You are here: / Workers' Compensation

Even When the Injured Worker, Who Had Received Workers’ Compensation Benefits, Successfully Sues His Employer (As Opposed to a “Stranger”) for His Injuries, the Workers’ Compensation Carrier Has a Lien Against the Recovery Pursuant to Workers’ Compensation Law 29(1)

The Third Department noted that, even though the worker who had received workers’ compensation benefits successfully sued his employer (as opposed to a third party) for his injuries, the workers’ compensation carrier still had a lien against the recovery (Workers’ Compensation Law 29(1)):

“When a claimant obtains recovery in a civil action for the same injuries that were the predicate for workers’ compensation benefits, the carrier has a lien against any recovery (see Workers’ Compensation Law § 29 [1]), even where the action is brought against an employer” … . Indeed, as the Court of Appeals has recently reaffirmed, “‘[Workers’ Compensation Law § ] 29, read in its entirety and in context, clearly reveals a legislative design to provide for reimbursement of the compensation carrier whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits'” … . The Court reasoned that “[i]t would be unreasonable to read the statute as mandating a different result merely because the recovery came out of the pockets of a coemployee [or the employer] and not from the resources of a stranger” … . Ronkese v Tilcon N.Y., Inc., 2015 NY Slip Op 04908, 3rd Dept 6-11-15

 

Approval of an MRI Within Seven Years of Closure of Claimant’s Case Effectively Reopened the Case—Transfer to the Special Fund for Closed Cases Was Error

The Third Department determined the fact that an MRI had been approved demonstrated that the claimant’s case had not been closed for the requisite seven years. Liability therefore was not shifted to the Special Fund for closed cases:

Pursuant to Workers’ Compensation Law § 25-a, the Special Fund becomes liable for claims that are reopened more than seven years from the date of the injury and three years after the last payment of compensation … . There is no dispute that this case was initially closed as of June 20, 2005. In its amended decision, the Board determined that the case was first reopened in April 2012 when the MRI was requested, but closed once that application was approved. Finding that the case was again reopened when surgery was requested on June 26, 2012, the Board determined that the requisite seven-year time period had passed, shifting liability to the Special Fund.

This sequence calls into question whether the case was “truly closed” when the MRI request was approved. We have previously recognized that a “decision authorizing [an] MRI [does] not constitute a true closing of the case as [the] claimant’s future treatment depended upon the results of the MRI and, thus, further action was contemplated although not planned at that time” … . The same holds true here. As such, we conclude that the Board erred in concluding that the case was closed when the MRI was authorized. Correspondingly, since the case was reopened when the MRI was requested in April 2012, within the statutory seven-year period, liability does not shift to the Special Fund. Matter of Bank v Village of Tuckahoe, 2015 NY Slip Op 04894, 3rd Dept 6-11-15

 

Lump Sum Settlement with Third Party Barred Transfer of Employer’s Liability for Future Medical Payments to the Special Fund

The Third Department, in a full-fledged opinion by Justice Stein, determined that a lump sum payment from a third party, to which the employer agreed in return for the worker’s forebearance re: future indemnity payments by the employer, barred the transfer of the employer’s liability for future medical payments to the Special Fund:

Pursuant to Workers’ Compensation Law § 25-a, liability for a claim will be transferred to the Special Fund when an application is made to reopen a closed case after a lapse of seven years from the date of the injury and three years from the date of the last payment of compensation … . The issue here distills to when the last payment of compensation was made in light of the settlement agreement between claimant and the employer. …

Pursuant to Workers’ Compensation Law § 25-a (7), where a case is “disposed of by the payment of a lump sum,” the date of the last payment of compensation is established by calculating the date to which the amount paid in the settlement would have extended had the award of indemnity benefits been made at the maximum compensation rate warranted on the date the lump-sum payment was approved … . Here, the employer entered into an agreement with claimant on December 30, 2008 that permitted claimant to retain the proceeds of the third-party action in exchange for, among other things, his forebearance of future indemnity benefits. In our view, these proceeds constituted a lump-sum payment for purposes of the statute. Contrary to the employer’s contention that the statute only applies where the employer itself makes a lump-sum payment to the claimant, we note that the plain language of the statute indicates that it applies “where the case is disposed of by the payment of a lump sum,” without reference to the source of such payment (Workers’ Compensation Law § 25-a [7]). Thus, because the settlement agreement effectively “disposed” of the employer’s obligation to pay future indemnity benefits in exchange for claimant’s retention of a lump-sum payment from the third-party action, application of the statute is appropriate to bar transfer of liability for future medical benefits to the Special Fund. Matter of Nicpon v Zelasko Constr Inc, 2014 NY Slip Op 04102, 3rd Dept 6-5-14

 

