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CLAIMANT SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO CROSS EXAMINE THE CONSULTANTS WHOSE REPORTS WERE THE BASIS FOR THE DENIAL OF CLAIMANT’S REQUEST FOR SURGERY (THIRD DEPT).

The Third Department, reversing (modifying) the Workers’ Compensation Board, determined claimant should be afforded the opportunity to cross-examine the consultants (Cash and Storrs) whose reports were the basis for the denial of claimant’s request for surgery:

The … request for surgery was not made until after the WCLJ [Workers’ Compensation Law Judge] ordered [the] depositions, but was nevertheless considered by the WCLJ, who upheld the denial even though claimant did not have any opportunity to submit contradictory medical evidence or cross-examine the carrier’s consultants. Matter of Ozoria v Advantage Mgt. Assn., 2021 NY Slip Op 03090, Third Dept 5-13-21

 

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THE 2009 AMENDMENTS TO THE WORKERS’ COMPENSATION LAW ALLOWED LUMP SUM PAYMENTS OF SCHEDULE LOSS OF USE (SLU) AWARDS; CLAIMANT DIED BEFORE THE SLU AWARD WAS MADE; CLAIMANT’S ESTATE IS NOT ENTITLED TO THE LUMP SUM AWARD (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurring opinion, determined that the 2009 amendments allowing lump sum schedule loss of use (SLU) awards did not entitle claimant’s estate to the lump sum award. The estate was entitled only to the portion of the award that would have been due to the claimant for the period prior to his death:

In December 2014, decedent claimant Norman Youngjohn sustained injuries when he slipped on ice and fell in a parking lot at work while employed by Berry Plastics Corporation. After decedent sought workers’ compensation benefits, a claim was established for injuries to his right shoulder and left elbow, and he was awarded temporary benefits. In September 2016, decedent notified the Workers’ Compensation Board that his injuries had become permanent, and the workers’ compensation insurance carrier (the Carrier) subsequently notified the Board that decedent’s injuries were amenable to a schedule loss of use (SLU) award (see generally Workers’ Compensation Law § 15 [3]). However, in March 2017, before resolution of his claim for permanent partial disability benefits, decedent suffered a fatal heart attack unassociated with his work-related injuries. * * *

The legislature’s 2009 amendments to Workers’ Compensation Law §§ 15 (3) (u) and 25 (1) (b)—which provide that SLU awards may be “payable” in a lump sum upon request of the injured employee …—changed the allowable methods of payment for SLU awards. However, the Estate’s contention that these amendments implicitly provide a claimant’s estate a new entitlement to the value of an SLU award upon a claimant’s death, or otherwise direct that an SLU award “accrues” at that time for purposes of an estate’s recovery—issues that are distinct from the permissible methods of payment for such awards …—cannot be reconciled with the fact that the legislature did not amend Workers’ Compensation Law § 15 (4) (d) when it authorized lump sum payments. An estate’s entitlement to an SLU award upon a claimant’s death remains governed by Workers’ Compensation Law § 15 (4) (d), which was left untouched by the 2009 amendments. Matter of Estate of Youngjohn v Berry Plastics Corp., 2021 NY Slip Op 02017, CtApp 4-1-21

 

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AN EMAIL INFORMING PLAINTIFF THAT DEFENDANT LAW FIRM WOULD NOT APPEAL THE RULING OF THE WORKERS’ COMPENSATION APPELLATE PANEL DID NOT UNEQUIVOCALLY TERMINATE THE FIRM’S REPRESENTATION OF PLAINTIFF IN THE WORKERS’ COMPENSATION MATTER (FIRST DEPT).

