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Employee-Status Proven and Workers’ Compensation Exclusivity Provision Applied; Employee’s Jumping from Stalled Elevator Was Superseding Cause of Accident

The First Department determined the respondent, Plaza Residences, could assert the Workers’ Compensation defense even though petitioner believed he was working for a nonparty (Wavecrest Management, Inc) which directed and controlled his work:

The Workers’ Compensation exclusivity provision applies to those employers, and their agents, that exercise supervision and control over an employee …. Here, the evidence establishes that an actual employment relationship exited between plaintiff and Plaza Residences. Such evidence includes Plaza Residences’ payroll records, state withholding tax and unemployment returns, plaintiff’s own W-2 form, and copies of cancelled paychecks. Each of these documents identified Plaza Residences as plaintiff’s employer, and the fact that Plaza Residences relinquished all authority to nonparty Wavecrest Management, Inc., which directed and controlled plaintiff’s work, did not preclude Plaza Residences from asserting the Workers’ Compensation defense.

The First Department also determined petitioner’s jumping from a stalled elevator was “an unforeseeable, superseding cause of his accident” and dismissal of his complaint was therefore warranted. Clifford v Plaza Hous Dev Fund Co, Inc, 2013 NY Slip Op 02695, 9871, 305519/08, 1st Dept, 4-23-13

 

Claimant’s Failure to Give Timely Written Notice of Injury Excused

In finding claimant’s failure to give timely written notice of her injury to her employer was excused, the Third Department wrote:

While claimant did not give timely written notice of her injury, her failure to do so may be excused “on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced” (…see Workers’ Compensation Law § 18). Claimant testified that she verbally informed  the bus  dispatcher of the accident shortly after it occurred, and the employer’s employee benefits supervisor confirmed that the dispatcher would be an appropriate individual to whom  to report an accident if claimant’s  supervisor  was  unavailable. Claimant  also  testified that she orally notified her supervisor of the accident – perhaps the following day … .  Matter of Rankin v Half Hollow Hills Central School District, et al, 514956, Third Dept 4-18-13

 

Question of Fact About Whether Driving to or from Work Constitutes an Act Within the Scope of Employment

Finding that issues of fact had been raised about whether the plaintiff was acting within the scope of his employment (thereby making Workers’ Compensation his only remedy), the First Department wrote:

Defendant contends that workers’ compensation benefits are plaintiff’s exclusive remedy for the injuries he sustained when he was struck by the truck defendant was driving (see Workers’ Compensation Law § 29[6]). However, issues of fact exist whether the parties were “acting within the scope of their employment, as coemployees, at the time of injury” … . * * * While, generally, traveling to and from work is not deemed to be within the scope of employment, as an employee approaches the site of his employment, “there develops a gray area where the risks of street travel merge with the risks attendant with employment” … . Then the test of compensability is whether there is a causal relationship between the employment and the accident and whether the employee “was exposed to a particular risk not shared by the public generally” … . Issues of fact exist whether defendant’s accident was causally related to a risk attendant with his employment rather than one shared by the public generally. Ortiz v Lynch, 2013 NY Slip Op 02667, 9839, 302254/11, 1st Dept, 4-18-13

 

No “Special Employee” Relationship

In reinstating a jury verdict which determined a special employment relationship between plaintiff and defendant did not exist, the Second Department wrote:

“Workers’ Compensation Law §§ 11 and 29(6) provide that an employee who is entitled to receive compensation benefits may not sue his or her employer in an action at law for the injuries sustained” … . These exclusivity provisions also have been applied to shield from suit persons or entities other than the injured plaintiff’s direct employer …. For purposes of the Workers’ Compensation Law, a person may be deemed to have more than one employer, a general employer and a special employer … . 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, “who controls and directs the manner, details and ultimate result of the employee’s work” is a “significant and weighty feature,” but is not determinative of the issue … . Indeed, “[m]any factors are to be considered when deciding whether such a special employment relationship exists and not one factor is decisive” … . Other principal factors to be considered include “who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business” … . General employment will be presumed to continue unless there is a “clear demonstration of surrender of control by the general employer and assumption of control by the special employer” ….  Pena v Automatic Data Processing, Inc, 2013 NY Slip Op 02552, 2011-10265, Index No 7894/06, 2nd Dept 4-17-13

 

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“Special Employee” Status Defined