No Need to Be Affiliated with an Authorized Rescue Entity or Volunteer Agency to Qualify for Benefits from World Trade Center Volunteer Fund

The Third Department, in a full-fledged opinion by Justice Egan, determined that the claimant, who was not affiliated with any authorized rescue entity or volunteer agency, but who participated in rescue efforts at or near the World Trade Center on September 11 and 12, 2001, was entitled to Workers’ Compensation benefits:

Workers’ Compensation Law article 8-A, which is to be afforded a liberal construction, “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 World Trade Center September 11, 2001 attack'” …, quoting Senate Mem in Support, 2006 McKinney’s Session Laws of NY, at 1915). A “volunteer” may qualify for coverage under the statute provided he or she tenders to the Board satisfactory evidence that he or she participated in the rescue, recovery, or cleanup operations at the World Trade Center site (see Workers’ Compensation Law § 161 [1]; [b]; [i]) — a geographical location defined by Workers’ Compensation Law § 161 (2) — between September 11, 2001 and September 12, 2002 and suffers from a “[q];ualifying condition,” including rhinitis and sinusitis (see Workers’ Compensation Law § 161 [3]; [a]), gastroesophageal reflux disease (see Workers’ Compensation Law § 161 [3]; [c]) and anxiety or depression (see Workers’ Compensation Law § 161 [3]; [d]). Here, the Board did not directly address the time, location and activity elements of the statute; rather, the Board denied claimant’s application for workers’ compensation benefits solely because claimant “did not serve under the direction of an authorized rescue entity or volunteer agency” and, hence, “[did]; not meet the definition of [a]; volunteer” within the meaning of Workers’ Compensation Law article 8-A.

* * * Noticeably absent from both Workers’ Compensation Law article 8-A and the commonly understood meaning of the word volunteer is any requirement that such individual “serve under the direction of an authorized rescue entity or volunteer agency.” Accordingly, the Board’s imposition of such a requirement is, to our analysis, contrary to the plain terms of the statute. Matter of Hazan v WTC Volunteer Fund, 2014 NY Slip Op 04103, 3rd Dept 6-5-14

 

,

Courts Do Not Defer to an Agency’s Construction of a Statute—Workers’ Compensation Board’s Determination, Based Upon the Construction of Workers’ Compensation Law 25, Reversed

In the context of a “conciliation process” pursuant to Workers’ Compensation Law 25, the Third Department explained the court’s role in reviewing the determination of an agency when statutory construction is the sole issue. Unlike the factual determinations of an agency, to which courts must defer, no such deference is afforded an agency’s construction of a statute. Reversing the Workers’ Compensation Board, the Third Department held that the statute unambiguously entitled claimant to a penalty imposed upon the employer for failure to timely make compensation payments:

Where, as here, the issue is one of pure statutory construction, no deference need be accorded to the Board’s interpretation of the statutory framework … . As to our construction of Workers’ Compensation Law § 25, “the text of a statute is the best evidence of legislative intent and, where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” … . Further, the provisions within that statute must be “construed together unless a contrary legislative intent is expressed, and courts must harmonize the related provisions in a way that renders them compatible” … .

Turning to the relevant statutory provisions, Workers’ Compensation Law § 25 has two mechanisms for penalizing employers or workers’ compensation carriers who fail to make timely payment of compensation following a decision. The first provides that, “[i]f the employer or its insurance carrier shall fail to make payments of compensation according to the terms of the award within [10] days . . ., there shall be imposed a penalty equal to [20%] of the unpaid compensation which shall be paid to the injured worker or his or her dependents” (Workers’ Compensation Law § 25 [3] [f]). The second provides that, if payment is not made within 10 days of a proposed conciliation decision becoming final, “the chair [of the Board] shall impose . . . a fine of [$500] for failure to live up to the terms of the decision upon verification that payment has not been timely made” (Workers’ Compensation Law § 25 [2-b] [h]; see 12 NYCRR 312.5 [i]).

The statutory scheme unambiguously entitles claimant to the penalty described in Workers’ Compensation Law § 25 (3) (f). Matter of Liberius v New York City Health & Hosps. Corp., 2015 NY Slip Op 04706, 3rd Dept 6-4-15

 

Open Question About Whether Claimant Was Permanently Disabled Indicated Claimant’s Case Was Not Truly Closed in 2005—Transfer of Claim to the Special Fund (for Closed Cases) Properly Denied

The Third Department determined open questions about whether the claimant was permanently disabled demonstrated that claimant’s case was not truly closed in 2005.  Therefore transfer of the claim to the Special Fund was not warranted:

“Workers’ Compensation Law § 25-a shifts liability for a claim 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” … . “Whether there has been a true closing of the case is a factual issue for the Board to resolve and its determination in this regard will be upheld if supported by substantial evidence” … .

