Workers’ Compensation – Page 17 – New York Appellate Digest

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))

November 21, 2018

Workers' Compensation

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))

November 15, 2018

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))

November 15, 2018

Civil Procedure, Employment Law, Workers' Compensation

WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined a question of fact whether the injured plaintiff was an employee or an independent contractor (and therefore a question of fact whether the Workers’ Compensation was plaintiff’s exclusive remedy) must ruled on by the Workers’ Compensation Board before the courts can get involved:

Where the availability of workers’ compensation benefits “hinges upon questions of fact or upon mixed questions of fact and law, the parties may not choose the courts as the forum for resolution of the questions, but must look to the Workers’ Compensation Board for such determinations”… . “The question of whether a particular person is an employee within the meaning of the Workers’ Compensation Law is usually a question of fact to be resolved by the Workers’ Compensation Board” … . Here, in light of the affidavit of the defendant’s employee, who stated that he trained the plaintiff, supervised the plaintiff closely, set the plaintiff’s hours on the days the plaintiff worked, and directed the plaintiff’s work, there is a question of fact regarding whether the plaintiff was the defendant’s employee on the date of the accident. Accordingly, because “there is a question of fact as to whether the plaintiff has a valid negligence cause of action against the defendant,” “[t]hat determination must be made in the first instance by the Workers’ Compensation Board …”. Findlater v Catering by Michael Schick, Inc., 2018 NY Slip Op 07702, Second Dept 11-14-18

WORKERS” COMPENSATION (WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT))/EMPLOYMENT LAW (WORKERS’ COMPENSATION, WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT))/INDEPENDENT CONTRACTORS (WORKERS’ COMPENSATION, WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT))/CIVIL PROCEDURE (WORKERS’ COMPENSATION, WHERE THERE IS A QUESTION OF FACT WHETHER THE INJURED PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION BECAUSE THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, THE ISSUE MUST FIRST BE DECIDED BY THE WORKERS’ COMPENSATION BOARD, NOT THE COURTS (SECOND DEPT))

November 14, 2018

Civil Procedure, Judges, Labor Law-Construction Law, Workers' Compensation

LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a comprehensive decision, over a comprehensive dissent, determined that the general contractor, Ultimate, was not liable under Labor Law 200 for plaintiff’s fall through an opening in planks and plywood covering a stairwell opening because the accident was attributable to the manner of the work and Ultimate did not exercise any supervisory control over the installation of drywall by the plaintiff. The dissent argued that there was a question of fact whether the opening in the stairwell covering was a dangerous condition of which Ultimate had notice, which is also a ground for liability under Labor Law 200. The Second Department noted that the court should not have sua sponte dismissed Ultimate’s cross claims against the drywall company (Fortin) because such relief was not requested. The Second Department further noted that Fortin was not entitled to protection from plaintiff’s suit under the Workers’ Compensation Law on the ground that plaintiff was Fortin’s employee because Fortin did not maintain a Workers’ Compensation policy:

“Labor Law § 200(1) is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work”… . “Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed” … . Where “a claim arises out of alleged defects or dangers arising from a subcontractor’s methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … . “[M]ere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200” … . …

… Ultimate established, … that the accident arose from the method and manner in which the plaintiff and Jean-Guy Fortin covered the stairwell opening … . …

The Supreme Court should not have, in effect, sua sponte, directed dismissal of Ultimate’s cross claims against Fortin for common-law indemnification and contribution, which relief Fortin did not request in its motion papers… . Moreover, the Supreme Court should have granted that branch of Ultimate’s motion which was for summary judgment on its cross claim against Fortin for common-law indemnification. Contrary to Fortin’s contention, Ultimate’s cross claims are not barred by Workers’ Compensation Law § 11. … Ultimate established that Fortin did not procure workers’ compensation on behalf of the plaintiff … . Therefore, Fortin is not entitled to the benefit of the workers’ compensation bar. Poulin v Ultimate Homes, Inc., 2018 NY Slip Op 07468, Second Dept 11-7-18

