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Finding by Workers’ Compensation Law Judge Precluded Suit Under Labor Law and Common Law Negligence

Over a two-justice dissent, the Fourth Department determined the finding that no accident occurred by the Workers’ Compensation Law Judge precluded plaintiff from suing under the Labor Law and common law negligence for an injury allegedly incurred while working on a house.  The court rejected the argument that the Workers’ Compensation proceeding dealt soley with the existence or non-existence of an employer-employee relationship:

The doctrine of collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” … . Thus, “[t]he quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal” … . “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action” … .Here, defendant met his burden on his motion by establishing the “identicality and decisiveness of the issue” decided in the workers’ compensation proceeding… . Ridge v Gold, et al, 1300, 4th Dept 3-21-14

 

“Presumption of Compensability” Applied

The decedent was working, driving a truck, when his truck struck a toll booth. There was evidence the decedent had a stroke, either just before or after the accident. In affirming the validity of the claim, the Third Department explained the application of the “presumption of compensability:”

…[W]e reject the employer’s assertion that claimant failed to meet her burden of establishing a casually related death. “Pursuant to Workers’ Compensation Law § 21 (1), a presumption of compensability exists where, as here, an unwitnessed or unexplained injury occurs during the course of the affected worker’s employment”… . As relevant here, the statutory presumption is applicable where either a stroke occurs during work … or where the onset of stroke symptoms occurs during work … . If the presumption is applicable, a claimant is not required “‘to come forward, in the first instance, with prima facie medical evidence of a causal relationship between’ [the] injury and [the] employment” … . * * *Inasmuch as decedent clearly had an accident while working, and it was either the stroke that caused the accident or the accident that caused the stroke, the Board properly applied the presumption that decedent’s injury was causally related to his employment (see Workers’ Compensation Law § 21 [1]…). Matter of Stevenson v Yellow Roadway Corporation…, 516077, 3rd Dept 2-20-14

 

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Employer Which Hired Undocumented Workers Who Were Injured On the Job Protected from Suit by the Workers’ Compensation Law

In a full-fledged opinion by Judge Smith, the Court of Appeals determined the employer [Microtech] was entitled to the protection of the Workers’ Compensation Law and a suit against the employer by the hospital (which paid out Labor Law claims to the injured workers) was properly dismissed. The employer had hired undocumented workers [the Lemas] who were injured doing demolition work at the hospital. The workers were paid Workers’ Compensation benefits by the employer. The workers sued the hospital under the Labor Law and were awarded a verdict. The hospital then sued the employer which, the Court of Appeals held, was protected from suit by section 11 of the Workers’ Compensation Law:[Quoting the appellate division, the Court of Appeals wrote:]

…[T]o rule in the hospital's favor would “effectively deny [Microtech] the economic protections it acquired under the Workers' Compensation Law in return for providing [the Lemas] with compensation for their injuries,” as well as “relieve [the hospital] of its responsibility to ensure a safe construction site for workers under the Labor Law”… . New York Hospital Medical Center of Queens v Microtech Contracting Corp, 1, CtApp 2-13-14

 

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Interplay Between New York Labor Law and Federal Longshore Workers’ Compensation Act Discussed

Plaintiff was injured when he fell on a “float stage” which was used to transport workers and materials on navigable waters.  The First Department discussed the interplay between the Labor Law (elevation-related fall) and the Longshore Workers’ Compensation Act:

Since the accident in which plaintiff Joseph Pipia (hereinafter plaintiff) was injured occurred in navigable waters, and plaintiff, an employee who was covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA) (33 USC § 901 et seq.), has been receiving benefits thereunder, federal maritime law is applicable to this case … . Plaintiff may not sue his employer, JES, since the LHWCA “precludes recovery of damages against [the injured worker’s] employer” …. . …

Plaintiff is also barred from asserting any claims other than Labor Law § 200 and common-law negligence claims against Trevcon, the vessel owner (see 33 USC § 933…). Contrary to plaintiff’s contention, the float stage involved in his accident constituted a “vessel” for purposes of the LHWCA … . While it consisted of wooden planks bolted together, had limited weight capacity and could only be moved short distances from the pier, it was regularly used to carry workers and materials around the water. Although it generally was tied to land structures with a line, it sometimes was untied to allow a worker to move to a different location to pick up materials from the pier. … “[A] reasonable observer, looking to the [float stage]’s physical characteristics and activities, would . . . consider it to be designed to [a] practical degree for carrying people or things on water”… . Pipia v Turner Constr Co, 2014 NY Slip Op 00612, 1st Dept 2-4-14

 

Employer Reimbursed for Personal Leave Credits Used During Employee’s Disabilty

The Third Department determined that the employer should be reimbursed for the personal leave credits used by an employee during the period of disability.  The employee’s receiving full wages plus the leave time pay justified the reimbursement:

The circumstances presented here are distinguishable from Matter of Poupard v Mohonasen Cent. School Dist. (56 NY2d 764, 765 [1982]) and Matter of Jefferson v Bronx Psychiatric Ctr. (55 NY2d at 71), the cases relied on by the Board.  There, the employees charged time during disability to their accrued sick leave credits and, pursuant to their respective collective bargaining agreements, such used sick leave credits could not be restored.  Because the employees could later convert their accrued sick leave credits into retirement service credits, the loss of those credits resulted in a permanent benefit to the employers.  …

…[H]ere, the denial of reimbursement for payments related to personal leave credits would result in claimant receiving both full wages and compensation benefits for the time in question.  Such a result is disfavored and requires that reimbursement be granted to the employer… . Matter of Mott v Central New York Psychiatric Center…, 516708, 3rd Dept 1-9-14

