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ALTHOUGH CLAIMANT RETURNED TO WORK AT FULL PAY, SHOULD SHE STOP WORK IN THE FUTURE SHE IS ENTITLED TO 375 WEEKS OF BENEFITS FOR PERMANENT PARTIAL DISABILITY WHICH RESULTED IN A 70% LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT).

The Third Department determined claimant was entitled to 375 weeks of benefits for a permanent partial disability which resulted in a 70% loss of wage-earning capacity (should she stop working), even though she returned to work at full pay:

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Following a hearing, a Workers’ Compensation Law Judge (hereinafter WCLJ) classified claimant with a permanent partial disability and found that she had a 70% loss of wage-earning capacity and would be entitled to wage loss benefits for 375 weeks should she stop working … .The employer appealed from the decision and argued that claimant could not be found to have a loss of wage-earning capacity given that she had returned to work and was earning her preaccident wages. The Workers’ Compensation Board disagreed and affirmed, prompting this appeal.

We affirm. Loss of wage-earning capacity is set at the time of classification and refers to “the maximum number of weeks over which a claimant with a permanent partial disability is entitled to receive benefits” … .. As such, “despite the fact that [a] claimant [is] working at full wages, the Board [is] entitled to establish . . . loss of wage-earning capacity, which sets a fixed durational limit on potential benefits in the event that [a] claimant incurs a subsequent reduction of wages as the result of his [or her] work-related injuries” … . The Board’s decision falls squarely within this rule, and the employer’s argument that this Court has left any ambiguity on the issue is without merit … . Matter of Oyola v New York City Dept. of Sch. Food & Nutrition Servs., 2018 NY Slip Op 00368, Third Dept 1-18-18

WORKERS’ COMPENSATION LAW (ALTHOUGH CLAIMANT RETURNED TO WORK AT FULL PAY, SHOULD SHE STOP WORK SHE WAS ENTITLED TO 375 WEEKS OF BENEFITS FOR PERMANENT PARTIAL DISABILITY WHICH RESULTED IN A 70% LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT))/WAGE-EARNING CAPACITY (WORKERS’ COMPENSATION LAW, (ALTHOUGH CLAIMANT RETURNED TO WORK AT FULL PAY, SHOULD SHE STOP WORK SHE WAS ENTITLED TO 375 WEEKS OF BENEFITS FOR PERMANENT PARTIAL DISABILITY WHICH RESULTED IN A 70% LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT))

CLAIMANT PROVED HE WAS EMPLOYED BY A COMPANY WHICH DID NOT HAVE WORKERS’ COMPENSATION INSURANCE AND WHICH REFUSED TO APPEAR AT THE HEARING, GENERAL CONTRACTOR OBLIGATED TO PAY THE WORKERS’ COMPENSATION AWARDS (THIRD DEPT).

The Third Department affirmed the Workers’ Compensation Board’s findings that claimant, a construction worker, was employed by an uninsured company (George Villar/Atelier) that failed to appear at the hearing and that the general contractor (Omega) was responsible for payment of the workers’ compensation awards:

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… [C]laimant testified that he had been hired by Mullady [supervisor working for George Villar/Aletier] and worked at the construction site for about a year before the accident. Claimant explained that he identified Villar as his employer on his claim form because Mullady had informed him during his employment that Villar was the boss. Claimant testified that he witnessed Villar give cash to Mullady in order to pay claimant and others at the job site. Claimant also testified that if he had questions about the work assigned by Mullady or his supervisor, he would ask either of them or Villar, who was occasionally at the work site. According to claimant, Villar told him after the accident that he would pay the medical bills. Claimant was familiar with Villar as he had worked directly for him at various other work sites. With regard to testimony from the Omega representative, he testified that Omega performed construction management services at the construction site and obtained the construction permit for the project listing itself as the general manager. Other than indicating that Omega was paid for its services by Villar, the representative was unable to provide any further information regarding any contractors working at the construction site. Given the uncontroverted testimony of claimant, we find that the Board’s decision that claimant was employed by Atelier is supported by substantial evidence … . Matter of Joseph v Atelier Consulting LLC, 2018 NY Slip Op 00218, Third Dept 1-11-18

