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LINK BETWEEN HEART ATTACK AND WORK NOT ESTABLISHED BY SUBSTANTIAL EVIDENCE.

The Third Department, reversing the Workers' Compensation Board, found there was insufficient evidence linking claimant's heart attack (myocardial infarction) to his work:

While the Board is entitled to resolve conflicting medical opinions, there must be “medical opinion evidence regarding the probability of a causal relationship supported by a rational basis; a general expression of possibility will not suffice” … . Here, because the testimony of claimant's treating cardiologist expressed merely the possibility that the physical activities in which claimant engaged could have caused his myocardial infarction, such testimony falls short of the required degree of medical proof. As a result, the Board's determination based upon that testimony lacked a rational basis and was not supported by substantial evidence … . Matter of Hartigan v Albany County Sheriff's Dept., 2016 NY Slip Op 04280, 3rd Dept 6-2-16

WORKERS' COMPENSATION (LINK BETWEEN HEART ATTACK AND WORK NOT ESTABLISHED BY SUBSTANTIAL EVIDENCE)/EVIDENCE (WORKERS' COMPENSATION, LINK BETWEEN HEART ATTACK AND WORK NOT ESTABLISHED BY SUBSTANTIAL EVIDENCE)

INJURY IN FALL IN EMPLOYER’S PARKING LAW AROSE FROM EMPLOYMENT.

The Third Department determined injury from a trip and fall in the employer's parking lot was covered under the Workers' Compensation Law:

“To be compensable under the Workers' Compensation Law, an injury must have arisen both out of and in the course of a claimant's employment” … . Moreover, “[w]hile on the employer's premises, going to or coming from work is generally considered an incident of the employment” … .

Here, the record reveals that claimant tripped and fell in the employer's parking lot as she was preparing to leave at the end of her shift. Thus, there is substantial evidence in the record to support the Board's determination that claimant's injury arose out of and in the course of her employment … . Matter of Swartz v Absolut Ctr. for Nursing & Rehab, 2016 NY Slip Op 03937, 3rd Dept 5-19-16

WORKERS' COMPENSATION LAW (INJURY IN FALL IN EMPLOYER'S PARKING LAW AROSE FROM EMPLOYMENT)

STATUTE REQUIRING TIMELY NOTICE OF THE ACCIDENT DID NOT REQUIRE NOTICE OF ALL THE INJURIES STEMMING FROM THE ACCIDENT.

The Third Department determined the statute requiring notice of an accident did not require notice of all the injuries. Here the self-insured employer was timely notified of the accident and claimant's knee injury but was not notified of other injuries stemming from the accident until a year later:

Workers' Compensation Law § 18 provides, in relevant part, that written “[n]otice of an injury . . . for which compensation is payable . . . shall be given to the employer within thirty days after the accident causing the injury.” The same provision also provides that the Board may excuse late notice upon certain grounds, including “that the employer, or his or its agents . . . had knowledge of the accident.” Here, the self-insured employer was provided with notice of the accident and claimant's resulting left knee injury within the statutory 30-day period, but was unaware of claimant's other injuries until nearly a year later when she filed her C-3 claim. The self-insured employer contends that this Court should construe the statutory phrase “had knowledge of the accident” to mean “had knowledge of the injury,” and, as a result, conclude that claimant's late notice for the additional injuries is inexcusable pursuant to Workers' Compensation Law § 18. We reject the self-insured employer's interpretation of Workers' Compensation Law § 18, as it contravenes two foundational rules of statutory construction. Matter of Logan v New York City Health & Hosp. Corp., 2016 NY Slip Op 03776, 3rd Dept 5-12-16

WORKERS' COMPENSATION LAW (STATUTE REQUIRING TIMELY NOTICE OF THE ACCIDENT DID NOT REQUIRE NOTICE OF ALL THE INJURIES STEMMING FROM THE ACCIDENT)

HEART ATTACK DEEMED WORK-RELATED.

The Third Department determined substantial evidence supported the conclusion decedent-worker's heart attack was employment-related. Decedent suffered the heart attack while walking to a storage structure in freezing temperatures:

[T]he testimony and evidence in the record demonstrates that shortly before decedent collapsed, he was instructed to add insulation in an attempt to fix the frozen valve and, to do so, traveled outside at night across snow-covered ground in freezing temperatures to locate and retrieve additional insulation from a storage structure located at least 500 feet away. In addition, Thomas Martin, the lead process operator, explained in his testimony that if decedent and his colleague were unable to quickly fix the frozen valve that evening, the glycol treatment facility at the airport would have “shut[] down.” Based upon the foregoing, Raymond Basri, a doctor specializing in internal medicine with 25 years of experience in diagnostic cardiology who reviewed decedent's medical records, opined that decedent's work activities immediately prior to his collapse, in combination with the environmental conditions at that time and the physical and emotional stress associated with having to assist with the timely repair of the frozen valve, were significant contributing factors to decedent's acute myocardial infarction and resulting death. Matter of Kilcullen v AfFCO/Avports Mgt. LLC, 2016 NY Slip Op 03033, 3rd Dept 4-21-16


