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QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT).

The Second Department determined there were questions of fact about whether the disassembly of a boiler was maintenance (not covered by Labor Law 240(1)) or repair (which is covered) and whether a safety device was required to stabilize a portion of the boiler which fell and injured plaintiff. The court also determined that the striking of the contractor’s (Sitework’s) answer for failure to comply with discovery demands resulted in an admission to the allegations in the complaint, including the allegation of grave injury (taking the injury out from under the Workers’ Compensation Law):

… [T]he plaintiff testified at his deposition that, at the time of the accident, Siteworks employees were disassembling the subject boiler section by section to fix a leak. However, the head custodian at the school where the plaintiff’s injury occurred testified at his deposition that the boiler was disassembled every summer for routine cleaning and refurbishing. The head custodian was also not aware of any problem with the boiler in need of repair during the summer of 2014, which is when the plaintiff was injured. As the record does not otherwise clarify the degree to which boiler sections are “components that require replacement in the normal course of wear and tear” … , the Supreme Court properly determined that triable issues of fact exist with respect to whether the plaintiff’s activity was covered under Labor Law § 240(1). …

Here, since Siteworks’ third-party answer has been stricken as a result of a default, it has admitted all traversable allegations in the complaint, including the basic allegations of liability and that the plaintiff sustained a grave injury. Garbett v Wappingers Cent. Sch. Dist., 2018 NY Slip Op 02600, Second Dept 4-18-18

​LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))/CIVIL PROCEDURE (DEFAULT, QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))/WORKERS’ COMPENSATION LAW (GRAVE INJURY, QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))/GRAVE INJURY (WORKERS’ COMPENSATION LAW, QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))

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COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the county’s motion for summary judgment should not have been granted in this personal injury action. The plaintiff is a police officer employed by a town. He was a candidate for a position in a county counter-terrorism outfit (REACT). During a fitness test for the county plaintiff was injured (suffered heat stroke). The county moved for summary judgment arguing, inter alia, plaintiff was their special employee and therefore his only remedy was workers’ compensation:

The determination as to whether a special employment relationship exists is generally an issue of fact requiring consideration of many factors, including who controls and directs the manner of the employee’s work, who is responsible for payment of wages and benefits, who furnishes 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 … . General employment is presumed to continue, and the presumption can only be rebutted by a “clear demonstration of surrender of control by the general employer and assumption of control by the special employer” … .

Here, the County defendants failed to meet their initial burden of submitting sufficient evidence demonstrating the absence of any triable issues of fact … . They did not submit sufficient evidence to rebut the presumption that [plaintiff] remained a general employee under the control of the Town at the time of the incident. [Plaintiff] was under the control of the County defendants for the limited purpose of the physical test to evaluate his ability to join REACT. However, his general employer, the Town, paid his wages, gave him permission to attend the REACT test on his regular work day, paid his workers’ compensation benefits, and retained the authority to discharge or discipline him. Dube v County of Rockland, 2018 NY Slip Op 02597, Second Dept 4-18-18

​EMPLOYMENT LAW (COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT))/NEGLIGENCE (EMPLOYMENT LAW, COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT))/WORKERS’ COMPENSATION LAW (NEGLIGENCE, MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE THAT A TOWN POLICE OFFICER WHO WAS INJURED UNDERGOING A PHYSICAL FITNESS TEST AS A CANDIDATE FOR A COUNTY SWAT TEAM WAS A SPECIAL EMPLOYEE OF THE COUNTY SUCH THAT THE POLICE OFFICER’S ONLY REMEDY WAS WORKERS’ COMPENSATION (SECOND DEPT))

FALL ON SIDEWALK NEAR PLACE OF EMPLOYMENT NOT COMPENSABLE, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department determined claimant was not entitled to workers’ compensation benefits stemming from a fall on a sidewalk near her plaice of employment. The relevant criteria were explained:

As a general rule, “accidents that occur in public areas away from the workplace and outside of work hours are not compensable” …  and, thus, “injuries sustained during travel to and from the place of employment” are not compensable… . Where, as here, the accident occurred near the claimant’s place of employment, “there develops a gray area where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation” … . Under these circumstances, injuries will be compensable only if there was “(1) a special hazard at the particular off-premises point and (2) a close association of the access route with the premises, so far as going and coming are concerned” … , permitting the conclusion that “the accident happened as an incident and risk of employment” … . “Notably, the Board in the exercise of its fact-finding powers has the authority to make a discretionary determination of the risks attendant to employment under the particular circumstances of a case”… .

