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A WORKER WHO WAS INJURED IN NEW YORK BUT LIVES IN NEW JERSEY CAN SEEK TREATMENT FROM A NEW JERSEY DOCTOR WHO IS NOT AUTHORIZED BY THE WORKERS’ COMPENSATION BOARD, EVEN IF THE NEW JERSEY PHYSICIAN IS ALSO LICENSED IN NEW YORK (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined claimant, who was injured in New York but resided in New Jersey, was not required to seek treatment from a New Jersey doctor who was authorized to provide treatment by the Board, even where, as here, the New Jersey doctor is also licensed in New York:

“Generally, a workers’ compensation claimant who is injured in New York is entitled to treatment by a physician of his or her choice so long as the physician is licensed to practice in New York and has been authorized by the Board to provide care and treatment to claimants” … . Nevertheless, under our established precedent, “claimants who were injured in New York but [reside in] other states are entitled to receive treatment from qualified physicians in their [home] state” … , as the statutory authorization requirements “could not have been intended to prohibit the retention of a physician in another State in appropriate circumstances” … . We find no basis to deviate from our precedent here, where claimant received medical treatment in his home state of New Jersey from a New Jersey licensed physician.

… 12 NYCRR 323.1 provides … that a New York licensed physician is permitted to seek authorization from the Board to provide medical services under the Workers’ Compensation Law and, being so permitted, “must obtain such authorization prior to treating injured workers under the Workers’ Compensation Law” … . We do not, however, read this provision to require a physician who provides medical services in another state and under a license obtained in that state to nevertheless seek authorization from the Board prior to treating a claimant merely because he or she also happens to be licensed in New York. Matter of Gomez v Board of Mgrs. of Cipriani, 2023 NY Slip Op 00900, Third Dept 2-26-23

Practice Point. A worker who resides in New Jersey and was injured in New York can seek treatment from a New Jersey doctor who is not authorized by the Worker’s Compensation Board, even if the New Jersey doctor is also licensed in New York.

 

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​HERE THERE IS AN UNRESOLVED QUESTION ABOUT WHETHER PLAINTIFF IS ENTITLED TO WORKERS’ COMPENSATION BENEFITS; SUPREME COURT SHOULD GRANTED SUMMARY JUDGMENT TO DEFENDANTS AND REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the matter should have been referred to the Workers’ Compensation Board and therefore defendants’ motion for summary judgment in this slip and fall case should have been granted:

The plaintiff allegedly was injured when she fell at certain property owned by the defendants (hereinafter the property). Thereafter, the plaintiff commenced this action against the defendants to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint, contending that the plaintiff was injured in the course of her employment as a housekeeper/household employee at the property and that the Workers’ Compensation Law provided the exclusive remedy for the damages alleged in the complaint. The Supreme Court denied the motion, as premature, without prejudice to renew.

Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board (hereinafter the Board) and it is therefore inappropriate for the courts to express views with respect thereto pending determination by the Board … . “Where the issue of the applicability of the Workers’ Compensation Law is in dispute, and a plaintiff fails to litigate that issue before the Board, a court should not express an opinion as to the availability of compensation, but should refer the matter to the Board because the Board’s disposition of the plaintiff’s compensation claim is a jurisdictional predicate to the civil action” … .

Here, the Supreme Court should have referred the matter to the Board for a hearing and determination as to whether the plaintiff is relegated to benefits under the Workers’ Compensation Law … . Lall v Harnick, 2023 NY Slip Op 00080, Second Dept 1-11-23

Practice Point: Any question about whether plaintiff is entitled to Workers’ Compensation benefits must be resolved by the Workers’ Compensation Board. Here in this slip and fall case Supreme Court should have granted defendants’ motion for summary judgment and referred the matter to the Workers’ Compensation Board.

