You are here: / Workers' Compensation
,

Plaintiff Was Injured When an Anvil Fell Out of a Co-Worker’s Vehicle When Plaintiff Opened the Tailgate to Retrieve a Hat—Because Retrieving the Hat Was Work-Related, Plaintiff Was Unable to Sue the Defendant In Negligence (Failure to Warn Re: the Anvil) Under the Theory that Placement of the Anvil in the Vehicle Was Not Work-Related

The Third Department determined the exclusive-remedy aspect of the Workers’ Compensation Law required the dismissal of a negligence suit.  Plaintiff and defendant were co-employees, horse trainers.  While they were working, plaintiff asked defendant for a hat because she was chilled.  Defendant gave plaintiff the keys to his vehicle, telling her the hat was in the rear cargo area. Plaintiff opened the tailgate of the vehicle and an anvil fell out, injuring her foot.  Although plaintiff received workers’ compensation benefits, she argued she should be able to sue under a negligence theory because the defendant’s placing an anvil in his vehicle had nothing to do with work.  The Third Department held that, because the request for a hat was work-related, the negligence suit was properly dismissed:

Whether defendant’s actions were “within the scope of employment or purely personal” involves an assessment of whether they were “both reasonable and sufficiently work related under the circumstances” … . While at work, defendant offered to lend an uncomfortable coworker a hat and, because “some advantage to the employer, even though slight, can be discovered in [that] conduct, his act cannot be regarded as purely personal and wholly unrelated to his employment” … . Notwithstanding the lack of any connection between the anvil and defendant’s employment, he was “acting within the scope of his employment” when he lent plaintiff the hat — and allegedly committed a tortious act by failing to warn plaintiff that objects may fall if she opened the tailgate — so as to trigger the exclusivity provisions of the Workers’ Compensation Law… .  Correa v Anderson, 2014 NY Slip Op 08093, 3rd Dept 11-20-14

 

Employer Did Not Submit Employee Benefit Plan as Required by Workers’ Compensation Law 25 (4) (c)—Therefore the Employer Was Entitled to Reimbursement Only for the Workers’ Compensation Benefits Paid to the Employee and Not for the Amounts Paid Under the Employee Benefit Plan

The Third Department determined the employer was entitled to reimbursement only of the amount paid to an injured employee as worker’s compensation benefits, and not for the payments to the injured employee from a supplement (employee benefit) plan which paid the difference between the worker’s salary and the benefits:

The employer argues that the Board erred in applying Workers’ Compensation Law § 25 (4) (c), rather than subdivision (4) (a) of that section, in resolving its reimbursement request. Section 25 (4) (c) requires that employers seeking reimbursement for benefits paid to an injured employee pursuant to an employee benefit “plan . . . [that] provide[s] that the injured employee . . . shall be limited in the amount of benefits or payments thereunder if he or she shall be entitled to [workers’ compensation] benefits under this chapter” must file “proof of the terms of [the employee benefit] plan . . . before award of compensation is made” (Workers’ Compensation Law § 25 [4] [c]…). This Court has held that an employer’s right to “seek credits against schedule awards for moneys paid pursuant to an employee benefit plan . . . stems from Workers’ Compensation Law § 25 (4) (c) and is limited by the restrictions in that provision” … . We concluded that subdivision (4) (a), which imposes no requirement to file the terms of a plan and, indeed, “makes no reference to proof of plan terms[,] . . . was not intended to address moneys paid from an employee benefit plan” …

Here, …the employer’s workers’ compensation supplement plan limited the amount of benefits that an employee with a work-related injury would receive as compared to an employee entitled to benefits under the employer’s short-term disability plan–essentially deducting workers’ compensation benefits from the amount paid in salary under the short-term disability plan. Even considering the workers’ compensation supplement plan alone, we conclude that the injured employee is limited in the amount of benefits paid “thereunder”–meaning from the plan itself–if he or she is awarded workers’ compensation benefits (Workers’ Compensation Law § 25 [4] [c]). While the employee initially receives his or her full salary from the supplement plan, if the employer is reimbursed out of a workers’ compensation award, then the employee has received less in (or is “limited in the amount of”) benefits from the supplement plan itself due to his or her entitlement to those workers’ compensation benefits. Thus, Workers’ Compensation Law § 25 (4) (c) is applicable and, inasmuch as the employer admittedly failed to file proof of the terms of the plan prior to the first award of benefits, the Board properly determined that the employer’s right to compensation was limited to the amount paid to claimant as workers’ compensation benefits… . NYS Workers’ Compensation Bd v Bast Hatfield Inc, 2014 NY Slip Op 08082, 3rd Dept 11-20-14