Here, there is no evidence that there was any special hazard on the uneven sidewalk where claimant fell, which was open to and used by the public, as the danger “existed to any passerby traveling along the street in that location” … . The sidewalk was near the privately-owned building where claimant worked, but the building housed many businesses and a restaurant and was open to the public, and there was “no showing that it was otherwise controlled by the employer, that workers were encouraged to use it or that it existed solely to provide access to [her] workplace” … . As substantial evidence supports the Board’s determination that claimant’s accident did not occur in the course of her employment, it will not be disturbed.  Matter of Brennan v New York State Dept. of Health, 2018 NY Slip Op 01974, Third Dept 3-22-18

WORKERS’S COMPENSATION LAW (FALL ON SIDEWALK NEAR PLACE OF EMPLOYMENT NOT COMPENSABLE, CRITERIA EXPLAINED (THIRD DEPT))

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ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff was not restricted to a Worker’s Compensation Law remedy in this pedestrian-car accident case. Both plaintiff and defendant were employed by the Culinary Institute of America (CIA). The accident occurred on a private CIA road as defendant was leaving work. The Third Department determined the accident was not related to defendant’s work:

The parties’ submissions reveal that the accident occurred on Campus Drive, which plaintiff described as a ring road encircling the campus — a description consistent with the campus map submitted by defendant. Defendant essentially maintains that because Campus Drive is a private road maintained by the CIA, he necessarily was acting within the scope of his employment when the accident took place. There is support for the premise that going to or from work while on the employer’s premises is considered an incident of the employment … . By comparison, accidents occurring on a public street outside working hours are generally not considered to arise out of the employment absent some nexus between the access route and the employer’s premises… .

Even accepting that Campus Drive is a private road, the submissions demonstrate that the CIA encourages the public to frequent the restaurants on campus and it opened up Campus Drive for general use by the public. There is nothing in this record indicating that the accident was precipitated by any special hazard or incident related to defendant’s employment. To the contrary, the accident allegedly occurred when defendant slowed down but did not stop as plaintiff was in the crosswalk. Such an accident is a common risk shared by the general public traveling on Campus Drive… . We conclude that defendant’s workday ended when he left the parking lot to drive home and, thus, as a matter of law, defendant was not acting within the scope of his employment at the time of the accident. Siegel v Garibaldi, 2018 NY Slip Op 01239, Third Dept 2-22-18

WORKERS’ COMPENSATION LAW (ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT))/TRAFFIC ACCIDENTS (WORKERS’ COMPENSATION LAW, ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT))/NEGLIGENCE (WORKERS’ COMPENSATION LAW, ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT))/EMPLOYMENT LAW (WORKERS’ COMPENSATION LAW, ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT))

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EXCLUSIVITY OF A WORKERS’ COMPENSATION REMEDY PRECLUDED SUIT AGAINST AN EMPLOYEE OF A PERSON EMPLOYED BY PLAINTIFF’S EMPLOYER, THE NYC DEPARTMENT OF EDUCATION, IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined the exclusivity of a Workers’ Compensation remedy precluded plaintiff’s suit against an employee who worked for someone employed by plaintiff’s employer (NYC Department of Education, DOE). Plaintiff slipped and fell on a wet floor in a school cafeteria:

Here, the New York City Department of Education (hereinafter DOE) employed Pedersen as a custodian engineer. As part of an “indirect system” of employment adopted by the DOE, Pedersen then employed Galant as a custodial assistant. Because the plaintiff was a DOE employee and Galant was employed by Pedersen, who also was a DOE employee, the plaintiff and Galant were “in the same employ” within the meaning of the Workers’ Compensation Law (Workers’ Compensation Law § 29[6] …). Therefore, Workers’ Compensation benefits were the plaintiff’s exclusive remedy with respect to Galant … . Lupton v Pedersen, 2018 NY Slip Op 01048, Second Dept 2-14-18

