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DAMAGE TO A LEG MUSCLE, HERE THE HAMSTRING, SUPPORTED A SCHEDULE LOSS OF USE (SLU) AWARD, WORKERS’ COMPENSATION BOARD REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined damage to a muscle, here the hamstring, qualified for a schedule loss of use (SLU):

The Board’s conclusion that no SLU award can be made because “no special consideration applies to a hamstring tear” fails to take into consideration that the 2018 guidelines specifically permit an SLU award to be based upon a permanent residual deficit caused by physical damage to a muscle, such as a hamstring. We recognize that the 2018 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 … . In finding that claimant]was not entitled to an SLU award, the Board did not discredit or find unpersuasive the medical opinion of either of the orthopedists, reject Rashid’s [the orthopedist’s] opinion that this hamstring tear injury most closely correlated to a quadricep rupture or find that the orthopedists’ SLU calculations were inadequately supported; rather, the Board found that, even if credited, the medical opinions could not support an SLU award here … . …

… [W]e find, contrary to the Board’s interpretation, that, in the absence of specific instructions regarding hamstring tears in the 2018 guidelines, a medical expert could rationally rely upon the special consideration for quadricep ruptures as the closest corollary to claimant’s injury and impairment. The absence  a special consideration addressing a hamstring impairment did not preclude an SLU award for a leg impairment … . Matter of Semrau v Coca-Cola Refreshments USA Inc., 2020 NY Slip Op 07650, Third Dept 12-17-20

 

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CLAIMANT, AN UNDOCUMENTED IMMIGRANT WITHOUT A SOCIAL SECURITY NUMBER, DEMONSTRATED DILIGENT EFFORTS TO FIND WORK AFTER HE WAS INJURED; THE WORKERS’ COMPENSATION BOARD SHOULD NOT HAVE DENIED HIS CLAIM FOR BENEFITS (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board’s denial of benefits to claimant, an undocumented immigrant, over a two-justice dissent, determined claimant had made a sufficient showing of diligent efforts to find work (labor market attachment) after he was injured:

… “[T]he status of an injured worker as an undocumented alien does not, in and of itself, prohibit an award of workers’ compensation benefits” … , unless the worker cannot satisfy statutory requirements … . Likewise, the Board has recognized that an injured worker’s undocumented status “does not eliminate his [or her] need to make a reasonable search for work” … . …

The evidence at the hearing established that claimant attended school through the ninth grade in his country of birth and has exclusively worked in construction, both before coming to the United States at age 23 and for the eight years thereafter, until sustaining the subject injuries while performing heavy lifting at the employer’s construction site. With respect to his attachment to the labor market, claimant submitted completed forms listing 62 businesses to which he applied for work between April and December 2018 as a prep cook, dishwasher, restaurant helper and ironing worker. He identified potential employers by walking around two boroughs of New York City two or three days per week, seeking work that would not require a Social Security number, which he lacked due to his undocumented status. He applied for both non-construction jobs, for which he lacked experience and language skills, and construction jobs, for which he had limited physical abilities due to his injuries. Potential employers informed claimant that (1) they were not hiring, (2) he lacked the requisite experience or (3) they could not hire him without a Social Security number. Claimant produced documentation establishing that he sought assistance from Workforce1, a job location service, which aided him in the preparation of a work-history rÉsumÉ in English; however, despite his willingness to use this service, Workforce1 ultimately advised him that he was unable to use its services for his job search because he lacked a Social Security number. Claimant registered at an adult learning center in order to take English language courses, but was placed on a wait list and, as of the time of the hearing, had yet to be contacted regarding an opening. Matter of Policarpio v Rally Restoration Corp., 2020 NY Slip Op 07442, Third Dept 12-10-20

 

WORKERS’ COMPENSATION LAW 35 PROVIDES A SAFETY NET FOR WORKERS WHO HAVE REACHED THE LIMIT OF WEEKS OF INDEMNITY PAYMENTS PURSUANT TO WORKERS’ COMPENSATION LAW 15 (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined Workers’ Compensation Law 35 provides a safety net for workers who have reached the  limit of weeks of indemnity payments pursuant to Workers’ Compensation Law 15:

As part of the comprehensive reforms of the Workers’ Compensation Law in 2007, the Legislature amended Workers’ Compensation Law § 15 (3) (w) … . “The amendment, in a concession to insurance carriers, capped the number of weeks that a person is eligible to receive benefits for a non-schedule permanent partial disability” … . …