 

Workers’ Compensation Board’s Recovery of a Portion of Benefits Paid by the Board to an Injured Employee from the Special Disability Fund Did Not Operate to Satisfy the Board’s Judgment Against the Employer Re: those Benefits (Which the Employer Failed to Pay)

The Third Department determined that the Workers’ Compensation Board’s recovery from the Special Disability Fund (SDF) of a portion of the amount of a judgment against an employer did not operate to satisfy the judgment against the employer.  The judgment represented workers’ compensation benefits owed by the employer to an injured employee and paid by the Board:

In 2010, the Legislature added a clause to Workers’ Compensation Law § 50 (3-a) (7) (b) to provide that, … where a member fails to pay a levied assessment, the member “shall be deemed in default” (see L 2010, ch 56, part R, § 4). Once in default, the member is subject to the enforcement mechanism contained in Workers’ Compensation Law § 26, which provides, in pertinent part, that, where the employer defaults “in the payment of any compensation due under an award,” plaintiff may file, among other things, a certified copy of the decision awarding compensation and “thereupon judgment must be entered” … . * * *

When plaintiff [the Workers’ Compensation Board] was reimbursed by the SDF — which is also funded through plaintiff … it was essentially deprived of the ability to levy an assessment therefor. Thus, the judgment at issue here is intended to assist in recovering the money that plaintiff paid …, as plaintiff is authorized to do under Workers’ Compensation Law § 50 (5) (g). In sum, notwithstanding defendant’s claim that Supreme Court’s order results in a double recovery for plaintiff, given the statutory scheme, we conclude that no impermissible benefit to plaintiff results. Accordingly, we find that plaintiff’s judgment was not satisfied by reimbursement payments made by the SDF and, therefore, defendant’s motion for the filing of a satisfaction piece was properly denied. NYS Workers’ Compensation Bd v Bast Hatfield Inc, 2014 NY Slip Op 08082, 3rd Dept 11-20-14

 

Employer Took Responsibility for Transporting Claimant Home After Cancellation of Work Due to a Storm—Injury During Ride Home Compensable

The Third Department affirmed the Workers’ Compensation Board’s determination that plaintiff was injured on the job.  A snowstorm forced the cancellation of work and the employer took responsibility for getting the claimant home.  Because the van used to transport claimant had no seats, claimant injured her spine during the trip:

Generally, travel to and from the place of employment is not considered to be within the scope of employment and, thus, injuries sustained during that period are not compensable … . However, an exception arises when the employer takes responsibility for transporting employees, particularly where the employer is in exclusive control of the means of conveyance … . The key determination in establishing compensability is whether there is “some nexus between the accident and the employment” … . Here, it is undisputed that the employer furnished the van for transportation, one of claimant’s supervisors was the driver and, further, claimant’s injuries were sustained during the course of that transportation while she was still on the clock and being paid. Inasmuch as the employer took responsibility for the inherent risks of transporting its employees from the work site and had exclusive control of the conveyance, we find no reason to disturb the Board’s determination that claimant’s injury arose out of and in the course of her employment … . Matter of Noboa v International Shoppes Inc, 2014 NY Slip Op 07540, 3rd Dept 11-6-14

 

Where an Injured Worker Remains Attached to the Work Force After Injury, the Measure of Benefits Is the Difference Between Actual Earnings Before and After Injury and Cannot Be Based On Evidence of What the Worker Could Be Earning

The Third Department determined that the Workers’ Compensation Board correctly calculated the benefits to which claimant was entitled based upon her actual earnings in her new job in a delicatessen, as opposed to the amount her employer argued she was capable of earning.  Claimant was a nurse’s aid who injured her back while working in a nursing home:

