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CLAIMANT DEMONSTRATED HE HAD NOT REMOVED HIMSELF FROM THE LABOR MARKET WITH DOCUMENTARY EVIDENCE; CLAIMANT WAS THEREFORE ENTITLED TO BENEFITS FROM THE TIME HE DEMONSTRATED ATTACHMENT TO THE WORKFORCE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, over a dissent, determined claimant sufficiently demonstrated he had not removed himself from the job market and was therefore entitled to benefits:

Claimant submitted extensive evidence of his job search, both through job location services and individually, providing more than 600 pages of proof that he filed applications to numerous job postings. These included applications for positions such as dishwasher, doorman, cook, parking garage attendant, kitchen attendant/helper, juice barista and laundry attendant. However, as claimant testified, despite having applied for innumerable jobs, he did not receive any interviews. He also applied for vocational rehabilitation services and was advised to enroll in English as a second language classes, which he promptly did. The WCLJ found that claimant demonstrated attachment to the workforce as of November 16, 2021, the date his English classes started, and we agree.

We are mindful that the Board “is the sole arbiter of witness credibility” … , but the decision here does not hinge on witness credibility. Rather, documentary evidence amply demonstrates that claimant has engaged in a “diligent and persistent job search so as to demonstrate attachment to the labor market” …, and we find that the Board’s conclusion to the contrary is not supported by substantial evidence…. . Matter of Lapan v Trade Winds Envtl., 2024 NY Slip Op 05929, Third Department 11-27-24

Practice Point: Here there was documentary evidence claimant was trying to find work. The Workers’ Compensation Board’s conclusion claimant had removed himself from the workforce was reversed.

 

BECAUSE CLAIMANT SUFFERED PHYSICAL TRAUMA, TO RECOVER FOR PSYCHOLOGICAL INJURIES SHE NEED ONLY DEMONSTRATE A CONNECTION BTWEEN THE PSYCHOLOGICAL INJURIES AND THE PHYSICAL TRAUMA; CLAIMANT WAS NOT REQUIRED TO PROVE A SEPARATE AND DISTINCT WORKPLACE INJURY CAUSED THE PSYCHOLOGICAL INJURIES (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the claimant need only demonstrate a connection between the physical trauma she suffered when a dog jumped on her and the psychological injuries which followed. Claimant did not have to prove the psychological injuries were caused by a separate workplace accident. Claimant, a social worker, was making a home visit when a family dog charged at her:

… [I]t has long been recognized that where a workplace accident is found to have occurred as a result of a physical impact/trauma, resulting physical and psychological injuries are both compensable, so long as the claimant establishes the causal connection between the accident and the alleged injuries … .

Here, the Board established a claim for a physical injury to claimant’s chest based upon the dog jumping on her chest and knocking her into the side of the house. As claimant alleges that her psychological injuries resulted from that same physical impact that the Board found amounted to a workplace accident, the Board erred in requiring that she establish a separate workplace accident comprised of work-related stress to recover for her alleged direct psychological injuries … . Rather, upon finding that a workplace accident had been established, the Board’s inquiry was limited to whether claimant showed, through competent medical evidence, that there was a causal relation between the accident and the injury … . Accordingly, the Board’s decision is reversed, and the matter is remitted to the Board to examine whether a causal connection was established between the workplace accident and the alleged psychological injuries consisting of PTSD, anxiety and acute stress disorder. Matter of Lewis v NYC Admin. for Children Servs., 2024 NY Slip Op 05254, Third Dept 10-24-24

Practice Point: The Workers’ Compensation Law allows recovery for psychological injuries caused by physical trauma.

 

THE WORKERS’ COMPENSATION BOARD SHOULD NOT HAVE OFFSET THE SLU AWARD FOR CLAIMANT’S ARM INJURY BASED ON A PRIOR SLU AWARD FOR INJURY TO THE SAME ARM; THE TWO INJURIES WERE NOT RELATED (THIRD DEPT)

The Third Department, reversing the Workers’ Compensation Board, determined claimant was entitled to a schedule loss of use (SLU) award for injury to his arm, despite a prior SLU award for injury to the same arm. The injuries involved different pathologies:

​”Pursuant to Matter of Genduso [v New York City Dept. of Educ. (164 AD3d 1509 [3d Dept 2018])] and its progeny, the Board may offset an SLU award by previous SLU awards for the same body member, regardless of whether the prior injuries involved the same or separate parts of that member” … . However, the Court of Appeals has held that an offset of an SLU award by previous SLU awards for the same body member “is not required when the claimant demonstrates that a subsequent injury increased the loss of use of [the] body member beyond that resulting from the prior injury” (Matter of Johnson v City of New York, 38 NY3d at 444 …). Such demonstration may include medical evidence that a prior injury and the current injury to the same member are “separate pathologies that each individually caused a particular amount of loss of use of [the subject member]” … and that the current injury resulted in a greater degree of loss of use of the body member in question “beyond that . . . [of] the prior injury” … . * * *