The 2007 legislative reforms also included the enactment of Workers’ Compensation Law § 35 … , which is “intended to create a possible safety net for claimants who sustain a permanent partial disability and have not returned to work after they have reached their limit on weeks of indemnity payments” … . Pursuant to Workers’ Compensation Law § 35 (2), “[n]o provision of this article shall in any way be read to derogate or impair current or future claimants’ existing rights to apply at any time to obtain the status of total industrial disability under current case law.” Given the plain language of this statute that a claimant’s right to seek total industrial disability status at any time remains, notwithstanding other statutory provisions of article two of the Workers’ Compensation Law, as well as the clear legislative intent of Workers’ Compensation Law § 35 “to establish a safety net for permanent partial disability claimants who surpass their number of maximum benefit weeks” … . Matter of Minichiello v New York City Dept. of Homeless Servs., 2020 NY Slip Op 06433, First Dept 11-12-20

 

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CLAIMANT’S FAILURE TO SUBMIT MEDICAL RECORDS TO THE EMPLOYER PRIOR TO THE HEARING REQUIRED PRECLUSION OF THE RECORDS; HOWEVER THE CASE SHOULD NOT HAVE BEEN CLOSED; CLAIMANT MAY REMEDY THE OMISSION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the case should not have been closed because claimant failed to provide a copy of the medical records to the employer before the hearing, but rather the case should have been marked “no further action” which allows claimant to submit the medical records:

Pursuant to 12 NYCRR 300.2 (d) (4) (iv), copies of written reports of medical experts made based on a records review to be used for reference at a hearing must be filed with the Board and submitted to all other parties three days prior to the hearing. It is uncontested that the employer was not provided a copy of the report pursuant to the regulation and, therefore, the report was properly precluded … . …

As to the Board’s decision to disallow the claim and close the case after rescinding the WCLJ’s finding of prima facie medical evidence, it should be noted that if the WCLJ [Workers’ Compensation Law Judge], in the first instance, had found that claimant had not proffered prima facie medical evidence, the WCLJ would have been required to have marked the case as “no further action” … . Claimant then would have been provided an opportunity to “submit additional information on an amended or other medical report, upon which submission the case shall be scheduled for another pre-hearing conference” … . Thus, under these circumstances, where there has been no finding by the WCLJ as to the establishment or disallowance of the claim, the Board’s decision to find no admissible evidence of a causally-related death and close the case based solely upon the rescission of the WCLJ’s finding of prima facie medical evidence was improper. Rather, the matter should now be marked as no further action, thereby providing claimant with an opportunity to proffer additional information to satisfy her burden of submitting prima facie medical evidence … . Matter of Barton v Consolidated Edison Co. of New York, Inc., 2020 NY Slip Op 06190, Third Dept 10-29-20

 

CLAIMANT PURCHASED OFFICE FURNITURE AFTER HE WAS HIRED TO WORK FROM HOME AND WAS INJURED CARRYING THE FURNITURE TO HIS HOME OFFICE; THE WORKER’S COMPENSATION BOARD SHOULD NOT HAVE ANALYZED THE CASE UNDER A RIGID NEW STANDARD FOR EMPLOYEES WORKING FROM HOME; MATTER REMITTED FOR APPLICATION OF THE LONG-ESTABLISHED STANDARD (THIRD DEPT). ​

The Third Department, reversing the denial of benefits and remitting the matter to the Workers’ Compensation Board, determined claimant, who was hired to work from home, may be entitled to workers’ compensation benefits stemming from moving boxes during claimant’s lunch hour. Claimant was told by his employer the company would not pay for office furniture. Claimant purchased the office furniture and was injured when carrying the boxes upstairs to his home office. The court addressed how workers’ compensation principles should be applied to working from home:

… [T]he Board eschewed the foregoing principles in favor of a rigid new standard for employees working from home under which injuries are only compensable if occurring during regular work hours and while the employee is actively engaged in work duties as opposed to, for example, taking a short break or using the bathroom. This novel standard is unsupported by precedent, is inconsistent with “the remedial nature of the Workers’ Compensation Law” and cannot be countenanced … . A “regular pattern of work at home” renders the employee’s residence “a place of employment” as much as any traditional workplace maintained by the employer … . As a result, inasmuch as the Board determined that claimant was injured during his regular work shift … , the compensability of his injury should have been determined using the long-established standard.

