WORKERS COMPENSATION LAW

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1 WORKERS COMPENSATION LAW Victor Pasternack, Esq. & Matthew A. Funk, Esq. Brecher Fishman Pasternack Heller Walsh & Tilker, P.C. Brooklyn Office: Manhattan Office: Staten Island Office 335 Adams Street 27 th Floor 233 Broadway 136 Bay Street Brooklyn, NY New York, NY Staten Island NY, (718) (212) (718) Queens Office: Bronx Office: Westchester Office: Queens Blvd. 369 East 149th Street 1 North Broadway Forest Hills, NY Bronx, NY White Plains, NY (718) (718) (914) Nassau Office: Suffolk County Office: 1325 Franklin Ave 868 Church Street Suite 5 Garden City, NY Bohemia, New York (516) (631) I. THIRD PARTY PRACTICE... 1 II. GENERAL SPECIAL EMPLOYMENT... 9 III. ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT IV EMPLOYMENT RELATIONSHIP V. VOLUNTARY WITHDRAWL VI. NOTICE VII. AWARDS OF COMPENSATION VIII. DEATH BENEFITS IX. WORKERS' COMPENSATION LAW X. OCCUPATIONAL DISEASE XI. APPORTIONMENT PRE EXISTING INJURY XII. AVERAGE WEEKLY WAGE XIII. SUBSTANTIAL EVIDENCE XIV. REDUCED EARNINGS XV. PROCEDURE XVI. INSURANCE COVERAGE XVII. ATTORNEY FEES XVIII. TESTIMONY XIX. CONSEQUENTIAL INJURY XX. PENALTY...34 XXI. WORKERS COMPENSATION LAW XXII. SERVICE OF APPLICATION FOR BOARD PANEL REVIEW XXIII. VOLUNTEER FIREFIGHTERS BENEFITS LAW XXIV. WORKERS COMPENSATION LAW SECTION XXV. WORKERS' COMPENSATION LAW 25(A): XXVI. WORKERS COMPENSATION LAW SECTION XXVII. APPEALS...38 i

2 I. THIRD PARTY PRACTICE: ALLEN V. ENTERPRISE RENT-A-CAR, 2007 W.L (App. 3 rd 2007) On October 28, 1999, while in the course of his employment the claimant was involved in a motor vehicle accident. He injured his neck, back, left shoulder and left arm. A workers compensation claim was filed as well as a third-party personal injury action. On September 29, 2003 the claimant underwent left shoulder surgery and was out of work from the date of surgery until December 5, The claimant settled his third-party action with the carrier s consent for $225,000, with a net recovery of $143, The presiding Law Judge determined that the claimant had a 20% schedule loss of use of the left arm, entitling him to 62.4 weeks of benefits. Accordingly, the claimant was granted 51.8 weeks of permanent partial disability benefits from October 28, 1999 to October 25, 2000 and 10.6 weeks of temporary total disability benefits from September 23, 2003 to December 5, The Law Judge further held that the 51.8 weeks were payments in lieu of first party benefits, therefore, not subject to the carrier s offset rights under Workers Compensation Law 29. However, the period of temporary total was not payment in lieu of first party benefits, thereby subject to the Section 29 credit. On appeal, the Board Panel reversed holding that the entire award was subject to the credit. The Appellate Division reversed the Board Panel. While a carrier is entitled to a lien against personal injury judgments or settlements paid to a claimant, the carrier shall not have a lien on the proceeds of any recovery received pursuant to Insurance Law 5104 (a) for compensation paid which were in lieu of first party benefits which another insurer would have otherwise been obligated to pay under Insurance Law Article 51. First party benefits are defined as, "payment to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle." This is limited to $50,000 which covers, among other things, lost wages from the first three years following the accident. It is well established that a schedule loss of use award covers basic economic loss and therefore is compensation in lieu of first party benefits, regardless of whether the award represents payments for lost earnings which are actual or presumed. Therefore, the carrier was not entitled to a credit unless the there was evidence that the wages claimed exceed three years or the carrier paid in excess of $50,000. BURNS V. VARRIALE, 820 N.Y.S.2d 655 (App. 3 rd 2006) Plaintiff was injured in the course of his employment when his police vehicle was struck by a vehicle driven by the defendant. As a result of the injuries the plaintiff was classified with a permanent partial disability at the rate of $400 per week. Ultimately his negligence action was settled for $300,000. At the time of the settlement, the compensation carrier had a total lien of $46, reflecting actual 1

