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THE BOARD FAILED TO ADEQUATELY EXPLAIN ITS DECISION TO DENY COVERAGE OF MEDICAL BILLS ON THE GROUND THEY WERE NOT CAUSALLY RELATED TO CLAIMANT’S MEDICAL CONDITION, MAKING APPELLATE REVIEW IMPOSSIBLE; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board did not explain its decision to deny coverage of 25 medical bills based on the conclusion the bills did not relate to claimant’s medical condition:

Although, “the Board has the exclusive province to resolve conflicting medical opinions” and to evaluate medical evidence before it, and its factual determinations on causal relationship will not be disturbed if supported by substantial evidence in the record, its decision here fails to indicate what medical opinions or reports formed the basis for the conclusions reached regarding causal relationship … . It is further noted that many of the bills or supporting records include multiple diagnoses and charges, with some of the diagnoses appearing to match the established conditions, such as treatment for a urinary tract infection. No basis is provided for denying compensability for portions of the bills related to established conditions, i.e., for denying payment for the entire medical bill based upon the inclusion of non-compensable treatment in the bill or records.

By failing to provide the reasons for its rulings or the basis upon which the determination was made, the WCLJ [Workers’ Compensation Law Judge] and the Board “failed to satisfy [their] obligation to provide some basis for appellate review” … . Matter of Sequino v Sears Holdings, 2022 NY Slip Op 04070, Third Dept 6-23-22

Practice Point: When the Workers’ Compensation Board fails to adequately explain its denial of coverage for medical bills it concluded were not related to claimant’s medical condition, appellate review by a court is not possible and the matter must be remitted.

 

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THE BOARD SHOULD HAVE CONSIDERED WHETHER A PRIOR ELBOW INJURY ADDED TO THE SCHEDULE LOSS OF USE (SLU) ASSOCIATED WITH THE SUBSEQUENT SHOULDER INJURY; THE BOARD DEPARTED FROM PRECEDENT WITHOUT EXPLANATION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the schedule loss of use (SLU) award for a shoulder injury should not have been offset by a prior award for an elbow injury. Rather, whether the second injury resulted in an increased loss of use should have been considered:

… [T]he Board credited Coniglio’s [the employer’s expert’s] opinion of a 20% SLU as being consistent with the guidelines and expressly declined to add any additional loss of use. …

… [W]e note that the Board has previously determined that adding value for posterior extension to an overall SLU award that also includes a documentation of deficits of flexion or abduction is consistent with the guidelines … . The Board did not address Coniglio’s failure to add any value for his finding of a posterior extension defect to his overall SLU calculation and, as such, has not provided a rational basis for departing from its precedent. Accordingly, its finding of a 20% SLU of the left arm must also be reversed and the matter remitted for further consideration by the Board … . Matter of Kromer v UPS Supply Chain Solutions, 2022 NY Slip Op 04072, Third Dept 6-23-22

Practice Point: Here claimant’s prior schedule loss of use (SLU) award for an elbow injury was not considered in connection with the SLU for the subsequent shoulder injury, a departure from precedent. Because the departure from precedent was not explained, the decision was reversed and remitted.

 

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THE WORKERS’ COMPENSATION BOARD MISINTERPRETED SPECIAL CONSIDERATION 4 TO LIMIT SCHEDULE LOSS OF USE (SLU) OF PLAINTIFF’S LEG TO 10% (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined “special consideration 4” of the Workers’ Compensation Guidelines for Determining Impairment was not properly interpreted, resulting in a schedule lose of use (SLU) for claimant’s leg that is inappropriately low (10%):

Claimant argues that the Board’s interpretation of special consideration 4 and the instructions regarding its application is irrational and runs afoul of the purpose of Workers’ Compensation Law § 15 (3). We agree. “SLU awards are not given for particular injuries, but they are made to compensate an injured worker for his or her loss of earning power or capacity that is presumed to result, as a matter of law, from the residual permanent physical and functional impairments to statutorily-enumerated body members”  … . * * *

Relying on the plain language of the 2018 guidelines, the Board reads special consideration 4 as making no provision for additional values due to flexion or extension deficits, reasoning that the enumerated SLU range already takes into account range of motion deficits…. . …

Although special consideration 4 may arguably be said to rationally limit an SLU value when it is based upon only a finding of chondromalacia patella, the Board’s interpretation of the foregoing instructions results in the obvious inequity identified by claimant and cannot be upheld. To accept the Board’s interpretation would be to sanction an application of the 2018 guidelines that results in claimants with only meniscus tears routinely receiving SLU awards far greater than 7½ to 10% based upon their range of motion deficits … . Matter of Blue v New York State Off. of Children & Family Servs., 2022 NY Slip Op 03565, Third Dept 6-2-22

Practice Point: In determining the schedule loss of use (SLU) for claimant’s leg, the Workers’ Compensation Board misinterpreted “special consideration 4” resulting in an inappropriately low SLE percentage.

