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ALTHOUGH DEFENDANT DID NOT PRODUCE AN EMPLOYMENT CONTRACT WITH PLAINTIFF, DEFENDANT DEMONSTRATED IT WAS PLAINTIFF’S SPECIAL EMPLOYER; THEREFORE PLAINTIFF’S PERSONAL INJURY ACTION WAS PRECLUDED BY HIS ELECTION OF WORKERS’ COMPENSATION BENEFITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant was plaintiff’s special employer and plaintiff’s action for personal injury was precluded by his election of workers’ compensation benefits:

Plaintiff testified that he received all his work instructions from an employee of defendant, the building’s manager … . Both plaintiff and the building’s manager testified that they considered the building manager to be plaintiff’s boss or supervisor … .

The evidence thus showed that defendant “supervised, directed and controlled plaintiff’s work” … . Although defendant has produced no contract between itself and the building owner, such a contract is not a prerequisite for special employment status … . Therefore, defendant has established its prima facie case that it was plaintiff’s special employer, which plaintiff has failed to rebut with any issue of fact…. . Payano v Proto Prop. Servs. LLC, 2024 NY Slip Op 04915, First Dept 10-8-2024

Practice Point: Here defendant was deemed plaintiff’s special employer, despite the absence of an employment contract. Therefore plaintiff’s election to receive workers’ compensation benefits precluded his personal injury action against defendant.

 

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WHETHER THE CHILD VICTIMS ACT (CVA) REVIVES OTHERWISE TIME-BARRED WORKERS’ COMPENSATION CLAIMS AND WHETHER PLAINTIFF’S DAMAGES ARE LIMITED TO WORKERS’ COMPENSATION BENEFITS ARE QUESTIONS OF LAW FOR THE COURT, NOT THE WORKERS’ COMPENSATION BOARD (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, held the court, not the Workers’ Compensation Board, must determine whether damages in this Child Victims Act (CVA) sexual-abuse action against the alleged perpetrator’s employer are limited to Workers’ Compensation benefits and whether claims for time-barred Workers’ Compensation benefits are revived by the Child Victims Act (CVA):​

” ‘As a general rule, when an employee is injured in the course of . . . employment, [the employee’s] sole remedy against [their] employer lies in [their] entitlement to a recovery under the Workers’ Compensation Law’ ” … . “[T]he issue whether a plaintiff was acting as an employee of a defendant at the time of the injury is a question of fact to be resolved by the Board” … .

“[C]ourts defer to [an] administrative agency where the issue involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom” … . However, “[w]here . . . the question is one of pure statutory interpretation, [courts] need not accord any deference to [an administrative body’s] determination and can undertake its function of statutory construction” … . As relevant here, although a factual determination with respect to the applicability of the Workers’ Compensation Law should be referred to the Board, which has primary jurisdiction over that issue, questions of law remain within the domain of the court … . Here, whether the CVA revives otherwise time-barred claims for workers’ compensation benefits, based on allegations of sexual abuse by a coworker, and whether plaintiffs are limited to benefits under the Workers’ Compensation Law even if their claims are revived, are questions of law to be decided by the court, not the Board. Thus, we agree with the plaintiffs that Supreme Court erred in granting defendant’s motion, staying the actions pending review by the Board, and holding plaintiffs’ cross-motions to amend their complaints in abeyance pending the Board’s decision. Bates v Gannett Co., Inc., 2024 NY Slip Op 03999, Fourth Dept 7-26-24

Practice Point: This decision deals with the questions of law raised by applying the Workers’ Compensation Law to sexual abuse claims revived by the Child Victims Act (CVA).​

 

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A SCHEDULE LOSS OF USE (SLU) EVALUATION BASED UPON THE EXPIRED 2012 GUIDELINES SHOULD NOT HAVE BEEN CONSIDERED BY THE WORKER’S COMPENSATION BOARD; A SECOND SLU EVALUATION BASED UPON THE CURRENT 2018 GUIDELINES HAD BEEN SUBMITTED BUT WAS NOT RELIED UPON BY THE BOARD (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the fact that the claimant’s treating physician’s (Harley’s) initial schedule loss of use (SLU) evaluation was based on the expired 2012 guidelines, not the most recent 2018 guidelines, and therefore should not have been considered. The treating physician had subsequently submitted another SLU evaluation based on the 2018 guidelines with a significantly higher percentage of loss:

Inasmuch as Harley’s permanency examination of claimant was “the first medical evaluation of SLU” and occurred after January 1, 2018, Harley improperly relied upon and applied the 2012 Guidelines in rendering his SLU opinion. As such, the Board’s reliance upon Harley’s medical report and testimony was erroneous; its decision is therefore not supported by substantial evidence and must be reversed … . Matter of Garofalo v Verizon N.Y., Inc., 2024 NY Slip Op 02961, Third Dept 5-30-24

Practice Point: A schedule loss of use (SLU) evaluation based upon expired guidelines should not be relied upon in a Worders’ Compensation proceeding.