WORKERS’ COMPENSATION (CLAIMANT PROVED HE WAS EMPLOYED BY A COMPANY WHICH DID NOT HAVE WORKERS’ COMPENSATION INSURANCE AND WHICH REFUSED TO APPEAR AT THE HEARING, GENERAL CONTRACTOR OBLIGATED TO PAY THE WORKERS’ COMPENSATION AWARDS (THIRD DEPT))/GENERAL CONTRACTOR (WORKERS’ COMPENSATION, CLAIMANT PROVED HE WAS EMPLOYED BY A COMPANY WHICH DID NOT HAVE WORKERS’ COMPENSATION INSURANCE AND WHICH REFUSED TO APPEAR AT THE HEARING, GENERAL CONTRACTOR OBLIGATED TO PAY THE WORKERS’ COMPENSATION AWARDS (THIRD DEPT))

SKIN CARE SPECIALIST WORKING FOR A SKIN CARE COMPANY WITH A DISPLAY IN A BLOOMINGDALE’S STORE WAS AN EMPLOYEE OF THE SKIN CARE COMPANY AND WAS ENTITLED TO BENEFITS, LATE NOTICE EXCUSED, CLAIMANT FELL ON THE WAY TO THE RESTROOM (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board’s finding that claimant, a skin care specialist and spokesmodel, was an employee of Task Essential, who had a display in a Bloomingdale’s store. Claimant fell on the way to a restroom. The court rejected the argument that claimant was a special employee of Bloomingdale’s and that recovery was precluded by late notice of the injury:

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Claimant testified that his supervisor, who represented himself as an employee of Task Essential, set his schedule, which varied week to week and included working at two different stores. Claimant further explained that he received training for the position from his Task Essential supervisor and Task Essential informed him of a required dress code. Part of claimant’s job entailed meeting sales goals, he was paid an hourly rate and he would ask permission from a Task Essential supervisor before leaving his post to use the restroom. Claimant explained that, after he fell, a Task Essential supervisor informed him that he could not leave because there was no one to cover the skin care station. According to claimant, his Task Essential supervisor would occasionally spot check him to observe his performance. Matter of Colamaio-Kohl v Task Essential Corp., 2018 NY Slip Op 00213, Third Dept 1-11-18

WORKERS’ COMPENSATION (SKIN CARE SPECIALIST WORKING FOR A SKIN CARE COMPANY WITH A DISPLAY IN A BLOOMINGDALE’S STORE WAS AN EMPLOYEE OF THE SKIN CARE COMPANY AND WAS ENTITLED TO BENEFITS, LATE NOTICE EXCUSED, CLAIMANT FELL ON THE WAY TO THE RESTROOM (THIRD DEPT))

EVEN WHERE AN INJURED WORKER SETTLES WITH A THIRD-PARTY BEFORE THE WORKERS’ COMPENSATION SCHEDULE LOSS OF USE IS DETERMINED, THE EMPLOYER’S CARRIER MUST SHARE IN THE LITIGATION COSTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the appellate division, determined the employer’s workers’ compensation carrier  must share in the litigation costs incurred by an injured worker, even where the worker’s settlement with a third-party precedes the workers’ compensation schedule loss of use is determined:

Joseph Terranova, a foreman employed by the Lehr Construction Company, injured his right knee on a raised floor tile at a job site. He sought both workers’ compensation benefits from Lehr’s carrier, the New Hampshire Insurance Company (NHIC), and damages from the third-party contractor responsible for the defective tile. At the time of Mr. Terranova’s settlement with the third party — to which NHIC consented in a letter — he had received $21,495.99 in workers’ compensation payments and was litigating the extent of his schedule loss of use before a workers’ compensation law judge. Proceedings before that judge continued after the third-party settlement and ultimately resulted in a finding that Mr. Terranova suffered a ten percent schedule loss of use of the right leg that entitled him to 28.8 weeks of benefits, or an additional $9,960. Despite Mr. Terranova’s arguments to the contrary, the judge — as well as the Board and the Appellate Division — concluded that because his ultimate award was of a type we had indicated had an ascertainable present value, he was not entitled to the post-settlement apportionment of the litigation expenses contemplated for other types of awards in Burns v Varriale (9 NY3d 207 [2007]). * * *

Neither Kelly [60 NY2d 131] nor Burns contemplated the sequence involved here, in which a third-party settlement was consummated before an award was determined. Here, although the Board ultimately recognized the inequity of its initial determination, it first misinterpreted Kelly and Burns as requiring that litigation costs apportioned against all schedule loss of use awards be either assigned at the time of the third-party settlement or not at all. …

When, as here, the present value of the loss of use or other benefits is not finalized at the time of the claimant’s recovery in the third-party matter, the carrier must pay its fair share once the present value is determined. Matter of Terranova v Lehr Constr. Co., 2017 NY Slip Op 08799, CtApp 12-19-17

