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WORKERS’ COMPENSATION BOARD DEPARTED FROM ITS PRECEDENT WITHOUT AN EXPLANATION, MATTER REMANDED TO THE BOARD (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, remanding the matter to the Workers’ Compensation Board, determined the Court could not rule on the appeal because the Board did not place on the record its reasons for departing from its own precedent. Claimant retired after she was injured and the Board held that she did not have to demonstrate efforts to get work in order to obtain benefits:

… [T]he Board now maintains that it departed from its administrative precedent by applying a discretionary inference in favor of claimant as permitted by Matter of Zamora v New York Neurologic Assoc. (19 NY3d 186 [2012]), without first requiring claimant to present evidence of her efforts to obtain work or get retrained. All parties agree that pursuant to Zamora the Board may, but need not, infer from the fact that a claimant involuntarily retired due to claimant’s permanent partial disability that the claimant’s reduced post-accident earnings resulted from that disability … . All parties also agree that once initially so classified, a claimant entitled under Workers’ Compensation Law (“WCL”) § 15 (3) (w) to compensation for the disability-related loss of wage-earning capacity need not demonstrate ongoing efforts to work or retrain for work after classification under the 2017 amendment to that provision. Given the parties’ agreement on the applicable law, and the Board’s representation that it departed from its purported precedent without explanation, we reverse and remit so that the Board may clarify its rationale and issue a decision in accordance with Zamora, which should include an explanation if it chooses to depart from an evidentiary requirement imposed on similarly situated claimants in prior proceedings. Matter of O’Donnell v Erie County, 2020 NY Slip Op 02095, CtApp 3-24-20

 

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THE BOARD HAS THE AUTHORITY TO CHOOSE BETWEEN TWO CONFLICTING MEDICAL OPINIONS, HERE DEALING WITH WEANING CLAIMANT FROM OPIOID PAIN KILLERS (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board has the authority to chose between two conflicting medical opinions. Here claimant had significant pain was was taking high doses of opioids. The independent medical examiner (IME) had one opinion about how the claimant should be weaned from the opioids and claimant’s own physician had a different opinion. The Board sided with the IME:

Although claimant’s physician and the IME gave differing opinions regarding the advisability of weaning claimant from his opiate medications, as well as the manner in which it should be accomplished, the Board is vested with the authority to resolve conflicting medical opinions … . Thus, the Board could choose to credit the opinion of the IME, which was in accordance with the applicable guidelines, over that of claimant’s treating physician. Therefore, inasmuch as substantial evidence supports the Board’s decision, we find no reason to disturb it … . Matter of Forte v Muccini, 2020 NY Slip Op 01881, Third Dept 3-16-20

 

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SPECULATIVE MEDICAL OPINION DID NOT SUPPORT FINDING CLAIMANT’S PRIOR EMPLOYER LIABLE FOR ASBESTOS-RELATED MESOTHELIOMA, DESPITE EVIDENCE OF EXPOSURE AT THE PRIOR EMPLOYER (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly found that claimant’s mesothelioma was due to asbestos exposure at Kodak, even though claimant was exposed to asbestos in his prior employment at International Paper. Kodak unsuccessfully sought apportionment of the liability with International Paper. Claimant’s employment at International Paper ended in 1967 and claimant worked at Kodak from 1967 to 1985. He was diagnosed in 2013:

… Workers’ Compensation Law § 44 states that, when a worker’s disability due to an occupational disease is established and benefits are awarded, “[t]he total compensation due shall be recoverable from 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. If, however, such disease . . . was contracted while such employee was in the employment of a prior employer, the employer who is made liable for the total compensation . . . may appeal to the [B]oard for an apportionment of such compensation among the several employers who since the contraction of such disease shall have employed such employee in the employment to the nature of which the disease was due” … . “Importantly, liability under this provision is premised upon employment at the time of or following the contraction of the compensable occupational disease, not upon the disablement that ensues” …  The determination of when an employee contracted the disease, which refers to “when the disease process begins, as evidenced by symptoms, diagnosis or other medical evidence that shows [that the] disease process must have existed” … , is a question of fact to be determined by the Board, which will be upheld if supported by substantial evidence … . * * *

While the Board recognized that there may be a delay of up to 50 years between exposure to asbestos and a mesothelioma diagnosis, it correctly found that the medical opinions that decedent’s prior employment contributed to his condition were speculative and insufficient … . Matter of Gimber v Eastman Kodak Co., 2020 NY Slip Op 01875, Third Dept 3-16-20

 

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CLAIMANT WAS WRONGFULLY TERMINATED AFTER TELLING HIS BOSS HE WAS GOING TO FILE A WORKERS’ COMPENSATION CLAIM, A VIOLATION OF WORKERS’ COMPENSATION LAW SECTION 120 (THIRD DEPT).

