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Approval of an MRI Within Seven Years of Closure of Claimant’s Case Effectively Reopened the Case—Transfer to the Special Fund for Closed Cases Was Error

The Third Department determined the fact that an MRI had been approved demonstrated that the claimant’s case had not been closed for the requisite seven years. Liability therefore was not shifted to the Special Fund for closed cases:

Pursuant to Workers’ Compensation Law § 25-a, the Special Fund becomes liable for claims that are reopened more than seven years from the date of the injury and three years after the last payment of compensation … . There is no dispute that this case was initially closed as of June 20, 2005. In its amended decision, the Board determined that the case was first reopened in April 2012 when the MRI was requested, but closed once that application was approved. Finding that the case was again reopened when surgery was requested on June 26, 2012, the Board determined that the requisite seven-year time period had passed, shifting liability to the Special Fund.

This sequence calls into question whether the case was “truly closed” when the MRI request was approved. We have previously recognized that a “decision authorizing [an] MRI [does] not constitute a true closing of the case as [the] claimant’s future treatment depended upon the results of the MRI and, thus, further action was contemplated although not planned at that time” … . The same holds true here. As such, we conclude that the Board erred in concluding that the case was closed when the MRI was authorized. Correspondingly, since the case was reopened when the MRI was requested in April 2012, within the statutory seven-year period, liability does not shift to the Special Fund. Matter of Bank v Village of Tuckahoe, 2015 NY Slip Op 04894, 3rd Dept 6-11-15

 

Even When the Injured Worker, Who Had Received Workers’ Compensation Benefits, Successfully Sues His Employer (As Opposed to a “Stranger”) for His Injuries, the Workers’ Compensation Carrier Has a Lien Against the Recovery Pursuant to Workers’ Compensation Law 29(1)

The Third Department noted that, even though the worker who had received workers’ compensation benefits successfully sued his employer (as opposed to a third party) for his injuries, the workers’ compensation carrier still had a lien against the recovery (Workers’ Compensation Law 29(1)):

“When a claimant obtains recovery in a civil action for the same injuries that were the predicate for workers’ compensation benefits, the carrier has a lien against any recovery (see Workers’ Compensation Law § 29 [1]), even where the action is brought against an employer” … . Indeed, as the Court of Appeals has recently reaffirmed, “‘[Workers’ Compensation Law § ] 29, read in its entirety and in context, clearly reveals a legislative design to provide for reimbursement of the compensation carrier whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits'” … . The Court reasoned that “[i]t would be unreasonable to read the statute as mandating a different result merely because the recovery came out of the pockets of a coemployee [or the employer] and not from the resources of a stranger” … . Ronkese v Tilcon N.Y., Inc., 2015 NY Slip Op 04908, 3rd Dept 6-11-15

 

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Delay In Bringing Action Seeking to Stop a Development Project Which Had Been Proceeding for Years Precluded the Grant of a Preliminary Injunction, Despite the Apparent Legitimate Nature of the Allegations

The Third Department determined a preliminary injunction halting a development project which had been proceeding for years should not have been granted.  The development project started with the annexation of land by the village, for which no referendum had been held.  The action brought by the plaintiffs alleged the failure to hold the referendum violated local law and further alleged a conflict of interest arising from the mayor’s acquisition of project property  In spite of the apparently legitimate grounds for the action, the Third Department determined the plaintiffs were unlikely to succeed because the action was brought so late and the project, consequently, had progressed so far:

We are unpersuaded by plaintiffs’ assertion that, in essence, the failure to conduct a referendum leaves the annexation subject to being set aside at any time in the future without regard to any time limitation. Cases involving an alleged failure to adhere to a voting requirement during an annexation have generally been found to be subject to a pertinent limitations’ period … . A statute of limitations may apply even when conduct inconsistent with a statute or the state constitution is alleged … . Simply stated, “a [s];tatute of [l];imitations does not have the effect of curing the underlying wrong, but rather extinguishes the right to judicial relief” … . We need not decide the particular limitations’ period for challenging an annexation made without a referendum — whether four months (see CPLR 217), six years (see CPLR 213) or some time in between (see e.g. CPLR 9802). Plaintiffs failed to establish a likelihood that a challenge to the annexation based upon the failure to conduct a referendum would be viable where, as here, over seven years have passed since the annexation. …