… [C]laimant’s physician clearly stated that claimant had “received a scheduled loss of use of 27% for the right shoulder,” and, in his July 2021 report, claimant’s physician opined that the surgery he had performed for claimant’s 2015 shoulder injury was “unrelated” to the 2019 biceps injury. Claimant’s physician made it clear that the 33.33% SLU that he found claimant had sustained for the biceps injury was separate from, and in addition to, the prior shoulder injury. Thus, in accordance with the holding in Matter of Johnson, the SLU attributable to the prior shoulder injury should not have been deducted from the SLU attributable solely to the biceps injury, and we find that the Board’s determination is not supported by substantial evidence. Matter of Germano v Dynamic Appliances, Inc., 2024 NY Slip Op 05259, Third Dept 10-24-24

Practice Point: A claimant is eligible for more than one SLU award for injuries to the same body part if the injuries are not related and involve different pathologies.

 

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ALTHOUGH DEFENDANT DID NOT PRODUCE AN EMPLOYMENT CONTRACT WITH PLAINTIFF, DEFENDANT DEMONSTRATED IT WAS PLAINTIFF’S SPECIAL EMPLOYER; THEREFORE PLAINTIFF’S PERSONAL INJURY ACTION WAS PRECLUDED BY HIS ELECTION OF WORKERS’ COMPENSATION BENEFITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant was plaintiff’s special employer and plaintiff’s action for personal injury was precluded by his election of workers’ compensation benefits:

Plaintiff testified that he received all his work instructions from an employee of defendant, the building’s manager … . Both plaintiff and the building’s manager testified that they considered the building manager to be plaintiff’s boss or supervisor … .

The evidence thus showed that defendant “supervised, directed and controlled plaintiff’s work” … . Although defendant has produced no contract between itself and the building owner, such a contract is not a prerequisite for special employment status … . Therefore, defendant has established its prima facie case that it was plaintiff’s special employer, which plaintiff has failed to rebut with any issue of fact…. . Payano v Proto Prop. Servs. LLC, 2024 NY Slip Op 04915, First Dept 10-8-2024

Practice Point: Here defendant was deemed plaintiff’s special employer, despite the absence of an employment contract. Therefore plaintiff’s election to receive workers’ compensation benefits precluded his personal injury action against defendant.

 

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WHETHER THE CHILD VICTIMS ACT (CVA) REVIVES OTHERWISE TIME-BARRED WORKERS’ COMPENSATION CLAIMS AND WHETHER PLAINTIFF’S DAMAGES ARE LIMITED TO WORKERS’ COMPENSATION BENEFITS ARE QUESTIONS OF LAW FOR THE COURT, NOT THE WORKERS’ COMPENSATION BOARD (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, held the court, not the Workers’ Compensation Board, must determine whether damages in this Child Victims Act (CVA) sexual-abuse action against the alleged perpetrator’s employer are limited to Workers’ Compensation benefits and whether claims for time-barred Workers’ Compensation benefits are revived by the Child Victims Act (CVA):​

” ‘As a general rule, when an employee is injured in the course of . . . employment, [the employee’s] sole remedy against [their] employer lies in [their] entitlement to a recovery under the Workers’ Compensation Law’ ” … . “[T]he issue whether a plaintiff was acting as an employee of a defendant at the time of the injury is a question of fact to be resolved by the Board” … .

“[C]ourts defer to [an] administrative agency where the issue involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom” … . However, “[w]here . . . the question is one of pure statutory interpretation, [courts] need not accord any deference to [an administrative body’s] determination and can undertake its function of statutory construction” … . As relevant here, although a factual determination with respect to the applicability of the Workers’ Compensation Law should be referred to the Board, which has primary jurisdiction over that issue, questions of law remain within the domain of the court … . Here, whether the CVA revives otherwise time-barred claims for workers’ compensation benefits, based on allegations of sexual abuse by a coworker, and whether plaintiffs are limited to benefits under the Workers’ Compensation Law even if their claims are revived, are questions of law to be decided by the court, not the Board. Thus, we agree with the plaintiffs that Supreme Court erred in granting defendant’s motion, staying the actions pending review by the Board, and holding plaintiffs’ cross-motions to amend their complaints in abeyance pending the Board’s decision. Bates v Gannett Co., Inc., 2024 NY Slip Op 03999, Fourth Dept 7-26-24

Practice Point: This decision deals with the questions of law raised by applying the Workers’ Compensation Law to sexual abuse claims revived by the Child Victims Act (CVA).​

