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THE BOARD’S REVERSAL OF THE WORKERS’ COMPENSATION LAW JUDGE’S FINDING CLAIMANT HAD NOT MADE A WILLFUL MISREPRESENTATION WAS BASED ON SPECULATION AND SURMISE (THIRD DEPT).

The Third Department, reversing (modifying) the Worker’s Compensation Board, determined the Board’s finding that claimant made a willful misrepresentation was based upon speculation and surmise:

… [T]he Board reversed the WCLJ, who had found “no evidence of a wi[l]lful misrepresentation with the intent to deceive either the Board or the carrier or anyone [who] has an interest.” The Board’s contrary determination relied in part upon what it characterized as a discrepancy between claimant’s testimony during two different appearances. In 2015, during a brief appearance to find jurisdiction and set the matter for trial, claimant’s attorney asked her whether she was “suing any third party for injuries,” and she responded, “Yes.” Her attorney then immediately asked, “Only this claim?” to which she also replied, “Yes.” The WCLJ interjected, “We have to ask to see if there is a Supreme Court action.” Claimant’s attorney then asked about the date of the next hearing[*3], the WCLJ stated a time and expected duration and the employer’s attorney is recorded as having added, “Case was not even filed.” The WCLJ then directed that the record be held, and an off-record discussion took place, after which the appearance concluded. In 2016, claimant was asked during a hearing whether she had sued anyone, and she repeatedly denied having done so. When questioned about the foregoing in 2021, she explained that the 2016 denial was based upon her belief that, because she was no longer pursuing her third-party action, it did not constitute bringing a lawsuit.

The Workers’ Compensation Board characterized claimant’s 2015 testimony as “confirm[ing] that she was suing a third party.” It noted the significance of the inconsistency between that purported confirmation and her subsequent denials, discredited her 2021 explanation that she denied having sued anyone because she lacked understanding of the law and concluded that she willfully made false statements in violation of Workers’ Compensation Law § 114-a.

… [W]e find the Board’s characterization of claimant’s 2015 testimony to be based upon speculation and surmise … . Matter of Salvia v Nutritional Frontiers LLC, 2023 NY Slip Op 06177, Third Dept 11-30-23

Practice Point: Where the Workers’ Compensation Board reverses a finding by the Workers’ Compensation Law Judge based solely upon surmise and speculation, the court will reverse the Board.

 

ALTHOUGH THE PARKING/STORAGE AREA WHERE CLAIMANT WAS INJURED WAS NOT ON THE CONSTRUCTION SITE, THERE WAS A SUFFICIENT NEXUS BETWEEN THE PARKING/STORAGE AREA AND THE CONSTRUCTION SITE SUCH THAT CLAIMANT’S PLACE OF EMPLOYMENT EXTENDED TO THE PARKING/STORAGE AREA (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the parking area where claimant was injured had a “sufficient nexus” with the construction site. Therefore claimant’s injury, incurred pulling the gate to the parking/storage area, arose from petitioner’s employment:

Although the parking area where claimant was injured was not part of the construction site, and notwithstanding the fact that the injury occurred after claimant’s shift had ended for the day, claimant’s uncontradicted testimony demonstrates that he was instructed to park in that area. Moreover, because claimant also testified without contradiction that the general contractor stored building materials in the at-issue area and restricted the public’s access to that area, there was a sufficient nexus in time and place between the construction site and the parking area such that claimant’s place of employment — i.e. the construction site — extended to the parking area where claimant’s injury occurred, and “claimant was [thus] exposed to a risk not shared by the public generally” … . Matter of Espinoza v City Safety Compliance Corp., 2023 NY Slip Op 05172, Third Dept 10-12-23

Practice Point: The Third Department determined the parking/storage area across from the construction site should be considered part of claimant’s place of employment. Therefore, his injury, which stemmed from claimant’s opening or closing the gate to the parking/storage area, arose from his employment.

 

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THE BOARD’S FINDINGS ON THE EXTENT OF PETITIONER’S DISABILITY WERE NOT SUPPORTED BY THE MEDICAL EVIDENCE SUBMITTED TO THE BOARD; REVERSAL WAS REQUIRED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board’s findings about the extent of petitioner’s disability were not based on the medical evidence presented at the hearing:

Inasmuch as “it appears that the Board’s decision may have been based on an inaccurate reading of the record or incomplete facts, it cannot be sustained” … . ” ‘Since this Court has limited power to review the sufficiency of evidence and lacks the ability to weigh conflicting proof’ ” … , we cannot ascertain what decision the Board would have reached had it accurately reviewed the reports and testimony that were before it, and, therefore, the matter must be remitted to the Board for further proceedings so that a proper assessment of the evidence can occur … . Matter of Ayars v Navillus Tile Co., 2023 NY Slip Op 04691, Third Dept 9-21-23

Practice Point: If the Workers’ Compensation Board’s findings on the extent of the worker’s disability are not supported by the medical evidence submitted to the Board, the determination must be reversed.