The Third Department determined claimant was terminated because he told the executive manager he would be filing a workers’ compensation claim and taking time off after a slip and fall injury, a violation of Workers’ Compensation Law section 120:

“Workers’ Compensation Law § 120 prohibits an employer from discriminating against an employee who has filed or who has attempted to file a claim for workers’ compensation benefits by discharging him or her” … . In enacting this statute, “the Legislature intended ‘to insure that a claimant [could] exercise his [or her] rights under the [Workers’] Compensation Law . . . without fear that doing so [might] endanger the continuity of [his or her] employment'” … . “The burden of proving a retaliatory discharge in violation of the statute lies with the claimant, who must demonstrate a causal nexus between the claimant’s activities in obtaining compensation and the employer’s conduct against him or her” … . With regard to “questions of fact and factual inferences to be drawn therefrom, . . . a decision of the [B]oard is conclusive upon the courts if supported by substantial evidence” … . Matter of Markey v Autosaver Ford, 2020 NY Slip Op 01876, Third Dept 3-16-20

 

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THE CARRIER’S FAILURE TO INDICATE WHEN IT OBJECTED TO THE RULING OF THE WORKERS’ COMPENSATION LAW JUDGE JUSTIFIED THE DENIAL OF THE CARRIER’S APPLICATION FOR REVIEW (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board did not abuse its discretion when it denied the carrier’s application for review because question 15 on the application form did not indicate when the relevant objection to the Workers’ Compensation Law Judge (WCLJ) was made:

When the carrier filed its application for Board review … , question number 15 on that form, as well as the accompanying instructions in effect at that time, requested that it “[s]pecify the objection or exception interposed to the ruling and when the objection or exception was interposed as required by 12 NYCRR 300.13 (b) (2) (ii).” In response to question number 15, the carrier stated, “Please note the carrier’s objection to not finding a transfer of liability to the Special Funds Conservation Committee pursuant to [Workers’ Compensation Law §] 25-a.” The Board found that the carrier’s response was incomplete because there were “several hearings [that] had taken place prior to the hearing [on] July 3, 2018,” and the carrier’s response to question number 15 did “not include the date of the hearing at which the exception to the WCLJ’s ruling was interposed, as required.” Both the regulation itself and the instructions in effect at the time that the carrier filed its application for Board review unambiguously required the carrier to “specify the objection or exception that was interposed to the [WCLJ’s] ruling, and when the objection or exception was interposed” … . As such, a complete response to question number 15 required the carrier to specify the nature of its objections or exceptions and indicate when such objections or exceptions were interposed. Although the carrier satisfied the first prong of the regulation by articulating specific objections to the WCLJ’s rulings, it failed to satisfy the temporal element of the regulation by indicating when such objections were made. Accordingly, under the circumstances presented here, in which the carrier failed to provide the requisite temporal element in its response to question number 15, we find that the Board did not abuse its discretion in denying the carrier’s application for Board review … . Matter of Barrera v Corinthian Cast Stone, Inc., 2020 NY Slip Op 01880, Third Dept 3-16-20

Similar issue and result in Matter of Currie v Rist Transp. Ltd., 2020 NY Slip Op 01874, Third Dept 3-16-20

Similar issue and result in Matter of Perry v All Am. Sch. Bus Corp., 2020 NY Slip Op 01869, Third Dept 3-16-20

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CLAIMANT’S FAILURE TO COMPLY WITH THE FORMATTING REQUIREMENTS SUPPORTED THE DENIAL OF CLAIMANT’S APPLICATION FOR BOARD REVIEW (THIRD DEPT).