 

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UNDER THE WORKERS’ COMPENSATION LAW PRESUMPTION IN SECTION 21, AN ASSAULT AT WORK IS EMPLOYMENT-RELATED AND COMPENSABLE ABSENT SUBSTANTIAL EVIDENCE THE ASSAULT WAS MOTIVATED BY PERSONAL ANIMOSITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Division, determined the presumption that injury from an assault at work is employment-related and compensable applied in this hospital-shooting case. A former hospital employee entered the hospital wearing a white medical coat and shot six people in a non-public area, killing one. Petitioner, a first-year resident, was one of the wounded. Petitioner did not know and had never had any contact with the shooter. The Appellate Division held that there was no connection between petitioner’s employment and the shooting and, therefore, the presumption the assault was work-related did not apply:

The Appellate Division essentially inverted Seymour’s “nexus” standard by requiring the Board to come forward with evidence of a nexus to employment. Instead … Seymour stands for the principle that “an assault which arose in the course of employment is presumed to have arisen out of the employment, absent substantial evidence that the assault was motivated by purely personal animosity” (… see … Seymour, 28 NY2d at 409 [presumption cannot be rebutted by the inference of personal animosity “in the absence of substantial evidence to support it”]). To the extent the Appellate Division has read Matter of Seymour to require an additional affirmative showing of a “nexus” with employment when there is a workplace assault, such a showing is not required.

… [I]t is undisputed that the assault occurred in the course of Mr. Timperio’s [petitioner’s] employment, thereby triggering the WCL [Workers’ Compensation Law] § 21 (1) presumption. It is also undisputed that the record includes no evidence of the motivation for the assault or any indication of a prior relationship between the assailant and the claimant; Bello [the shooter] and Timperio never worked together, did not know each other, and had no prior communication. The Appellate Division therefore erroneously disturbed the WCB’s [Workers’ Compensation Board’s] determination that the claim is compensable. Matter of Timperio v Bronx-Lebanon Hosp., 2024 NY Slip Op 02723, CtApp 5-16-24

Practice Point: Here petitioner was shot at work by a former employee he did not know. The presumption that the assault was employment-related (section 21 of the Workers’ Compensation Law) applied because there was no evidence the assault was motivated by personal animosity. The injury from the assault was therefore compensable under the Workers’ Compensation Law.

 

CLAIMANT PARTICIPATED IN THE CLEAN UP AFTER THE WORLD TRADE CENTER ATTACK ON 9-11 AND WAS THEREFORE ENTITLED TO WORKERS’ COMPENSATION BENEFITS UNDER ARTICLE 8-A (THIRD DEPT).

The Third Department, reversing (modifying) the Workers’ Compensation Board, determined that some of the World Trade Center clean-up activities of the claimant qualified for benefits pursuant to Workers’ Compensation Law article 8-A:

“Workers’ Compensation Law article 8-A was enacted to remove statutory obstacles to timely claims filing and notice for latent conditions resulting from hazardous exposure for those who worked in rescue, recovery or cleanup operations following the [WTC] September 11th, 2001 attack” … . * * *

… [W]e find, in light of the liberal construction afforded to Workers’ Compensation Law article 8-A, that claimant’s activities of assisting with clearing the area — which notably was located within the statutorily-defined WTC site — in order for the emergency vehicles to access Ground Zero had a tangible connection to the rescue efforts. As such, the Board’s determination that claimant did not participate in the rescue [*3]effort operations to qualify under Workers’ Compensation Law article 8-A is not supported by substantial evidence … . Matter of Liotta v New York State Unified Ct. Sys., 2024 NY Slip Op 02237, Third Dept 4-25-24

Practice Point: Article 8-A of the Worders’ Compensation Law was enacted to cover rescue and other worker’s who responded to the World Trade Center attack on 9-11. Here claimant participated in clean-up activities to keep the area clear for emergency vehicles and was therefore entitled to benefits pursuant to article 8-A.