 

Proof of Indemnification Agreement Insufficient

The Third Department determined the employer did not demonstrate that the contractor hired by the employer had agreed to indemnify the employer for damages related to the injury of the contractor’s employee:

Workers’ Compensation Law § 11 precludes third-party indemnification claims against employers unless the claim is “based upon a provision in 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 . . . person asserting the cause of action for the type of loss suffered” … . “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” … .  “Whether the parties did in fact have such an agreement involves a two-part inquiry.  First, we consider whether the parties entered into a written contract containing an indemnity provision applicable to the site or job where the injury giving rise to the indemnity claim took place. Second, if so, we examine whether the indemnity provision was sufficiently particular to meet the requirements of [Workers’ Compensation Law §] 11… . Trombley v Socha…, 516943, 3rd Dept 1-9-14

 

Attorney Penalized for Making a Baseless Request for a Change of Venue

The Third Department upheld the Board’s determination that counsel should be penalized for making a baseless request for a change of venue (closer to the attorney’s office):

Workers’ Compensation Law § 114-a (3) (ii) provides that “[i]f the [B]oard . . . determines that the proceedings in respect of [a claim for compensation], including any appeals, have been instituted or continued without reasonable ground[,] . . . reasonable attorneys’ fees shall be assessed against an attorney . . . who has instituted or continued proceedings without reasonable grounds.”  We will not disturb the Board’s imposition of a penalty for a violation of that statute so long as the determination is supported by substantial evidence … .  The Board considers a request for change of venue, which is a procedural motion, to constitute a proceeding for purposes of the statute.  Counsel was previously warned that what she cited as a “Board Rule” was actually a provision of a private legal treatise, that it did not accurately reflect the law or Board policy on venue, and that any further change of venue request filed based on that reasoning and citation “will be deemed a proceeding instituted without reasonable grounds and subject to the imposition of penalties under” the statute. Matter of Banton…, 516574, 3rd Dept 12-19-13

 

It May Be an Abuse of Discretion for the Board to Refuse to Review an Untimely Application Raising a Jurisdictional Issue/Board May Be Barred from Reopening a Closed Claim More than Seven Years After the Accident

The Third Department determined the Workers’ Compensation Board should have considered the employer’s untimely application for review because the employer raised a jurisdictional issue. The court noted that the Board may barred from reopening closed claims after more than seven years have elapsed since the accident:

“The general rule is that lack of jurisdiction to render a judgment or determination may be asserted at any time . . .” … .  Accordingly, “[w]hile the Board enjoys broad discretion to reject a late application for review,” its refusal to consider an untimely challenge to its jurisdiction may constitute an abuse of discretion … .

While the Board generally retains continuing jurisdiction over workers’ compensation claims, it is barred from reopening a claim “that has been . . .  disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits, [where there has been] a lapse of seven years from the date of the accident” (Workers’ Compensation Law § 123;…). Workers’ Compensation Law § 123 accordingly acts to “prevent a brand new attempt to prove up a stale claim” …, and deprives the Board of “power and jurisdiction” over such an attempt (Workers’ Compensation Law § 123…).  Given the age of the claim here and the fact that it was marked closed in 1995, the employer plausibly argues that the Board lacked jurisdiction to reopen the present claim.  Matter of VanAusdle, v NYC Police Department, 515592, 3rd Dept 12-19-13

 

Slip and Fall in Employee Parking Area Was Compensable

The Third Department determined that a slip and fall in an employee parking area can be compensable under Workers’ Compensation.  The Board’s finding that the injury was compensable in this case was affirmed:

As a general rule, “accidents that occur in public areas away from the workplace and outside of work hours are not compensable” … .  However, “by making arrangements for employee parking, [an employer] may be found to have extended its premises to the area of the approved parking facility so that an accident that occurs therein may be found to have arisen within the precincts of the claimant’s employment, rendering it compensable.  This is particularly true where the claimant is injured on the way to work and in such physical proximity to his or her worksite as to establish a relationship between the accident and the employment”… .

Here, claimant testified that following the approval of her application to park in the subject lot, she was given a hang tag to display in her vehicle’s window and a parking fee was deducted from her biweekly paycheck … .  Although a portion of the parking lot occasionally was set aside for vendors participating in events at the nearby Times Union Center, the lot was not – to the best of claimant’s knowledge – open to the public during the work week.  Finally, claimant described the route traveled from the surface lot to her building and testified that “[e]veryone” who parked in the vicinity of the lot “usually [took the] same route into [the employer’s] building”… .  Matter of Stratton v NYS Comptroller…, 514766, 3rd Dept 12-12-13

 

Application for a Full Board Review Must Be Considered by a Panel of At Least Three Members of the Workers’ Compensation Board

The Third Department noted that an application for a full Board review must be considered by a panel of at least three members of the Workers’ Compensation Board:

Applications for Board review are to be considered by a panel of at least three members and may not be decided by the chair, or any other single member of the Board, alone (see Workers’ Compensation Law §§ 23, 142 [2]…).  The record before us provides no indication that the application for reconsideration and/or full Board review was considered by a three-member panel.  Rather, the decision appears to have been made solely by the chair “on behalf of the Board.”  Accordingly, this matter must be remitted to the Board for proper consideration of the application by a panel of the Board consisting of not less than three members… . Matter of Scalo v CD Perry & Sons Inc…, 514342, 3rd Dept 12-12-13

 

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