Next, we consider the 2010 development agreement, which plaintiffs contend is void because [the mayor] had a conflict of interest arising from the 2009 acquisition of some project property by himself and his parents (see General Municipal Law § 804). The 2nd Department, in a case affirmed by the Court of Appeals, has held that the three-year statute of limitations of CPLR 214 (2) applies to such a claim … . The [Mayor’s] deeds had been a matter of public record since 2009, before the 2010 development agreement was executed. Any conflict was known or should have been known as of the execution in 2010 of the development agreement, which was also a public document. This action was not brought until 2014.

Long delays can be relevant to the issue of whether equitable injunctive relief should be granted … . Although plaintiffs allege some unsavory (or worse) conduct by certain people involved directly or indirectly in the project, it is not clear from this record whether they can successfully show that the project defendants engaged in such conduct so as to prevent them from relying on equitable defenses such as laches … . Rural Community Coalition Inc v Village of Bloomingbury, 2014 NY Slip Op 04110, 3rd Dept 6-5-14

 

Lump Sum Settlement with Third Party Barred Transfer of Employer’s Liability for Future Medical Payments to the Special Fund

The Third Department, in a full-fledged opinion by Justice Stein, determined that a lump sum payment from a third party, to which the employer agreed in return for the worker’s forebearance re: future indemnity payments by the employer, barred the transfer of the employer’s liability for future medical payments to the Special Fund:

Pursuant to Workers’ Compensation Law § 25-a, liability for a claim will be transferred to the Special Fund when an application is made to reopen a closed case after a lapse of seven years from the date of the injury and three years from the date of the last payment of compensation … . The issue here distills to when the last payment of compensation was made in light of the settlement agreement between claimant and the employer. …

Pursuant to Workers’ Compensation Law § 25-a (7), where a case is “disposed of by the payment of a lump sum,” the date of the last payment of compensation is established by calculating the date to which the amount paid in the settlement would have extended had the award of indemnity benefits been made at the maximum compensation rate warranted on the date the lump-sum payment was approved … . Here, the employer entered into an agreement with claimant on December 30, 2008 that permitted claimant to retain the proceeds of the third-party action in exchange for, among other things, his forebearance of future indemnity benefits. In our view, these proceeds constituted a lump-sum payment for purposes of the statute. Contrary to the employer’s contention that the statute only applies where the employer itself makes a lump-sum payment to the claimant, we note that the plain language of the statute indicates that it applies “where the case is disposed of by the payment of a lump sum,” without reference to the source of such payment (Workers’ Compensation Law § 25-a [7]). Thus, because the settlement agreement effectively “disposed” of the employer’s obligation to pay future indemnity benefits in exchange for claimant’s retention of a lump-sum payment from the third-party action, application of the statute is appropriate to bar transfer of liability for future medical benefits to the Special Fund. Matter of Nicpon v Zelasko Constr Inc, 2014 NY Slip Op 04102, 3rd Dept 6-5-14

 

No Need to Be Affiliated with an Authorized Rescue Entity or Volunteer Agency to Qualify for Benefits from World Trade Center Volunteer Fund

The Third Department, in a full-fledged opinion by Justice Egan, determined that the claimant, who was not affiliated with any authorized rescue entity or volunteer agency, but who participated in rescue efforts at or near the World Trade Center on September 11 and 12, 2001, was entitled to Workers’ Compensation benefits:

Workers’ Compensation Law article 8-A, which is to be afforded a liberal construction, “was enacted ‘to remove statutory obstacles to timely claims filing and notice for latent conditions resulting from hazardous exposure for those who worked in rescue, recovery or cleanup operations following the World Trade Center September 11, 2001 attack'” …, quoting Senate Mem in Support, 2006 McKinney’s Session Laws of NY, at 1915). A “volunteer” may qualify for coverage under the statute provided he or she tenders to the Board satisfactory evidence that he or she participated in the rescue, recovery, or cleanup operations at the World Trade Center site (see Workers’ Compensation Law § 161 [1]; [b]; [i]) — a geographical location defined by Workers’ Compensation Law § 161 (2) — between September 11, 2001 and September 12, 2002 and suffers from a “[q];ualifying condition,” including rhinitis and sinusitis (see Workers’ Compensation Law § 161 [3]; [a]), gastroesophageal reflux disease (see Workers’ Compensation Law § 161 [3]; [c]) and anxiety or depression (see Workers’ Compensation Law § 161 [3]; [d]). Here, the Board did not directly address the time, location and activity elements of the statute; rather, the Board denied claimant’s application for workers’ compensation benefits solely because claimant “did not serve under the direction of an authorized rescue entity or volunteer agency” and, hence, “[did]; not meet the definition of [a]; volunteer” within the meaning of Workers’ Compensation Law article 8-A.