 

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DEFENDANT PROPERTY OWNER FAILED TO DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER OR THAT PLAINTIFF WAS DEFENDANT’S SPECIAL EMPLOYEE; THEREFORE PLAINTIFF’S PERSONAL INJURY ACTION WAS NOT PRECLUDED BY THE EXCLUSIVE REMEDY ASPECT OF THE WORKERS’ COMPENSATION LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Zorn Realties, the owner of the property, did not demonstrate it was the alter ego of plaintiff’s employer, Zorn Poultry Farm, and did not demonstrate plaintiff was a special employee of Zorn Realties. Therefore, the negligence action stemming from plaintiff’s fall through a chute or a hole on defendant’s property was not precluded by the exclusive-remedy aspect of the Workers’ Compensation Law:

“‘A defendant moving for summary judgment based on the exclusivity defense of the Workers’ Compensation Law under this theory must show, prima facie, that it was the alter ego of the plaintiff’s employer'” … . “A defendant may establish itself as the alter ego of a plaintiff’s employer by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity” … . However, “a mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other” … .

… Although the defendant presented evidence that the two entities were related inasmuch as they shared an address and a liability insurance policy, the defendant failed to establish that the entities shared officers or had identical owners. Additionally, the evidence showed that the entities served different purposes, had separate bank accounts, filed separate tax returns, and did not have a shared workers’ compensation policy … . …

“Many factors are weighed in deciding whether a special employment relationship exists, and generally no single one is decisive . . . Principal factors include who has the right to control the employee’s work, who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business . . . The most significant factor is who controls and directs the manner, details, and ultimate result of the employee’s work'” … .

… [T]he defendant failed to establish … that the plaintiff was its special employee at the time of the accident because it did not submit sufficient evidence to establish, inter alia, that it controlled and directed the manner, details, and ultimate result of the plaintiff’s work, nor did it establish that the plaintiff had knowledge of and consented to a special employment relationship … . Mauro v Zorn Realties, Inc., 2022 NY Slip Op 03509, Second Dept 6-1-22

Practice Point: Here the defendant property owner was not able to take advantage of the exclusive-remedy aspect of the Workers’ Compensation Law in this personal injury action. Plaintiff’s employer was not the alter ego of defendant and plaintiff was not defendant’s special employee.

 

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PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DENIED BECAUSE IT WAS BASED ON EVIDENCE FIRST PRESENTED IN REPLY; PLAINTIFF WAS COLLATERALY ESTOPPED FROM CLAIMING TRAUMATIC BRAIN INJURY AND COGNITIVE DISORDER BY THE RULING IN HIS WORKERS’ COMPENSATION CASE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this construction accident case, determined plaintiff’s motion for summary judgment on his Labor Law 241(6) cause of action should not have been granted because it was based upon information raised for the first time in reply. The First Department noted that Supreme Court properly found that the ruling in plaintiff’s Workers’ Compensation case collaterally estopped plaintiff from claiming traumatic brain injury and cognitive disorder in this Labor Law action:

Supreme Court should have denied plaintiff’s motion for summary judgment with respect to Labor Law § 241(6), which was based on an expert affidavit submitted in reply. The affidavit, which constituted the first time plaintiff asserted violations of 12 NYCRR 23-2.2(a) and (b), was not addressed to the arguments made in defendants’ opposition, and instead sought to assert new grounds for the motion … .

Plaintiff is collaterally estopped from litigating his allegation that he sustained traumatic brain injury and cognitive disorder, since the allegation was previously raised and conclusively decided against him in a Workers’ Compensation Board proceeding, where plaintiff had a full and fair opportunity to litigate the issue … . Douglas v Tishman Constr. Corp., 2022 NY Slip Op 03344, First Dept 5-24-22

Practice Point: Evidence first presented in reply and which does not address anything raised by the other party’s opposition papers should not be considered by the court. A ruling in a Workers’ Compensation case, here rejecting the worker’s traumatic brain injury and cognitive disorder claims, may  preclude the same claims in a Labor Law action pursuant to the collateral estoppel doctrine.