WORKERS’ COMPENSATION LAW (EVEN WHERE AN INJURED WORKER SETTLES WITH A THIRD-PARTY BEFORE THE WORKERS’ COMPENSATION SCHEDULE LOSS OF USE IS DETERMINED, THE EMPLOYER’S CARRIER MUST SHARE IN THE LITIGATION COSTS (CT APP))/LITIGATION COSTS (WORKERS’ COMPENSATION LAW, EVEN WHERE AN INJURED WORKER SETTLES WITH A THIRD-PARTY BEFORE THE WORKERS’ COMPENSATION SCHEDULE LOSS OF USE IS DETERMINED, THE EMPLOYER’S CARRIER MUST SHARE IN THE LITIGATION COSTS (CT APP))

CLAIMANT, WHO HAD RETIRED, BUT CLAIMS TO HAVE REATTACHED TO THE LABOR MARKET, DID NOT DEMONSTRATE HIS INABILITY TO FIND COMPARABLE WORK WAS RELATED TO HIS ASBESTOS-CAUSED DISABILITY, MATTER REMITTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the claimant, who had retired but claimed to have reattached to the labor market, had not demonstrated his inability to find comparable work was related to his asbestos-caused disability:

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We agree with the employer that the Board failed to address its argument that claimant had not satisfied his burden of establishing that his inability to find work, and the related loss of earnings, was causally related to his disability. In order to be entitled to benefits, a claimant who has previously voluntarily retired but claims to have subsequently reattached to the labor market must demonstrate that his or her “earning capacity and his [or her] ability to find comparable employment had been adversely affected by his [or her] disability” … . This burden requires a claimant to demonstrate “that other factors totally unrelated to his [or her] disability did not [cause the] adverse affect on his [or her] earning capacity” … . Despite the employer arguing that claimant had failed to meet his burden in this regard, the Board did not discuss or make findings as to whether claimant had established a relevant nexus between his work-related disability and his unsuccessful job search. As the Board failed to engage in its fact-finding role and deprived the employer of consideration of the merits of the issue, we must reverse the Board’s decision in order to allow that review to occur … . Matter of Pontillo v Consolidated Edison of N.Y., Inc., 2017 NY Slip Op 08760, Second Dept 12-14-17

 

WORKERS’ COMPENSATION LAW (CLAIMANT, WHO HAD RETIRED, BUT CLAIMS TO HAVE REATTACHED TO THE WORK FORCE, DID NOT DEMONSTRATE HIS INABILITY TO FIND WORK WAS RELATED TO HIS ASBESTOS-CAUSED DISABILITY, MATTER REMITTED (THIRD DEPT))

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NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT).

The Third Department determined several motions to dismiss were properly denied in this action concerning an insolvent workers’ compensation trust. Defendant Regnier provided actuarial services and prepared certain actuarial reports on an annual basis for the trust. In addition to many other causes of action not summarized here, the Third Department held that the negligence and gross negligence causes of action properly survived:

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We reject Regnier’s assertion that the negligence and gross negligence claims should have been dismissed in their entirety because plaintiff failed to allege that it owed the trust a duty of care. “[A]n actuary, possessing special knowledge, can be held liable for the negligent performance of its services” … . The second amended complaint alleged that Regnier held itself out as a skilled and competent actuary, that Regnier prepared actuarial reports to the trust, and that Regnier failed to provide competent actuarial services. More critically, the second amended complaint further alleged that Regnier knew that the trust would be relying on the accuracy of such reports and that Regnier was aware that its services were employed to represent the trust’s finances. Under these circumstances and viewing the allegations in a light most favorable to plaintiff, we conclude that there were sufficient allegations of near privity to survive a motion to dismiss with respect to the negligence and gross negligence claims … . New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 2017 NY Slip Op 08426, Third Dept 11-30-17

 

WORKERS’ COMPENSATION LAW (WORKERS’ COMPENSATION TRUST, NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT))/WORKERS’ COMPENSATION TRUSTS (NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT))/NEGLIGENCE (ACTUARY, WORKERS’ COMPENSATION TRUST, NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT))/ACTUARY (NEGLIGENCE, WORKERS’ COMPENSATION TRUST, NEGLIGENCE AND GROSS NEGLIGENCE CAUSES OF ACTION AGAINST AN ACTUARY FOR AN INSOLVENT WORKERS’ COMPENSATION TRUST PROPERLY SURVIVED MOTIONS TO DISMISS (THIRD DEPT))