 

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A SCHEDULE LOSS OF USE (SLU) EVALUATION BASED UPON THE EXPIRED 2012 GUIDELINES SHOULD NOT HAVE BEEN CONSIDERED BY THE WORKER’S COMPENSATION BOARD; A SECOND SLU EVALUATION BASED UPON THE CURRENT 2018 GUIDELINES HAD BEEN SUBMITTED BUT WAS NOT RELIED UPON BY THE BOARD (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the fact that the claimant’s treating physician’s (Harley’s) initial schedule loss of use (SLU) evaluation was based on the expired 2012 guidelines, not the most recent 2018 guidelines, and therefore should not have been considered. The treating physician had subsequently submitted another SLU evaluation based on the 2018 guidelines with a significantly higher percentage of loss:

Inasmuch as Harley’s permanency examination of claimant was “the first medical evaluation of SLU” and occurred after January 1, 2018, Harley improperly relied upon and applied the 2012 Guidelines in rendering his SLU opinion. As such, the Board’s reliance upon Harley’s medical report and testimony was erroneous; its decision is therefore not supported by substantial evidence and must be reversed … . Matter of Garofalo v Verizon N.Y., Inc., 2024 NY Slip Op 02961, Third Dept 5-30-24

Practice Point: A schedule loss of use (SLU) evaluation based upon expired guidelines should not be relied upon in a Worders’ Compensation proceeding.

 

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UNDER THE WORKERS’ COMPENSATION LAW PRESUMPTION IN SECTION 21, AN ASSAULT AT WORK IS EMPLOYMENT-RELATED AND COMPENSABLE ABSENT SUBSTANTIAL EVIDENCE THE ASSAULT WAS MOTIVATED BY PERSONAL ANIMOSITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Division, determined the presumption that injury from an assault at work is employment-related and compensable applied in this hospital-shooting case. A former hospital employee entered the hospital wearing a white medical coat and shot six people in a non-public area, killing one. Petitioner, a first-year resident, was one of the wounded. Petitioner did not know and had never had any contact with the shooter. The Appellate Division held that there was no connection between petitioner’s employment and the shooting and, therefore, the presumption the assault was work-related did not apply:

The Appellate Division essentially inverted Seymour’s “nexus” standard by requiring the Board to come forward with evidence of a nexus to employment. Instead … Seymour stands for the principle that “an assault which arose in the course of employment is presumed to have arisen out of the employment, absent substantial evidence that the assault was motivated by purely personal animosity” (… see … Seymour, 28 NY2d at 409 [presumption cannot be rebutted by the inference of personal animosity “in the absence of substantial evidence to support it”]). To the extent the Appellate Division has read Matter of Seymour to require an additional affirmative showing of a “nexus” with employment when there is a workplace assault, such a showing is not required.

… [I]t is undisputed that the assault occurred in the course of Mr. Timperio’s [petitioner’s] employment, thereby triggering the WCL [Workers’ Compensation Law] § 21 (1) presumption. It is also undisputed that the record includes no evidence of the motivation for the assault or any indication of a prior relationship between the assailant and the claimant; Bello [the shooter] and Timperio never worked together, did not know each other, and had no prior communication. The Appellate Division therefore erroneously disturbed the WCB’s [Workers’ Compensation Board’s] determination that the claim is compensable. Matter of Timperio v Bronx-Lebanon Hosp., 2024 NY Slip Op 02723, CtApp 5-16-24

Practice Point: Here petitioner was shot at work by a former employee he did not know. The presumption that the assault was employment-related (section 21 of the Workers’ Compensation Law) applied because there was no evidence the assault was motivated by personal animosity. The injury from the assault was therefore compensable under the Workers’ Compensation Law.

 

CLAIMANT PARTICIPATED IN THE CLEAN UP AFTER THE WORLD TRADE CENTER ATTACK ON 9-11 AND WAS THEREFORE ENTITLED TO WORKERS’ COMPENSATION BENEFITS UNDER ARTICLE 8-A (THIRD DEPT).

The Third Department, reversing (modifying) the Workers’ Compensation Board, determined that some of the World Trade Center clean-up activities of the claimant qualified for benefits pursuant to Workers’ Compensation Law article 8-A:

“Workers’ Compensation Law article 8-A was enacted to remove statutory obstacles to timely claims filing and notice for latent conditions resulting from hazardous exposure for those who worked in rescue, recovery or cleanup operations following the [WTC] September 11th, 2001 attack” … . * * *

… [W]e find, in light of the liberal construction afforded to Workers’ Compensation Law article 8-A, that claimant’s activities of assisting with clearing the area — which notably was located within the statutorily-defined WTC site — in order for the emergency vehicles to access Ground Zero had a tangible connection to the rescue efforts. As such, the Board’s determination that claimant did not participate in the rescue [*3]effort operations to qualify under Workers’ Compensation Law article 8-A is not supported by substantial evidence … . Matter of Liotta v New York State Unified Ct. Sys., 2024 NY Slip Op 02237, Third Dept 4-25-24

Practice Point: Article 8-A of the Worders’ Compensation Law was enacted to cover rescue and other worker’s who responded to the World Trade Center attack on 9-11. Here claimant participated in clean-up activities to keep the area clear for emergency vehicles and was therefore entitled to benefits pursuant to article 8-A.