3 payments by the carrier of $96, less $50,000 paid in lieu of first party no-fault benefits. Plaintiff moved for an order directing the compensation carrier to pay approximately $20,000 in fresh money. The Supreme Court granted the motion. On appeal, the Appellate Division reversed. The Court concluded that apportionment of counsel fees based on plaintiff s future compensation benefits was speculative. The Court found it improper to apportion the counsel fees where it was impossible to calculate the present value of the carrier s estimated future obligation. Since the plaintiff s actual future earnings and continued attachment to the labor market constitute unknown variables that cannot be reliably predicted, the rate and the duration of the benefits are subject to change and thus are speculative. An award for a permanent partial disability is different from an award for death benefits, permanent total disability or schedule loss of use. The latter benefits do not fluctuate and the duration of benefits is predictable. Therefore, it is easier to predict the present value of the carrier s cost. The compensation carrier in Burns, was permitted to recover the amount of its lien, $46,523.26, reduced by its equitable share of the cost incurred in recovering the lien amount. The reduction was based upon the percentage of the total recovery that it cost the plaintiff in counsel fees and disbursements in order to bring the action. The Court further stated that if the Workers Compensation Board determines that the claimant is entitled to continued compensation benefits, the Board shall direct further reimbursement of counsel fees. These fees are based on the amount of benefits and the cost of litigation percentage determined to be the carrier s equitable share of the cost incurred. In this matter the cost of litigation was 34.82%. If the Board determines that the $400 rate of compensation is applicable, plaintiff would be entitled to 34.82% of that amount, or $ per week from the compensation carrier until the credit is exhausted. HAMMER V. TURNER CONSTRUCTION CORP. 833 N.Y.S.2d 633 (App. 2 nd 2007) Plaintiff settled his third-party action for $225,000. A proposal was made to the Workers' Compensation carrier to accept one-third of the settlement, less disbursements, in satisfaction of its $190, lien. The carrier declined and sought $128, in satisfaction of its lien, which represented a reduction of 34.95%. Plaintiff moved to reduce the amount of the lien held by the carrier. The Supreme Court denied the motion and the Appellate Division affirmed as the carrier properly reduced its lien by its equitable proportional share of the litigation costs, including disbursements and attorney's fees. 2

4 TERRY V. MAURICE PASTRIES, INC., 826 N.Y.S.2d 2 (App. 1st 2006) Plaintiff was working as a culinary student in defendant's business pursuant to an externship program, arranged, by agreement, between the culinary school and defendants. As part of the agreement, the plaintiff was to abide by the guidelines and policies set forth by the defendant. The plaintiff did not receive any pay from the defendant but received training and experience. While on the defendant's premises, she slipped and fell. Defendant moved for summary judgment alleging an employment relationship thereby limiting plaintiff to workers compensation benefits. The trial Court granted the motion. The Appellate Division reversed. Under the circumstances, the injured plaintiff would ordinarily be relegated to workers compensation benefits. However, since the defendant and the school did not secure workers compensation coverage for this extern, she was permitted to opt out of workers' compensation to commence the instant action for damages. AUGUSTINE V. SUGRUE, 831 N.Y.S.2d 424 (App. 2 nd 2007) The Workers' Compensation Board determined that plaintiff was an employee of defendant at the time of the accident. Summary judgment was properly granted dismissing the claim against the defendant. The plaintiff's sole remedy against defendant was through the Workers' Compensation forum. MAROPAKIS V. STILLWELL MATERIALS CORP. 833 N.Y.S.2d 122 (App. 3 rd 2007) Plaintiff's employer and co-employee involved in the subject accident, submitted documents from the Workers' Compensation Board, which demonstrated that the plaintiff was awarded workers' compensation benefits under the policy of the defendant employer. Defendant's motion for Summary Judgment was properly granted. FUNG V. JAPAN AIRLINES COMPANY, LTD., 820 N.Y.S.2d 89 (App. 2 nd 2006) Plaintiff slipped and fell on a patch of ice in a parking lot that was owned by his employer, the Port Authority of New York and New Jersey ("Port Authority"). Pursuant to an agreement with the Port Authority, Japan Airlines Management Corp. ("Japan Airlines") was obligated to, among other things, contract for snow removal services for the parking lot where plaintiff fell. Japan Airlines entered into a contract with Aero Snow Removal Corp. ("Aero") to perform the snow removal. Plaintiff recovered workers' compensation benefits from the Port Authority. The evidence indicated that Japan Airlines was serving as the Port Authority's managing agent when the accident occurred. Japan Airlines motioned for summary judgment alleging that plaintiff's claims were barred pursuant to the exclusivity provisions of the 3