WORKERS’S COMPENSATION LAW (EXCLUSIVITY OF A WORKERS’ COMPENSATION REMEDY PRECLUDED SUIT AGAINST AN EMPLOYEE OF A PERSON EMPLOYED BY PLAINTIFF’S EMPLOYER, THE NYC DEPARTMENT OF EDUCATION, IN THIS SLIP AND FALL CASE (SECOND DEPT))/EDUCATION-SCHOOL LAW (WORKERS’ COMPENSATION, EXCLUSIVITY OF A WORKERS’ COMPENSATION REMEDY PRECLUDED SUIT AGAINST AN EMPLOYEE OF A PERSON EMPLOYED BY PLAINTIFF’S EMPLOYER, THE NYC DEPARTMENT OF EDUCATION, IN THIS SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL  (WORKERS’ COMPENSATION, EXCLUSIVITY OF A WORKERS’ COMPENSATION REMEDY PRECLUDED SUIT AGAINST AN EMPLOYEE OF A PERSON EMPLOYED BY PLAINTIFF’S EMPLOYER, THE NYC DEPARTMENT OF EDUCATION, IN THIS SLIP AND FALL CASE (SECOND DEPT))/EMPLOYMENT LAW (NYC DEPARTMENT OF EDUCATION, WORKERS’ COMPENSATION, INDIRECT SYSTEM OF EMPLOYMENT, EXCLUSIVITY OF A WORKERS’ COMPENSATION REMEDY PRECLUDED SUIT AGAINST AN EMPLOYEE OF A PERSON EMPLOYED BY PLAINTIFF’S EMPLOYER, THE NYC DEPARTMENT OF EDUCATION, IN THIS SLIP AND FALL CASE (SECOND DEPT))/INDIRECT SYSTEM OF EMPLOYMENT (NYC DEPARTMENT OF EDUCATION, WORKERS’ COMPENSATION, EXCLUSIVITY OF A WORKERS’ COMPENSATION REMEDY PRECLUDED SUIT AGAINST AN EMPLOYEE OF A PERSON EMPLOYED BY PLAINTIFF’S EMPLOYER, THE NYC DEPARTMENT OF EDUCATION, IN THIS SLIP AND FALL CASE (SECOND DEPT))

ALTHOUGH DECEDENT, A NEW YORK RESIDENT, WORKED FOR A PENNSYLVANIA COMPANY, NEW YORK HAD JURISDICTION OVER AN INJURY THAT OCCURRED OUTSIDE NEW YORK (THIRD DEPT).

The Third Department determined New York could exercise jurisdiction over an injury that occurred outside New York. Decedent was a New York resident working for a Pennsylvania company:

The Board has jurisdiction over a claim for an injury occurring outside of New York where there are “sufficient significant contacts” between the employment and New York … . A variety of factors must be taken into account in the fact-finding required to assess jurisdiction, “including where the employee resides, where the employee was hired, the location of the employee’s employment and the employer’s offices, whether the employee was expected to return to New York after completing out-of-state work for the employer and the extent to which the employer conducted business in New York” … . The Board’s determination as to the existence of jurisdiction will not be disturbed if it is supported by substantial evidence … .

At the hearing, decedent testified that, while he was living in New York, he was hired by the employer during a phone call and that he thereafter went to Pennsylvania for a four-day orientation before he began driving for the employer. He further explained that he continued to live in New York and that, during the two-year period prior to his accident, he had made 17 deliveries to locations in New York, which was significantly more deliveries than he had made to Pennsylvania. Decedent also described his “home base” as being in New York and testified that the employer would contact him at his home in New York about jobs. After decedent was injured, the employer assisted in securing medical care for him in New York and selecting a doctor for him there. Decedent acknowledged that the dispatcher from whom he received calls was located in Pennsylvania. Decedent further explained that, after he was injured, the employer helped secure him light-duty work in New York for which the employer paid him, and the record contains a letter to decedent explaining that the employer had sought assistance in securing him such a position and that it was “an extension of [his] employment” with the employer. Matter of Galster v Keen Transp., Inc., 2018 NY Slip Op 01105, Second Dept 2-14-18

WORKERS’ COMPENSATION LAW (JURISDICTION, INJURY OUTSIDE NEW YORK, NEW YORK HAD JURISDICTION OVER AN INJURY THAT OCCURRED OUTSIDE NEW YORK (THIRD DEPT))/JURISDICTION (WORKERS’ COMPENSATION LAW, INJURY OUTSIDE NEW YORK, NEW YORK HAD JURISDICTION OVER AN INJURY THAT OCCURRED OUTSIDE NEW YORK (THIRD DEPT))

BACK AND NECK INJURIES PROPERLY RULED AN OCCUPATIONAL DISEASE RESULTING FROM REPETITIVE LIFTING AND CARRYING (THIRD DEPT).