The Third Department determined claimant’s failure to comply with the formatting requirements supported the denial of claimant’s application for Board review:

The Board’s instructions for the RB-89 form regarding question number 13 required that claimant specify the date and document ID numbers of “the transcripts, documents, reports, exhibits, and other evidence in the Board’s file that are relevant to the issues and grounds being raised for review.” In response, claimant answered, “[a]ll hearings, transcripts and documents in [the Board] file are pertinent to the outstanding issue.” By merely referencing the entire Board case file in response to question number 13, claimant failed to comply with the prescribed formatting and completion requirements … . Accordingly, the Board did not abuse its discretion in denying claimant’s application for Board review, and its decision will not be disturbed … . Matter of Hirschbeck v Office of the Commr. of Major League Baseball, 2020 NY Slip Op 01870, Third Dept 3-16-20

 

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EMPLOYER’S ANSWER TO A QUESTION ON ITS APPLICATION FOR A BOARD REVIEW OF A WORKERS’ COMPENSATION LAW JUDGE’S AWARD OF BENEFITS WAS ADEQUATE AND SHOULD NOT HAVE BEEN THE BASIS OF THE BOARD’S DENIAL OF THE APPLICATION; THE QUESTION CONCERNED WHEN THE EMPLOYER’S OBJECTION TO THE RULING WAS MADE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the employer’s answer to a question in its application for Board review of the Workers’ Compensation Law Judge’s award of benefits was adequate and did not warrant denial of the application. The question concerned when the objection to the ruling was made:

When the employer filed its application for Board review on March 2, 2018, question number 15 on that form, as well as the accompanying instructions in effect at that time, requested that it “[s]pecify the objection or exception interposed to the ruling and when the objection or exception was interposed as required by 12 NYCRR 300.13 (b) (2) (ii)” … . In response to question number 15, the employer stated, “Upon information and belief an exception/objection was noted prior to the conclusion of the hearing.” The Board found that the employer’s response was incomplete because the employer “failed to identify the date it interposed an objection on the record in response to [question number] 15” … . Although the Board has consistently found that listing the hearing date at which the objection or exception was made constitutes a complete response to question number 15, the regulation only requires the applicant to state when the objection or exception occurred … . Here, the employer’s response to question number 15 stated when the objection was made, that is, at “the conclusion of the hearing,” at which time the employer stated, “A protective exception, please, your Honor.” In our view, the employer’s response stated when the objection occurred, … and, therefore, the response was complete and complied with the Board’s regulatory formatting requirements … . …

We recognize that, in Subject No. 046-1119, the Board announced that “the [hearing] date when the objection or exception was interposed must be listed” in response to question number 15 on the RB-89 form … . However, Subject No. 046-1119 — as well as the Board’s other November 2018 documents providing clarification of its formatting requirements … postdate the instant March 2018 application for Board review and are, therefore, of no import here … . Matter of Granica v Town of Hamburg, 2020 NY Slip Op 01542, Third Dept 3-5-20

 

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BENEFICIARY OF DECEASED CLAIMANT IS ENTITLED TO THE REMAINING WEEKS OF CLAIMANT’S NONSCHEDULE PERMANENT DISABILITY AWARD WHERE CLAIMANT’S DEATH WAS NOT RELATED TO THE COMPENSATED INJURY (THIRD DEPT).

The First Department, in a full-fledged opinion by Justice Colangelo, reversing the Workers’ Compensation Board, in a matter of first impression, determined that claimant’s surviving child was entitled to the weeks of the nonschedule permanent disability award which remained upon claimant’s death, where claimant’s death was not related to the compensated injury:

“With respect to schedule injuries, SLU [schedule loss of use] awards are made to compensate for the loss of earning power or capacity that is presumed to result, as a matter of law, from permanent impairments to statutorily-enumerated body members” … . “By contrast, compensation for a permanent partial disability that arises from a nonschedule injury, i.e., an injury to a body member not specifically enumerated in subsections (a)-(u) [of Workers’ Compensation Law § 15 (3)], is based on a factual determination of the effect that the disability has on the [worker’s] future wage-earning capacity” … . In that regard, whereas an SLU award “is not allocable to any particular period of disability and is independent of any time that the [worker] might lose from work” … , a nonschedule permanent partial disability award under Workers’ Compensation Law § 15 (3) (w) requires a calculation of a worker’s weekly rate of compensation using the worker’s average weekly wages and wage-earning capacity and “specifies the [duration or maximum] number of weeks the worker will receive that weekly sum[] based upon the [worker’s] percentage of lost wage-earning capacity” … . * * *