 

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A SUBSEQUENT INJURY TO THE SAME BODY “MEMBER” WHICH WAS THE SUBJECT OF A PRIOR SCHEDULE LOSS OF USE (SLU) AWARD NEED NOT BE REDUCED BY THE PERCENTAGE LOSS OF THE PRIOR AWARD (CT APP).

The Court of Appeals, in a full-fledged opinion addressing two cases by Judge Cannataro, over an extensive dissent in each case, determined that, under Workers’ Compensation Law section 15, a subsequent injury to the same body “member” may be fully compensable, notwithstanding a prior injury involving the same body “member:”

The common issue in these appeals is whether, under Workers’ Compensation Law (WCL) § 15, a claimant’s schedule loss of use (SLU) award must always be reduced by the percentage loss determined for a prior SLU award to a different subpart of the same body “member” enumerated in section 15. We hold that separate SLU awards for different injuries to the same statutory member are contemplated by section 15 and, when a claimant proves that the second injury, “considered by itself and not in conjunction with the previous disability” (WCL § 15 [7]), has caused an increased loss of use, the claimant is entitled to an SLU award commensurate with that increased loss of use. .Matter of Johnson v City of New York, 2022 NY Slip Op 02579, CtApp 4-21-22

​Practice Point: A schedule loss of use (SLU) award for injury to a body “member” need not be reduced based on a prior SLU award for injury to the same body “member” if the claimant proves the second injury has caused an increased loss of use.

 

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THERE WAS NO INDICATION ON THE FORM AND NO REGULATION REQUIRING CLAIMANT TO SUBMIT A SEPARATE RB-89 FORM FOR EACH CLAIM; THE BOARD THEREFORE ABUSED ITS DISCRETION WHEN IT REFUSED TO REVIEW THE WORKERS’ COMPENSATION LAW JUDGE’S (WCLJ’S) DECISION ON THAT GROUND (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined it was an abuse of discretion to deny claimant’s application on the ground that a separate copy of the RB-89 form was not submitted for each claim:

We note … that the requirement that a party submit a copy of the RB-89 form when referencing multiple claims, or that failing to provide a copy for each claim could result in review being denied on one of the claims, is not included on the form, in the instructions to the form or in the Board’s regulations. Although the Board may certainly adopt the formatting requirement that applicants provide a copy of their RB-89 form for each claim referenced therein, we find, under the circumstances presented here, that the Board’s denial of claimant’s application for review of the WCLJ’s decision on the 2017 claim for failing to provide the Board with an additional copy of their RB-89 form was an abuse of the Board’s discretion … . Matter of Olszewski v PAL Envtl. Safety Corp., 2022 NY Slip Op 02469, Third Dept 4-14-22

 

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ALTHOUGH CLAIMANT WAS STRUCK BY A VEHICLE WHILE HE WAS RIDING HIS BICYCLE TO WORK (USUALLY NOT COMPENSABLE), HIS INJURY WAS FOUND COMPENSABLE BY THE WORKERS’ COMPENSATION LAW JUDGE (WCLJ) UNDER THE “SPECIAL ERRAND” EXCEPTION; BECAUSE THE WORKERS’ COMPENSATION BOARD DID NOT ADDRESS THAT ISSUE, THE MATTER WAS REMITTED (THIRD DEPT). ​

The Third Department, remitting the matter to the Workers’ Compensation Board, determined the Board did not address the basis of the Workers’ Compensation Law Judge’s (WCLJ’s) ruling that claimant was entitled to benefits. Claimant was struck by a vehicle while riding his bicycle to work. Although travel to work is usually not covered by Workers’ Compensation, the WCLJ found that “claimant was engaged in a special errand given that he was traveling for the purpose of an overtime assignment and at a location different from his regular work locations.” That issue was not addressed by the Board:

In finding that the claim was compensable, the WCLJ found that claimant was engaged in a special errand given that he was traveling for the purpose of an overtime assignment and at a location different from his regular work locations. The Board, however, did not address the exception relied upon by the WCLJ but, instead, found that the outside employee exception did not apply in concluding that the accident did not arise out of or in the course of claimant’s employment. Whether an exception to the general rule applies turns on the Board’s fact-intensive analysis of the particular circumstances of a given case … , and “[t]he courts are bound by the . . . Board’s findings of fact which, including the ultimate fact of arising out of and in the course [of employment], must stand unless erroneous in law and regardless of whether conflicting evidence is available” … . The fact that claimant was not an outside employee, as found by the Board, is not dispositive as to whether the special errand exception applies, which was the basis of the WCLJ’s finding that claimant was entitled to workers’ compensation benefits. As the Board has made no findings of fact with regard to whether the special errand exception applies, the matter must be remitted to the Board for further proceedings in regard to this particular issue…. . Matter of Waters v New York City Tr. Auth., 2022 NY Slip Op 02474, Third Dept 4-14-22