 

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BOTH PLAINTIFF BUS DRIVER AND THE DRIVER OF THE CAR WHICH STRUCK PLAINTIFF’S BUS WERE DEEMED COUNTY EMPLOYEES IN A RELATED PROCEEDING; THEREFORE, PURSUANT TO THE COLLATERAL ESTOPPEL DOCTRINE, WORKERS’ COMPENSATION WAS PLAINTIFF’S EXCLUSIVE REMEDY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, determined the doctrine of collateral estoppel required the dismissal of plaintiff bus-driver’s causes of action against the estate of driver of the car which struck plaintiff’s county bus, and against Jewish Family Services (JFS) for whom the decedent-driver was volunteering at the time of the accident. JFS and the county collaborated on a program to drive senior citizens to medical appointments. Plaintiff sued JFS under a respondeat superior theory. Pursuant to the Workers’ Compensation Law, workers’ compensation benefits were plaintiff’s exclusive remedy because both she and the driver of the car had been deemed county employees in a related action:

A review of the papers supporting [the county’s] cross motion [in the related proceeding] establishes, however, that [the county] focused upon the provisions of Workers’ Compensation Law § 29 (6). Plaintiff thereafter had a full and fair opportunity to respond to that issue, which was discussed at length in the 2019 order. Indeed, Supreme Court … expressly held that the provisions of that statute applied because “both [plaintiff] and Hyde were within the same employ and acting within the scope of employment at the time the alleged injuries occurred, therefore rendering them co-employees which results in workers’ compensation being the exclusive remedy.” Accordingly, under the circumstances of this case, the issue of whether plaintiff and Hyde were coemployees was “actually litigated, squarely addressed and specifically decided” against plaintiff … .

Plaintiff’s claim against JFS is premised upon the theory that JFS exercised sufficient control over Hyde to render it vicariously liable for her negligence. The issue of whether plaintiff and Hyde are coemployees has been resolved against plaintiff with preclusive effect, however, and plaintiff’s exclusive remedy for the negligence of Hyde is therefore workers’ compensation benefits. As noted above, as Workers’ Compensation Law § 29 (6) “deprive[s] the injured employee of a right to maintain an action against a negligent coemployee, [it also] bars a derivative action which necessarily is dependent upon the same claim of negligence for which the exclusive remedy has been provided” … . Thus, as “plaintiff[] did not assert any allegation that [JFS] had committed an act constituting affirmative negligence,” the cross motion of JFS for summary judgment dismissing the complaint against it should have been granted … . Bryant v Gulnick, 2022 NY Slip Op 07284, Third Dept 12-22-22

Practice Point: In a related proceeding it was determined that both plaintiff bus driver and the driver of the car which struck plaintiff’s bus were county employees. Therefore, pursuant to the doctrine of collateral estoppel, Workers’ Compensation was plaintiff’s exclusive remedy.

 

DECEDENT’S WIFE’S CLAIM FOR DEATH BENEFITS BASED UPON DECEDENT’S WORK AT THE WORLD TRADE CENTER AFTER 9-11 IS SUBJECT TO THE TWO-YEAR DEADLINE FOR NOTICE IN WORKERS’ COMPENSATION LAW 28; BECAUSE THE NOTICE REQUIREMENT WAS NOT COMPLIED WITH, THE DEATH BENEFITS CLAIM WAS PROPERLY DENIED; THERE WAS A DISSENT (THIRD DEPT). ​

The Third Department, over a dissent, determined the claim by decedent’s wife for death benefits pursuant to Workers’ Compensation Law Article 8-a (re: disability due to work at the World Trade Center after 9-11) was properly denied because the two-year notice requirement in Worker’s Compensation Law 28 applies and was not complied with:

… [G]iven that decedent, not claimant, was a participant within the meaning of Workers’ Compensation Law § 161, it was decedent who was entitled to file a claim for benefits outside of the period allowed by Workers’ Compensation Law § 28. Claimant cannot piggyback upon that entitlement, as her claim for death benefits “accrue[d] at the time of [decedent’s] death and ‘is a separate and distinct legal proceeding’ from [decedent’s] original disability claim” … .The language of the … statutory provisions … clearly reflects that claimant cannot avail herself of the exception to the two-year filing requirement created by Workers’ Compensation Law § 168. Matter of Garcia v WTC Volunteer, 2022 NY Slip Op 07110 Third Dept 12-15-22

Practice Point: Here decedent’s wife sough death benefits stemming from decedent’s work at the World Trade Center after 9-11. The claim was deemed subject to the two-year notice deadline in Workers’ Compensation Law 28 and properly denied.