Until now, we have not had the occasion to address whether any remaining portion or weeks of a nonschedule permanent partial disability award is payable to the beneficiaries identified in Workers’ Compensation Law § 15 (4) upon a claimant’s death “arising from causes other than the [established] injury”… . Subdivision (3) includes both SLU [schedule loss of use] and nonschedule permanent partial disability awards … , and the unqualified language of subdivision (4) — which pertains to “[a]n award made to a claimant under subdivision three” … — neither distinguishes SLU awards from nonschedule permanent partial disability awards, nor contains any limiting language excepting nonschedule permanent partial disability awards from its scope. Given the unambiguous and unqualified language of subdivision (4) … , we see no basis to distinguish SLU and nonschedule awards where the plain language of subdivision (4) applies to any and all awards made under Workers’ Compensation Law § 15 (3). Accordingly, the language employed in Workers’ Compensation Law § 15 (4) reflects that the Legislature intended this subdivision to apply to all permanent partial disability awards made pursuant to subdivision (3) — that is, both SLU and nonschedule permanent partial disability awards … . Matter of Green v Dutchess County BOCES, 2020 NY Slip Op 01546, Third Dept 3-5-20

 

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PLAINTIFF’S SOLE REMEDY FOR HIS ON THE JOB INJURY IS WORKERS’ COMPENSATION; PLAINTIFF WAS NOT GRAVELY INJURED AND THERE WAS NO AGREEMENT WITH HIS EMPLOYER TO CONTRIBUTE, INDEMNIFY OR INSURE; THE EMPLOYER’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-employer’s motion for summary judgment should have been granted. Plaintiff was injured while acting within the scope of his employment. Workers’ Compensation, therefore, was his exclusive remedy unless he was gravely injured or there was agreement with the employer:

Workers’ Compensation Law § 11 prohibits third-party claims for contribution or indemnification against an employer unless the employee has sustained a “grave injury” or there is a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the third-party claimant … .

Here, in support of its motion, A.B.C. Tank established, prima facie, that there was no written agreement between the parties that required it to contribute, indemnify, or procure insurance … . Further, A.B.C. Tank established, prima facie, that the plaintiff was injured in the course of his employment and that the plaintiff’s injuries did not constitute a “grave injury” within the meaning of Workers’ Compensation Law § 11 … . McIntosh v Ronit Realty, LLC, 2020 NY Slip Op 01485, Second Dept 3-4-20

 

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CLAIMANT IS ENTITLED TO SIMULTANEOUSLY RECEIVE AN AWARD FOR A SCHEDULE LOSS OF USE AND A PERMANENT PARTIAL DISABILITY CLASSIFICATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, reversing the Workers’ Compensation Board, determined claimant was entitled to simultaneously receive an award for a schedule loss of use (SLU) and a permanent partial disability classification:

… Workers’ Compensation Law § 15 (3) permits a simultaneous SLU award and nonschedule classification for impairments that arise out of the same work-related accident where the claimant has returned to work at preinjury wages. * * *

… [W]hen a claimant who has sustained a permanent impairment to a member has returned to work at preinjury wages, it is mere speculation that an award will ever be made for nonschedule injuries arising from the same accident. Although the Board may be appropriately concerned about the possibility of double payment or recovery if and when a claimant experiences actual lost wages, this circumstance was provided for within Matter of Taher v Yiota Taxi, Inc. (162 AD3d at 1290 n 2). Additionally, the withholding of an SLU award in favor of the “virtual banking” of nonschedule cap weeks adds unnecessary complexity in the event that a claimant suffers a death that is unrelated to the established sites of injury … .  We further note that the Board’s position strongly incentivizes injured claimants with schedule and nonschedule permanent impairments arising from the same work-related accident who are capable of returning to work at preinjury wages not to do so in order to collect a nonschedule award. Matter of Arias v City of New York, 2020 NY Slip Op 01429, Third Dept 2-27-20

 

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