 

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A FORUM SELECTION CLAUSE IN AN INSURANCE POLICY WHICH VIOLATES NEW YORK LAW IS NOT ENFORCEABLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, determined that the forum selection clause in an insurance policy which violates New York law is not enforceable. The opinion is comprehensive and discusses several substantive civil procedure, contract law, corporation law, insurance law, workers’ compensation law and public policy issues which cannot fairly be summarized here:

This action is just one of many such actions commenced across the country alleging that the defendant Applied Underwriters, Inc. (hereinafter Applied Underwriters), and affiliated entities, all subsidiaries of Berkshire Hathaway, Inc., deceptively circumvented state laws and regulations in the marketing and sale of an unlawful workers’ compensation insurance program. Here, the defendants seek to enforce a forum selection clause, in favor of Nebraska, contained in an insurance policy that New York State regulators have found violates New York law. While parties are generally free to select a forum in which to resolve their contractual disputes, here, where it is alleged by the plaintiff, and found by New York State regulators, that New York law has been violated, a foreign corporation may not profit from such violation to the detriment of New York employers and workers. The forum selection clause contained in an illegal insurance policy is not enforceable. As a matter of public policy, New York companies shall not be compelled to litigate in Nebraska to vindicate their rights. Air-Sea Packing Group, Inc. v Applied Underwriters, Inc., 2024 NY Slip Op 02032, Second Dept 4-17-24

Practice Point: A forum selection clause (designating Nebraska as the forum) in an insurance policy which violates New York law is not enforceable.

 

PSYCHOLOGICAL INJURY FROM EXPOSURE TO COVID IN THE WORKPLACE MUST BE ASSESSED USING THE SAME CRITERIA AS ARE APPLIED TO PHYSICAL INJURY; MATTER REMITTED (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Clark, reversing the denial of benefits and remitting the matter to the Workers’ Compensation Board, determined that psychological injury from exposure to COVID at the workplace must be treated the same as physical injury, taking into consideration the claimant’s particular vulnerabilities:

Pursuant to the employer’s policy for the 2020-2021 school year, claimant, a second-grade school teacher with a past medical history of asthma and bronchitis, returned to work in person at her assigned school building on September 7, 2020; the students continued to attend classes remotely at that time. On or about September 21, 2020, claimant was informed that another teacher at the school had tested positive for COVID-19, prompting the temporary closure of the school building. Claimant began feeling ill on or about September 23, 2020 but tested negative for COVID-19 on that date. On October 1, 2020, claimant returned to work in person, but she became increasingly anxious in anticipation of the students’ return to the building, which was scheduled to occur on Monday, October 5, 2020. She did not return to work after October 2, 2020. * * *

On appeal, claimant argues that, in cases involving exposure to the COVID-19 virus, the Board applies disparate burdens to claimants seeking compensation for a physical injury as compared to those seeking compensation for a psychological injury, in violation of the principle that “psychological or nervous injury precipitated by psychic trauma is compensable to the same extent as physical injury” … . * * *

… Given that the Board did not consider claimant’s particular vulnerabilities and that it applied a disparate burden in determining whether the alleged psychological injury was caused by a workplace accident, we must remit this matter for reconsideration not inconsistent with the guidance provided herein. On remittal, the Board is tasked with determining whether claimant’s proof establishes that she suffered a workplace accident, as relevant here, by proving either a specific exposure to COVID-19 or the prevalence of COVID-19 in her work environment so as to present an elevated risk of exposure constituting an extraordinary event. If claimant establishes the existence of such an accident, then the Board must determine, “in light of the commonsense viewpoint of the average [person]” … , and considering claimant’s particular vulnerabilities, whether claimant established, by competent medical evidence, a causal connection between the alleged injury and the workplace accident … . Matter of Anderson v City of Yonkers, 2024 NY Slip Op 01755, Third Dept 3-28-24

Practice Point: Re: eligibility for Workers’ Compensation benefits, psychological injury from exposure to COVID at the workplace is to be assessed using the same criteria as are applied to physical injury—analytical guidance is laid out in detail.

 

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