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BECAUSE CLAIMANT WAS NOT ENTITLED TO A NONSCHEDULE AWARD DUE TO RETIREMENT, HE WAS ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant was entitled to a schedule loss of use (SLU) award because he was not eligible for a nonschedule award due to retirement:

A nonschedule award “is based [up]on a factual determination of the effect that the [permanent partial] disability has on the claimant’s future wage-earning capacity” and is mathematically derived from a claimant’s average weekly wages and wage-earning capacity … . On the other hand, an SLU award is designed to compensate for a claimant’s “loss of earning power” as a result of anatomical or functional losses or impairments … and, as such, “‘is not allocable to any particular period of disability'” … and is “independent of the time an employee actually loses from work” … . That said, “[a] claimant who sustains both schedule and nonschedule injuries in the same accident may receive only one initial award,” because SLU and nonschedule awards “are both intended to compensate a claimant for loss of wage-earning capacity sustained in a work-related accident[,] and concurrent payment of an award for a schedule loss and an award for a nonschedule permanent partial disability for injuries arising out of the same work-related accident would amount to duplicative compensation” … . “However, in the unique circumstance where no initial award is made based on a nonschedule permanent partial disability classification, a claimant is entitled to an SLU award” for the permanent impairments sustained in the same work-related accident … . …

… [T]here is no dispute that claimant is not entitled to a nonschedule award based upon his nonschedule classification because he voluntarily retired in April 2020 and was therefore not attached to the labor market at the time of classification … . Thus, as “no initial award [wa]s made based [up]on [claimant’s] nonschedule permanent partial disability classification” … , he “is entitled to an SLU award for the permanent partial impairments to [his] statutorily-enumerated body members” … . Finally, and contrary to the position taken by the Board, the fact that claimant voluntarily retired, and was therefore not attached to the labor market, does not preclude him from receiving an SLU award, because “it is axiomatic that a claimant’s lack of attachment to the labor market, voluntary or otherwise, is irrelevant to a determination as to entitlement to an SLU award” … . Matter of Gambardella v New York City Tr. Auth., 2022 NY Slip Op 02475, Third Dept 4-14-22

Practice Point: This Workers’ Compensation case includes a clear explanation of a “nonschedule award” versus a “schedule loss of use (SLU)” award.

 

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THE WORKERS’ COMPENSATION BOARD RULED THE PLAINTIFF DID NOT HAVE “POST-CONCUSSION SYNDROME” OR A “CONCUSSION CONDITION;” PLAINTIFF WAS THEREFORE ESTOPPED FROM CLAIMING THOSE INJURIES IN THIS LABOR LAW ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the ruling by the Workers’ Compensation Board that plaintiff did not have “post-concussion syndrome” or a “concussion condition” collaterally estopped plaintiff from claiming those injuries in this Labor Law action:

We agree with defendant that the court erred in denying its motion insofar as it effectively sought summary judgment dismissing plaintiff’s claims for damages related to PCS or a concussion condition as barred by the doctrine of collateral estoppel, but we conclude that plaintiff’s claims for damages related to headaches and the alleged concussion itself are not so barred. The quasi-judicial determinations of administrative agencies, such as the Workers’ Compensation Board (Board), “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” … and a determination whether a plaintiff actually sustained a physical injury causally related to an accident … , the Board in this case specifically found that plaintiff did not have “post-concussion syndrome” or a “concussion condition” that were causally related to the second work accident. Szymkowiak v New York Power Auth., 2022 NY Slip Op 01702, Fourth Dept 3-11-22

Practice Point: Here the Workers’ Compensation Board’s ruling plaintiff did not have “post-concussion syndrome” or a “concussion condition” precluded claims for those injuries in the plaintiff’s Labor Law action pursuant to the doctrine of collateral estoppel.