Here, a report based upon an independent medical examination of claimant was filed with the Board in 2005 in which the examiner opined that claimant had reached maximum medical improvement at that time and classified her as suffering from a mild degree of disability. Inasmuch as this report raised the issue of claimant having a permanent disability, which remained unresolved in 2011 when the employer requested that liability shift to the Special Fund, substantial evidence supports the Board’s decision that the case was not truly closed at that time and Workers’ Compensation Law § 25-a did not apply … . Matter of Kettavong v Livingston County SNF, 2015 NY Slip Op 04556, 3rd Dept 5-28-15

 

“Special Errand” Exception to the “Going and Coming” Rule Applied—Workers’ Compensation Claim Is Plaintiff’s Sole Remedy

The Second Department determined plaintiff’s sole remedy against her employer (defendant Margaret Layton) was a Workers’ Compensation claim.  Plaintiff was asked by Layton to walk Layton’s dog because Layton was in court on a personal matter and could not walk the dog herself. Plaintiff fell down a staircase in Layton’s home, apparently in the course of walking the dog. The Second Department held that the walking of the dog “fell within the ‘special errand’ exception to the ‘going and coming’ rule of the Workers’ Compensation Law, thus making workers’ compensation the plaintiffs’ sole remedy” … In the usual case, injury incurred going to or coming from work is not within the ambit of the Workers’ Compensation Law . Curley v Layton, 2015 NY Slip Op 04270, 2nd Dept 5-20-15

 

Unexplained Collapse of Worker on the Job Properly Presumed to Arise Out of Employment

The Third Department determined the worker’s death was compensable.  The worker, who had an enlarged heart, collapsed on the job and later died. There was evidence that the heart arrhythmia which may have caused death may have been work-related:

“‘Unexplained or unwitnessed accidents which occur in the course of employment are presumed, pursuant to Workers’ Compensation Law § 21 (1), to arise out of such employment'” … . In order to rebut the presumption, the employer was required to come forward with substantial evidence demonstrating that decedent’s death was not work-related … .

The employer relies on the autopsy report and an independent medical report by Stephen Nash, a cardiologist who reviewed the records on the employer’s behalf. Nash opined that decedent’s death was caused by a cardiac arrhythmia superimposed on the underlying condition of his enlarged heart. Nash attributed evidence of decedent’s lack of sleep as a contributory factor, but did not rule out decedent’s work as playing a role in his death. Although decedent’s coworkers witnessed the accident and the autopsy report lists the enlarged heart as the cause of death, the Board appropriately invoked the presumption of compensability inasmuch as “the cause of decedent’s fatal arrhythmia remains unexplained” … . Matter of Estate of Moody v Quality Structures Inc, 2014 NY Slip Op 03313, 3rd Dept 5-8-14

 

,

Preliminary Injunction Prohibiting the Levying of Deficit Assessments by the Workers’ Compensation Board Properly Granted

The Fourth Department determined Supreme Court properly issued a preliminary injunction. All the criteria—irreparable harm, likelihood of success on the merits, and balancing of the equities—were met. The case involved the Workers’ Compensation Board’s levying of deficit assessments against petitioners pursuant to Workers’ Compensation Law section 50.  Matter of Riccelli Enters Inc v State of NY Workers’ Compensation Bd, 2014 NY Slip Op 03067, 4th Dept 5-2-14

 

,

Lump Sum Payments for Pending Workers’ Compensation Claims Made by Municipalities Choosing to Withdraw from a Workers’ Compensation Self-Insurance Fund Must Be Discounted to Present Value

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a partial dissent, determined that the lump sum to be paid by municipalities for pending workers' compensation claims when withdrawing from a workers' compensation self-insurance fund should be discounted to present value.  The court noted that the lump sum was to be used to pay out workers' compensation benefits for years to come:

Generally, discounting future damages to their value at some point in the past is appropriate because it takes into account the time value of money. “[W]hen an amount intended to compensate for a future loss is discounted back to a particular time, the discounted amount represents the sum which, if invested at that time at reasonable rates of return, would theoretically produce the intended amount at the future time when the loss is incurred” .. . We are perhaps most familiar with discounting in wrongful death, personal injury, and medical malpractice actions, where discounting is required by statute (see CPLR 5031; 5041). In those contexts, it is often the future earning power of the injured party, or a similar measure of future damages, that must be reduced to its value on the date of injury. However, there is no material difference between the value of a decedent's future income in a wrongful death case and the value of workers' compensation benefits to be paid out over the life of a disability claim. In both cases, some or all of the losses will be incurred in the future. Here, the injury in question is a breach of contract, and the future losses manifest themselves in the form of contract damages. Village of Ilion v County of Herkimer, 2014 NY Slip Op 02873, CtApp 5-1-14

 

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