The Third Department determined claimant demonstrated his back and neck injuries constituted an occupational disease related to his lifting and mix heavy containers of compound and applying the compound to walls and ceilings:

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“In order for an occupational disease to be established, the claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her employment”… . Claimant testified that his job required lifting and carrying containers of plastering compound weighing roughly 50 pounds and using the compound to hang sheetrock for eight hours a day, five or six days a week, for over 30 years. Samuel Kim, a neurosurgeon, opined that claimant suffered from chronic neck and back pain and degenerative disc disease in his cervical and lumbar spine and that the condition was consistent with a history of repetitive movement, and Yong Kim, claimant’s treating physician, attributed claimant’s back pain to “repetitive use at work.” In light of the foregoing, and given that no contrary medical opinions were presented, the Board’s determination that claimant suffered from an occupational disease resulting from repetitive stress is supported by substantial evidence and will not be disturbed … . Matter of Garcia v MCI Interiors, Inc., 2018 NY Slip Op 00873, Third Dept 2-8-18

WORKERS’ COMPENSATION LAW (OCCUPATIONAL DISEASE, BACK AND NECK INJURIES PROPERLY RULED AN OCCUPATIONAL DISEASE RESULTING FROM REPETITIVE LIFTING AND CARRYING (THIRD DEPT))/OCCUPATIONAL DISEASE (WORKERS’ COMPENSATION LAW, BACK AND NECK INJURIES PROPERLY RULED AN OCCUPATIONAL DISEASE RESULTING FROM REPETITIVE LIFTING AND CARRYING (THIRD DEPT))

SUBSTANTIAL EVIDENCE DID NOT SUPPORT THE BOARD’S FINDING THAT CLAIMANT’S SHOULDER INJURY WAS AN OCCUPATIONAL DISEASE, AS OPPOSED TO AN ACCIDENTAL INJURY (THIRD DEPT).

The Third Department determined substantial evidence did not support the Board’s conclusion that claimant’s shoulder injury was an occupational disease, as opposed to an accidental injury. Claimant alleged his torn rotator cuff was caused by unloading a wheelbarrow, which he did as part of his job filling potholes:​

The employer contends that substantial evidence does not support the Board’s establishment of the claim as an occupational disease. Rather, it maintains that the shoulder injury should be classified as an accidental injury and, as such, the claim is untimely under Workers’ Compensation Law § 18. An occupational disease is statutorily defined as “a disease resulting from the nature of the employment and contracted therein” … . Significantly, in order to establish an occupational disease, a claimant must demonstrate a “recognizable link” between his or her affliction and a “distinctive feature” of his or her employment … . * * *

Even accepting, as did the Board, that claimant injured his shoulder unloading the wheelbarrow, we agree with the employer that the injury should be classified as accidental and not as an occupational disease. The proof failed to demonstrate that claimant’s shoulder injury was attributable to repetitive movements associated with moving heavy wheelbarrow loads of asphalt or performing other manual duties during his short period of employment as a laborer with the highway department. To the contrary, claimant testified that the onset of shoulder pain occurred during a definitive event at work when he was emptying a wheelbarrow filled with asphalt. Consequently, we find that there is a lack of substantial evidence evincing a recognizable link between claimant’s shoulder injury and a distinctive feature of his job as is necessary to establish his claim for an occupational disease … . Matter of Yonkosky v Town of Hamburg, 2018 NY Slip Op 00586, Third Dept 2-1-18

 

WORKERS’ COMPENSATION (OCCUPATIONAL DISEASE VERSUS ACCIDENTAL INJURY, SUBSTANTIAL EVIDENCE DID NOT SUPPORT THE BOARD’S FINDING THAT CLAIMANT’S SHOULDER INJURY WAS AN OCCUPATIONAL DISEASE, AS OPPOSED TO AN ACCIDENTAL INJURY (THIRD DEPT))/OCCUPATIONAL DISEASE (WORKERS’ COMPENSATION,  SUBSTANTIAL EVIDENCE DID NOT SUPPORT THE BOARD’S FINDING THAT CLAIMANT’S SHOULDER INJURY WAS AN OCCUPATIONAL DISEASE, AS OPPOSED TO AN ACCIDENTAL INJURY (THIRD DEPT))/ACCIDENTAL INJURY (WORKERS’ COMPENSATION, SUBSTANTIAL EVIDENCE DID NOT SUPPORT THE BOARD’S FINDING THAT CLAIMANT’S SHOULDER INJURY WAS AN OCCUPATIONAL DISEASE, AS OPPOSED TO AN ACCIDENTAL INJURY (THIRD DEPT))

THE BOARD’S CONCLUSION, BASED UPON EXPERT TESTIMONY, THAT CLAIMANT’S STROKE WAS CAUSED BY PRE-EXISTING MEDICAL CONDITIONS AND NOT THE WORK CONDITIONS AT THE TIME OF THE STROKE WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND THEREFORE CANNOT BE DISTURBED ON APPEAL (THIRD DEPT).

