You are here: / Workers' Compensation
, ,

ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW.

The Third Department determined plaintiff could sue in negligence, despite the fact that defendant was a co-worker. Defendant struck plaintiff with a golf club inflicting an injury that required the removal of a testicle. There was a question of fact whether defendant’s actions were grossly negligent or reckless and there not within the scope of defendant’s employment. There was also a question of fact whether the employer condoned defendant’s actions:

There is no dispute that plaintiff and defendant were coemployees, that plaintiff was injured in the course of his employment and that he collected workers’ compensation benefits for his injuries. Pursuant to Workers’ Compensation Law § 29 (6), these benefits are the exclusive remedy for an employee injured “by the negligence or wrong of another in the same employ.” Having the same employer is not synonymous with being “in the same employ” and, to be shielded from liability, a defendant “must himself [or herself] have been acting within the scope of his [or her] employment and not have been engaged in a willful or intentional tort” … . Here, there is no indication that plaintiff was involved in any horseplay … . The differing versions of the event presented by the parties, as well as the two club employees who supported plaintiff’s version, raise genuine questions of fact as to whether defendant intended to strike plaintiff and did so in an excessive manner given the sensitive area of impact. Although defendant was not directly disciplined by the club and resigned to take a new position a few months after the incident, a question of fact also remains as to whether the club condoned defendant’s actions. As such, we conclude that Supreme Court properly determined that questions of fact existed as to whether defendant acted in a “grossly negligent and/or reckless” manner when he swung the golf club shaft and struck plaintiff, as alleged in the complaint … . Montgomery v Hackenburg, 2017 NY Slip Op 01744, 3rd Dept 3-9-17

NEGIGENCE (WORKERS’ COMPENSATION LAW, ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW)/WORKERS’ COMPENSATION LAW (NEGLIGENCE, (ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW)/EMPLOYMENT LAW (WORKERS’ COMPENSATION LAW, ALTHOUGH PLAINTIFF INJURED BY CO-WORKER, QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE GROSSLY NEGLIGENT AND THEREFORE NOT WITHIN THE SCOPE OF EMPLOYMENT, ALSO A QUESTION OF FACT WHETHER EMPLOYER CONDONED DEFENDANT’S ACTIONS, PLAINTIFF’S SUIT NOT PRECLUDED BY WORKERS’ COMPENSATION LAW)

,

ATTORNEY’S FEE FORM IMPROPERLY FILLED, IMPOSSIBLE FOR APPELLATE REVIEW OF $3000 AWARD.

The Third Department sent the matter back to the Worker’s Compensation Board for a review of the Board’s award of $3000 in attorney’s fees. The Third Department determined that the attorney’s fee form was not properly filled out and there was not enough information in the form to allow appellate review:

Our review of the OC-400.1 form submitted in this case reveals that it is very similar to the form submitted by counsel in Matter of Tenecela v Vrapo Constr. (146 AD3d 1217, 2017 NY Slip Op 00367 [2017]) — a form that the Board ultimately deemed to be inadequate in that case (id. at *2). Specifically, although the form here sets forth the dates upon which services were rendered to claimant and the number of hours allocated thereto, the description of those services is largely indecipherable. More to the point, the form tendered by counsel in this matter appears to allocate “25+” hours to an unspecified date or range of dates, thereby “making impossible any assessment of the services rendered” (id.). Finally, the Board premised its award (in part) upon “the financial status of . . . claimant” but, other than noting a reduction in the loss of wage-earning capacity suffered by claimant, the Board’s decision makes no reference to — and the record sheds no light upon — claimant’s financial status. For these reasons, the Board’s award of counsel fees is incapable of intelligent appellate review, and we remit this matter to the Board for reconsideration thereof … . Matter of Shiqerukaj v Gotham Broad, LLC, 2017 NY Slip Op 01426, 3rd Dept 2-23-17

WORKERS’S COMPENSATION LAW (ATTORNEY’S FEE FORM IMPROPERLY FILLED, IMPOSSIBLE FOR APPELLATE REVIEW OF $3000 AWARD)/ATTORNEYS (WORKER’S COMPENSATION LAW, ATTORNEY’S FEE FORM IMPROPERLY FILLED, IMPOSSIBLE FOR APPELLATE REVIEW OF $3000 AWARD)

, ,

DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant did not demonstrate it was the alter ego of plaintiff’s employer (which would trigger the Worker’s Compensation Law as plaintiff’s sole remedy). Defendant’s summary judgment motion on that ground should have been denied. Plaintiff was injured by a defective floor condition where he worked. He sued the owner of the building and the holder of the lease, Clean Rite Cleaners – Flatbush Avenue, LLC:

At the time of the accident, the plaintiff was employed by nonparty CRC-Management Co., LLC (hereinafter CRC-Management), and, after the accident, he sought Workers’ Compensation benefits from CRC-Management. CRC-Flatbush moved, in effect, for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff’s causes of action were barred by the exclusive remedy provisions of the Workers’ Compensation Law. Among other things, CRC-Flatbush argued that it was “part of a single integrated entity” along with CRC-Management since they were both subsidiaries of nonparty Clean Rite Centers, LLC. …

… “[A] mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other” … . Here, CRC-Flatbush failed to make a prima facie showing either that it and the plaintiff’s employer, CRC-Management, operated as a single integrated entity, or that either company controlled the day-to-day operations of the other … . Moses v B & E Lorge Family Trust, 2017 NY Slip Op 01350, 2nd Dept 2-22-17

 

WORKER’S COMPENSATION LAW (DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/CORPORATION LAW (WORKER’S COMPENSATION LAE, NEGLIGENCE, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (WORKER’S COMPENSATION LAW, CORPORATION LAW, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/ALTER EGO (WORKER’S COMPENSATION LAW, CORPORATION LAW, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)

,

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)

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