* * * Noticeably absent from both Workers’ Compensation Law article 8-A and the commonly understood meaning of the word volunteer is any requirement that such individual “serve under the direction of an authorized rescue entity or volunteer agency.” Accordingly, the Board’s imposition of such a requirement is, to our analysis, contrary to the plain terms of the statute. Matter of Hazan v WTC Volunteer Fund, 2014 NY Slip Op 04103, 3rd Dept 6-5-14

 

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Child’s Out-of-Court Statements Alleging Sexual Touching Were Not Corroborated—the Child’s Repeating the Same Allegations to Several Persons Does Not Constitute Corroboration—Neglect and Derivative Neglect Findings Reversed

The Third Department determined that the child’s out-of-court stated alleged sexual touching (by Makenzie) were not sufficiently corroborated. The findings of neglect and derivative neglect based on the statements were reversed:

While the out-of-court statements made by a child relating to any allegations of abuse or neglect are admissible in Family Ct Act article 10 proceedings, they must be corroborated in order to “be sufficient to make a fact-finding of abuse or neglect” (Family Ct Act § 1046 [a]…). The purpose of this requirement is to establish the reliability of the hearsay statements, and Family Court has considerable discretion to determine the sufficiency of corroborative evidence … . Such a statement “may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient” … . Nevertheless, we conclude that petitioner failed to satisfy its burden here.

Family Court’s conclusion, based upon our decision in Matter of Brandon UU. (193 AD2d 835 [1993]), that sufficient corroboration existed because the child pointed to the area where she claimed respondent had pinched her, is misplaced. The determination in Matter of Brandon UU. (supra) was based on the child’s consistent account of sexual abuse coupled with the expert testimony that the child was being truthful (id. at 837). Here, there was no expert testimony and the child’s demonstration, without more, is part of the out-of-court statement itself and insufficient as corroboration … .

Likewise, there is no merit to petitioner’s argument that the child’s repetition of consistent accounts of the abuse to the grandmother, social worker and detective serve as sufficient corroboration. It is well settled that “repetition of an accusation by a child does not corroborate [that]; child’s prior account” … . The lack of any proof “validating the child’s account or relating any of her past or present conduct or characteristics to the alleged sexual abuse” requires reversal of the finding of neglect as to Makenzie on the ground that the out-of-court statements were not sufficiently corroborated … . Matter of Katrina CC, 2014 NY Slip Op 04094, 3rd Dept 6-5-14

 

Claimant-Interpreter Properly Found to Be an Employee, Not an Independent Contractor

The Third Department determined claimant interpreter was properly determined to be an employee of LIS (not an independent contractor) and was therefore entitled to unemployment insurance benefits:

Here, the evidence established that claimant responded to an advertisement for interpreters posted online by LIS, was screened and approved by LIS, and executed a contract specifying the hourly rate of compensation and setting forth numerous rules of conduct [FN1]. Clients contact LIS to request interpreter services; LIS then selects one of its interpreters, contacts the interpreter and provides him or her with the details of the assignment. Once committed to an assignment, interpreters may not send a substitute without that substitute having been prescreened by LIS. LIS supplies its interpreters with time sheet forms that must be submitted within 24 hours of an assignment and pays the interpreters directly based upon an hourly rate of pay set forth in the interpreters’ contracts with LIS. LIS also reimburses interpreters for transportation costs associated with assignments. Notwithstanding record proof that could support a contrary result, the foregoing proof constitutes substantial evidence supporting the determination that claimant and others similarly situated are employees of LIS and not independent contractors… . Matter of Ruano …, 2014 NY Slip Op 04108, 3rd Dept 6-5-14

