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CLAIMANT’S EXPERT PROVIDED SUFFICIENT EVIDENCE OF A CAUSAL RELATIONSHIP BETWEEN CLAIMANT FIREFIGHTER’S LUNG CANCER AND EXPOSURE TO TOXINS AT GROUND ZERO, WORKERS’ COMPENSATION BOARD REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the evidence supported a finding that claimant firefighter’s lung cancer and death were caused by exposure to toxins at Ground Zero:

The Board found the opinion of Ploss [claimant’s expert] to be incredible in part because he did not “cite to any studies or other evidence to sufficiently explain his opinion regarding causation.” However, Ploss opined that “[i]t is well accepted that the numerous carcinogens contained in the debris of th[e] highly polluted area known as Ground Zero could cause numerous malignancies such as cancer of the lungs.” As claimant asserts, the question of whether such studies supported the doctor’s findings could have been raised at the hearing, but was not. Ploss further testified that the toxic exposure at Ground Zero that decedent experienced was intense and concentrated given his prolonged exposure and lack of respiratory protection and that such exposure would have resulted in damage to decedent’s bronchial tree and lung tissue. In our view, the medical opinion of Ploss was neither speculative nor a general expression of possibility and demonstrated that decedent’s exposure at Ground Zero and the World Trade Center site was a contributing factor to his demise for purposes of causation. In view of the foregoing, the Board improperly rejected Ploss’ uncontroverted medical opinion as to causation … . Matter of Murphy v New York State Cts., 2022 NY Slip Op 00087, Third Dept 1-6-22

 

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DEFENDANT EMPLOYER’S LATE MOTION TO AMEND THE ANSWER IN THIS LABOR LAW 240 (1) ACTION TO ASSERT THAT PLAINTIFF’S EXCLUSIVE REMEDY WAS THE WORKER’S COMPENSATION BENEFITS ALREADY AWARDED SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant employer’s (H&M’s) motion to amend its answer to allege Workers’ Compensation was plaintiff’s sole remedy in this Labor Law 240(1) action should have been granted, despite the lateness of the motion:

H&M’s initial failure to submit the proposed amended pleading (CPLR 3025[b]) was a technical defect that the court should have overlooked (see CPLR 2001), particularly since H&M attached the proposed amendment to its reply … . Plaintiff’s arguments that he was prejudiced by the amendment proposed in H&M’s cross motion, filed about three years after this action was commenced and two years after the workers’ compensation ruling was affirmed, are unavailing … . It is not dispositive that leave to amend was sought a few months after the note of issue was filed … .

The valid and final decision of a panel of the Workers’ Compensation Board, affirming a decision by a Workers’ Compensation Law Judge that was based on a finding that H&M was plaintiff’s employer at the time of the accident, “bars [plaintiff] from relitigating the identical issue in this proceeding”  … . Chen v 111 Mott LLC, 2021 NY Slip Op 07501, First Dept 12-28-21

 

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CLAIMANT FIREFIGHTER DEMONSTRATED HIS PTSD IS RELATED TO THE HORRIFIC INJURIES AND DEATHS HE WITNESSED DOING HIS JOB; WORKERS’ COMPENSATION BOARD REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant firefighter demonstrated his PTSD is related to the horrific injuries and deaths he witnessed doing his job:

… [W]here a firefighter “files a claim for mental injury premised upon extraordinary work-related stress incurred in a work-related emergency, the [B]oard may not disallow the claim, upon a factual finding that the stress was not greater than that which usually occurs in the normal work environment” (Workers’ Compensation Law § 10 [3] [b] … ). …

The record includes a … letter from claimant’s treating psychologist — Raymond Angelini — who opined that claimant was suffering from PTSD “as a result of responding to countless horrific, work-related emergency situations over the course of his career as a firefighter . . ., including but not limited to exposure to death, dismemberment, disfigurement[] and CPR regurgitation.” …

… [W]e conclude that claimant demonstrated, through competent medical evidence, a reasonable probability that his PTSD was causally related to his employment … . Matter of Reith v City of Albany, 2021 NY Slip Op 07339, Third Dept 12-23-21

 

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THE INSURER PRESENTED EVIDENCE THE BOARD’S RULING THAT THE INSURER WAS THE RESPONSIBLE CARRIER WAS BASED UPON FRAUDULENT DOCUMENTATIOIN; IT WAS ABUSE OF DISCRETION TO DENY THE INSURER’S APPLICATION FOR REVIEW (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board abused its discretion when denying an insurer’s (Everest’s) application for a review of a ruling that the insurer was the responsible carrier. That ruling was plausibly argued to have been based upon fraudulent documentation:

… [T]he proof submitted by Everest in support of its administrative appeal strongly suggests that the certificate of insurance provided to the Board was not authentic, and, based upon the limited record before us, the certificate appears to have been an important, if not the only, factor in the WCLJ’s [Workers’ Compensation Law Judge’s] decision as to Everest. In other words, Everest has brought to the Board’s attention the strong possibility that it has issued a decision based perhaps entirely upon fraudulent documentation. … Under these facts, “[i]t is not an adequate answer to say that this kind of determination is usually discretionary” … , and, in our view, the very purpose of the discretion afforded to the Board is to grant relief in circumstances such as these … . … [W]e find that the Board abused its discretion in denying Everest’s application for review … . Matter of Salinas v Power Servs. Solutions LLC, 2021 NY Slip Op 07321, Third Dept 12-23-21

 

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WORKERS’ COMPENSATION DEATH BENEFIT CLAIMS CANNOT BE TRANSFERRED TO THE SPECIAL FUND ON OR AFTER JANUARY 1, 2014, EVEN IF THE DISABILITY CLAIM FOR THE SAME INJURY HAD BEEN TRANSFERRED BEFORE THE CUT-OFF (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined Workers’ Compensation death benefit claims which accrued on orf after January 1, 2014, cannot be transferred to the Special Fund for Reopened Cases (Special Fund) even if the disability claim for the same injury had been transferred prior to the cut-off:

Under Workers’ Compensation Law (WCL) § 25-a (1-a), no liability for claims submitted on or after January 1, 2014, may be transferred to the Special Fund for Reopened Cases (the Special Fund). The common issue presented in these appeals is whether WCL § 25-a (1-a) forecloses the transfer of liability for a death benefits claim submitted on or after the cut-off, regardless of the prior transfer of liability for a worker’s disability claim arising out of the same injury. Based on the plain statutory language, which broadly applies to all claims submitted after the deadline, and our established precedent that a death benefits claim accrues at the time of death and “is a separate and distinct legal proceeding” from the worker’s original disability claim … , we conclude that liability for the death benefits claims at issue here could not be transferred to the Special Fund. Matter of Verneau v Consolidated Edison Co. of N.Y., Inc., 2021 NY Slip Op 06531, CtApp 11-23-21

 

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CLAIMANT’S REQUEST FOR RECLASSIFICATION BASED UPON A CHANGE IN CONDITION FILED AFTER THE EXPIRATION OF CLAIMANT’S CAPPED INDEMNITY BENEFITS WAS NOT UNTIMELY (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant’s request for reclassification based upon a change in condition was not untimely:

“The Board’s unilateral position that a permanently partially disabled claimant must seek reclassification prior to the exhaustion of his or her permanent partial disability award runs in direct contravention to the plain language of Workers’ Compensation Law § 15 (6-a), which provides that, subject to limitations not relevant here, ‘the [B]oard may, at any time, without regard to the date of accident, upon its own motion, or on application of any party in interest, reclassify a disability upon proof that there has been a change in condition'” … . Thus, the Board improperly refused to consider the three C-27 forms that were submitted by claimant’s physicians because they were filed shortly after the expiration of claimant’s capped indemnity benefits. Accordingly, claimant must be provided with an opportunity to seek reclassification based upon each and every one of the C-27 forms that were submitted by his physicians, irrespective of whether they were filed after the expiration of his indemnity benefits, as well as any additional, current medical evidence and/or testimony in support of his request for reclassification … . “If, after further development of the record, claimant is reclassified, there would at that time be no bar to him receiving, for example, retroactive permanent total disability benefits from the date when he was found to have been totally disabled” … .  Matter of Phillips v Milbrook Distrib. Servs., 2021 NY Slip Op 06402, Third Dept 11-18-21

 

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THE WORKERS’ COMPENSATION BOARD ABUSED ITS DISCRETION BY IGNORING UNCONTRADICTED EVIDENCE OF THE EXTENT OF CLAIMANT’S IMPAIRMENT (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the uncontested evidence demonstrated claimant’s shoulder was 35% impaired, not 15% impaired as found by the Board:

Whether to grant an application for reopening or rehearing in the interest of justice is a matter left to the Board’s discretion and our review of that decision is limited to whether there was an abuse of that discretion … . Upon our review of the Board’s decision, we find that such discretion was abused here. Although the C-4.3 form notes that claimant’s left shoulder is 15% impaired, it directs that the orthopedic surgeon’s findings are set forth in the attached medical narrative. The substance of the attached medical narrative clearly sets forth in detail that claimant sustained a 35% SLU of the left shoulder — attributing 15% to full thickness rotator cuff tear, 10% distal clavicle excision and 10% mild loss of internal and external rotation. The carrier, who received the medical narrative along with the C-4.3 form, specifically accepted the medical opinion without objection. “Notably, while the Board is free to reject the opinion of an expert where it finds such to be unconvincing or incredible, it may not reject an uncontradicted opinion that is properly rendered” … . Matter of Taylor v Buffalo Psychiatric Ctr., 2021 NY Slip Op 06021, Third Dept 11-4-21