 

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A FORUM SELECTION CLAUSE IN AN INSURANCE POLICY WHICH VIOLATES NEW YORK LAW IS NOT ENFORCEABLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, determined that the forum selection clause in an insurance policy which violates New York law is not enforceable. The opinion is comprehensive and discusses several substantive civil procedure, contract law, corporation law, insurance law, workers’ compensation law and public policy issues which cannot fairly be summarized here:

This action is just one of many such actions commenced across the country alleging that the defendant Applied Underwriters, Inc. (hereinafter Applied Underwriters), and affiliated entities, all subsidiaries of Berkshire Hathaway, Inc., deceptively circumvented state laws and regulations in the marketing and sale of an unlawful workers’ compensation insurance program. Here, the defendants seek to enforce a forum selection clause, in favor of Nebraska, contained in an insurance policy that New York State regulators have found violates New York law. While parties are generally free to select a forum in which to resolve their contractual disputes, here, where it is alleged by the plaintiff, and found by New York State regulators, that New York law has been violated, a foreign corporation may not profit from such violation to the detriment of New York employers and workers. The forum selection clause contained in an illegal insurance policy is not enforceable. As a matter of public policy, New York companies shall not be compelled to litigate in Nebraska to vindicate their rights. Air-Sea Packing Group, Inc. v Applied Underwriters, Inc., 2024 NY Slip Op 02032, Second Dept 4-17-24

Practice Point: A forum selection clause (designating Nebraska as the forum) in an insurance policy which violates New York law is not enforceable.

 

PSYCHOLOGICAL INJURY FROM EXPOSURE TO COVID IN THE WORKPLACE MUST BE ASSESSED USING THE SAME CRITERIA AS ARE APPLIED TO PHYSICAL INJURY; MATTER REMITTED (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Clark, reversing the denial of benefits and remitting the matter to the Workers’ Compensation Board, determined that psychological injury from exposure to COVID at the workplace must be treated the same as physical injury, taking into consideration the claimant’s particular vulnerabilities:

Pursuant to the employer’s policy for the 2020-2021 school year, claimant, a second-grade school teacher with a past medical history of asthma and bronchitis, returned to work in person at her assigned school building on September 7, 2020; the students continued to attend classes remotely at that time. On or about September 21, 2020, claimant was informed that another teacher at the school had tested positive for COVID-19, prompting the temporary closure of the school building. Claimant began feeling ill on or about September 23, 2020 but tested negative for COVID-19 on that date. On October 1, 2020, claimant returned to work in person, but she became increasingly anxious in anticipation of the students’ return to the building, which was scheduled to occur on Monday, October 5, 2020. She did not return to work after October 2, 2020. * * *

On appeal, claimant argues that, in cases involving exposure to the COVID-19 virus, the Board applies disparate burdens to claimants seeking compensation for a physical injury as compared to those seeking compensation for a psychological injury, in violation of the principle that “psychological or nervous injury precipitated by psychic trauma is compensable to the same extent as physical injury” … . * * *

… Given that the Board did not consider claimant’s particular vulnerabilities and that it applied a disparate burden in determining whether the alleged psychological injury was caused by a workplace accident, we must remit this matter for reconsideration not inconsistent with the guidance provided herein. On remittal, the Board is tasked with determining whether claimant’s proof establishes that she suffered a workplace accident, as relevant here, by proving either a specific exposure to COVID-19 or the prevalence of COVID-19 in her work environment so as to present an elevated risk of exposure constituting an extraordinary event. If claimant establishes the existence of such an accident, then the Board must determine, “in light of the commonsense viewpoint of the average [person]” … , and considering claimant’s particular vulnerabilities, whether claimant established, by competent medical evidence, a causal connection between the alleged injury and the workplace accident … . Matter of Anderson v City of Yonkers, 2024 NY Slip Op 01755, Third Dept 3-28-24

Practice Point: Re: eligibility for Workers’ Compensation benefits, psychological injury from exposure to COVID at the workplace is to be assessed using the same criteria as are applied to physical injury—analytical guidance is laid out in detail.

 

CLAIMANT DEMONSTRATED SHE CONTRACTED COVID AT THE WORKPLACE AND WAS ENTITLED TO WORKERS’ COMPENSATION BENEFITS (THIRD DEPT).

