You are here: / Workers' Compensation
,

ATTORNEY’S FEE PROPERLY REDUCED TO $450, FEE APPLICATION NOT PROPERLY FILLED OUT.

The Third Department determined the Worker’s Compensation Board correctly reduced attorney’s fees because the fee application form was not properly completed:

… [C]laimant’s counsel contends that the Board erred in reducing the WCLJ’s award of counsel fees based upon counsel’s failure to complete the OC-400.1 fee application form with respect to dates or time spent on the services rendered. Where counsel requests a fee in excess of $450, the Board’s rules and regulations provide that an attorney must file a written application for such fee using form OC-400.1 and that form must be “accurately completed” (12 NYCRR 300.17 [d] [1]). The form specifically instructs an attorney to, among other things, include the dates that the services were rendered and the time spent [FN3]. Such information, which is also required to be provided to a claimant, is relevant to the Board’s evaluation of the services rendered (see 12 NYCRR 300.17 [e], [f], [g]). “The Board may approve counsel fees ‘in an amount commensurate with the services rendered'” … , and its award will not be disturbed absent a showing that it is arbitrary and capricious or an abuse of discretion … . Here, counsel listed the services rendered, but inserted “35 hours” for the time spent on the services and did not indicate any dates upon which the services were performed or the amount of time spent on each service rendered. Under these circumstances, we do not find that the Board abused its discretion or acted in an arbitrary and capricious manner in finding the OC-400.1 fee application form defective and reducing the counsel fees to the maximum $450 fee permitted in the absence of the accurate completion of such application form … . Matter of Curcio v Sherwood 370 Mgt. LLC, 2017 NY Slip Op 01047, 3rd Dept 2-9-17

WORKER’S COMPENSATION LAW (ATTORNEY’S FEE PROPERLY REDUCED TO $450, FEE APPLICATION NOT PROPERLY FILLED OUT)/ATTORNEYS (WORKER’S COMPENSATION LAW, ATTORNEY’S FEE PROPERLY REDUCED TO $450, FEE APPLICATION NOT PROPERLY FILLED OUT)

THE DIFFERENT PURPOSES OF THE TERMS “LOSS OF WAGE-EARNING CAPACITY” AND “WAGE-EARNING CAPACITY” EXPLAINED.

The Third Department explained the different purposes for the terms “loss of wage-earning capacity” and “wage-earning capacity:”

The employer argues that claimant’s compensation must be calculated based upon his wage-earning capacity pursuant to Workers’ Compensation Law § 15 (5-a) and that, because he was working at full wages, his wage-earning capacity was 100% at the time of classification and that the finding of a 25% loss of wage-earning capacity was accordingly unlawful.

The term “loss of wage-earning capacity” was added in 2007 as part of the reform of the Workers’ Compensation Law …, and “is used at the time of classification to set the maximum number of weeks over which a claimant with a permanent partial disability is entitled to receive benefits” … . In contrast, wage-earning capacity is used to determine a claimant’s weekly rate of compensation … . As this Court recently explained in detail, “the legislative history makes clear that ‘wage-earning capacity’ and ‘loss of wage-earning capacity’ are to be used for separate and distinct purposes” … . Indeed, “[u]nlike wage-earning capacity, which can fluctuate based on the claimant’s employment status, loss of wage-earning capacity was intended to remain fixed” … . In light of the separate and distinct purposes for the calculation of a loss of wage-earning capacity and the wage-earning capacity, the Board was free to establish the duration of claimant’s benefits by classifying him with a 25% loss of wage-earning capacity in order to set a fixed durational limit on potential benefits. Matter of Barrett v New York City Dept. of Transp., 2017 NY Slip Op 01037, 3rd Dept 2-9-17

 

WORKER’S COMPENSATION LAW (THE DIFFERENT PURPOSES OF THE TERMS “LOSS OF WAGE-EARNING CAPACITY” AND “WAGE-EARNING CAPACITY” EXPLAINED)

EMPLOYER ENTITLED TO FULL REIMBURSEMENT OF WAGES PAID TO CLAIMANT SINCE THE ACCIDENT, DESPITE THE FACT THAT CLAIMANT WAS NOT PAID COMPENSATION BENEFITS FOR THE ENTIRE TIME SINCE THE ACCIDENT.