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PLAINTIFF POLICE OFFICER ALLEGED TWO FELLOW OFFICERS NEGLIGENTLY INJURED HIM WITH A TASER; PLAINTIFF CANNOT SUE HIS FELLOW OFFICERS IN TORT AND HIS EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determine plaintiff police officer’s petition for leave to file a late notice of claim should not have been granted and his complaint against two fellow police officers should have been dismissed. Plaintiff alleged the two officers negligently tased him. Plaintiff cannot sue the fellow officers in tort, and his exclusive remedy is Workers’ Compensation:

While a police officer can assert a common-law tort cause of action against the general public pursuant to General Obligations Law § 11-106(1), “liability against a fellow officer or employer can only be based on the statutory right of action in General Municipal Law § 205-e” … . General Municipal Law § 205-e(1) specifies that “nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers’ compensation law” … .

Under the Workers’ Compensation Law, “[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee . . . when such employee is injured or killed by the negligence or wrong of another in the same employ” … . Thus, the Workers’ Compensation Law “offers the only remedy for injuries caused by [a] coemployee’s negligence” in the course of employment … . “[A] defendant, to have the protection of the exclusivity provision, must himself [or herself] have been acting within the scope of his [or her] employment and not have been engaged in a willful or intentional tort” … . Walsh v Knudsen, 2021 NY Slip Op 05607, Second Dept 10-13-21

 

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DEFENDANT CAR DEALERSHIP OWNED THE CAR IN WHICH PLAINTIFF, ITS SALESMAN, WAS INJURED DURING A TEST DRIVE; THE DEALERSHIP, AS PLAINTIFF’S EMPLOYER, IS IMMUNE FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW AND IS NOT VICARIOUSLY LIABLE AS THE OWNER OF THE CAR UNDER THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant Paddock Chevrolet was immune from suit by its employee in this traffic accident case. Plaintiff, a salesman for Paddock, was a passenger in a car owned by Paddock which was being test-driven at the time of the accident. The court noted that the Workers’ Compensation Law protected Paddock from vicarious liability as the owner of the car pursuant to the Vehicle and Traffic Law:

Workers’ Compensation Law § 11 provides that “[t]he liability of an employer prescribed by [section 10] shall be exclusive and in place of any other liability whatsoever, to such employee, . . . or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom . . .” We thus agree with Paddock that plaintiff’s claims against it are barred.

Paddock correctly contends that New York has rejected the “dual capacity” doctrine … , rendering it irrelevant whether the amended complaint and cross claims asserted against Paddock were based on its status as plaintiff’s employer or its status as the owner of the vehicle who is vicariously liable for the negligence of a nonemployee driver under Vehicle and Traffic Law … . Mansour v Paddock Chevrolet, Inc., 2021 NY Slip Op 05190, Fourth Dept 10-1-21

 

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THE WORKERS’ COMPENSATION BOARD DID NOT HAVE SUFFICIENT EVIDENCE TO MAKE ITS OWN DETERMINATION TO APPORTION SOME OF CLAIMANT’S DISABILITY TO A 1976 INJURY (THIRD DEPT).

The Third Department, reversing the Worker’s Compensation Board, determined the Board did not have sufficient evidence to determine the extent to which a 1976 injury accounted for some of claimant’s disability:

We recognize that the Board’s medical guidelines “provide ‘useful criteria’ and the Board makes the ultimate determination of a claimant’s degree of disability, but that determination must be supported by substantial evidence” … . Moreover, “although the Board may reject medical evidence as incredible or insufficient, it may not fashion its own medical opinion” … . Here, there are no operative or pathological reports from any surgeries related to the 1976 injury in the record. Nor is there any medical evidence regarding the degree of disability, if any, that had resulted from the 1976 injury and/or surgery and the record reflects that claimant was fully employed with no restrictions at the time of the 2016 injury. Further, even assuming, without deciding, that an evaluation of the 1976 injury under the 1996 guidelines is appropriate for the purposes of determining whether that injury would have resulted in an SLU [schedule loss of use] award, there is no medical opinion that the 1976 injury would have resulted in an SLU award at the time of the injury or under the subsequently published 1996 guidelines. Matter of Hughes v Mid Hudson Psychiatric Ctr., 2021 NY Slip Op 04939, Third Dep 9-2-21

 

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