 

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District Attorney’s Former Status as a Judge Hearing Cases Involving the Department of Social Services Did Not Preclude the District Attorney from Issuing Subpoenas for Department Records

The Third Department determined the district attorney’s former status as a judge in matters involving the county social services department did not require the quashing of subpoenas issued by the district attorney seeking records kept by the social services department, either under the Judiciary Law or on appearance-of-impropriety grounds:

The subpoena seeks records pertaining to business relationships between the Columbia County Department of Social Services (hereinafter DSS) and two contractors. The Commissioner first contends that, as the subpoena identifies the documents sought in part by reference to services provided to certain named children, Judiciary Law § 17 precludes the DA — who was formerly a Columbia County Judge — from issuing it. This statute prohibits a former judge from “act[ing]; as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her]; in his [or her]; official character” (Judiciary Law § 17). The Commissioner asserts that, because the named children were allegedly the subjects of Family Court proceedings pending before the DA in his former role as a judge, the subpoena violates this provision. In this context, however, there is a relevant distinction between the object of the underlying court proceedings and the individuals involved in such proceedings. Notably, although the subpoena does reference named children, it does not appear to directly relate to any court proceedings involving those children; it appears instead, although little detail is provided, to relate to social services provided to the named children by the contractors. Similarly, although DSS was a party to many court proceedings over which the DA presided during his judicial tenure, disqualification is not mandated in the absence of an evidentiary showing that the subpoena addresses any action or court proceeding that was previously before him in his judicial capacity… . Matter of Columbia County Subpoena Duces Tecum…, 2014 NY Slip Op 04104, 3rd Dept 6-5-14

 

Alternating Custody on a Yearly Basis, Requiring the Child to Attend Two Schools, Was Not In the Child’s Best Interests

The Third Department determined that alternating physical custody between the parents on a yearly basis, requiring the child to attend two different schools, was not in the child’s best interests:

Here, based on the totality of the circumstances, we disagree with Family Court’s determination, and find that alternating physical custody on a yearly basis is not in the child’s best interests … . Although presenting differing arguments, both parents, as well as the attorney for the child, argue against this disposition on this appeal. As a result of the alternating school schedule in place previously, the child has missed activities and field trips at both schools, and this can only be expected to increase. The superintendent of the school district in Canada where the child’s school is located opined in a letter that the child’s social, emotional and academic development would best be served by attending only one school, and we agree. Despite the hardships and separation necessarily arising from the physical distance between the two parents, it is the child’s own stability that takes increasing precedence as he ages … . Matter of Nelson v Perea, 2014 NY Slip Op 04091, 3rd Dept 6-5-14

 

Father’s Status as an Untreated Sex Offender, Together with Mother’s Willingness to Leave the Children with Father Unsupervised, Was Sufficient to Establish Neglect

The Third Department determined father’s status as an untreated sex offender, together with mother’s willingness to leave the children with father unsupervised, was sufficient to establish neglect:

Petitioner bore the burden of establishing, by a preponderance of the evidence, “first that the children’s ‘physical, mental or emotional condition [was]; impaired or [was]; in imminent danger of becoming impaired’ and, second, that such harm was directly attributable to a failure on the part of [the]; respondent ‘to exercise a minimum degree of care . . . in providing the [children]; with proper supervision or guardianship'” … . While actual harm is not required, the imminent danger of harm “must be near or impending, not merely possible” … . “[A];dditionally, there must be a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child’s impairment or imminent danger of impairment” … .

…[W]e agree with Family Court that the evidence submitted regarding the facts underlying the father’s convictions for abusing young children in his care is sufficient to distinguish this case from Matter of Afton C. (James C.) (17 NY3d at 11…)..

In addition, petitioner also introduced evidence that the father did not complete the sex offender treatment he had been ordered to undergo after his first conviction, that he did not participate in any sex offender treatment while in prison for his second conviction and that the individual counseling he received from a minister while in prison and upon his release did not qualify as appropriate sex offender treatment. Matter of Lillian SS, 2014 NY Slip Op 04101, 3rd Dept 6-5-14

 

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