The Third Department determined that an employer who paid the claimant during the disability period was entitled to reimbursement from the award for the entire time beginning when the accident occurred, despite the fact that claimant was not awarded compensation for that entire period:

Claimant does not dispute that the employer paid him wages for the period of his disability prior to the schedule award and that the employer filed a timely claim for reimbursement with the Board as required by Workers’ Compensation Law § 25 (4) (a) … . Claimant challenges the Board’s reimbursement directive upon the ground that the reimbursement here covers a period of time when there were no awards of compensation made, arguing that, as a result, the employer is not entitled to reimbursement of wages paid to claimant during those periods of time and that the amount of reimbursement should be reduced.

However, under settled law, where, as here, a claimant ultimately receives a schedule loss of use award, “an employer has the right to reimbursement for the full amount of wages paid during a claimant’s period of disability from the claimant’s schedule award of worker[s’] compensation benefits” … . * * *  Inasmuch as claimant received a schedule award compensating him for the partial loss of use of his right foot, the Board was correct in finding that the employer was entitled to full reimbursement out of that award for all of its advanced payment of wages to claimant during that time (see Workers’ Compensation Law § 25 [4] [a]). The fact that a temporary disability award was denied during part of that period based upon missing medical evidence in the Board’s record is not relevant to the employer’s entitlement to reimbursement. Matter of Newbill v Town of Hempstead, 2017 NY Slip Op 01049, 3rd Dept 2-9-17

 

WORKER’S COMPENSATION LAW (EMPLOYER ENTITLED TO FULL REIMBURSEMENT OF WAGES PAID TO CLAIMANT SINCE THE ACCIDENT, DESPITE THE FACT THAT CLAIMANT WAS NOT PAID COMPENSATION BENEFITS FOR THE ENTIRE TIME SINCE THE ACCIDENT)

, ,

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CLAIM; QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY.

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff, who was not wearing a harness, had fallen through a skylight. The anchor points for harnesses had not yet been installed. The employer’s motion for summary judgment dismissing the property owner’s third-party complaint seeking indemnification was, however, properly denied. The Workers’ Compensation Law allows suit only when the injury is grave (not so here) or where there is a written indemnification agreement. Here there was an indemnification agreement entered after the accident. There was a question of fact whether the agreement was intended to be effective retroactively:

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that he was not provided with necessary protection from the gravity-related risk of his work and that the absence of the necessary protection was a proximate cause of his injuries … .

… An employer may be held liable for contribution or indemnification only when its employee has sustained a grave injury as defined by the Workers’ Compensation Law or when there is a “written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution or indemnification of the claimant” … . The Workers’ Compensation Law does not bar indemnification or contribution pursuant to a written agreement that was entered into after the employee’s injury and which the parties agree will have retroactive effect … . “[I]ndemnity contracts are to be strictly construed to avoid reading into them duties which the parties did not intend to be assumed” … . Therefore, an indemnity contract will not be held to have retroactive effect “unless by its express words or necessary implication it clearly appears to be the parties’ intention to include past obligations” … . Cacanoski v 35 Cedar Place Assoc., LLC, 2017 NY Slip Op 00956, 2nd Dept 2-8-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CLAIM, QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY)/WORKERS’ COMPENSATION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CLAIM, QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY)/CONTRACT LAW (WORKERS’ COMPENSATION LAW, INDEMNIFICATION AGREEMENT, QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY)

ALTHOUGH CLAIMANT WAS INJURED IN FLORIDA, NEW YORK HAD SUBJECT MATTER JURISDICTION.