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT))/CIVIL PROCEDURE (SUA SPONTE, LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT))/JUDGES (SUA SPONTE, LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT))/WORKERS’ COMPENSATION (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED CROSS CLAIMS BECAUSE THAT RELIEF WAS NOT REQUESTED, PLAINTIFF’S EMPLOYER WAS NOT ENTITLED TO PROTECTION FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW BECAUSE IT DID NOT MAINTAIN A WORKERS’ COMPENSATION POLICY (SECOND DEPT)

November 7, 2018

Evidence, Labor Law-Construction Law, Workers' Compensation

PLAINTIFF IN THIS LABOR LAW 240 (1) ACTION WAS INJURED WHEN THE ROOF OF THE BUILDING COLLAPSED, HIS ACTION AGAINST HIS EMPLOYER (A DEMOLITION COMPANY) WAS BARRED BY THE EXCLUSIVITY PROVISIONS OF THE WORKERS’ COMPENSATION LAW, QUESTION OF FACT WHETHER THE COLLAPSE WAS FORESEEABLE IN THE ACTION AGAINST THE BUILDING OWNER, EVIDENCE THAT BEAMS HAD BEEN CUT WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department determined plaintiff’s Labor Law 240 (1) action against his employer (a demolition company) was barred by the exclusivity provisions of the Workers’ Compensation Law. Plaintiff fell when the roof of the building collapsed. Plaintiff’s motion for summary judgment against the owner of the building was properly denied because there was a question of fact whether the collapse of the roof was foreseeable:

In order for liability to be imposed under Labor Law § 240(1), there must be “a foreseeable risk of injury from an elevation-related hazard . . . , as defendants are liable for all normal and foreseeable consequences of their acts'” … . In support of his motion for summary judgment, the plaintiff failed to demonstrate, prima facie, that the partial collapse of the roof and, in turn, the need for safety devices to protect the plaintiff from that hazard, were foreseeable … . The plaintiff’s deposition testimony that he was told that the roof collapsed because the beams from the third-floor ceiling had been cut constituted inadmissible hearsay … . Paguay v Cup of Tea, LLC, 2018 NY Slip Op 06926, Second Dept 10-17-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF IN THIS LABOR LAW 240 (1) ACTION WAS INJURED WHEN THE ROOF OF THE BUILDING COLLAPSED, HIS ACTION AGAINST HIS EMPLOYER (A DEMOLITION COMPANY) WAS BARRED BY THE EXCLUSIVITY PROVISIONS OF THE WORKERS’ COMPENSATION LAW, QUESTION OF FACT WHETHER THE COLLAPSE WAS FORESEEABLE IN THE ACTION AGAINST THE BUILDING OWNER (SECOND DEPT))/WORKERS’ COMPENSATION (PLAINTIFF IN THIS LABOR LAW 240 (1) ACTION WAS INJURED WHEN THE ROOF OF THE BUILDING COLLAPSED, HIS ACTION AGAINST HIS EMPLOYER (A DEMOLITION COMPANY) WAS BARRED BY THE EXCLUSIVITY PROVISIONS OF THE WORKERS’ COMPENSATION LAW, QUESTION OF FACT WHETHER THE COLLAPSE WAS FORESEEABLE IN THE ACTION AGAINST THE BUILDING OWNER (SECOND DEPT))/EVIDENCE (HEARSAY, PLAINTIFF IN THIS LABOR LAW 240 (1) ACTION WAS INJURED WHEN THE ROOF OF THE BUILDING COLLAPSED, HIS ACTION AGAINST HIS EMPLOYER (A DEMOLITION COMPANY) WAS BARRED BY THE EXCLUSIVITY PROVISIONS OF THE WORKERS’ COMPENSATION LAW, QUESTION OF FACT WHETHER THE COLLAPSE WAS FORESEEABLE IN THE ACTION AGAINST THE BUILDING OWNER, EVIDENCE THAT BEAMS HAD BEEN CUT WAS INADMISSIBLE HEARSAY (SECOND DEPT))/HEARSAY (PLAINTIFF IN THIS LABOR LAW 240 (1) ACTION WAS INJURED WHEN THE ROOF OF THE BUILDING COLLAPSED, HIS ACTION AGAINST HIS EMPLOYER (A DEMOLITION COMPANY) WAS BARRED BY THE EXCLUSIVITY PROVISIONS OF THE WORKERS’ COMPENSATION LAW, QUESTION OF FACT WHETHER THE COLLAPSE WAS FORESEEABLE IN THE ACTION AGAINST THE BUILDING OWNER, EVIDENCE THAT BEAMS HAD BEEN CUT WAS INADMISSIBLE HEARSAY (SECOND DEPT))