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THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that Supreme Court should not have allocated all the proceeds of an insurance policy to the Workers’ Compensation Board and should have ordered the Board to file an accounting pursuant to CPLR 7702. The Board is seeking compensation from members of a workers’ compensation trust which was found to be insolvent. Respondent was a member of the trust and settled with the Board, paying over $1,000,000. Subsequently, in accordance with the terms of the settlement agreement, both the Board and the respondent separately sought to recover funds from an insurance policy. Supreme Court ordered all the recovered proceeds to be paid to the Board and did not order the filing of a verified accounting. The Third Department found that respondent, under the terms of the settlement agreement with the Board, was entitled to some of the funds and an accounting should be filed by the Board. The matter was remitted:

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The provision of the settlement agreement governing allocation of damages obtained from third parties by petitioner is unambiguously applicable by its terms only to the share of the jointly-recovered settlement proceeds that are ultimately allocated to petitioner. This interpretation gives full meaning and effect to the material terms at issue, including respondent’s reservation of its claims against the parties formerly responsible for administration of the trust, the agreement that allocation of the jointly-recovered settlement proceeds would be made in the instant CPLR article 77 proceeding and the provision precluding respondent from using activities undertaken after May 31, 2012 to justify a claim to allocation of the settlement proceeds. Petitioner’s contrary view — that it is entitled to all settlement proceeds because they were insufficient to satisfy the trust’s outstanding obligations and, therefore, that no surplus existed for allocation to former trust members, including respondent — is counter to the plain language of the settlement agreement and would impermissibly render meaningless the express reservation to respondent of all of its claims against former trustees, administrators and professionals. For petitioner’s argument — that all damages recovered from any third party from any source must first be used to satisfy the trust’s outstanding obligations — to prevail, the settling members, like respondent, would have had to have waived their claims against such third parties or subordinated their independent claims to petitioner’s claims. The settlement agreement contains no such terms. Thus, the matter must be remitted for allocation of the jointly-recovered settlement proceeds between petitioner and respondent and, as to any such proceeds allocated to petitioner, a determination of whether there are surplus funds remaining for distribution among the settling former trust members, including respondent. Matter of New York State Workers’ Compensation Bd. v Murray Bresky Consultants, Ltd, 2017 NY Slip Op 08244, Third Dept 11-22-17

 

WORKERS’S COMPENSATION LAW (THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT))/CONTRACT LAW (WORKERS’ COMPENSATION LAW, SETTLEMENT AGREEMENT,  (THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT))/CIVIL PROCEDURE (WORKERS’ COMPENSATION LAW, SETTLEMENT AGREEMENT, VERIFIED ACCOUNTING, (THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT))/CPLR 7702  (WORKERS’ COMPENSATION LAW, SETTLEMENT AGREEMENT, VERIFIED ACCOUNTING, (THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT))

BOARD’S FINDING CLAIMANT WAS CAPABLE OF PERFORMING SEDENTARY EMPLOYMENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD, FINDING OF PERMANENT TOTAL DISABILITY WARRANTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, over a two-justice dissent, determined claimant should have been found totally disabled:

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After injuring her back in October 2007, claimant underwent multiple back surgeries, including a L3-4 and L4-5 spinal fusion in December 2010 and fusions at L4-5 and L5-S1 in August 2012. A spinal cord stimulator was implanted in August 2013. Claimant’s physician, Clifford Ameduri, was treating her for postoperative back pain. Ameduri completed a “Doctor’s Report of MMI/Permanent Impairment” form C-4.3 in August 2014 that classified her condition as permanent and assigned a class five severity F rating to her lumbar back injury under the New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012). Ameduri also rated her functional capacity at “less than sedentary work,” a category defined as “unable to meet the requirement of sedentary work.”… Nowhere in this record does Ameduri opine that claimant sustained only a permanent partial disability. Guy Corkhill, the physician who conducted an independent medical examination on behalf of the workers’ compensation carrier, assigned a class four severity G rating to claimant’s back condition. In his testimony, Corkhill agreed with Ameduri that it was “unlikely [claimant] would ever be able to return to meaningful employment.” Notwithstanding this medical testimony, both the Workers’ Compensation Law Judge and a panel of the Workers’ Compensation Board determined that claimant was capable of performing sedentary employment. In adopting Ameduri’s severity F rating, the Board further discredited Corkhill’s opinion as based primarily on claimant’s subjective complaint, notwithstanding Corkhill’s testimony that her subjective complaints comported with his objective findings.