The Third Department noted that contracting COVID-19 at the workplace entitled claimant to Worders’ Compensation benefits:

… [S]ubstantial evidence supports the Board’s determination that claimant sustained a work-related injury by contracting COVID-19 in the course of her employment due to specific exposure to COVID-19 in the workplace … . Further, the Board correctly employed the presumption provided by Workers’ Compensation Law § 21 (1), “that an accident that occurs in the course of employment also arises out of that employment” … . Claimant’s treating pulmonary and critical care physician testified that, assuming the facts as claimant and the lay witness testified, which the Board credited, there was a “strong probability” that claimant contracted COVID-19 in the workplace, and the carrier did not submit contrary testimony negating a causal relationship … . Although the medical providers could not offer a conclusive medical opinion as to where claimant contracted COVID-19 so as to establish a causal connection between her contraction of COVID-19 and her employment, the testimony credited by the Board combined with the statutory presumption sufficiently established that she contracted COVID-19 at work from a coworker, and the medical providers’ testimony established that her injuries were the result of, and arose out of, contracting COVID-1 … . Matter of Leonard v David’s Bridal, Inc., 2024 NY Slip Op 00837, Third Dept 2-15-24

Practice Point: This decision demonstrates it is possible to prove COVID was contracted at the workplace entitling the worker to Workers’ Compensation benefits.

 

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WHERE THERE ARE UNRESOLVED QUESTIONS OF FACT CONCERNING ELIGIBILITY FOR WORKERS’ COMPENSATION BENEFITS THE WORKERS’ COMPENSATION BOARD HAS PRIMARY JURISDICTION AND MUST RULE BEFORE ANY RELATED ACTION CAN BE BROUGHT IN SUPREME COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Workers’ Compensation Board had primary jurisdiction and must rule on defendant’s eligibility for benefits before Supreme Court can hear an action by the insurer for reimbursement of no-fault payments made to defendant:

In July 2018, the subrogors of the plaintiff no-fault insurer, State Farm Mutual Automobile Insurance Company, allegedly were injured in a motor vehicle accident while traveling in a vehicle insured by the plaintiff. After the plaintiff provided payments for medical services on behalf of the subrogors, it learned that the subrogors had applied for workers’ compensation benefits and that the Workers’ Compensation Board had directed the defendant workers’ compensation insurer, Amtrust North America, Inc., to pay for necessary medical treatments for the subrogors. Thereafter, the plaintiff demanded that the defendant reimburse it for the full amount of no-fault benefits the plaintiff had provided on behalf of its subrogors. * * *

“[W]here the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions” … . “Since ‘primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board'” … . State Farm Mut. Auto. Ins. Co. v Amtrust N. Am., Inc., 2024 NY Slip Op 00646, Second Dept 2-7-24

Practice Point: Where there are unresolved questions of fact about a party’s eligibility for Workers’ Compensation benefits, any action in Supreme Court should be transferred to the Workers’ Compensation Board, which is vested with primary jurisdiction.

 

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THE EMPLOYER’S REQUEST, AT THE HEARING, TO CROSS-EXAMINE CLAIMANT’S PHYSICIAN SHOULD HAVE BEEN GRANTED; THE LANGUAGE IN THE RELEVANT REGULATION IS MANDATORY (THIRD DEPT). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, determined the Workers’ Compensation Law Judge (WCLJ) should have granted the employer’s request, made at the hearing, to cross-examine the claimant’s physician, who had submitted a report. The Court of Appeals noted that the relevant language in the regulation was mandatory (“shall”):

The rule at issue here provides that, if “the employer or its carrier or special fund desires to produce for cross-examination an attending physician whose report is on file, the referee shall grant an adjournment for such purpose” (12 NYCRR 300.10 [c] …). The mandatory nature of this language contrasts with the language used in the Board’s other rules governing adjournment of hearings, which afford referees discretion and create exceptions to otherwise mandatory rules. For example, if the employer fails to present evidence as directed by the Board, the referee “may adjourn the hearing” and, if the employer fails to present evidence on the adjourned date, the referee “shall proceed to make a decision unless” the referee finds “extraordinary circumstances” warranting “a further adjournment” … . Under the plain language of the rule, the employer properly exercised its rights by making its request at a hearing on the claim prior to the WCLJ’s ruling on the merits … . Matter of Lazalee v Wegman’s Food Mkts., Inc., 2023 NY Slip Op 06343, CtApp 12-12-23

Practice Point: In a Workers’ Compensation hearing, the employer’s request for an adjournment to cross-examine the claimant’s physician must be granted.

 

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