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UNLIKE AN APPLICATION FOR AN ADMINISTRATIVE REVIEW OF A WORKERS’ COMPENSATION LAW JUDGE’S (WCLJ’S) DECISION, WHICH HAS A 30-DAY TIME LIMIT, AN APPLICATION FOR A REHEARING OR TO REOPEN A CLAIM MUST BE MADE IN A REASONABLE TIME (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board applied the wrong criteria to claimant’s attempt to reopen her claim or seek a rehearing:

We agree with claimant that the Board applied the incorrect statutory framework in evaluating her application. Although a party seeking administrative review of a WCLJ decision must file a written application for review with the Board within 30 days of the filing of the decision (see Workers’ Compensation Law § 23; 12 NYCRR 300.13 [a] [1]; [b] [3] [i]…), there is no statutorily-prescribed time period in which a claimant may seek rehearing or reopening of a claim; rather, the Board must determine if such application was made within a reasonable time after the claimant had knowledge of the facts constituting the grounds upon which the application is made (see 12 NYCRR 300.14 [b]…). Here, the Board did not assess whether claimant’s application was made within a reasonable time. Accordingly, the decision is reversed and the matter is remitted to the Board to evaluate claimant’s application as one for rehearing or reopening. Matter of Villagra v Sunrise Senior Living Mgt., 2019 NY Slip Op 00169, Third Dept 1-10-19

 

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GENERAL BUSINESS LAW 349 CAUSE OF ACTION AGAINST A WORKERS’ COMPENSATION LAW TRUST SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department determined that a General Business Law 349 cause of action against a Workers’ Compensation Law trust should not have been dismissed. The trust was taken over by the Workers’ Compensation Board and was found to have a deficit of $220 million. Several lawsuits were brought by members of the trust alleging breach of contract, fraud, breach of a fiduciary duty, etc.:

… [W]ith respect to the General Business Law § 349 cause of action [we] disagree with Supreme Court’s reasoning that the alleged misconduct was not consumer oriented.

“The threshold requirement of consumer-oriented conduct is met by a showing that the acts or practices have a broader impact on consumers at large in that they are directed to consumers or potentially affect similarly situated consumers” … . The amended complaint alleged that “[d]efendants aggressively marketed and advised the [t]rust and self-insurance trusts to the public at large in general as a safe and less expensive alternative to traditional insurance” and that “the information disseminated by [d]efendants was likely to mislead reasonable employers.” The amended complaint further alleged that defendants’ actions “injured and harmed [p]laintiffs, other members of self-insured trusts and the general public” and have “jeopardized the workers’ compensation benefits of New York employers and their employees.” Construing these allegations liberally, as we must, we find that plaintiffs sufficiently alleged that the misconduct at issue was consumer oriented … . Belair Care Ctr., Inc. v Cool Insuring Agency, Inc., 2019 NY Slip Op 00015, Third Dept 1-3-19

 

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THE OPINION EVIDENCE THAT CLAIMANT’S PRE-EXISTING HEART CONDITION WAS A HINDRANCE TO HER EMPLOYABILITY WAS INSUFFICIENT, THE WORKERS’ COMPENSATION CARRIER, THEREFORE, WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the evidence did not support the finding that the claimant’s pre-existing conditions posed a hindrance to her employability. Therefore the carrier was not entitled to reimbursement from the Special Disability Fund:

Claimant, a licensed practical nurse, established a claim for a work-related injury to her right knee stemming from a September 3, 2004 accident that occurred while she was dispensing medication to patients. * * *

We find that the carrier failed to prove that claimant’s preexisting conditions hindered or were likely to hinder her employability. Although Moriarty, an orthopedist, did offer an opinion based upon a records review that claimant’s heart conditions could pose a hindrance to employability, the opinion was based upon generalities and speculation, and did not rationally support the conclusion that claimant’s present disability was “‘materially and substantially greater than what would have arisen from the [2004] work-related injury by itself'” … . Moriarty did not examine or interview claimant, and the record does not reflect that claimant was subject to any restrictions or that any of her preexisting conditions hindered her job performance or ability to work… . In addition, as noted in Moriarty’s addendum, claimant’s aortic insufficiency from a heart valve condition was controlled by medication, and “preexisting conditions that are controlled by medication have been found, without more, not to constitute a hindrance to employability” … . In view of the lack of evidence that claimant’s preexisting conditions hindered or were likely to hinder her employability, we find that the Board’s decision is not supported by substantial evidence and, therefore, it must be reversed … . Matter of Ricci v Maria Regina Residence, 2018 NY Slip Op 08980, Third Dept 12-27-18