AMENDMENT TO WORKERS’ COMPENSATION LAW WHICH IMPOSED LIABILITY UPON INSURERS FOR REOPENED CASES PREVIOUSLY COVERED BY THE SPECIAL FUND IS UNCONSTITUTIONAL.

The First Department, in a full-fledged opinion by Justice Saxe, reversing Supreme Court, determined an amendment to the Workers' Compensation Law which made insurers liable for reopened cases no longer covered by the special fund (which has been eliminated) was unconstitutional. Although the insurers can adjust their premiums to cover future reopened cases no longer covered by the fund, the insurers can not be compensated for reopened cases from prior to October 1, 2013, when premiums were lower because any reopened cases were the sole responsibility of the fund. The amendment therefore violated the Contract and Takings Clauses:

Plaintiffs … established that the amendment, as applied retroactively, violates the Contract Clause of the US Constitution because it retroactively impairs an existing contractual obligation to provide insurance coverage “[w]here *** the insurer does not have the right to terminate the policy or change the premium rate” … . Defendants failed to show that the impairment is “reasonable and necessary to serve” “a significant and legitimate public purpose *** such as the remedying of a broad and general social or economic problem” … . Indeed, the legislation's stated purpose of preventing a windfall to insurance carriers was based upon the erroneous premise that premiums already cover this new liability.

Retroactive application would also constitute a regulatory taking in violation of the Takings Clause … . American Economy Ins. Co. v State of New York, 2016 NY Slip Op 02924, 1st Dept 4-14-16


STATUTORY PRESUMPTION THAT UNWITNESSED ACCIDENT AROSE FROM EMPLOYMENT DID NOT CREATE A PRESUMPTION THE ACCIDENT HAD HAPPENED, DENIAL OF CLAIM AFFIRMED.

The Third Department determined there was insufficient evidence to support claimant's allegation he was injured in an accident which no one witnesses and for which claimant did not seek immediate attention medical attention. The court noted that the presumption that unwitnessed accidents arose from employment did not create a presumption that an accident had happened:

… Workers' Compensation Law § 21, “which affords a presumption that an unwitnessed or unexplained workplace accident arose out of the injured person's employment, . . . cannot be utilized to demonstrate that an accident occurred in the first place”… . Matter of Siennikov v Professional Grade Constr., Inc., 2016 NY Slip Op 01889, 3rd Dept 3-17-16

WORKERS' COMPENSATION (STATUTORY PRESUMPTION INJURY AROSE FROM EMPLOYMENT DID NOT CREATED A PRESUMPTION THE ACCIDENT HAD HAPPENED)

CARRIER’S INABILITY TO CONDUCT AN INDEPENDENT MEDICAL EXAMINATION OF CLAIMANT WARRANTED SUSPENSION OF COMPENSATION PAYMENTS.

The Third Department determined the carrier's inability to conduct an independent medical examination (IME) of claimant, ostensibly due to claimant's medical restrictions, warranted suspending claimant's compensation payments:

… [W]e note that “refusal by the claimant to submit to [an IME] at such time or times as may reasonably be necessary in the opinion of the [B]oard, shall bar the claimant from recovering compensation for any period during which he or she has refused to submit to such examination” (Workers' Compensation Law § 13-a [4] [b]). Whether suspending compensation payments on account of a claimant's attempt to frustrate a carrier's right to engage in an IME is a question of fact for the Board to resolve … . Here, there are opposing views as to why claimant did not submit to an IME. It was within the Board's purview to credit the carrier's assertion that it has engaged in extraordinary efforts to schedule the IME … and that such efforts were thwarted by claimant's perpetual requests and demands of rescheduling and relocating the IME … . As such, we find that substantial evidence supports the Board's finding that claimant frustrated the carrier's right to engage an independent consultant by unreasonably refusing to attend an IME so as to warrant suspension of her benefits (see Workers' Compensation Law § 13-a [4] [b]…). Matter of Duncan v John Wiley & Sons, Inc., 2016 NY Slip Op 01881, erd Dept 3-17-16

WORKERS' COMPENSATION LAW (CARRIER'S INABILITY TO CONDUCT AN INDEPENDENT MEDICAL EXAMINATION OF CLAIMANT WARRANTED SUSPENSION OF COMPENSATION PAYMENTS)/INDEPENDENT MEDICAL EXAMINATION (IME) (WORKERS' COMPENSATION, CARRIER'S INABILITY TO CONDUCT AN INDEPENDENT MEDICAL EXAMINATION OF CLAIMANT WARRANTED SUSPENSION OF COMPENSATION PAYMENTS)

CLAIMANT PROPERLY COMPENSATED FOR WORK-RELATED STRESS.