We accordingly remit for the Board to apply that standard and determine whether claimant, when moving the boxes, was engaged in a “purely personal” activity that was not “reasonable and sufficiently work related under the circumstances” … . Matter of Capraro v Matrix Absence Mgt., 2020 NY Slip Op 06000, Third Dept 10-22-20

 

ALTHOUGH THERE WAS EVIDENCE CLAIMANT MADE A FALSE STATEMENT ABOUT THE LEVEL OF HER INVOLVEMENT IN AN ONLINE BUSINESS WHILE SHE WAS RECEIVING WORKERS’ COMPENSATION BENEFITS, SHE WAS FORTHRIGHT ABOUT HER INVOLVEMENT WHEN QUESTIONED; PERMANENT DISQUALIFICATION FROM FUTURE BENEFITS WAS NOT WARRANTED (THIRD DEPT).

The Third Department, modifying the Workers’ Compensation Board, determined there was support in the record for the finding claimant omitted from her application for benefits that she was selling items online while receiving benefits, but the record did not support a permanent disqualification from future benefits. Claimant omitted the information because she had not turned a profit, but she was forthright about the online business when questioned about it:

“The fact that claimant had not yet realized a profit from [the activities] does not diminish [her] obligation to provide true and accurate information regarding [her] employment activities and such misrepresentations are clearly material to [her] claim” … . The evidence here revealed that claimant failed to accurately disclose her level of activity … . …

We note that claimant was readily forthcoming about her activities when questioned and declined to cash benefits checks after she resumed part-time work with the employer … . Based on all the circumstances presented, we do not find adequate support for the Board’s determination that claimant engaged in “an egregious pattern of conduct,” thus warranting permanent disqualification from future wage replacement benefits … . Matter of Conliffe v Darden Rest., 2020 NY Slip Op 06001, Third Dept 10-22-20

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AN UNPAID PENALTY ASSESSED FOR DEFENDANT’S FAILURE TO MAINTAIN WORKERS’ COMPENSATION COVERAGE WAS ENTERED AS A SUPREME COURT JUDGMENT BY THE COUNTY CLERK IN ACCORDANCE WITH THE WORKERS’ COMPENSATION LAW; BY THE TERMS OF THE STATUTE, SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION AND DEFENDANT COULD NOT MOVE TO VACATE THE DEFAULT JUDGMENT (THIRD DEPT).

The Third Department determined a judgment entered in Supreme Court by the county clerk pursuant to the Workers’ Compensation Law 26  is not reviewable by Supreme Court. The Workers’ Compensation Board assessed a penalty against defendant for failure to maintain workers’ compensation coverage. When the penalty was not paid the judgment was entered by the county clerk as a ministerial act which cannot be addressed by a motion in Supreme Court to vacate a default judgment:

Defendants … ignore the peculiar statutory scheme by which only this Court may review a final determination by plaintiff with respect to, among other things, assessments ordered pursuant to Workers’ Compensation Law § 52 (5) up until the time that a judgment against an employer is entered. At that point, no appeal is permitted … .

Workers’ Compensation Law § 26 provides that where an employer fails to pay an assessment imposed pursuant to Workers’ Compensation Law § 52 (5) within 20 days after it is due, plaintiff’s chair may file a certified copy of the order imposing such assessment with the county clerk where the employer’s principal place of business is maintained. “[T]hereupon[,] judgment must be entered in the [S]upreme [C]ourt, by the clerk of such county in conformity therewith immediately upon such filing. . . . Such judgment shall be entered in the same manner, have the same effect and be subject to the same proceedings as though rendered in a suit duly heard and determined by the [S]upreme [C]ourt, except that no appeal may be taken therefrom” (Workers’ Compensation Law § 26 …). The entry of such judgment is “merely a ministerial act” made pursuant to Workers’ Compensation Law § 26 … . Indeed, the statute provides that the court shall “vacate or modify” the judgment only “to conform to any later award or decision of [plaintiff]” and “[t]he award may be so compromised [only] by [plaintiff and] in the discretion of [plaintiff]” (Workers’ Compensation Law § 26). Inasmuch as the entry of plaintiff’s order here by the County Clerk was “merely a ministerial act” … , Supreme Court lacked the authority to vacate the judgment because the underlying order was not issued by the court … . …

To allow defendants to petition a different court to vacate its default after judgment has been entered would undermine this statutory scheme by allowing a court other than this one to, in effect, review a final decision of plaintiff. Workers’ Compensation Bd. of the State of N.Y. v Williams Auto Parts Inc., 2020 NY Slip Op 05261, Third Dept 10-1-20

 

CLAIMANT WAS SIMULTANEOUSLY ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD AND A PERMANENT PARTIAL DISABILITY CLASSIFICATION (THIRD DEPT).