 

HERE THE CLAIMANT WAS DEEMED DISABLED BY AN OCCUPATIONAL DISEASE (CANCER) CAUSED BY EXPOSURE TO ASBESTOS; THE EMPLOYER RESPONSIBLE FOR COMPENSATION IS THE LAST EMPLOYER WHERE THE NATURE OF THE WORK EXPOSED CLAIMANT TO ASBESTOS, NOT NECESSARILY THE EMPLOYER AT THE TIME THE CANCER WAS DIAGNOSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the Board did not use the correct criteria for determining the employer or insurer responsible to pay for claimant’s disability due to occupational disease, i.e., lung cancer caused by asbestos exposure:

… [I]n determining that the carrier was on the risk for the claim, the Board premised its finding solely on the date of disablement, or October 15, 2019, instead of evidence concerning the timing of claimant’s contraction of lung cancer and the “employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted” (Workers’ Compensation Law § 44). This reasoning resulted in a misapplication of Workers’ Compensation Law § 44. “Simply put, disability while employed by a previous employer is not a prerequisite to a finding that a claimant contracted an occupational disease while employed by that employer” … . As such, we reverse and remit for a determination in the first instance of the proper employer and/or carrier on the risk utilizing the correct standard set forth in Workers’ Compensation Law § 44 … . Matter of Candela v Skanska USA Bldg. Inc., 2022 NY Slip Op 07113, Third Dept 12-15-22

Practice Point: Here the occupational disease which disabled claimant was cancer caused by exposure to asbestos. The employer responsible for compensation is the last employer where the nature of the work exposed claimant to asbestos, not necessarily the employer at the time the cancer was diagnosed.

 

PETITIONER CHIROPRACTOR ACKNOWLEDGED RECEIVING PAYMENTS DIRECTLY FROM A MEDICAL EQUIPMENT PROVIDER IN VIOLATION OF THE WORKERS’ COMPENSATION LAW; BECAUSE THERE WERE NO CONTESTED FACTS, THE WORKERS’ COMPENSATION BOARD HAD THE POWER TO REMOVE PETITIONER FROM THE LIST OF AUTHORIZED MEDICAL PROVIDERS WITHOUT HOLDING A HEARING (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch (too detailed to fully summarize here), determined petitioner chiropractor was not entitled to a hearing before the Workers’ Compensation Board removed petitioner from the list of authorized medical providers. Petitioner acknowledged taking payments directly from a supplier of medical equipment, which is a violation of the Workers’ Compensation Law. Petitioner’s only argument on appeal was his entitlement to a hearing before removal from the list. After analyzing the applicable statutes, the Third Department determined, absent any contested facts about the statutory violation, petitioner was not entitled to a hearing:

… [W]e agree with respondent that the chair [Workers’ Compensation Board] has authority independent of the CPC [chiropractic practice committee] to conduct an investigation, find that the provider is disqualified from rendering care under the Workers’ Compensation Law for statutorily specified acts of misconduct and, upon such a finding, remove the provider from the list of authorized chiropractors (see Workers’ Compensation Law § 13-l [10], [12]; see also Workers’ Compensation Law § 13-l [10] [g]). * * *