The Third Department determined there was substantial evidence, in the form of expert testimony, that claimant’s stroke was caused by pre-existing medical conditions and not the particular conditions of work on the day the stroke happened. Because there existed substantial evidence to support the Workers’ Compensation Board’s ruling, the court cannot disturb it:

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Claimant’s medical expert, Lester Ploss, opined that claimant’s stroke was causally-related to his employment given that, on the day of his stroke, claimant had a prolonged lack of sleep, was under time constraints to drive to Pennsylvania and performed very arduous labor while teaching a class. The record, however, establishes that on a regular work day, claimant awoke around 2:00 a.m., drove to work in the Bronx and worked from approximately 4:00 a.m. until 1:30 p.m. cutting meat. Although claimant drove to Pennsylvania on the day in question, the record establishes that he worked substantially the same hours as a normal work day. In addition, the general manager testified that the drive to Pennsylvania was divided and included stops along the way. Furthermore, although claimant did not typically teach, the manner of cutting meat was substantially similar to his regular duties in the Bronx, where he did assist others in their technique of cutting meat. Naunihal Singh, a neurologist who reviewed claimant’s medical records, opined that claimant’s stroke was not related to any aspect of employment but was a direct result of claimant’s preexisting medical conditions, including hypertension, cognitive heart failure, cardiomegaly and an irregular heart. The Board’s decision was based upon the credibility, or lack thereof, of the medical testimony with regard to the events leading to claimant’s stroke. Inasmuch as this Court defers to the credibility determinations of the Board with regard to medical evidence and witness testimony, we find that there is substantial evidence in the record to support the Board’s decision that claimant’s stroke did not arise out of or in the course of his employment … . Matter of Devis v Mountain States Rosen LLC, 2018 NY Slip Op 00370, Third Dept 1-18-18

WORKERS’ COMPENSATION LAW (THE BOARD’S CONCLUSION, BASED UPON EXPERT TESTIMONY, THAT CLAIMANT’S STROKE WAS CAUSED BY PRE-EXISTING MEDICAL CONDITIONS AND NOT THE WORK CONDITIONS AT THE TIME OF THE STROKE WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND THEREFORE CANNOT BE DISTURBED ON APPEAL (THIRD DEPT))

EVEN THOUGH THE INJURED EMPLOYEE WORKED ONLY SPORADICALLY AND AS NEEDED AND WORKED ONLY 16 DAYS IN THE RELEVANT 52 WEEK PERIOD, HIS BENEFITS MUST STILL BE CALCULATED BY MULTIPLYING HIS DAILY WAGE BY 200 (THIRD DEPT).

The Third Department determined the mandated technique for computing lost wages applied even though the employee worked only sporadically as needed. The employee had worked only 16 days during the 52-week period but was entitled to benefits calculated at 200 times his daily wage:

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Where, as here, Workers’ Compensation Law § 14 (3) applies, an employee’s annual average earnings must be computed based on “such sum as . . . shall reasonably represent the annual earning capacity of the injured [claimant] in the employment in which he [or she] was working at the time of [his or her] accident [and] consist of not less than two hundred times the average daily wage or salary which he [or she] shall have earned in such employment during the days when so employed.” That total is then divided by 52 weeks to reach the average weekly wage … . “However, the 200 multiple method is properly used to compute the average weekly wage of a part-time or intermittent [claimant] only where there has been a finding that the [claimant] was fully available for the employment at issue, and should not be applied if a claimant has voluntarily limited his or her availability for work”… .

Here, the record establishes that claimant worked for the employer sporadically and on an as-needed basis in the 52-week period before the accident. Although the employer submitted checks that related to additional earnings by claimant during the 52-week period, no evidence was presented to demonstrate that claimant voluntarily limited his availability for work with the employer. Absent such evidence, the Board’s use of the 200 multiplier in determining claimant’s average weekly wage is supported by substantial evidence and will not be disturbed … . “While the result [herein] appears to be contrary to [Workers’ Compensation Law § 15 (6) (a),] which provides that compensation when combined with decreased earnings or earning capacity shall not exceed the wages the employee was receiving at the time of the accident, it is the result reached by using the formula set forth in [Workers’ Compensation Law § 14 (3)] which has been considered a legislative mandate” … . Matter of Bain v New Caps, LLC, 2018 NY Slip Op 00369, Third Dept 1-18-18

WORKERS’ COMPENSATION LAW EVEN THOUGH EMPLOYEE WORKED ONLY SPORADICALLY AND AS NEEDED AND WORKED ONLY 16 DAYS IN THE RELEVANT 52 WEEK PERIOD, HIS BENEFITS MUST STILL BE CALCULATED BY MULTIPLYING HIS DAILY WAGE BY 200 (THIRD DEPT))

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