​Practice Point: Although injury while traveling to work is usually not covered by Workers’ Compensation, there are exceptions, including the “special errand” exception which was deemed to apply here by the Workers’ Compensation Law Judge.

 

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BECAUSE CLAIMANT WAS NOT ENTITLED TO A NONSCHEDULE AWARD DUE TO RETIREMENT, HE WAS ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant was entitled to a schedule loss of use (SLU) award because he was not eligible for a nonschedule award due to retirement:

A nonschedule award “is based [up]on a factual determination of the effect that the [permanent partial] disability has on the claimant’s future wage-earning capacity” and is mathematically derived from a claimant’s average weekly wages and wage-earning capacity … . On the other hand, an SLU award is designed to compensate for a claimant’s “loss of earning power” as a result of anatomical or functional losses or impairments … and, as such, “‘is not allocable to any particular period of disability'” … and is “independent of the time an employee actually loses from work” … . That said, “[a] claimant who sustains both schedule and nonschedule injuries in the same accident may receive only one initial award,” because SLU and nonschedule awards “are both intended to compensate a claimant for loss of wage-earning capacity sustained in a work-related accident[,] and concurrent payment of an award for a schedule loss and an award for a nonschedule permanent partial disability for injuries arising out of the same work-related accident would amount to duplicative compensation” … . “However, in the unique circumstance where no initial award is made based on a nonschedule permanent partial disability classification, a claimant is entitled to an SLU award” for the permanent impairments sustained in the same work-related accident … . …

… [T]here is no dispute that claimant is not entitled to a nonschedule award based upon his nonschedule classification because he voluntarily retired in April 2020 and was therefore not attached to the labor market at the time of classification … . Thus, as “no initial award [wa]s made based [up]on [claimant’s] nonschedule permanent partial disability classification” … , he “is entitled to an SLU award for the permanent partial impairments to [his] statutorily-enumerated body members” … . Finally, and contrary to the position taken by the Board, the fact that claimant voluntarily retired, and was therefore not attached to the labor market, does not preclude him from receiving an SLU award, because “it is axiomatic that a claimant’s lack of attachment to the labor market, voluntary or otherwise, is irrelevant to a determination as to entitlement to an SLU award” … . Matter of Gambardella v New York City Tr. Auth., 2022 NY Slip Op 02475, Third Dept 4-14-22

Practice Point: This Workers’ Compensation case includes a clear explanation of a “nonschedule award” versus a “schedule loss of use (SLU)” award.

 

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THE WORKERS’ COMPENSATION BOARD RULED THE PLAINTIFF DID NOT HAVE “POST-CONCUSSION SYNDROME” OR A “CONCUSSION CONDITION;” PLAINTIFF WAS THEREFORE ESTOPPED FROM CLAIMING THOSE INJURIES IN THIS LABOR LAW ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the ruling by the Workers’ Compensation Board that plaintiff did not have “post-concussion syndrome” or a “concussion condition” collaterally estopped plaintiff from claiming those injuries in this Labor Law action:

We agree with defendant that the court erred in denying its motion insofar as it effectively sought summary judgment dismissing plaintiff’s claims for damages related to PCS or a concussion condition as barred by the doctrine of collateral estoppel, but we conclude that plaintiff’s claims for damages related to headaches and the alleged concussion itself are not so barred. The quasi-judicial determinations of administrative agencies, such as the Workers’ Compensation Board (Board), “are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal” … and a determination whether a plaintiff actually sustained a physical injury causally related to an accident … , the Board in this case specifically found that plaintiff did not have “post-concussion syndrome” or a “concussion condition” that were causally related to the second work accident. Szymkowiak v New York Power Auth., 2022 NY Slip Op 01702, Fourth Dept 3-11-22

Practice Point: Here the Workers’ Compensation Board’s ruling plaintiff did not have “post-concussion syndrome” or a “concussion condition” precluded claims for those injuries in the plaintiff’s Labor Law action pursuant to the doctrine of collateral estoppel.

 

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