 

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ALTHOUGH THE EMPLOYER WAIVED ITS OWN INDEPENDENT MEDICAL EXAMINATION, THE EMPLOYER RAISED SPECIFIC, SUBSTANTIVE OBJECTIONS TO CLAIMANT’S ORTHOPEDIST’S PERMANENCY FINDINGS, INCLUDING THE ALLEGATIONS THE ORTHOPEDIST DID NOT COMPLETELY REVIEW THE MEDICAL RECORDS AND DID NOT FOLLOW THE RELEVANT GUIDELINES; THE BOARD’S FAILURE TO ADDRESS THE EMPLOYER’S OBJECTIONS REQUIRED REVERSAL AND REMITTAL (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the board should have addressed the employer’s specific objections to the permanency findings of claimant’s orthopedist (Capiola), even though the employer did not produce its own independent medical report:

Upon administrative review, the employer renewed its objections that the credibility of the medical opinion was not based on a complete review of claimant’s medical records, that claimant had not reached MMI [maximum medical improvement], that the guidelines were not followed in rendering the medical opinion and that there was inconsistency between claimant’s medical condition and his physical restrictions. …

In its decision, the Board sets forth in detail the parties’ opposing positions and then adopted the findings and decision of the WCLJ [Workers’ Compensation Law Judge]. Neither the decision of the Board nor that of the WCLJ sets forth any reasoning or analysis of the substantive issues raised by the employer. Although there was no opposing medical opinion and the Board “may not reject an uncontradicted opinion that is properly rendered” … , the issues raised by the employer in its application for review challenged the propriety and reliability of Capiola’s permanency findings. The Board’s failure to specifically address the claims raised by the employer “depriv[ed] the employer . . . of the opportunity to have the Board consider the merits of . . . issue[s] that [were] properly preserved” and precludes any meaningful review by this Court … . Matter of Ippolito v NYC Tr. Auth., 2022 NY Slip Op 01493, Third Dept 3-10-22

Practice Point: Even though the employer waived the production of its own independent medical examination in this Workers’ Compensation case, the Workers’ Compensation Board should have considered the employer’s substantive objections to the permanency findings of the claimant’s orthopedist, including allegations the orthopedist did not review all the medical records and did not follow the relevant guidelines.

 

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THE WORKERS’ COMPENSATION BOARD HAD PREVIOUSLY HELD THAT, IN A HEARING-LOSS CASE, THE FAILURE TO INCLUDE THE AUDIOGRAM (HEARING TEST) WITH THE INDEPENDENT MEDICAL EXAMINATION RECORD PRECLUDES CONSIDERATION OF THE EXPERT EVIDENCE; THE AUDIOGRAM WAS NOT INCLUDED HERE AND THE BOARD DID NOT EXPLAIN ITS DEPARTURE FROM PRECEDENT (BY CREDITING THE EXPERT EVIDENCE); DETERMINATION REVERSED (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board in this hearing-loss case, determined the carrier’s expert’s (Arick’s) failure to include the audiogram (hearing test) with the independent medical examination (IME) record required that the expert’s evidence be precluded. There was precedent to that effect and the board did not explain its departure from precedent:

Arick could not explain during his testimony, however, why a copy of his audiogram was neither provided with his IME report nor present in the Board’s file, and claimant’s counsel continued to raise this point during the hearing, on administrative appeal to the Board and now again before this Court. As claimant argues, the Board has previously determined that where an audiogram test providing the basis for a physician’s SLU [schedule loss of use] finding does not accompany the IME report and is not submitted to the Board file, that physician’s IME report and findings must be precluded … . …

The Board failed to address claimant’s contention regarding the omission of Arick’s audiogram from his IME and the record and, as such, has not provided a rational explanation for departing from its prior decision requiring that an audiogram be submitted to the Board with the IME report (see Workers’ Compensation Law § 137 [1] [a]; 12 NYCRR 300.2 [d] [4] [iii], [iv]; [12]). Inasmuch as the Board has not provided a rational basis for departing from its own precedent, its decision must be reversed … . Matter of Cala v PAL Envtl. Safety Corp., 2022 NY Slip Op 01498, Third Dept 3-10-22

Practice Point: If the Workers’ Compensation Board departs from its own precedent without explanation, the determination will be reversed.

 

THE BOARD ACCEPTED ONE EXPERT’S OPINION AND REJECTED THE OTHER BASED ON AN ISSUE THE EXPERTS WERE NEVER ASKED ABOUT; DECISION REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board relied on an issue the experts were never asked about. One expert (Katz) found that claimant lost 3.3% of his hearing and the other (Alleva) found claimant had lost 45.3% of his hearing. The Board rejected Alleva’s opinion and adopted Katz’s concluding claimant had not explained how he could have done his job with a 50% hearing loss, an issue not discussed by the experts:

Although ‘[t]he Board’s authority in assessing the credibility of witnesses includes the power to selectively adopt or reject portions of a medical expert’s opinion, . . . as with any administrative determination, the Board’s decision in this regard must be supported by substantial evidence” … . There is no evidence in the record that Alleva was asked to explain how claimant was able to work with a 45.3% loss of hearing. Nor is there any evidence in the record that the issue of whether claimant’s hearing loss would have affected his job performance was ever raised by either party or their medical experts before the Workers’ Compensation Law Judge. In light of the dearth of evidence supporting the conclusions reached by the Board, we cannot say that its decision was supported by substantial evidence in the record. Matter of Mogilevsky v New York City Tr. Auth., 2022 NY Slip Op 01088, Third Dept 2-17-22

 

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THE BOARD SHOULD NOT HAVE RELIED ON THE OPINION OF AN EXPERT WHO DID NOT FOLLOW THE IMPAIRMENT GUIDELINES BY REVIEWING THE UPDATED X-RAYS OF CLAIMANT’S HIP (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined the board relied on the opinion of an expert, Petroski, who did not follow the impairment guidelines by consulting the updated x-rays of claimant’s hip:

Nowhere in his … report … does Petroski … indicate that he had obtained and considered and reviewed updated X rays, as required by Special Consideration No. 8 of the impairment guidelines … , in arriving at his conclusion that claimant had sustained a 0% SLU [schedule loss of use] of her left leg. … [T]he deposition testimony of Petroski also does not reflect that had he obtained and considered updated X rays in rendering his opinion about the appropriate SLU of claimant’s left leg. Although Petroski stated that no new history was given at the time of or during his examination of claimant, he acknowledged that he did not recall declining to review X rays that claimant brought with her to the examination for him to review. … Inasmuch as Petroski did not obtain and consider updated X rays consistent with the impairment guidelines, the Board’s determination to credit Petroski’s finding that claimant sustained a 0% SLU was not supported by substantial evidence and must be reversed … . Matter of Strack v Plattsburgh City Sch. Dist., 2022 NY Slip Op 00710, Third Dept 2-3-22

 

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ALTHOUGH THE DOCTOR WAS AT WORK AT THE HOSPITAL WHEN HE WAS SHOT DURING A MASS SHOOTING, HIS INJURY WAS NOT WORK-RELATED WITHIN THE MEANING OF THE WORKERS’ COMPENSATION LAW (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined the shooting of a doctor, Justin Timperio, although it occurred while Timperio was working at the hospital, was not a work-related injury within the meaning of the Workers’ Compensation Law. Timperio had brought a negligence lawsuit against the hospital in federal court and, in the context of the hospital’s motion for summary judgment, the federal court ruled the injuries did not arise from Timperio’s employment. The federal ruling did not colaterally estop the Workers’ Compensation Board from considering the claim in the first place (because it was not a final ruling), but the Board’s ultimate conclusion the injury was work-related was reversed by the Third Department:

The undisputed facts in the record demonstrate that the attack was perpetrated by an individual who was not employed by the hospital at the time of the attack (and had not worked there for over two years), was not and never was Timperio’s coworker, did not know Timperio and provided no reason for the attack prior to taking his own life. Nor did Timperio know the attacker, and there is no evidence that the attack was based upon an employment-related animus between the two individuals or that the attack had any nexus to Timperio’s employment or “performance of h[is] job duties” … . Such proof was sufficient to rebut the presumption articulated in Workers’ Compensation Law § 21 (1) and to establish that the assault on Timperio resulted exclusively from arbitrary, broad-sweeping and gravely maligned personal animosity and not from work-related differences with Timperio … . Matter of Timperio v Bronx-Lebanon Hosp., 2022 NY Slip Op 00711, Third Dept 2-3-22

 

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ALTHOUGH CLAIMANT DID NOT SUCCEED IN DEMONSTRATING HER CONDITION HAD WORSENED SUCH THAT SHE WAS ENTITLED TO INCREASED BENEFITS, HER COUNSEL’S FEES SHOULD NOT HAVE BEEN RESCINDED BY THE WORKERS’ COMPENSATION BOARD (THIRD DEPT). ​

he Third Department, reversing (modifying) the Workers’ Compensation Board, determined the rescission of the award of claimant’s counsel’s fee on the ground that the claim was unsuccessful was arbitrary and capricious. Claimant was unable to show her condition had worsened entitling her to increased benefits:

The initial application submitted by claimant’s counsel, which sets forth in detail the services rendered and the time spent in connection therewith, reflects that counsel represented claimant for a number of years, engaged in extensive correspondence with, among others, claimant, Petroski [claimant’s treating physician] and the carrier, reviewed various reports, attended hearings and successfully sought and obtained a reopening of this matter. Although counsel ultimately did not succeed in obtaining an increase in claimant’s loss of wage-earning capacity, the Board rescinded the fee award solely upon counsel’s unsuccessful efforts in this regard. Notwithstanding the Board’s broad discretion, this single-factor reasoning strikes us as arbitrary and capricious — particularly in view of the fact that claimant clearly received an economic benefit from counsel’s overall representation of her. Matter of Simmons v Glens Falls Hosp., 2022 NY Slip Op 00712, Third Dept 2-3-22

 

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DEFENDANTS ARGUED PLAINTIFF WAS NOT AN EMPLOYEE IN THE WORKERS’ COMPENSATION PROCEEDING; HERE THE DEFENDANTS ARGUED PLAINTIFF WAS AN EMPLOYEE AND HIS REMEDY WAS LIMITED TO WORKERS’ COMPENSATION; THE DOCTRINE OF JUDICIAL ESTOPPEL PRECLUDED THE WORKERS’ COMPENSATION AFFIRMATIVE DEFENSE IN THIS ACTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, over a dissent, determined the judicial estoppel doctrine applied and plaintiff’s motion to dismiss the workers’ compensation affirmative defense in this personal injury action should have been granted. Plaintiff was injured on the job. In the Workers’ Compensation proceeding defendants argued plaintiff was an not an employee. In this action defendants argued he was an employee and his recovery is limited to Workers’ Compensation:

… [T]he record makes clear that defendants, through Old Republic [insurance company], consistently advanced in the Workers’ Compensation Law proceeding the theory that plaintiff was not its employee. Old Republic, as the workers’ compensation carrier for defendants, was subsequently discharged from this proceeding. As such, defendants achieved its desired result after asserting the lack of an employer-employee relationship. Although the record is not explicit as to the basis for the discharge of Old Republic from the Workers’ Compensation Law proceeding, “[t]he policy behind judicial estoppel would not be served by limiting its application to cases where the legal position at issue was ruled upon in the context of a judgment” … .

In this action … defendants have taken a contrary position — i.e., plaintiff was employed by defendants as a special employee and, therefore, his sole remedy for compensation was to pursue workers’ compensation benefits. Allowing defendants to argue in this action that plaintiff was their employee, after they had disavowed an employer-employee relationship in the Workers’ Compensation Law proceeding and received a benefit from this position, would subvert the equitable policy behind the doctrine of judicial estoppel … . Walker v GlaxoSmithKline, LLC, 2022 NY Slip Op 00484, Third Dept 1-27-22

 

CLAIMANT’S EXPERT PROVIDED SUFFICIENT EVIDENCE OF A CAUSAL RELATIONSHIP BETWEEN CLAIMANT FIREFIGHTER’S LUNG CANCER AND EXPOSURE TO TOXINS AT GROUND ZERO, WORKERS’ COMPENSATION BOARD REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the evidence supported a finding that claimant firefighter’s lung cancer and death were caused by exposure to toxins at Ground Zero:

The Board found the opinion of Ploss [claimant’s expert] to be incredible in part because he did not “cite to any studies or other evidence to sufficiently explain his opinion regarding causation.” However, Ploss opined that “[i]t is well accepted that the numerous carcinogens contained in the debris of th[e] highly polluted area known as Ground Zero could cause numerous malignancies such as cancer of the lungs.” As claimant asserts, the question of whether such studies supported the doctor’s findings could have been raised at the hearing, but was not. Ploss further testified that the toxic exposure at Ground Zero that decedent experienced was intense and concentrated given his prolonged exposure and lack of respiratory protection and that such exposure would have resulted in damage to decedent’s bronchial tree and lung tissue. In our view, the medical opinion of Ploss was neither speculative nor a general expression of possibility and demonstrated that decedent’s exposure at Ground Zero and the World Trade Center site was a contributing factor to his demise for purposes of causation. In view of the foregoing, the Board improperly rejected Ploss’ uncontroverted medical opinion as to causation … . Matter of Murphy v New York State Cts., 2022 NY Slip Op 00087, Third Dept 1-6-22

 

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