The First Department, reversing Supreme Court, determined an email from the attorney defendants to the plaintiff did not unequivocally terminate the firm’s representation of plaintiff before the Workers’ Compensation Board:

Where, as here, defendants were retained in writing to represent plaintiff in all proceedings before the Workers’ Compensation Board related to his claim, plaintiff made a sufficient showing of a continuing relationship with regard to that proceeding to support his contention of continuous representation … . Defendants’ statement in an email that they would not pursue an appeal to the Third Department after having lost before the Workers’ Compensation appellate panel on the issue of whether plaintiff was an employee, did not “unequivocally” terminate the representation in the workers’ compensation matter, which remained pending following the administrative review … . This is particularly true in light of the terms of the retainer agreement. Schwenger v Weitz, Kleinick & Weitz, LLP, 2021 NY Slip Op 01869, First Dept 3-25-21

 

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IN THE CONTEXT OF AN INDEMNIFICATION CLAUSE REQUIRED BY THE WORKERS’ COMPENSATION LAW, THE 1ST DEPARTMENT NOTED THAT, UNDER THE COMMON LAW, UNSIGNED DOCUMENTS ARE ENFORCEABLE AS LONG AS THE PARTIES INTENDED TO BE BOUND (FIRST DEPT).

The First Department noted that the written-indemnification-clause requirement in Workers’ Compensation Law section 11 does not require that the document be signed to be enforceable:

Plaintiff was injured while engaged in renovation of an apartment in Park Regis’s cooperative building. The motion court correctly concluded that ASA, plaintiff’s employer, was bound by the provisions of the alteration agreement between Park Regis and the nonparty cooperative shareholder lessees requiring the lessees’ general contractor to indemnify and procure insurance in favor of Park Regis (see Workers’ Compensation Law § 11 …). …

Even if the alteration agreement were not signed by ASA, ASA would still be bound by it, because the record shows that it intended to be bound by it (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369 [2005] [“nothing in the language of (Workers’ Compensation Law § 11) or its legislative history (suggests) that, in addition to requiring a written indemnification clause, the Legislature intended to deviate from the common-law rule that written documents can be enforced even if they are not signed”]). ASA’s field supervisor and project manager testified that ASA “signs every alteration agreement[]” before commencing work, that he believed ASA had done so in connection with this project, that he understood ASA to be bound by the terms of the alteration agreement requiring it to procure insurance for and indemnify Park Regis, and that ASA had indeed procured insurance for Park Regis as required by the alteration agreement. Shala v Park Regis Apt. Corp., 2021 NY Slip Op 01870, First Dept 3-25-21

 

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CARRIER PROPERLY ORDERED TO PAY FOR CLAIMAINT’S PAIN TREATMENT WITH MEDICAL MARIJUANA (THIRD DEPT).

The Third Department, in a comprehensive opinion by Justice Egan, determined the Workers’ Compensation Board properly issued a variance allowing coverage for medical marijuana for treatment of claimant’s pain. The opinion is too detailed to fairly summarize here. The carrier’s federal conflict preemption and statutory (Public Health Law) exemption arguments were rejected:

“The federal preemption doctrine has its roots in the Supremacy Clause of the United States Constitution, and federal preemption of state laws generally can occur in three ways: where Congress has expressly preempted state law, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law, or where federal law conflicts with state law” … . At issue here is conflict preemption, “which occurs when compliance with both federal and state law is a physical impossibility, or where the state law at issue . . . stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” … .

* * * [R]equiring the carrier to reimburse claimant … does not serve to subvert, in any way, the principal purposes of the Controlled Substances Act in combating drug abuse and controlling “the legitimate and illegitimate traffic in controlled substances” … , particularly where, as here, claimant was validly prescribed and authorized to use medical marihuana by his pain management specialist to both treat his chronic pain and reduce his reliance on opiates. Matter of Quigley v Village of E. Aurora, 2021 NY Slip Op 01174, Third Dept 2-25-21

 

THE BOARD DEPARTED FROM ITS PRECEDENT WITHOUT EXPLANATION, REVERSED AND REMITTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board departed from its precedent without explanation:

… [T]he Board did not follow its precedent in finding that, due to his failure to show labor market attachment, he had no compensable lost time from June 16, 2016 to January 26, 2017. The Board has previously held that findings regarding labor market attachment are limited to the period subsequent to the date when the issue was first raised by the workers’ compensation carrier … . Although the record reflects that the Special Fund first raised labor market attachment during the January 26, 2017 hearing, the Board found no compensable time from June 1, 2016 to November 9, 2018 based upon a lack of proof of labor market attachment. “While the Board is free to alter a course previously set out in its decisions, it must set forth its reasons for doing so, and the Board’s failure to do so renders its decision arbitrary and capricious” …  Inasmuch as the Board did not explain its departure from prior precedent in finding that claimant was not entitled to awards from June 1, 2016 to January 26, 2017, that part of the decision must be reversed and the matter remitted for further proceedings … . Matter of Delk v Orange & Rockland, 2021 NY Slip Op 00604, Second Dept 2-4-21

 

CLAIMANT, A LIVE-IN HOME HEALTH ATTENDANT, WAS INJURED WHEN SHE FELL AFTER PICKING UP MEDICAL RECORDS FROM HER DOCTOR’S OFFICE; THE PURPOSE OF HER VISIT TO THE DOCTOR’S OFFICE WAS NOT PURELY PERSONAL; THEREFORE SHE WAS ENTITLED TO WORKERS’ COMPENSATION BENEFITS (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that claimant, a 24-hour home health aide, was entitled to Workers’ Compensation benefits even though she was injured when she fell after picking up records from her doctor’s office:

… [I]t is undisputed that it was routine for claimant to escort her client on four- or five-hour walks on days where the client had no scheduled appointments, such as the day of the subject incident. According to claimant, while on such a walk on the day of the incident, she and her client elected to briefly stop at the subject doctor’s office for multiple reasons — to collect medical paperwork pertaining to claimant’s employment and to confirm whether the doctor accepted the client’s insurance prior to scheduling her an appointment. * * *

… [T]here is not substantial evidence that claimant’s actions represented a deviation from employment as conduct specifically prohibited by the employer … . Further, without regard to whether claimant prospectively inquired about the acceptance of her client’s insurance, claimant’s act of briefly stopping while on a routine walk with her client, regardless of where that stop took place, simply cannot be said to be purely personally or wholly unrelated to her work. Moreover, stopping at the subject doctor’s office in order to collect the subject paperwork benefited the employer by allowing claimant to continue to provide round-the-clock care to her client, and to secure the documentation necessary to ensure that such care would not be interrupted in the future. We therefore find that, under the circumstances, claimant’s activity was reasonable, sufficiently work related and, thus, not purely personal, such that the Board’s decision to the contrary is not supported by substantial evidence … . Matter of Sharipova v BNV Home Care Agency, Inc., 2021 NY Slip Op 00605, Third Dept 2-4-21

 

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THE DEFENDANT LIMITED LIABILITY COMPANIES FUNCTIONED AS A SINGLE INTEGRATED UNIT WITH PLAINTIFF’S EMPLOYER; PLAINTIFF’S ONLY REMEDY IN THIS SLIP AND FALL CASE IS THE WORKERS’ COMPENSATION LAW BENEFITS HE APPLIED FOR AND RECEIVED BEFORE BRINGING THIS LABOR LAW 240(1) ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, over an extensive dissent, determined the corporate entities plaintiff sued in this slip and fall case function as a single integrated entity with plaintiff’s employer, the nursing home where he was injured. Plaintiff had applied for and received Workers’ Compensation benefits and then brought this Labor 240(1) action. The First Department held that plaintiff’s exclusive remedy was Workers’ Compensation:

… [W]e find that Hopkins Ventures has shown ownership of 100% of both KFG Land and KFG Operating and that it exercised complete managerial and financial control over both companies, operating them as if they were a single integrated entity. Since the evidentiary proof submitted by KFG Land was sufficient to make out its prima facie case, that the LLCs functioned as a single integrated entity in connection with the joint venture of acquiring and operating the property and nursing home, the exclusivity provisions of the WCL apply. Plaintiff failed to raise a material issue of fact to defeat defendant’s motion for summary judgment. …