 

ALTHOUGH INJURY IN A TRAFFIC ACCIDENT ON THE WAY TO WORK IS USUALLY NOT COVERED BY WORKERS’ COMPENSATION, HERE THE “SPECIAL ERRAND” EXCEPTION APPLIED BECAUSE CLAIMANT, A POLICE OFFICER, WAS ENGAGED IN AN INVESTIGATION AND ON HIS WAY TO PICK UP A POLICE VEHICLE WHEN THE ACCIDENT OCCURRED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the “special errand” exception applied and claimant, who was injured on his way to the police precinct after being called to investigate a grand larceny, was entitled to Workers’ Compensation benefits. Although injury on the way to work is usually not covered, here claimant had already coordinated an investigation into the grand larceny and was on his way to pick up his police vehicle at the time of the traffic accident:

At the hearing, there was testimony from the employer’s witness that claimant’s shift and overtime pay did not begin until claimant arrived at the police station and checked out a police vehicle. Even if true, however, these facts are not dispositive of whether the special errand exception applies. Irrespective of when claimant’s overtime pay began, the record reflects that claimant was contacted at 4:15 a.m., at which time claimant began his command and coordination of the criminal investigation of the grand larceny. It was at this point that claimant was engaged in a special errand, as he was then required to report to work early in order to pick up a police vehicle so that he could proceed directly to the crime scene in that vehicle. Although claimant testified that he traveled to the police station along his “usual geographical” route, the work-related activity that claimant was encouraged/required by his employer to do and performed for the employer’s benefit upon being called in early while on standby required claimant to “alter[ ] the usual . . . temporal scheme of travel, thereby altering the risks to which [claimant was] usually exposed during normal travel” (Matter of Neacosia v New York Power Auth., 85 NY2d at 479 …). The Board identified the correct standard articulated by the Court of Appeals but misapplied the special errand exception by overlooking the altered temporal scheme of claimant’s travel and significance of the work-related activity performed by claimant for the employer’s benefit upon being contacted by the employer while on standby … . Matter of Serrata v Suffolk County Police Dept., 2023 NY Slip Op 02725, Third Dept 5-18-23

Practice Point: Injury in a traffic accident on the way to work is not covered by Workers’ Compensation. Here, however,, the “special errand” exception applied because claimant, a police officer, was engaged in an ongoing investigation and was driving to the precinct to pick up his police vehicle when the accident occurred.

 

THE EVIDENCE SUPPORTED A CAUSAL CONNECTION BETWEEN THE STRESS CAUSED BY INTERACTION WITH CLAIMANT’S SUPERVISOR AND CLAIMANT’S HEART ATTACK (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined the evidence supported a causal relationship between the stress caused by interaction with claimant’s supervisor and the subsequent heart attack:

We agree with claimant’s contention that the Board’s decision is not supported by substantial evidence as its finding that claimant did not sustain a physical injury is inconsistent with the medical evidence as well as its own finding that claimant sustained a myocardial infarction. The sole medical evidence presented was that from Leslie Parikh, a cardiologist who treated claimant at the emergency room. Parikh testified unequivocally that claimant was diagnosed as suffering a myocardial infarction based upon the elevated troponin levels in claimant’s blood, which was consistent with a stress event on the heart, and opined that the heart attack was causally-related to claimant’s interaction with her supervisor at work. Based on this uncontroverted evidence, the Board, in fact, found that claimant suffered a myocardial infarction causally-related to work.

The Board, nevertheless, found that claimant did not sustain a physical injury, characterizing the incident as claimant having been “in mild emotional distress and . . . experience[ing] a stress event.” …  This is contrary to the unrefuted and unequivocal medical evidence and diagnosis that claimant suffered a myocardial infarction. Matter of DiMeo v Trinity Health Corp., 2023 NY Slip Op 02731, Third Dept 5-18-23

Practice Point: The treating physician determined claimants’ heart attack was caused by stress from interaction with claimant’s supervisor. Claimant was entitled to Worders’ Compensation benefits.