Finding that the defendant company had not demonstrated as a matter of law that plaintiff was a “special employee” within the meaning of the Workers’ Compensation Law, the Second Department explained:

The protection against lawsuits brought by injured workers which is afforded to employers by Workers’ Compensation Law §§ 11 and 29(6) extends to special employers … . Thus, an injured person who elects to receive Workers’ Compensation benefits from his or her general employer is barred from maintaining a personal injury action against his or her special employer …. “A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer” …. The determination of special employment status is usually a question of fact and may only be made as a “matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” … . “Although no one [factor] is decisive,’ the question of who controls and directs the manner, details and ultimate result of the employee’s work’ is a significant and weighty feature’ of the analysis” …. The exclusivity provisions of the Workers’ Compensation Law also extend to entities which are alter egos of the injured worker’s employer ….  Abreu v Wel-Made Enters, Inc, 2013 NY Slip 02524, 2012-03166, Index No 36405/07, 2nd Dept 4-17-13

 

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Late Notice of Settlement of Negligence Action to Workers’ Compensation Carrier Did Not Preclude Court-Approval of Settlement Pursuant to Workers’ Compensation Law

Plaintiff was struck by a car driven by defendant while she was taking a walk during a layover between work assignments for her employer.  She filed for workers’ compensation benefits.  And she sued the driver in a negligence action.  While the workers’ compensation proceeding was progressing plaintiff settled with the driver’s carrier.  Upon notice to the employer’s workers’ compensation carrier, the carrier refused to approve the settlement. Plaintiff then moved for court-approval of the settlement pursuant to the Workers’ Compensation Law.  Supreme Court granted the motion and the Third Department affirmed, noting:

When,  as here, court approval of a  settlement is not sought within three months of the date of settlement, a  plaintiff seeking a nunc pro tunc order must establish the reasonableness of the settlement, the lack of any  fault or neglect in applying for approval and the lack of any prejudice to the carrier … .   These determinations are directed to the discretion of the court … . Lindberg, et al, v Ross, et al, 515373, 3rd Dept 4-11-13

TRAFFIC ACCIDENTS

Worker’s Claim Not “Truly Closed” So As to Preclude Further Proceedings 

The Third Department reversed the finding of the Worker’s Compensation Board that the claimant’s knee injury case had been “truly closed” in 2009, more than 18 years after the original injury.  Worker’s Compensation Law section 123 prohibits an award of benefits “after a lapse of eighteen years from the date of the injury … and also a lapse of eight years from the date of the last payment of compensation” … .  Knee replacement surgery had been authorized in 2009.  “Considering the nature of the surgery being requested, and the fact that medical examinations of claimant in … 2008 revealed that claimant had a moderate partial disability …, the Board’s conclusion that no further proceedings were contemplated in … 2009 when surgery was authorized is dubious ….”.  In the Matter of Riley v P & V Sadowski Construction, 515259, 3rd Dept. 3-21-13

 

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“Alford” Plea in Related Criminal Proceeding Did Not Have Preclusive Effect

The Court of Appeals, in an opinion by Judge Pigott, held that an “Alford” plea entered in a criminal proceeding, in which there was no factual colloquy about the underlying offenses, should not be given a preclusive effect in a subsequent Worker’s Compensation proceeding related to the same facts.  The opinion includes a discussion of the criteria for and appropriate use of an “Alford” plea (in which guilt is not admitted).  In the Matter of Howard v Statute Electric, Inc., No. 29, CtApp 3-21-13

 

Lyme-Disease Disabilities Recognized

In an opinion by Justice Peters, the Third Department upheld the determination of the Workers’ Compensation Board that the claimant, who was bitten by a tick, had established a claim for Lyme disease and was entitled to compensation for “motor neuron disease, as well as consequential anxiety and stress disorder.”  In the Matter of Bailey v Ben Ciccone, Inc., et al, 515309, 3rd Dept. 3-14-13

 

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Refusal to Allow Carrier to Call Witnesses Warranted Reversal

n an opinion by Justice Rose, the Third Department reversed the decision of the Workers’ Compensation Board because the Workers’ Compensation Law Judge refused to allow the carrier to further develop the record (by calling witnesses). The Court stated:  “It is axiomatic that both the claimant and the employer or its workers’ compensation carrier are entitled to introduce witnesses in compensation proceedings…”.  In the Matter of Mason v Glens Falls Ready Mix, et al, 514744, 3rd Dept. 3-14-13

 

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