October 17, 2018

Municipal Law, Workers' Compensation

INJURED POLICE OFFICER CAN RECEIVE BOTH WORKERS’ COMPENSATION AND GENERAL MUNICIPAL LAW 207-c BENEFITS (SECOND DEPT).

The Second Department determined a police officer injured trying to subdue and emotionally disturbed person can receive both Workers' Compensation and General Municipal Law 207-c benefits. The police chief denied the General Municipal Law 207-c benefits. Supreme Court annulled the police chief's denial holding that the police chief was estopped from denying the benefits because Workers' Compensation benefits had been awarded. The Second Department found that the estoppel doctrine did not apply but affirmed on different grounds:

… [T]he Workers' Compensation Board's determination in favor of the petitioner did not collaterally estop the Incorporated Village of Muttontown and the Chief of Police (hereinafter together the appellants) from denying the petitioner's application for General Municipal Law § 207-c benefits. “[A] determination by the Workers' Compensation Board that an injury is work-related” does not, “by operation of collateral estoppel, automatically entitle an injured employee to General Municipal Law § 207-c benefits” … . “General Municipal Law 207-c benefits apply to a narrower class of work-related injury, relative to the performance of law enforcement duties” … .

A determination denying an application for benefits pursuant to General Municipal Law § 207-c may be annulled only if it was arbitrary and capricious … . “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” … .

In order to establish entitlement to General Municipal Law § 207-c benefits, a municipal employee must prove a “direct causal relationship between job duties and the resulting illness or injury”… . Here, the appellants' denial of the petitioner's application for benefits under General Municipal Law § 207-c was arbitrary and capricious. The documentation in the record established a causal connection between the performance of the petitioner's duties and her injuries. Matter of Lavin v Incorporated Vil. of Muttontown, 2018 NY Slip Op 06909, Second Dept 10-17-18

October 17, 2018

Workers' Compensation

CLAIMANT-NURSE’S MENTAL HEALTH PROBLEMS WERE NOT COMPENSABLE AS THEY WERE NOT CAUSED BY GREATER THAN NORMAL STRESSORS (THIRD DEPT).

The Third Department determined claimant-nurse's mental health problems were not compensable because they were not deemed to have been caused by stress greater than that experienced in the normal work environment:

We find that substantial evidence supports the Board's factual determination that claimant's depressive condition was not compensable, as the work-related incidents and conditions that led to her mental injuries did not involve stressors that were “greater than that which other similarly situated workers experienced in the normal work environment” … . Claimant's supervisors described normal oversight and monitoring practices undertaken to assist her in correcting deficiencies in and improving her performance, and claimant failed to identify any unusual stressors or conduct that would constitute harassment or bullying as alleged in her claim for benefits. With regard to her job transfer, the testimony established that it was voluntary and, while it appears that the transition and organization of the new unit were somewhat chaotic and that her accommodations were not immediately communicated to her new supervisors, there was no credible evidence that the transfer was retaliatory or that she was knowingly denied accommodations. Further, claimant was never disciplined, reprimanded or singled out for unfair treatment, and the work evaluations and feedback were undertaken in a good faith. Matter of Lanese v Anthem Health Servs., 2018 NY Slip Op 06845, Third Dept 10-11-18

WORKERS' COMPENSATION (CLAIMANT-NURSE'S MENTAL HEALTH PROBLEMS WERE NOT COMPENSABLE AS THEY WERE NOT CAUSED BY GREATER THAN NORMAL STRESSORS (THIRD DEPT))

October 12, 2018

Employment Law, Workers' Compensation

THE WORKERS’ COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS’ COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT).