Although the dissent reaches the underlying merits of plaintiff’s cross appeal concerning the dismissal of his Labor Law §240(1) on the basis that he was not engaged in a “repair” or “alteration” within the meaning of Labor Law § 240(1) at the time of his accident, we affirm on the ground that even if plaintiff was engaged in alteration or repair, the exclusivity provisions of the WCL would be his sole remedy since he applied for and received those benefits. Fuller v KFG L & I, LLC, 2020 NY Slip Op 07998, First Dept 12-29-20

 

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ALTHOUGH THE CARRIER HAD WAIVED ITS DEFENSE THAT THE INJURIES DID NOT ARISE OUT OF CLAIMAINT’S EMPLOYMENT BY FAILING TO SERVE A PREHEARING CONFERENCE STATEMENT, CLAIMANT WAS STILL REQUIRED TO PRESENT SUBSTANTIAL EVIDENCE OF SUCH A CONNECTION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that, although the carrier had waived its defense that claimant’s injuries did not arise out of claimants’ employment as a police chief (by not serving a prehearing conference statement), the claimant was still required to present affirmative proof of that causal connection:

… [W]e agree with the Board that, as a result of its waiver of defenses, the carrier was precluded from submitting evidence on the issue of whether claimant’s injuries arose out of and in the course of claimant’s employment … . However, the waiver of defenses did not relieve claimant of his obligation of coming forward with sufficient proof to establish that he sustained a compensable injury … . In that regard, claimant bore the burden of demonstrating that a sufficient causal nexus existed between his employment and the motor vehicle accident that caused his injuries … . The degree of control exercised by the employer over the claimant’s activities at the time of the accident is controlling in determining whether the requisite causal nexus exists … .

The record evidence establishes that claimant, the Village Chief of Police, was in an accident while driving his police vehicle on the third day of a personal weekend trip to his son’s college, roughly 4½ to 5 hours away from the Village. Claimant testified that he carried his work cell phone, that he was on call 24 hours a day and that he drove his police vehicle to his weekend destination so that he could return to the Village if needed. However, claimant testified that he was not recalled at any point during the weekend and was not in the course of returning to work or attending to any other police matter at the time of his accident. Matter of Love v Village of Pleasantville, 2020 NY Slip Op 07968, Third Dept 12-24-20

 

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HEARSAY INSUFFICIENT TO DEFEAT PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 240(1) AND 241(6) ACTION; THE INDEMNIFICATION AND CONTRIBUTION CLAIM WAS PROPERLY DISMISSED BECAUSE PLAINTIFF DID NOT SUFFER GRAVE INJURY WITHIN THE MEANING OF WORKERS’ COMPENSATION LAW 11 (FIRST DEPT).

The First Department determined hearsay was not sufficient to defeat plaintiff’s summary judgment in this Labor Law 240(1) and 241(6) case. In addition the indemnification and contribution claims were properly dismissed because plaintiff did not suffer a “grave injury” within the meaning of Workers’ Compensation Law 11:

Plaintiff commenced this action alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6) seeking to recover for personal injuries he sustained when, while dismantling a scaffold in an elevator shaft of a building under renovation, he fell from the scaffold to the bottom of the shaft. … Plaintiff testified that his employer had instructed him to dismantle the scaffold and the sole support for Empire’s contention that dismantling the scaffold was outside the scope of his duties was inadmissible hearsay testimony. …

Pursuant to their contract, Empire agreed to indemnify Pen & Brush for damages, “arising from any act, omission, negligence, potential claims and losses” of, inter alia, Empire or its subcontractors “during the performance of the Contract.” Its indemnification obligation was triggered here where plaintiff’s injuries arose from the act of Empire’s subcontractor, Lough Allen, in dismantling the scaffold and a finding of negligence is not required … .

Supreme Court properly determined plaintiff had not sustained a grave injury and dismissed the common-law indemnification and contribution claims against Lough Allen … . As relevant here, “grave injury” within the meaning of Workers’ Compensation Law § 11 includes “an acquired injury to the brain caused by external physical force resulting in permanent total disability.” Permanent total disability in the context of Workers’ Compensation Law § 11 means unemployable in any capacity … . Clarke v Empire Gen. Contr. & Painting Corp., 2020 NY Slip Op 07698, First Dept 12-22-20

 

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