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

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

The Third Department affirmed the determination that claimant’s stroke was not work-related:

Inasmuch as it is undisputed that claimant’s stroke occurred while he was at work, he was entitled to the statutory presumption that his stroke arose out of and in the course of his employment (see Workers’ Compensation Law § 21… ). The employer, however, may rebut that presumption with substantial evidence to the contrary … . Here, the employer’s medical expert opined that claimant’s stroke was not related to his employment, but was directly related to certain preexisting conditions, including cerebral vascular disease, hypertension, diabetes, hypercholesterolemia and a prior transient ischemic attack, which combined to put claimant “at extreme risk for a stroke.”Claimant’s medical expert, although unaware of certain of claimant’s preexisting conditions that he testified may be predisposing factors for a stroke, concluded that claimant’s stroke was caused by job related exertion and fatigue. * * *Inasmuch as the Board is vested with the authority to credit the opinion of one medical expert over another …, its determination that there was no causal relationship between claimant’s stroke and his employment is supported by substantial evidence and will not be disturbed. Matter of Pengal v Chloe Foods Corporation…, 513003, 3rd Dept 11-14-13

In finding that music teachers were employees [of Musika, LLC], not independent contractors, the Third Department wrote:

Claimant offered guitar lessons for Musika LLC, a business that matches music teachers it deems qualified with students. Musika required its teachers to execute a contract that set the fee for lessons, prohibited them from competing with Musika or soliciting its students, and obliged teachers to perform any services “reasonably requested” by it. The teachers were required to report their work activities to Musika which, in turn, billed the students and paid the teachers by check. Moreover, teachers were expected to notify Musika if they were unavailable to work and could not use a substitute teacher without prior approval. Notwithstanding the proof in the record that could support a contrary result, the above constitutes substantial evidence for the determination of the Unemployment Insurance Appeal Board that claimant and those similarly situated were Musika’s employees and not independent contractors… . Matter of Tekmitchov…, 516112, 3rd Dept 10-24-13