 

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THE PERSON WHO ASSAULTED PLAINTIFF WAS THE OWNER OF THE LAW FIRM PLAINTIFF WORKED FOR; PLAINTIFF COULD RECOVER WORKERS’ COMPENSATION BENEFITS FROM THE LAW FIRM AND DAMAGES FOR ASSAULT AND BATTERY FROM THE OWNER, WHO WAS A COEMPLOYEE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff could recover for assault and battery against a coemployee (Levoritz) even though plaintiff had been awarded Workers’ Compensation benefits from his employer for the same assault and battery. Plaintiff was employed by defendant law firm at the time of the alleged assault and battery and the law firm was owned by Levortiz:

The Supreme Court, however, erred in granting Levoritz’s motion for summary judgment dismissing the complaint insofar as asserted against him. Contrary to Levoritz’s contention, Workers’ Compensation Law § 29 does not bar an employee who has accepted workers’ compensation benefits from suing a coemployee who has committed an intentional assault against him or her … . Additionally, Levoritz failed to establish, prima facie, that he was acting within the scope of his employment at the time of the incident, and was not engaged in a willful or intentional tort … .

The Supreme Court should have granted that branch of the plaintiff’s cross-motion which was for summary judgment on the issue of liability on the cause of action to recover damages for assault and battery insofar as asserted against Levoritz. The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action to recover damages for assault and battery by showing, through the submission of his affidavit, that there was bodily contact, that the contact was offensive, that Levoritz intended to make the contact without the plaintiff’s consent, and that Levoritz placed the plaintiff in “imminent apprehension of harmful contact” … . In opposition, Levoritz failed to raise a triable issue of fact. Tarasiuk v Levoritz, 2023 NY Slip Op 02698, Second Dept 5-17-23

Practice Point: Here the person who assaulted plaintiff was the owner of the law firm plaintiff worked for. Plaintiff could recover Workers’ Compensation benefits from the law firm and damages from the owner of the firm, who was plaintiff’s coemployee.

 

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DEFENDANT COULD NOT SEEK INDEMNIFICATION FOR PLAINTIFF’S DAMAGES FROM THIRD-PARTY DEFENDANT BECAUSE PLAINTIFF WAS THE THIRD-PARTY DEFENDANT’S SPECIAL EMPLOYEE FOR WHOM WORKERS’ COMPENSATION WAS THE EXCLUSIVE REMEDY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Count, determined the defendant, TIA, could not seek indemnification for plaintiff’s damages from third-party defendant, Freeman, because plaintiff was Freeman’s special employee for whom Workers’ Compensation is the exclusive remedy:

Supreme Court should have dismissed TIA’s common-law indemnification and contribution claims on the ground that plaintiff was Freeman’s special employee when his accident occurred and therefore, the claims are precluded by the Workers’ Compensation Law. “A worker may be deemed a special employee where he or she is ‘transferred for a limited time of whatever duration to the service of another'” … . “While the mere transfer does not compel the conclusion that a special employment relationship exists, a court is most likely to find that it does where the transferee ‘controls and directs the manner, details and ultimate result of the employee’s work'” … . Carey v Toy Indus. Assn. TM, Inc., 2023 NY Slip Op 02280, First Dept 5-2-23

Practice Point: If plaintiff’s sole remedy against a party is Workers’ Compensation, a defendant cannot seek indemnification from that party. Here plaintiff was the third-party defendant’s special employee so defendant could not seek indemnification from the third-party defendant.

 

EXPOSURE TO AND CONTRACTION OF COVID-19 IN THE WORKPLACE IS AN UNUSUAL HAZARD WHICH IS COMPENSABLE UNDER THE WORKERS’ COMMPENSATION LAW; HOWEVER HERE THERE WAS NO PROOF DECEDENT CONTRACTED COVID-19 AT HIS WORKPLACE (THIRD DEPT).

The Third Department noted that contracting COVID-19 in the workplace qualifies as an unusual hazard which is compensable under the Workers’ Compensation Law. Here the claimant’s husband last worked on March 11, 2020, experienced COVID-10 symptoms on March 13 and died on March 29, 2020. But there was no evidence decedent was exposed to COVID-19 in the workplace:

… “[T]he contraction of COVID-19 in the workplace reasonably qualifies as an unusual hazard, not the natural and unavoidable result of employment and, thus, is compensable under the Workers’ Compensation Law” … . Nevertheless, whether a compensable accident has occurred is a question of fact to be resolved by the Board, and its determination in this regard will not be disturbed where supported by substantial evidence … . To this end, “the claimant bears the burden of establishing that the subject injury arose out of and in the course of his or her employment” … . …

Claimant offered no evidence or testimony of decedent’s specific exposure to COVID-19 in his workplace. Further, no evidence was presented indicating any cases of COVID-19 among those living or working in the group home where decedent was house manager, or among other employees with whom decedent may have had contact, prior to or contemporaneous with his onset of symptoms. In fact, the employer’s witness testified that decedent was the first known COVID-19 infection in his workplace. Although another worker at the same group home later contracted COVID-19 and succumbed to the disease, the employer’s witness testified that the other worker tested positive two weeks after decedent’s positive test. Moreover, claimant did not know the extent to which, if at all, decedent personally interacted with others at the group home where he worked. In view of the foregoing, substantial evidence supports the Board’s conclusion that claimant failed to meet her burden to demonstrate that decedent contracted COVID-19 in the course of his employment … . Matter of Holder v Office for People with Dev. Disabilities, 2023 NY Slip Op 02156, Third Dept 4-27-23

Practice Point: Exposure to and contraction of COVID-19 is an unusual hazard which is compensable under the Workers’ Compensation Law. Here however there was no proof decedent contracted COVID-19 at his workplace.