The Third Department, reversing (modifying) the Workers’ Compensation Board, determined claimant was simultaneously entitled to an award for a schedule loss of use [SLU] and a permanent partial disability classification:

For the reasons more fully discussed in Matter of Arias v City of New York (182 AD3d 170, 172 [2020]), we agree with claimant’s contention that the Board erred in disregarding or attempting to distinguish Matter of Taher [162 AD3d 1288] … . Under Matter of Taher, a claimant who sustains both schedule and nonschedule permanent injuries in the same work-related accident and returns to work at preinjury wages — and, thus, has not received a reduced-earnings award based upon a nonschedule permanent partial disability classification (see Workers’ Compensation Law § 15 [3]) — is entitled to an SLU [schedule loss of use] award for permanent partial impairments to the statutorily enumerated body parts, here, claimant’s knee and possibly his left elbow (see Workers’ Compensation Law § 15 [3] [a] …). Matter of Garrison-Bey v Department of Educ., 2020 NY Slip Op 05273, Third Dept 10-1-20

 

CLAIMANT DID NOT TRY TO HIDE THE DOG-WALKING BUSINESS AND WAS ONLY TANGENTIALLY INVOLVED IN THE OPERATION OF THE BUSINESS; THEREFORE THE EVIDENCE DID NOT SUPPORT THE CONCLUSION SHE HAD MADE A MATERIAL FALSE STATEMENT IN HER CLAIM FOR WORKERS’ COMPENSATION BENEFITS STEMMING FROM HER FORMER EMPLOYMENT AS A BARTENDER (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant did not make a material false claim about her involvement in a dog-walking business after the injuries for which she sought Workers’ Compensation benefits. The Board had reversed the Workers’ Compensation Law Judge’s (WCLJ’s) finding to that effect. The Third Department held the evidence did not support the conclusion that claimant was involved in the dog-walking business, run by her brother, and therefore the evidence did not support the conclusion claimant had violated Workers’ Compensation Law 114-a by making a false statement

… [T]he record does not establish that claimant knowingly made a material false statement to influence her claim for compensation in violation of Workers’ Compensation Law § 114-a … . There is no indication that claimant actively participated in the business after she began receiving temporary total disability payments. Her involvement was tangential at best. Although the business remained intact, it was claimant’s brother who ran the day-to-day operations. Significantly, there is nothing to indicate that claimant attempted to hide the business, as the Board was well aware of its existence at the time that the WCLJ made the reduced earnings award. Accordingly, the Board’s decision finding that claimant violated Workers’ Compensation Law § 114-a and imposing penalties is not supported by substantial evidence and must be reversed. Matter of Nikac v Joal Rest. Corp., 2020 NY Slip Op 05274, Third Dept 10-1-20

 

THE APPLICATION FOR REVIEW OF THE WORKERS’ COMPENSATION LAW JUDGE’S DECISION WAS PROPERLY DENIED BECAUSE THE APPLICATION DID NOT SPECIFY WHEN THE OBJECTIONS TO THE DECISION WERE MADE (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly refused review of the award of benefits sought by the carrier. The application form (requesting Board review) did not specify when the objections to the contested decision by the Workers’ Compensation Law Judge (WCLJ) were made:

… [B]oth the application (form RB-89) and the instructions in effect at the time that it was filed required the carrier to “specify the objection or exception that was interposed to the ruling, and when the objection or exception was interposed” … . This information was to be supplied by the carrier in question number 15 of the application. In response to this question, the carrier stated, “Objections were noted during the course of the hearing and at the conclusion of the hearing regarding the [WCLJ’s] finding that no additional development of the record was necessary on the issue of attachment to the labor market prior to directing awards based solely on the amendment to [s]ection 15 (3) (w) that took effect 04/10/17.” Significantly, the carrier failed to identify the hearing at which the objection was raised, and the record discloses that there was more than one hearing at which claimant’s labor market attachment was addressed. As the carrier failed to provide the temporal information required by the regulations, we cannot conclude that the Board abused its discretion in finding the application to be incomplete and declining to review the WCLJ’s decision … . Matter of Demarco v Trans Care Ambulance, 2020 NY Slip Op 04895, Third Dept 9-3-20

 

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