The Third Department determined that, although claimant was injured in Florida, significant contacts with New York established subject matter jurisdiction:

“For the Board to have jurisdiction over a claim arising from a work-related injury that occurred outside New York, it must determine whether there were sufficient and significant contacts between the state and the employer to support a reasonable conclusion that the employment was to some extent sited in this state” … . To make this determination, the Board may consider various factors, 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 … . Upon due consideration of these relevant factors, if “it appears that the claimant’s employment had sufficient significant contacts with New York such that it may reasonably be concluded that the employment was located here, then subject matter jurisdiction exists” … .  While there is no dispute that claimant sustained her injuries while working in Florida, the record also establishes that claimant has maintained her primary and permanent residence in New York since 1983. Claimant testified that, in 2006, she was interviewed and hired at her employer’s residence located in New York and that her job duties included maintaining, and cooking for, that residence. Although claimant traveled with, and worked for, her employer in Florida for approximately eight months out of the year, claimant lived at her employer’s residence in New York for the balance of the year for five days a week while performing her job responsibilities. In addition, claimant testified that, throughout her employment, she considered New York her home. Matter of Barnett v Callaway, 2017 NY Slip Op 00366, 3rd Dept 1-19-17

WORKERS’ COMPENSATION LAW (ALTHOUGH CLAIMANT WAS INJURED IN FLORIDA, NEW YORK HAD SUBJECT MATTER JURISDICTION)/JURISDICTION, SUBJECT MATTER (WORKERS’ COMPENSATION LAW, ALTHOUGH CLAIMANT WAS INJURED IN FLORIDA, NEW YORK HAD SUBJECT MATTER JURISDICTION)

INSUFFICIENT PROOF OF CAUSAL CONNECTION BETWEEN JOB-RELATED STRESS AND STROKE.

The Third Department determined the evidence was insufficient to support a causal connection between job-related stress and a stroke:

As the party seeking benefits, claimant bore the burden of establishing — by competent medical evidence — a causal connection between his employment and the claimed disability … . In this regard, “[w]hile the Board cannot rely upon expert opinion evidence that amounts to nothing more than pure speculation, the Workers’ Compensation Law does not require that medical opinions be expressed with absolute or reasonable medical certainty” … . Rather, “[a]ll that is required is that it be reasonably apparent that the expert meant to signify a probability as to the cause and that his or her opinion be supported by a rational basis” … . * * * Given claimant’s multiple and independent risk factors for a stroke, as well as his physician’s equivocal testimony as to the role that stress “may” or “could” have played in contributing to claimant’s disability, the Board was free to characterize — and ultimately reject — the medical evidence offered by claimant as speculative … . Matter of Qualls v Bronx Dist. Attorney’s Off., 2017 NY Slip Op 00365, 3rd Dept 1-19-17

WORKERS’ COMPENSATION LAW (INSUFFICIENT PROOF OF CAUSAL CONNECTION BETWEEN JOB-RELATED STRESS AND STROKE)/STROKE (WORKERS’ COMPENSATION LAW, INSUFFICIENT PROOF OF CAUSAL CONNECTION BETWEEN JOB-RELATED STRESS AND STROKE)

MEDICAL REPORT WAS SUFFICIENT TO REOPEN A CLOSED CLAIM WITHIN SEVEN YEARS, CLAIM SHOULD NOT HAVE BEEN TRANSFERRED TO THE SPECIAL FUND.