The Third Department determined claimant was properly awarded workers’ compensation benefits for work-related stress. The employer argued the stress was related to warning letters about claimant’s performance, which would not be compensable. One of the warning letters was deemed not to have been issued in good faith. And claimant submitted proof her stress-related symptoms appeared before the warning letters were issued. Claimant was a licensed clinical social worker who had been attacked by a client:

 

Workers’ Compensation Law § 2 (7) precludes claims for mental injuries based upon work-related stress “if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer.” “Whether the employer’s actions constituted a lawful personnel decision undertaken in good faith is a factual issue to be resolved by the Board”  … . * * *

“According deference to the Board’s resolution of witness credibility issues” … , and in light of the evidence that claimant suffers from a mental injury stemming from work-related stress and that she was being treated for the condition prior to the issuance of the warning letters, the Board’s determination that the claim was not barred by Workers’ Compensation Law § 2 (7) is supported by substantial evidence and will not be disturbed … . Further, based upon the foregoing, we find that the Board’s determination that the stress that caused claimant’s injury was greater than that of other similarly situated workers also is supported by substantial evidence … . Matter of Haynes (Catholic Charities), 2016 NY Slip Op 00560, 3rd Dept 1-28-16

WORKERS’ COMPENSATION LAW (AWARD FOR WORK-RELATED STRESS PROPER)/STRESS, WORK-RELATED (WORKERS’ COMPENSATION BENEFITS PROPERLY AWARDED)

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PLAINTIFF’S ACTION AGAINST ALTER EGO OF HIS EMPLOYER BARRED BY FEDERAL LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT.

Plaintiff was injured while working on a vessel owned by a defendant when an employee of the New York Container Terminal, LLC (NYCT) lowered a container on him. NYCT’s motion for summary judgment should have been granted. NYCT provided insurance coverage for payment of Federal Longshore and Harbor Workers’ Compensation Act (LHWHA) benefits to plaintiff. And NYCT demonstrated it was the alter ego of plaintiff’s employer:

The evidence demonstrated that any action against NYCT in relation to the plaintiff’s accident was barred by the Federal Longshore and Harbor Workers’ Compensation Act (hereinafter the LHWCA) because NYCT provided insurance coverage for the payment of LHWCA benefits to the plaintiff … . Moreover, NYCT provided sufficient evidence that it was the alter ego of the plaintiff’s employer … . In opposition, the plaintiff failed to raise a triable issue of fact.

“[O]nce an employer fulfills its obligations under the [LHWCA] by paying out benefits to the injured LHWCA employee, further tort-based contribution from the employer is foreclosed” … . Therefore, [plaintiff’s employer] cannot maintain contribution or contractual indemnification claims against NYCT … and [plaintiff’s employer’s] proposed cross claims against NYCT would be palpably insufficient or patently devoid of merit … . Morales v Hapag-Lloyd AG. (America), 2015 NY Slip Op 09079, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

WORKER’S COMPENSATION (FEDERAL LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT)/FEDERAL LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT

Employer Was Not Prejudiced by Claimant’s Failure to Give Timely Notice of the Accident, Claim Allowed

The Third Department determined the claimant’s failure to provide timely notice of the accident did not bar his claim:

Failure to provide timely written notice of an accident to an employer pursuant to Workers’ Compensation Law § 18 generally bars the claim “unless the Board excuses that failure on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced” … . Here, although claimant did not provide written notice of the January 2, 2012 accident to the employer, he filed his claim for benefits based upon that accident with the Workers’ Compensation Board on January 31, 2012. On February 6, 2012, the Board provided its Notice of Case Assembly to the employer, which informed the employer of the claim, the date of the accident and that claimant was alleging injuries to his head, neck and back. Notably, the record reflects that claimant received prompt medical attention, including MRIs of his lumbar and cervical spine in February 2012. Under these circumstances, substantial evidence supports the decision of the Board that the short delay between the expiration of the 30-day notice period and the employer receiving notice of the claim did not prejudice the employer so as to prevent it from properly investigating the claim … . Matter of Lopadchak v R.W. Express LLC, 2015 NY Slip Op 08490, 3rd Dept 11-19-15

 

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