In an instance where questions of fact attend the asserted charges of professional misconduct or incompetency, a hearing would be in order. Here, however, petitioner has admitted and documented his receipt of payments from [the medical equipment supplier] for treatment rendered to workers’ compensation claimants in direct violation of Workers’ Compensation Law § 13-l (10) (g). Under these circumstances, no hearing was warranted and respondent’s decision to remove petitioner from the list of authorized providers was not arbitrary and capricious. Matter of Levi v New York State Workers’ Compensation Bd., 2022 NY Slip Op 06850, Third Dept 12-1-22

Practice Point: In the absence of contested facts about whether petitioner-chiropractor violated the Workers’ Compensation Law by taking payments directly from a medical equipment provider, the Workers’ Compensation Board properly removed petitioner’s name from the list of authorized providers without first holding a hearing.

 

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A NONSCHEDULE AWARD AND A SCHEDULE AWARD ARE CALCULATED DIFFERENTLY; A NONSCHEDULE AWARD IS CALCULATED BASED UPON EARNING CAPACITY, WHICH OBVIOUSLY CEASES UPON DEATH; HERE, WHERE THE INJURED WORKER DIED FROM A CAUSE UNRELATED TO THE INJURY, THE BENEFICIARY IS THEREFORE NOT ENTITLED TO THE UNACCRUED PORTION OF THE NONSCHEDULE AWARD (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Garcia, determined the unaccrued portions of a nonschedule award under Workers’ Compensation Law (WCL) section 15 (3) do not pass to the beneficiary of an injured employee who died from causes unrelated to the work injury:

WCL § 15 (3), provides for two categories of awards for injuries resulting in permanent partial disability. A “schedule loss of use” (SLU) award, provided for in section 15 (3) (a)-(u), is designed to “compensate for loss of earning power, rather than the time that an employee actually loses from work or the injury itself” … . A nonschedule award, in contrast, seeks to reimburse a claimant for earnings lost due to injury … . …

The nature of nonschedule awards, dependent on an employee’s actual earnings and the continuance of the disability, is such that there is no remaining portion of the award that can pass through to a beneficiary. …

Schedule and nonschedule awards are calculated differently, reflecting the different purposes they serve. Nonschedule awards require fact-specific, individual calculations based on the impairment of wage-earning capacity. …

More than 100 years ago, this Court urged recognition of the difference between schedule and nonschedule awards, explaining that cases “where the award is to be measured by the difference between wages and capacity [nonschedule awards] are, of course, not to be confused with those where the act prescribes a fixed and certain limit [schedule awards]” … . Matter of Green v Dutchess County BOCES, 2022 NY Slip Op 06028, CtApp 10-27-22

Practice Point: Under Workers’ Compensation Law section 15, nonschedule awards are calculated differently from schedule awards. Nonschedule awards are measured by the difference between wages and earning capacity (which ceases upon death). Therefore, after a worker dies from a cause unrelated to the injury for which the worker was being compensated by a nonschedule award, any unaccrued portion will not pass to a beneficiary. Schedule awards, on the other hand, prescribe a fixed amount with a certain limit.

 

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AN APPEAL FROM A WORKERS’ COMPENSATION DECISION WHICH IS INTERLOCUTORY IN NATURE MUST BE DISMISSED; THE DECISION MAY BE REVIEWED IN AN APPEAL FROM THE FINAL DETERMINATION (THIRD DEPT).

The Third Department held that the Workers’ Compensation Board decision was interlocutory in nature and could only be considered in an appeal from the final determination:

“In order to avoid piecemeal review of workers’ compensation cases, a Board decision that is interlocutory in nature and does not dispose of all substantive issues nor reach legal threshold issues that may be determinative of the claim is not the proper subject of an appeal” … . “As none of the arguments raised on this appeal address potentially dispositive threshold legal questions, and ‘the nonfinal decision may be reviewed upon an appeal from the Board’s final determination, this appeal must be dismissed'” … . Matter of Polizzano v Medline Indus., 2022 NY Slip Op 04604, Third Dept 7-14-22

Practice Point: A decision from the Workers’ Compensation Board which does not reach issues that may be determinative of the claim is interlocutory in nature and will not be considered on appeal. However, the interlocutory decision may be reviewed in an appeal from the final determination.