 

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COUNTERCLAIMS AGAINST INDIVIDUAL TRUSTEES RELATED BACK TO THE COUNTERCLAIMS AGAINST THE TRUST AND THEREFORE WERE NOT TIME-BARRED, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the counterclaims against the trustees of the plaintiff workers’ compensation self-insurance trust should not have been dismissed as time-barred because they related back to the counterclaims against the trust:

Supreme Court determined that, because defendant was aware of the identity of the trustees when it interposed its original answer and counterclaims in September 2010, its failure to assert claims against the individual trustees between September 2010 and December 2016 represented “either a strategic litigation decision on its part or a mistake of law,” neither of which it found would entitle defendant to application of the doctrine. We disagree.

There is nothing in the record before us demonstrating that defendant intentionally elected not to assert its counterclaims against the individual trustees and/or that it did so to obtain “a tactical advantage in the litigation” … . A review of defendant’s pleadings demonstrates that it intended to sue the individual trustees … . Although the specific names of the individual trustees could have been ascertained from certain documentation that the trust provided to defendant on an annual basis, “we need no longer consider whether [such a] mistake was excusable” … . Rather, as the Court of Appeals has recognized, the primary question — and “the linchpin of the relation back doctrine” — is whether the newly added party had actual notice of the claim … . As trustees of the trust, we find it implausible that the individual trustees were not aware of the trust’s commencement of this action and the counterclaims that defendant asserted against the trust — such knowledge being imputed to them as trustees … . NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 2018 NY Slip Op 08735 [167 AD3d 1305], Third Dept 12-20-18

 

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THE WORKERS’ COMPENSATION BOARD DID NOT PROVIDE AN EXPLANATION FOR DISQUALIFYING CLAIMANT FROM FUTURE WAGE REPLACEMENT BENEFITS, MATTER REMITTED SO THAT ASPECT OF THE PENALTY CAN BE REVIEWED ON APPEAL (THIRD DEPT).

The Third Department, remitting the matter to the Workers’ Compensation Board, determined the Board must provide some explanation of the discretionary sanction against claimant disqualifying him from future benefits. The Board had found that claimant misrepresented his physical condition, based upon video surveillance evidence. The Third Department held there was sufficient evidence to support the Board’s finding on the misrepresentation claim before it, but an explanation for prohibiting future claims was required before that aspect of the penalty could be reviewed on appeal:

Claimant also challenges the Board’s imposition of the discretionary sanction disqualifying him from receiving future wage replacement benefits. By not providing any reason for its imposition of this discretionary penalty, the Board failed to satisfy its obligation to “provide some basis for appellate review” … . Accordingly, the matter must be remitted so that the Board can fulfill its obligation and “provide some explanation for its determination in this regard” … . Matter of Papadakis v Fresh Meadow Power NE LLC, 2018 NY Slip Op 08728, Third Dept 12-29-18

 

TIME LIMITS ON ADDITIONAL COMPENSATION FOR A PERMANENT PARTIAL DISABILITY INCLUDED IN WCL 15 (3) (w) APPLY TO THE CALCULATION OF THE AMOUNT OF THE BENEFITS IN WCL 15 (3) (v) (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a dissenting opinion, determined the durational limits for compensation pursuant to Workers’ Compensation Law (WCL) 15 (3) (w) (paragraph w) are incorporated into WCL 15 (3) (v) (paragraph v). Therefore the claimant was entitled to compensation for permanent partial disability (50 % loss of use of his left arm) only for the 275 weeks allowed by paragraph w:

… [N]othing in the language of paragraph v regarding termination of additional compensation upon eligibility for age-based social security benefits contradicts paragraph w’s durational restrictions or precludes their application to paragraph v recipients. By incorporating the entirety of paragraph w’s framework for calculating benefits, paragraph v provides additional compensation lasting a maximum number of weeks as a supplement to the schedule award the worker already received. Paragraph v’s requirement that such payment terminates if the worker becomes eligible for age-based social security payments (regardless of how many weeks have passed) merely places another limit, where applicable, on the additional compensation a claimant can receive. …

… [N]either of the primary benefits that section 15(3) provides are open-ended. Both schedule loss of use awards and non-schedule benefits continue for a maximum number of weeks, depending on the nature or severity of the worker’s disability. Interpreting paragraph v to grant a subset of recipients open-ended benefits limited only by eligibility for age-based social security payments — an award that would potentially span their working lifetimes — would uniquely benefit that small group above all other permanent partial disability award recipients. There is no textual support for such an exceptional interpretation. Rather, under the plain language of paragraph v, additional compensation awards are calculated pursuant to the formula and durational provisions of paragraph w, terminating earlier if or when a claimant becomes eligible for age-based social security benefits. Matter of Mancini v Office of Children & Family Servs., 2018 NY Slip Op 08425, CtApp 12-11-18

 

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THE COMMUNICATION BETWEEN CLAIMANT’S ATTORNEY AND THE INDEPENDENT MEDICAL EXAMINER DID NOT CREATE THE APPEARANCE OF IMPROPRIETY, THE INDEPENDENT MEDICAL EXAMINER’S REPORT AND TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that the communication between claimant’s counsel and the independent medical examiner (Saunders) who assessed claimant’s loss of use of his left foot, did not create the appearance of impropriety and did not warrant the preclude Sauders’ report and testimony:

Workers’ Compensation Law § 13-a (6) prohibits “the improper influencing or attempt by any person improperly to influence the medical opinion of any physician who has treated or examined an injured employee.” Moreover, “any substantive communication with an independent medical examiner, or his or her office, regarding the claimant from any person or entity, including a claimant, an insurance carrier, or a third[-]party administrator, that takes place or is initiated outside of the independent medical examination” … shall be filed with the Board within 10 days of the receipt of the communication … . …

Pursuant to Subject No. 046-124, the Board requires that, in addition to strictly complying with the requirements of Workers’ Compensation Law §§ 13-a (6) and 137 (1) (b), “parties and their representatives should make every effort to avoid even the appearance that they are attempting to influence the opinion of a health care professional” (Workers’ Comp Bd Release Subject No. 046-124). The Board further requires that “to avoid even the appearance that they are not acting in good faith, parties and their representatives are required to send a copy of any written communication with a health care professional to the opposing parties and their legal representative” … .

… [A]t the conclusion of Saunders’ deposition, the employer’s attorney inquired whether claimant’s attorney had communicated with him regarding the claim. Saunders responded that he had received a text message from the attorney the day before the deposition indicating that the deposition would address claimant’s schedule loss of use, but that there was no discussion with counsel. The employer’s attorney asked no further questions and made no request for claimant to produce a copy of the text message, a copy of which is not in the record. We are left then with what appears to be a limited communication between claimant’s counsel and Saunders confirming the subject of the deposition. Significantly, there is no dispute that Saunders’ ensuing deposition testimony fully comported with the report that he had previously filed with the Board — an outcome illustrating that claimant’s counsel in no way influenced Saunders’ testimony through the text message. In our view, verifying the subject of the deposition was simply ministerial in nature and does not reflect an effort to influence the witness testimony. Matter of Knapp v Bette & Cring LLC, 2018 NY Slip Op 08218, Third Dept 11-20-18

WORKERS’ COMPENSATION (THE COMMUNICATION BETWEEN CLAIMANT’S ATTORNEY AND THE INDEPENDENT MEDICAL EXAMINER DID NOT CREATE THE APPEARANCE OF IMPROPRIETY, THE INDEPENDENT MEDICAL EXAMINER’S REPORT AND TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (THIRD DEPT))/ATTORNEYS (WORKERS’ COMPENSATION, THE COMMUNICATION BETWEEN CLAIMANT’S ATTORNEY AND THE INDEPENDENT MEDICAL EXAMINER DID NOT CREATE THE APPEARANCE OF IMPROPRIETY, THE INDEPENDENT MEDICAL EXAMINER’S REPORT AND TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (THIRD DEPT))/EVIDENCE (WORKERS’ COMPENSATION, ATTORNEYS, THE COMMUNICATION BETWEEN CLAIMANT’S ATTORNEY AND THE INDEPENDENT MEDICAL EXAMINER DID NOT CREATE THE APPEARANCE OF IMPROPRIETY, THE INDEPENDENT MEDICAL EXAMINER’S REPORT AND TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (THIRD DEPT))