Following a hearing, a Workers’ Compensation Law Judge determined that she had a permanent partial disability and calculated her weekly compensation rate — i.e., two thirds of the difference between what her average weekly wage would be absent injury and her current wage-earning capacity (see Workers’ Compensation Law § 15 [3] [w]), as measured by her degree of disability. Upon claimant’s application for review, the Workers’ Compensation Board increased claimant’s degree of disability and concluded that her wage loss benefits should be based upon her actual reduced earnings from the delicatessen where she now works, as opposed to her degree of disability, and adjusted her weekly awards accordingly. …

“[B]efore awarding wage replacement benefits in a nonschedule permanent partial disability case,” the Board must determine “whether a claimant has maintained a sufficient attachment to the labor market” … — i.e., that the claimant’s “reduced earning capacity is due to the disability, not . . . factors unrelated to the disability” (id. [internal quotation marks and citations omitted]), such as “‘age, [or] general economic conditions'” … . Once it is determined that a claimant’s reduced earning capacity remains involuntary and related to his or her permanent partial disability, “[t]he wage earning capacity of an injured employee . . . shall be determined by his [or her] actual earnings” while disabled (Workers’ Compensation Law § 15 [5-a]…). In that regard, the Court of Appeals has repeatedly explained that, for claimants who have demonstrated that they remained attached to the labor market, “where actual earnings during the period of the disability are established, wage earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period”… . Matter of Gioia v Cattaraugus County Nursing Home, 2014 NY Slip Op 07535, 3rd Dept 11-6-14

 

Insufficient Proof Plaintiff Was Defendant’s Special Employee

The Second Department determined the defendant did not demonstrate plaintiff was its special employee.  Therefore summary judgment dismissing plaintiff’s personal injury suit based upon plaintiff’s receiving Workers’ Compensation benefits from his general employer should not have been granted:

“The receipt of Workers’ Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer” … . In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee’s work, the method of payment, the furnishing of equipment, and the right to discharge … . “A significant and weighty factor . . . is who controls and directs the manner, details and ultimate result of the employee’s work'” … .

Contrary to the determination of the Supreme Court, the defendant failed to come forward with sufficient evidence of a special employment relationship to demonstrate its prima facie entitlement to judgment as a matter of law, since its submissions on the motion did not establish, inter alia, that it controlled and directed the manner, details, and ultimate result of the plaintiff’s work … . Nolan v Irwin Contr Inc, 2014 NY Slip Op 07339, 2nd Dept 10-29-14

 

Posttraumatic Stress Disorder Deemed a Compensable Consequential Injury Stemming from a Prior Physical Injury

The Third Department affirmed the board’s finding that claimant was entitled to workers’ compensation benefits based in part upon posttraumatic stress disorder.  Claimant worked in a facility which housed juveniles who had committed the equivalent of felonies. Claimant was injured trying to control an unruly resident.  Thereafter, claimant, as part of his job, monitored video feeds from the facility and he often observed unruly behavior which reminded him of the incident in which he was injured:

Whether a subsequent disability arose consequentially from an existing compensable injury is a factual question for resolution by the Board, and its determination will not be disturbed when supported by substantial evidence” … . A consequential injury, in turn, is one that “result[s] directly and naturally from claimant’s prior injuries and the disability thereby produced” … . Claimant here testified that he was assigned to monitor video feeds of the facility upon his return to work from his back injury, work that required him to constantly observe the unruly behavior of the residents and reminded him of the initial incident and his injuries. His injuries left him feeling helpless to assist the coworkers he observed dealing with the residents, and he ultimately sought medical assistance after he became enraged and blacked out due to watching numerous incidents where other employees required aid. Claimant was thereafter diagnosed with posttraumatic stress disorder, accompanied by anxiety and depression, and his treating psychologist stated in no uncertain terms that those conditions flowed from the May 2010 incident and the injuries he sustained therein. The Board credited the psychologist’s factually specific opinion … , and the employer submitted no medical evidence to rebut it. Under these circumstances, we find substantial evidence in the record to support the Board’s determination … . Matter of Dowdell v Office of Family & Children Servs., 2014 NY Slip Op 06626, 3rd Dept 10-2-14

