claimant suffered a meniscus tear at work was insufficient:

“The Board is empowered to determine the factual issue of whether a causal relationship exists based upon the record, and its determination will not be disturbed when supported by substantial evidence” … . Although the medical opinion evidence relied upon by the Board to demonstrate the existence of a causal relationship does not need to be expressed with absolute or reasonable medical certainty, “it must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility” … . …

Bruce Greene, claimant’s treating orthopedic surgeon, testified that it was difficult to determine when the meniscus tear occurred. He further testified that there is “a strong possibility [that] there was an acute or chronic tear of [the] meniscus” and that it is “very reasonable that something could have happened at work that exacerbated a chronic [condition].” The Board, finding that the medical testimony expressing that it was “highly possible” that the injury was causally related to work, falls short of the reasonable probability that is required to establish a causal relationship between claimant’s employment and his injury. Matter of Johnson v Borg Warner, Inc., 2020 NY Slip Op 04897, Third Dept 9-3-20

 

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ALTHOUGH THERE WAS NO SCHEDULE LOSS OF USE (SLU) AWARD FOR THE PRIOR (2003) INJURY, THE AMOUNT OF THE AWARD FOR THE CURRENT (2015) INJURY MUST BE REDUCED BY THE LOSS OF USE ATTRIBUTED TO THE PRIOR INJURY (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the schedule loss of use (SLU) award should have been apportioned between the effects of a prior (2003) injury for which claimant was not compensated and the current (2015) injury to the same body member. The prior injury would have been compensable but for the finding the injury was caused by an injury at work:

In August 2015, claimant sustained another injury to his right shoulder while at work, and his ensuing claim was established for injury to the right shoulder. Ultimately, a WCLJ found that claimant had a 50% SLU of the right arm that was causally related to the 2015 accident. The WCLJ [Workers’ Compensation Law Judge] rejected the carrier’s assertion that there should be apportionment between the 2015 claim and the 2003 noncompensable injury, stating that the carrier had successfully argued at the time of the 2003 claim that one of claimant’s consultants was not credible and that there was no SLU for the 2003 injury and that it would be contradictory to now reduce claimant’s award based on that consultant’s prior SLU opinion. …

It is standard practice to apportion an SLU award involving two compensable injuries to the same body member and thus hold each carrier responsible for only that portion of the overall loss of use attributable to the injury covered by them ). That same principle is applicable to an SLU case involving a prior, noncompensable injury when the prior injury was disabling “in a compensation sense” before the occurrence of the subsequent injury. Because an SLU award “is not given for an injury sustained, but[, rather,] for the residual permanent physical and functional impairments” to the subject body member … , the question is whether there is documented prior “loss of use, function or range of motion of the body member in question” … . In other words, “apportionment may be applicable in an SLU case if the medical evidence establishes that the claimant’s prior injury [to the same body member] — had it been compensable — would have resulted in an SLU finding” … . Matter of St. Aubin v Office of Children & Family Servs., 2020 NY Slip Op 03706, Third Dept 7-2-20

 

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CLAIMANT ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD DESPITE RETURNING TO WORK AT PREINJURY WAGES (SECOND DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant was entitled to a schedule loss of use (SLU) award even though claimant returned to work at preinjury wages:

For the reasons set forth in Matter of Arias v City of New York (182 AD3d 170 [2020]), we find that the Board’s disregard of Matter of Taher v Yiota Taxi, Inc. (162 AD3d 1288 [2018] …) was in error and, therefore, reverse. As this Court has recently held, “where a claimant who has sustained both schedule and nonschedule permanent injuries in the same work-related accident has returned to work at preinjury wages and, thus, receives no award based on his or her nonschedule permanent partial disability classification, he or she is entitled to an SLU award” … . As there was a finding of permanency as to claimant’s neck injury and he has returned to work at preinjury wages, he is entitled to an SLU award for the remaining injuries … . Matter of Cruz v Suffolk County Police Dept., 2020 NY Slip Op 03713, Second Dept 7-2-20

Similar issues and result: Matter of Cosides v Town of Oyster Bay Sanitation, 2020 NY Slip Op 03710, Third Dept 7-2-20

 

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