The Third Department determined claimant’s prior claim had been truly closed in 2005 and 2009 medical report was sufficient to reopen the claim. Since the claim was reopened within seven years of the injury, the claim was not transferred to the Special Fund:

Workers’ Compensation Law § 25-a provides that “liability for a claim shifts to the Special Fund where a workers’ compensation case that was fully closed is reopened more than seven years after the underlying injury occurred and more than three years after the last payment of compensation” … . “A medical report may be deemed an application to reopen if the report gives the Board sufficient notice of a change in a claimant’s condition, as opposed to simply indicating continued disability and treatment” … . Such medical report “should not be given a strained interpretation, but should only be interpreted as a basis to reopen if that was clearly the doctor’s intention,” and the “mere mention of permanency in a medical report, absent an opinion regarding the degree of permanency, is insufficient to act as a request to reopen a case” … . “Such a decision of the Board will not be disturbed when supported by substantial evidence” … . …

… [T]he record reflects that claimant continued to receive authorized treatment for lower-back pain with his attending chiropractor, and, following a reexamination of claimant on August 11, 2009, claimant’s chiropractor reported for the first time that claimant exhibited a 25% permanent partial disability. Subsequent examinations revealed no material change in claimant’s condition, and the chiropractor continued to report that claimant had a 25% permanent partial disability. Inasmuch as the August 2009 medical report raised the issue of permanency and the degree of claimant’s disability, we find that substantial evidence supports the Board’s determination that the August 2009 medical report constituted an application to reopen and that, as such, this case was reopened within seven years of claimant’s May 2005 injury … . Matter of Williams v General Elec., 2017 NY Slip Op 00364, 3rd Dept 1-19-17

 

WORKERS’ COMPENSATION LAW (MEDICAL REPORT WAS SUFFICIENT TO REOPEN A CLOSED CLAIM WITHIN SEVEN YEARS, CLAIM SHOULD NOT HAVE BEEN TRANSFERRED TO THE SPECIAL FUND)/SPECIAL FUND (WORKERS’ COMPENSATION LAW, MEDICAL REPORT WAS SUFFICIENT TO REOPEN A CLOSED CLAIM WITHIN SEVEN YEARS, CLAIM SHOULD NOT HAVE BEEN TRANSFERRED TO THE SPECIAL FUND)

CARRIER’S REQUEST FOR AN ADJOURNMENT OF AN EXPEDITED PERMANENCY HEARING PROPERLY DENIED, REQUEST WAS NOT BASED UPON AN EMERGENCY.

The Third Department determined the carrier’s request for an adjournment of an expedited hearing for the production of video surveillance of the claimant was properly denied:

Pursuant to Workers’ Compensation Law § 25 (3) (d), the Board ordered that claimant’s hearing be transferred to the expedited calendar, and the parties were notified of this well in advance of the scheduled … hearing at which the issue of permanency was to be resolved. With regard to expedited hearings, the rules of the Board provide that “[a]djournments . . . shall only be granted in accordance with [12 NYCRR 300.38]” (12 NYCRR 300.34 [f] [1]), which specifies that “[a]djournments for . . . a hearing in a controverted claim shall only be granted in an emergency” (12 NYCRR 300.38 [j] [1]). An “emergency” is defined as “a serious event that occurs preventing the timely completion of some action ordered or directed,” and includes “death in the family, serious illness, significant prior professional or business commitment, and inclement weather that prevents travel. It does not include any event that can be prevented or mitigated by the timely taking of reasonable action” (12 NYCRR 300.38 [j] [5] [emphasis added]).

Here, the hearing notice clearly advised the parties that an adjournment would not be granted except in the case of an emergency. As the full Board concluded and the record reflects, the carrier’s request for an adjournment to produce and share the video following claimant’s testimony was not premised upon any claimed emergency but, rather, was a consequence of the carrier’s choice not to bring the video to the hearing based upon the belief that they “weren’t going to be watching [it] today.” Matter of Maffei v Russin Lbr. Corp., 2017 NY Slip Op 00362, 3rd Dept 1-19-17

 

WORKERS’ COMPENSATION LAW (CARRIER’S REQUEST FOR AN ADJOURNMENT OF AN EXPEDITED PERMANENCY HEARING PROPERLY DENIED, REQUEST WAS NOT BASED UPON AN EMERGENCY)/EXPEDITED HEARING (WORKERS’ COMPENSATION LAW, CARRIER’S REQUEST FOR AN ADJOURNMENT OF AN EXPEDITED PERMANENCY HEARING PROPERLY DENIED, REQUEST WAS NOT BASED UPON AN EMERGENCY)

CARRIER’S APPLICATION TO REOPEN CLAIM WAS MADE WITHOUT REASONABLE GROUNDS, PENALTY PROPERLY IMPOSED.