Since the Board’s findings as to claimant’s ability to perform some type of sedentary work are contrary to the consistent medical proof presented, the Board’s finding of a permanent partial disability and a 75% loss of wage-earning capacity is not supported by substantial evidence in the record … . Claimant maintains, and we agree, that the record actually warrants a finding of a permanent total disability. Matter of Wohlfeil v Sharel Ventures, LLC, 2017 NY Slip Op 08060, Third Dept 11-16-17

 

WORKERS’ COMPENSATION (BOARD’S FINDING CLAIMANT WAS CAPABLE OF PERFORMING SEDENTARY EMPLOYMENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD, FINDING OF PERMANENT TOTAL DISABILITY WARRANTED (THIRD DEPT))/SEDENTARY WORK (WORKERS’ COMPENSATION, BOARD’S FINDING CLAIMANT WAS CAPABLE OF PERFORMING SEDENTARY EMPLOYMENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD, FINDING OF PERMANENT TOTAL DISABILITY WARRANTED (THIRD DEPT))/PERMANENT TOTAL DISABILITY  (WORKERS’ COMPENSATION, BOARD’S FINDING CLAIMANT WAS CAPABLE OF PERFORMING SEDENTARY EMPLOYMENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD, FINDING OF PERMANENT TOTAL DISABILITY WARRANTED (THIRD DEPT))

FINDING THAT CLAIMANT WAS CAPABLE OF PERFORMING LIGHT WORK WAS NOT SUPPORTED BY THE EVIDENCE, MATTER REMITTED (THIRD DEPT).

The Third Department determined the evidence did not support the Workers’ Compensation Law Judge’s (WCLF’s) conclusion that the claimant was capable of performing light work. The matter was remitted:

… [N]one of the physicians who treated claimant’s physical injuries rated him as having the functional ability to perform light work. To the contrary, they rated him as being able to perform less than sedentary work or sedentary work … . The WCLJ, who was not a medical doctor, appears to have undertaken his own independent analysis of the medical evidence in concluding that claimant was capable of performing light work. Inasmuch as this was a significant factor that was considered in determining claimant’s loss of wage-earning capacity, the WCLJ’s finding that claimant sustained a 60% loss of wage-earning capacity, adopted by the Board, is not supported by substantial evidence in the record … . Accordingly, the matter must be remitted for further proceedings to ascertain claimant’s loss of wage-earning capacity in accordance with the 2012 Guidelines. Matter of Golovashchenko v Asar Intl. Corp., 2017 NY Slip Op 06500, Third Dept 9-14-17

WORKERS’ COMPENSATION LAW (FINDING THAT CLAIMANT WAS CAPABLE OF PERFORMING LIGHT WORK WAS NOT SUPPORTED BY THE EVIDENCE, MATTER REMITTED (THIRD DEPT))

CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT).

The Third Department determined claimant, decedent’s husband, was entitled to Workers’ Compensation death benefits. Decedent was found on the floor after she had complained of job-related stress and chest pains. Decedent’s death certificate indicated that she died from cardiac arrhythmia due to arteriosclerotic heart disease with obesity as a contributing factor:

Here, there is no dispute that claimant was entitled to the statutory presumption in that decedent suffered a cardiac arrest while working in her office and died shortly thereafter as a result, an event with no known witnesses … . The carrier’s cardiologist reviewed decedent’s medical records and concluded that while it was not certain exactly what happened, decedent’s cardiac arrest was most likely due to preexisting coronary artery disease and was not causally related, finding insufficient evidence that it was due to work-related stress … . This evidence was sufficient to rebut the presumption of compensability, shifting the burden to claimant to demonstrate a causal relationship … .​

Claimant presented the report and testimony of an internal medicine physician who reviewed decedent’s medical records and concluded that she had underlying asymptomatic cardiac atherosclerotic disease, and that her work-related stress was a “significant contributing factor” that caused her sudden cardiac death. He relied on the emergency department records and the fact that decedent had no known history of cardiac symptoms or treatment. While claimant’s physician acknowledged that decedent had other cardiac risk factors, such as obesity and a daily smoking habit, decedent’s “work-related illness need not be the sole or even the most direct cause of death, provided that the claimant demonstrates that the compensable illness was a contributing factor in the decedent’s demise”… . Matter of Lavigne v Hannaford Bros. Co., 2017 NY Slip Op 06121, Third Dept 8-10-17

 

WORKERS’ COMPENSATION LAW (DEATH BENEFITS, CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT))/DEATH BENEFITS (WORKERS’ COMPENSATION LAW, CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT))/CARDIAC ARREST (WORKERS’ COMPENSATION LAW, CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT))

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