 

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PLAINTIFF SUED HER EMPLOYER IN NEGLIGENCE BASED UPON AN ALLEGED ASSAULT BY A COWORKER; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE INJURY WAS IN THE COURSE OF PLAINTIFF’S EMPLOYMENT; THE WORKERS’ COMPENSATION BOARD HAS PRIMARY JURISDICTION OVER THE DETERMINATION OF THE APPLICABILITY OF THE WORKERS’ COMPENSATION LAW; RATHER THAN DISMISSING THE NEGLIGENCE CAUSES OF ACTION, SUPREME COURT SHOULD HAVE REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the causes of action against plaintiff’s employer for negligence alleging an assault by a coworker should not have been dismissed. Defendants’ alleged that Workers’ Compensation was the plaintiff’s exclusive remedy. The Workers’ Compensation Board has primary jurisdiction over determinations of the applicability of the Workers’ Compensation Law. Because there were questions of fact about whether plaintiff was injured in the course of her employment, Supreme Court should have referred the matter to the Workers’ Compensation Board:

… Supreme Court improperly granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the negligence causes of action … . Since “primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,” it is “inappropriate for the courts to express views with respect thereto pending determination by the board” … . Here, questions of fact were raised as to whether the plaintiff was injured during the course of her employment, and thus, the court should have referred the matter to the Workers’ Compensation Board … . Chin v Doherty Enters., 2022 NY Slip Op 04532, Second Dept 7-13-22

Practice Point: Here plaintiff alleged she was assaulted by a coworker and sued her employer in negligence. There were questions of fact whether plaintiff was injured during the course her employment. The Workers’ Compensation Board has primary jurisdiction over determinations of the applicability of the Workers’ Compensation Law.. Therefore the negligence causes of action should not have been dismissed and the matter should have been referred to the Board.

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THE ACCIDENTAL DISCHARGE OF A FIREARM BY PLAINTIFF’S COWORKER DURING A FIREARMS TRAINING SESSION FOR ARMORED-CAR GUARDS WAS WITHIN THE DEFENDANT COWORKER’S SCOPE OF EMPLOYMENT; WORKERS’ COMPENSATION IS PLAINTIFF’S EXCLUSIVE REMEDY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s exclusive remedy in this accidental shooting case was Workers’ Compensation. Plaintiff and defendant coworker were both armored-car guards attending a firearms training course required by their employer when plaintiff was shot. When plaintiff and defendant coworker were seated at a table waiting for the course to begin the coworker took out his loaded firearm and it discharged as he attempted to disassemble it. The bullet went through the table and struck plaintiff in the leg:

The record establishes that firearms were permitted in the classroom and that trainees would generally keep the weapons in a holster or a gun box but were prohibited from taking out and handling firearms in the classroom. Defendant was thus attending a mandatory firearms training course at which he was required to have the pistol for which he was seeking certification, the training was directly related to his job duties that involved carrying a firearm, he was permitted to have the firearm in the classroom, and he simply violated a safety rule by handling the firearm in the classroom, thereby causing it to accidentally discharge. Defendant’s violation of the safety provision “was not, in these circumstances, of such type or magnitude as to take . . . defendant out of the scope of his employment” … . In other words, defendant’s conduct constituted a simple lack of reasonable care, i.e., negligence … , and “[t]he Workers’ Compensation Law offers the only remedy for injuries caused by the coemployee’s negligence” … . Guida v Rivera Investigations, Inc., 2022 NY Slip Op 04443, Fourth Dept 7-8-22

Practice Point: During a firearms training course required by plaintiff’s employer, a coworker negligently took out his loaded firearm which accidentally discharged, striking plaintiff. Because the coworker’s actions, although negligent, were within the scope of the coworker’s employment, Workers’ Compensation was plaintiff’s exclusive remedy.

 

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