 

, ,

Failure to Comply with California Insurance Law Rendered Arbitration Clauses in Agreements Issued by a California Workers’ Compensation Insurance Carrier Unenforceable

The First Department, in a full-fledged opinion by Justice Moskowitz, over a dissent, determined that the arbitration clauses within payment agreements issued by the California workers’ compensation insurance carrier were not enforceable because the clauses had not been reviewed as required by California law.  The agreements provided that any arbitration be under the auspices of the Federal Arbitration Act (FAA).  But the court determined California’s insurance law was not preempted by the FAA (pursuant to the McCarran-Ferguson Act) and, therefore, the failure to comply with California law rendered the arbitration clauses void and unenforceable:

…”[T]he McCarran-Ferguson Act was an attempt to . . . assure that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation” (…see 15 USC § 1011). Courts have established a four-part test to determine whether the McCarran-Ferguson Act precludes application of a federal statute (in this case, the FAA). Under this test, a federal statute is precluded if: (1) the statute does not “specifically relate” to the business of insurance; (2) the acts challenged under the statute constitute the “business of insurance”; (3) the state has enacted laws regulating the challenged acts; and (4) the state laws would be “invalidated, impaired, or superseded” by application of the federal statute ….

…[T]he FAA does not specifically regulate the business of insurance, and an act specifically relating to the business of insurance is the only type of federal legislation that can preempt state insurance law under McCarran-Ferguson. Furthermore, application of the FAA would modify California law because it would mandate arbitration even though [the insurer] did not, as required by California law, file the payment agreements, and the payment agreements, in turn, contained the arbitration clauses. Matter of Monarch Consulting Inc v National Union Fire Ins Co of Pittsburgh PA, 2014 NY Slip Op 06158, 1st Dept 9-11-14

 

Costs Properly Assessed Against Carrier for Instituting Proceedings Without Reasonable Ground

The Third Department affirmed the Workers’ Compensation Board’s assessment of costs against the carrier for instituting proceedings without reasonable ground:

Workers’ Compensation Law § 114-a (3) (i) permits the Board to assess costs against a party who has “instituted or continued [a proceeding before the Board] without reasonable ground.” Here, the carrier previously had been warned that counsel’s failure to respond to its request for an updated work search history — standing alone — would be insufficient to reopen the underlying claim and, more to the point, was apprised “in very clear terms of the requirements for [the] supporting evidence necessary to reopen this claim on the question of whether . . . claimant ha[d] voluntarily removed herself from or [wa]s no longer attached to the labor market.” Despite that express directive, the carrier nonetheless made a second request to reopen premised solely upon counsel’s failure to respond to the carrier’s request for additional information. Under these circumstances, we discern no abuse of discretion in the Board’s decision to assess costs against the carrier … . Matter of Bailey v Achieve Rehab & Nursing, 2014 NY Slip Op 05475, 3rd Dept 7-24-14

 

,

Action Against Broker for Failure to Procure Correct Coverage Should Not Have Been Dismissed/Question of Injured Worker’s Employment Status Must First Be Determined by the Workers’ Compensation Board

The Second Department determined that a cause of action alleging the insurance broker (Crystal) failed to purchase adequate insurance in response to a request from the insured (Mariani) should not have been dismissed.  The insured’s worker was injured on the job and the insurer disclaimed coverage because the policy did not cover subcontractors.  The Second Department also determined that it was up to the Workers’ Compensation Board to first determine the injured worker’s employment status and Supreme Court should not inject itself into that question until the Board acts:

“An insurance agent or broker . . . may be held liable under theories of breach of contract or negligence for failing to procure insurance . . . An insured must show that the agent or broker failed to discharge the duties imposed by the agreement to obtain insurance, either by proof that it breached the agreement or because it failed to exercise due care in the transaction” … . Crystal was not entitled to judgment as a matter of law because it failed to establish, prima facie, that it procured the adequate coverage that Mariani had engaged it to procure … . Siekkeli v Mark Mariani Inc, 2014 Slip Op 05319, 2nd Dept 7-16-14

 

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