The Third Department determined that claimant, a tractor trailer driver, was an employee of Eaton's Trucking Service and a special employee of Quality Carrier, with which Eaton had entered a contract. Therefore the Workers' Compensation Board properly found Eaton and Quality were each responsible for 50% of the workers' compensation awards:

… [W]e find that substantial evidence supports the Board's factual determination that claimant was a special employee of Quality … . Looking at “the underlying facts of the parties' relationship” … , the evidence established that Eaton and Quality had an arrangement whereby Eaton's drivers, including claimant, hauled products exclusively for Quality's customers and did so in furtherance of Quality's business, and that Eaton operated under Quality's logo and license without which Eaton could not have conducted its hauling operation. Their arrangement was the type of arrangement in which the “employee and equipment of [the] general employer were necessarily used and temporarily assigned to work for th[e] business” of the special employer, which has been recognized as creating a special employment relationship … . While Quality did not control the day-to-day oversight of claimant, this is not dispositive as Eaton and claimant operated entirely under Quality's authority and pursuant to its policies. As a result, Quality had sufficient control over the “details and ultimate result” of claimant's work, and Quality's working relationship with claimant was “sufficient in kind and degree so that [Quality] may be deemed [to be his] employer” … . Matter of Mitchell v Eaton's Trucking Serv., Inc., 2018 NY Slip Op 06839, Third Dept 10-11-18

WORKERS' COMPENSATION (THE WORKERS' COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS' COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT))/EMPLOYMENT LAW (THE WORKERS' COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS' COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT))/SPECIAL EMPLOYEE (THE WORKERS' COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS' COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT))

October 11, 2018

Administrative Law, Workers' Compensation

SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, affirmed the Workers' Compensation Board's finding that claimant's shoulder injury was not compensable because it did not arise out of and in the course of her employment. Claimant's injury occurred when she scanned her parking pass to enter a parking garage. The garage was not owned by her employer, but there were spaces reserved for employees and the employer paid for parking. The majority found sufficient evidence to support the Board's ruling. But the dissenters argued this was not a case which required weighing conflicting evidence, therefore precedent allowing recovery for injuries in employee parking areas should control:

In concluding that claimant's injury was not compensable, the Board found that the parking garage was utilized by members of the public, as well as other businesses located within the same building as the employer. The Board further noted that the employer did not own or maintain the garage. These facts, which the Board credited, lead to the conclusion that the employer did not extend its premises to the area where claimant's injury occurred … . Although facts exist that would support a contrary result, given that substantial evidence supports the Board's decision, we discern no basis to disturb it … .

From the dissent: We respectfully dissent. The proper disposition of this case is not based upon our substantial evidence standard of review, as this is not a case where the Workers' Compensation Board was weighing and balancing conflicting evidence. There was no relevant conflicting evidence. The location and circumstances of the underlying event are not disputed; claimant does not challenge the factual findings, but instead addresses the appeal solely to the resulting legal determination. In this case, the Board was required to apply the policy established by precedent to the relevant undisputed facts. As the Board failed to properly apply this precedent in rendering the determination, we would reverse, based upon the law. Matter of Grover v State Ins. Fund, 2018 NY Slip Op 06601, Third Dept 10-4-18

WORKERS' COMPENSATION LAW (SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT))/ADMINISTRATIVE LAW (WORKERS' COMPENSATION LAW, (SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT))/PARKING GARAGES (WORKERS' COMPENSATION LAW, (SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT))

October 4, 2018