IN ORDER FOR THE INJURED RAILROAD WORKER TO BE ELIGIBLE FOR WORKERS’ COMPENSATION LAW BENEFITS, ALL PARTIES WOULD HAVE TO WAIVE FEDERAL JURISDICTION UNDER THE FEDERAL EMPLOYER’S LIABILITY ACT (FELA), MATTER SENT BACK (THIRD DEPT). ​

The Third Department determined that claimant, a railroad employee injured on the job, could only be found eligible for Workers’ Compensation benefits if all the relevant parties consented to waive federal jurisdiction under the Federal Employer’s Liability Act (FELA), which otherwise preempts the Workers’ Compensation Law. The matter was sent back to the Workers’ Compensation Board:

FELA preempts state law remedies, including workers’ compensation claims, “for railway employees injured in the course of employment when any part of that employment furthers interstate commerce” … . An exception is contained in Workers’ Compensation Law § 113, which empowers the Board to award workers’ compensation benefits if “the claimant, employer and insurance carrier waive their federal rights and remedies” … . This can be accomplished with an explicit waiver by all parties or, alternatively, when conduct such as ” representation of the employer by experienced counsel; utilization by the parties of the [B]oard’s machinery at a series of hearings resulting in a series of awards; and payment and acceptance of those awards” demonstrates an implied waiver … . Absent “a joint waiver or agreement evidencing an intention to be bound by” a workers’ compensation award in lieu of the otherwise exclusive FELA remedy, the workers’ compensation claim cannot proceed … . Matter of McCray v CTS Enters., Inc., 2018 NY Slip Op 07997, Third Dept 11-21-18

WORKERS’ COMPENSATION LAW (IN ORDER FOR THE INJURED RAILROAD WORKER TO BE ELIGIBLE FOR WORKERS’ COMPENSATION LAW BENEFITS, ALL PARTIES WOULD HAVE TO WAIVE FEDERAL JURISDICTION UNDER THE FEDERAL EMPLOYER’S LIABILITY ACT (FELA), MATTER SENT BACK (THIRD DEPT))/FEDERAL EMPLOYER’S LIABILITY ACT (FELA) (IN ORDER FOR THE INJURED RAILROAD WORKER TO BE ELIGIBLE FOR WORKERS’ COMPENSATION LAW BENEFITS, ALL PARTIES WOULD HAVE TO WAIVE FEDERAL JURISDICTION UNDER THE FEDERAL EMPLOYER’S LIABILITY ACT (FELA), MATTER SENT BACK (THIRD DEPT))/RAILROAD WORKERS (WORKERS’ COMPENSATION LAW, IN ORDER FOR THE INJURED RAILROAD WORKER TO BE ELIGIBLE FOR WORKERS’ COMPENSATION LAW BENEFITS, ALL PARTIES WOULD HAVE TO WAIVE FEDERAL JURISDICTION UNDER THE FEDERAL EMPLOYER’S LIABILITY ACT (FELA), MATTER SENT BACK (THIRD DEPT))

NEW YORK WORKERS’ COMPENSATION TREATMENT GUIDELINES APPLY TO CLAIMANTS WHO HAVE MOVED TO AND ARE TREATED IN OTHER STATES (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly ruled that the guidelines for back pain treatment applied to claimant in Nevada. Claimant qualified for benefits in New York in 1996 and moved to Nevada in 2005:

… [W]e disagree with claimant that the Board impermissibly departed from its earlier decisions, as the Board acknowledged such a departure in its May 2017 decision and articulated its reasons for doing so … . Moreover, we find that the Board’s decision to depart from its prior decisions and apply the guidelines to the out-of-state treatment received by claimant in this case was rational. “The Board has the authority to promulgate medical treatment guidelines defining the nature and scope of necessary treatment” … .. “An agency’s construction of its statutes and regulations will be upheld if rational and reasonable” … . …

There is no dispute that claimant, who was injured in New York but has since moved to Nevada, is entitled to continue to receive medical treatment from qualified physicians in her new state and that the employer remains liable for the reasonable value of necessary medical treatment from qualified physicians in her new state … . In our view, the plain language of the regulations governing the guidelines do not limit their applicability to such medical treatment provided to claimants in other states, and a “treating medical provider” includes “any physician, podiatrist, chiropractor or psychologist that is providing treatment and care to an injured worker pursuant to the Workers’ Compensation Law” without regard to, or limitation of, geographic location … . Consistent with the regulations, the guidelines also state that “[a]ny medical providerrendering services to a workers’ compensation patient must utilize the . . . [g]uidelines as provided for with respect to all work-related injuries and/or illnesses” … . Matter of Gasparro v Hospice of Dutchess County, 2018 NY Slip Op 07815, Third Dept 11-15-18

WORKERS’ COMPENSATION (NEW YORK WORKERS’ COMPENSATION TREATMENT GUIDELINES APPLY TO CLAIMANTS WHO HAVE MOVED TO AND ARE TREATED IN OTHER STATES (THIRD DEPT))

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CLAIMANT LEFT HIS EMPLOYER’S FARM BRIEFLY USING HIS EMPLOYER’S ATV AND WAS STRUCK BY A VEHICLE WHEN HE ATTEMPTED TO RETURN TO THE FARM, THERE WAS EVIDENCE CLAIMANT CONSUMED ALCOHOL WHICH WAS PROHIBITED BY HIS EMPLOYER, CLAIMANT’S INJURIES DID NOT ARISE FROM HIS EMPLOYMENT, WORKER’S COMPENSATION CLAIM PROPERLY DENIED (THIRD DEPT).

The Third Department determined claimant’s injuries did not arise out of his employment. Claimant, a farm worker, used his employer’s ATV to go across the street to where his girlfriend was moving into a house. There was evidence he may have drunk beer, which was prohibited by his employer. When crossing the street to return to the farm claimant was struck by a vehicle and injured:

Regardless of whether claimant was permitted to use the employer’s ATV or to take a break and leave the farm for a brief period of time before returning to work, the employer’s testimony makes clear that consuming alcohol on the job was not a permitted, acceptable or customary deviation from claimant’s employment … . As the record as a whole provides substantial evidence to support the Board’s finding that claimant was engaged in an impermissible deviation from his employment at the time of his accident, his resulting injuries did not arise out of and in the course of his employment and, therefore, are not compensable … . Matter of Button v Button, 2018 NY Slip Op 07809, Third Dept 11-15-18

WORKERS’ COMPENSATION (CLAIMANT LEFT HIS EMPLOYER’S FARM BRIEFLY USING HIS EMPLOYER’S ATV AND WAS STRUCK BY A VEHICLE WHEN HE ATTEMPTED TO RETURN TO THE FARM, THERE WAS EVIDENCE CLAIMANT CONSUMED ALCOHOL WHICH WAS PROHIBITED BY HIS EMPLOYER, CLAIMANT’S INJURIES DID NOT ARISE FROM HIS EMPLOYMENT, WORKER’S COMPENSATION CLAIM PROPERLY DENIED (THIRD DEPT))/EMPLOYMENT LAW (WORKERS’ COMPENSATION, CLAIMANT LEFT HIS EMPLOYER’S FARM BRIEFLY USING HIS EMPLOYER’S ATV AND WAS STRUCK BY A VEHICLE WHEN HE ATTEMPTED TO RETURN TO THE FARM, THERE WAS EVIDENCE CLAIMANT CONSUMED ALCOHOL WHICH WAS PROHIBITED BY HIS EMPLOYER, CLAIMANT’S INJURIES DID NOT ARISE FROM HIS EMPLOYMENT, WORKER’S COMPENSATION CLAIM PROPERLY DENIED (THIRD DEPT))

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