The Third Department determined the Workers’ Compensation Board found that the carrier’s application to reopen a claim was properly denied and a penalty was properly imposed:

The Board rationally concluded that proof that claimant failed to respond to the carrier’s request for job search information is insufficient to support a reopening of the claim … . The Board further concluded that, although a rejection of offers of employment, job search assistance or rehabilitative vocational services could be sufficient to reopen the claim, the letter written by the rehabilitation counselor did not constitute such an offer. Rather, the Board relied on language in a professional disclosure form that accompanied the letter, informing claimant that, following a vocational rehabilitation assessment of claimant, a vocational plan “may” be developed that “may include” counseling, job training and assistance returning to work. In light of the lack of any specific offers of employment, job training or assistance in returning to work in the rehabilitation counselor’s correspondence, the Board did not abuse its discretion by concluding that claimant’s rejection of the counselor’s services did not warrant a reopening of the claim … .

As to the penalty imposed, the Board may impose a penalty against a party who institutes or continues a proceeding in respect of a claim without reasonable ground (see Workers’ Compensation Law § 114-a [3] [i]), and the Board’s imposition of a penalty under this statute will not be disturbed if supported by substantial evidence … . The Board imposed the penalty based upon its finding that the counselor’s letter did not constitute an offer of employment or vocational services and, therefore, the carrier had “filed a request to reopen without the proper supporting documentation.” While the Board’s determination — that the rejection of the counselor’s services by claimant did not warrant a reopening of the claim — was not an abuse of discretion, we cannot say that substantial evidence supports the Board’s conclusion that, by relying on proof that the Board ultimately rejected, the carrier initiated the request to reopen the claim without reasonable grounds … . Matter of Andrews v Combined Life Ins., 2017 NY Slip Op 00360, 3rd Dept 1-19-17

 

WORKERS’ COMPENSATION LAW (CARRIER’S APPLICATION TO REOPEN CLAIM WAS MADE WITHOUT REASONABLE GROUNDS, PENALTY PROPERLY IMPOSED)

FAILURE TO TIMELY SERVE ONE OF CLAIMANT’S EMPLOYERS WAS A VALID BASIS FOR DENIAL OF THE CLAIM.

The Third Department determined claimant’s failure to serve one of his prior employers with the application for benefits was a proper basis for denial of his claim:

Pursuant to the regulations in effect at the time of the underlying proceedings, 12 NYCRR former 300.13 (a) provided that “[a]n application to the [B]oard to review a decision of a [WCLJ] . . . shall be filed with the [B]oard within 30 days after notice of filing of the decision of the [WCLJ] together with proof of service upon all other parties in interest … . Although the Board “may in its discretion suspend or modify the application of these rules” (12 NYCRR 300.30), “the discretion to suspend its own rules does not apply to situations where a party of interest does not receive notice” … . Here, the record evidence demonstrates that claimant’s application for Board review was defective inasmuch as only one of his prior employers and the State Insurance Fund were served, notwithstanding the fact that, as claimant contends, the prior employer served its rebuttal on the parties in interest, thereby affording those parties with notice of the administrative appeal. Accordingly, the Board’s denial of claimant’s application for review was not an abuse of its discretion, and we decline to disturb that determination … . Matter of Harrell v Blue Diamond Sheet Metal, 2017 NY Slip Op 00356, 3rd Dept 1-19-17

WORKERS’ COMPENSATION LAW (FAILURE TO TIMELY SERVE ONE OF CLAIMANT’S EMPLOYERS WAS A VALID BASIS FOR DENIAL OF THE CLAIM)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy