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WHERE THERE ARE UNRESOLVED QUESTIONS OF FACT CONCERNING ELIGIBILITY FOR WORKERS’ COMPENSATION BENEFITS THE WORKERS’ COMPENSATION BOARD HAS PRIMARY JURISDICTION AND MUST RULE BEFORE ANY RELATED ACTION CAN BE BROUGHT IN SUPREME COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Workers’ Compensation Board had primary jurisdiction and must rule on defendant’s eligibility for benefits before Supreme Court can hear an action by the insurer for reimbursement of no-fault payments made to defendant:

In July 2018, the subrogors of the plaintiff no-fault insurer, State Farm Mutual Automobile Insurance Company, allegedly were injured in a motor vehicle accident while traveling in a vehicle insured by the plaintiff. After the plaintiff provided payments for medical services on behalf of the subrogors, it learned that the subrogors had applied for workers’ compensation benefits and that the Workers’ Compensation Board had directed the defendant workers’ compensation insurer, Amtrust North America, Inc., to pay for necessary medical treatments for the subrogors. Thereafter, the plaintiff demanded that the defendant reimburse it for the full amount of no-fault benefits the plaintiff had provided on behalf of its subrogors. * * *

“[W]here the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions” … . “Since ‘primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board'” … . State Farm Mut. Auto. Ins. Co. v Amtrust N. Am., Inc., 2024 NY Slip Op 00646, Second Dept 2-7-24

Practice Point: Where there are unresolved questions of fact about a party’s eligibility for Workers’ Compensation benefits, any action in Supreme Court should be transferred to the Workers’ Compensation Board, which is vested with primary jurisdiction.

 

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THE EMPLOYER’S REQUEST, AT THE HEARING, TO CROSS-EXAMINE CLAIMANT’S PHYSICIAN SHOULD HAVE BEEN GRANTED; THE LANGUAGE IN THE RELEVANT REGULATION IS MANDATORY (THIRD DEPT). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, determined the Workers’ Compensation Law Judge (WCLJ) should have granted the employer’s request, made at the hearing, to cross-examine the claimant’s physician, who had submitted a report. The Court of Appeals noted that the relevant language in the regulation was mandatory (“shall”):

The rule at issue here provides that, if “the employer or its carrier or special fund desires to produce for cross-examination an attending physician whose report is on file, the referee shall grant an adjournment for such purpose” (12 NYCRR 300.10 [c] …). The mandatory nature of this language contrasts with the language used in the Board’s other rules governing adjournment of hearings, which afford referees discretion and create exceptions to otherwise mandatory rules. For example, if the employer fails to present evidence as directed by the Board, the referee “may adjourn the hearing” and, if the employer fails to present evidence on the adjourned date, the referee “shall proceed to make a decision unless” the referee finds “extraordinary circumstances” warranting “a further adjournment” … . Under the plain language of the rule, the employer properly exercised its rights by making its request at a hearing on the claim prior to the WCLJ’s ruling on the merits … . Matter of Lazalee v Wegman’s Food Mkts., Inc., 2023 NY Slip Op 06343, CtApp 12-12-23

Practice Point: In a Workers’ Compensation hearing, the employer’s request for an adjournment to cross-examine the claimant’s physician must be granted.

 

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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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