 

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IF THE WORKER’S COMPENSATION BOARD FINDS A DEFENDANT IN A CONSTRUCTION-ACCIDENT ACTION WAS PLAINTIFF’S EMPLOYER, PLAINTIFF’S RECOVERY AGAINST THE EMPLOYER IS RESTRICTED TO WORKER’S COMPENSATION BENEFITS AND OTHER DEFENDANTS CANNOT MAINTAIN ACTIONS FOR CONTRIBUTION OR INDEMNIFICATION AGAINST THAT EMPLOYER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Wan, determined the employees were restricted to worker’s compensation benefits in this construction-accident action against their employers and the other defendants were precluded from seeking contribution and indemnification from the employers:

Workers’ Compensation Law § 11(1) precludes recovery by “any third person” against “[a]n employer” for contribution or indemnity “for injuries sustained by an employee acting within the scope of his or her employment” unless the employee “has sustained a ‘grave injury'” or there is a “written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant.” Despite this clear directive, the Supreme Court, relying on this Court’s decision in Baten v Northfork Bancorporation, Inc. (85 AD3d 697), permitted cross-claims sounding in contribution and indemnity to survive against an entity on the ground that triable issues of fact existed with respect to whether that entity was an employer, regardless of a Workers’ Compensation Board determination on this issue. Here, we clarify that, notwithstanding our prior decision in Baten, no claim for indemnity or contribution may be maintained against an entity determined to be an employer by the Workers’ Compensation Board except in the limited circumstances specified in Workers’ Compensation Law § 11.* * *

… [W]e hold that Workers’ Compensation Law § 11 precludes recovery by any third party for contribution and indemnity against an entity determined by the WCB [Workers’ Compensation Board] to be the plaintiff’s employer except where the injured employee has suffered a grave injury or where the employer has expressly agreed in writing to contribute or indemnify.  Velazquez-Guadalupe v Ideal Bldrs. & Constr. Servs., Inc., 2023 NY Slip Op 02025, Second Dept 4-19-23

Practice Point: If the Workers’ Compensation Board determined a defendant in a construction-accident action was plaintiff’s employer, absent a “grave” injury or the employer’s agreement to contribute or indemnify, the plaintiff’s recovery is restricted to Workers’ Compensation benefits and there can be no recovery for contribution or indemnification against the employer by other defendants.

 

A WORKER WHO WAS INJURED IN NEW YORK BUT LIVES IN NEW JERSEY CAN SEEK TREATMENT FROM A NEW JERSEY DOCTOR WHO IS NOT AUTHORIZED BY THE WORKERS’ COMPENSATION BOARD, EVEN IF THE NEW JERSEY PHYSICIAN IS ALSO LICENSED IN NEW YORK (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined claimant, who was injured in New York but resided in New Jersey, was not required to seek treatment from a New Jersey doctor who was authorized to provide treatment by the Board, even where, as here, the New Jersey doctor is also licensed in New York:

“Generally, a workers’ compensation claimant who is injured in New York is entitled to treatment by a physician of his or her choice so long as the physician is licensed to practice in New York and has been authorized by the Board to provide care and treatment to claimants” … . Nevertheless, under our established precedent, “claimants who were injured in New York but [reside in] other states are entitled to receive treatment from qualified physicians in their [home] state” … , as the statutory authorization requirements “could not have been intended to prohibit the retention of a physician in another State in appropriate circumstances” … . We find no basis to deviate from our precedent here, where claimant received medical treatment in his home state of New Jersey from a New Jersey licensed physician.

… 12 NYCRR 323.1 provides … that a New York licensed physician is permitted to seek authorization from the Board to provide medical services under the Workers’ Compensation Law and, being so permitted, “must obtain such authorization prior to treating injured workers under the Workers’ Compensation Law” … . We do not, however, read this provision to require a physician who provides medical services in another state and under a license obtained in that state to nevertheless seek authorization from the Board prior to treating a claimant merely because he or she also happens to be licensed in New York. Matter of Gomez v Board of Mgrs. of Cipriani, 2023 NY Slip Op 00900, Third Dept 2-26-23

Practice Point. A worker who resides in New Jersey and was injured in New York can seek treatment from a New Jersey doctor who is not authorized by the Worker’s Compensation Board, even if the New Jersey doctor is also licensed in New York.

 

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