5 Workers' Compensation Law. The Supreme Court denied the motion but the Appellate Division reversed and granted summary judgment. ALTONEN V. TOYOTA MOTOR CREDIT CORPORATION, 820 N.Y.S.2d 263 (App. 1 st 2006) While in the course of his employment as a toll collector for the Port Authority, the plaintiff was struck by a motor vehicle. Plaintiff testified at his deposition that he suffered permanent and total loss of the use of his left foot due to the removal of the peroneal nerve from his leg, which had been crushed, causing a permanent left foot drop and necessitating the use of a brace. He also claimed a brain injury that resulted in a permanent total disability. The trial Court granted defendant employer's motion for summary judgment on the grounds that the plaintiff did not sustain a grave injury under the purview of Workers' Compensation Law 11. The Appellate Division reversed. It is the burden of the party seeking summary judgment to show, by competent admissible evidence that plaintiff's injuries were not grave. The Defendant employer failed to make a prima facie showing that the plaintiff had not suffered a grave injury. FLEMING V. GRAHAM, 824 N.Y.S.2d 376 (App. 2 nd 2006) Photographs of the plaintiff's face failed to clearly establish that the facial scarring constituted a severe facial disfigurement to qualify as a grave injury. MENTESANA V. BERNARD JANOWITZ CONSTRUCTION CORP., 828 N.Y.S.2d 522 (App. 2 nd 2007) Plaintiff sustained a partial amputation of his left index finger while in the course of his employment. As personal injury action was filed. The Defendants impleaded the employer for indemnification maintaining that the plaintiff sustained a grave injury. The Supreme Court denied the employer's motion for summary judgment. The Appellate Division reversed, as the partial loss of an index finger is not the loss of an index finger as listed under the statute and thus does not constitute a grave injury. CASTILLO V. 711 GROUP, INC., 833 N.Y.S.2d 642 (App. 2 nd 2007) Plaintiff sustained a traumatic amputation of his left index finger. The defendant landowner brought a third-party action against the plaintiff's employer alleging that plaintiff sustained a grave injury. The employer moved for summary judgment, on grounds that the injury was not a loss of the index finger within the meaning of Workers' Compensation Law 11. The Supreme Court denied the motion. The Appellate Division affirmed. 4

6 The medical records stated that the amputation extended through the proximal interphalangeal joint. The injury left a painful amputation stump that required two corrective surgeries. The Court determined that the loss of both interphalangeal joints should constitute the loss of an index finger. Previously in Metesana v. Bernard Janowitz Construction Company, 828 N.Y.S.2d 522, the Third Department held that a partial amputation of the index finger to the level of the proximal interphalangeal was not the loss of the index finger. REINOSO V. ORNSTEIN LAYTON MANAGEMENT, INC. 823 N.Y.S.2d 517 (App. 2 nd 2006) Plaintiff, was injured while in the course his employment at a construction site. A negligence action as well as a compensation claim commenced. Defendants impleaded plaintiff's employer maintaining that the plaintiff sustained a grave injury. The Supreme Court ruled that the evidence established a prima facie claim for a grave injury. The Appellate Division reversed. The employer submitted sufficient evidence that the plaintiff did not sustain a grave injury. The Defendant failed to produce any evidence to raise a triable issue of fact that plaintiff sustained a grave injury. BENEDETTO V. CARRERA REALTY CORPORATION, 822 N.Y.S.2d 542 (App. 2 nd 2006) Plaintiff was injured when he fell through a hole in a steel roof building while working at a construction site. He commenced a personal injury action against the owners of the site. The owners filed a cross claim against the plaintiff's employer for indemnification. The employer moved for summary judgment maintaining that the plaintiff did not sustain a grave injury under Section 11 of the Workers' Compensation Law. The Supreme Court ruled that there was not sufficient evidence of a grave injury. The Appellate Division reversed. A prima facie case was made that the plaintiff sustained a grave injury. Plaintiff cannot use his feet at all, is confined to a wheelchair and can ambulate only with the use of crutches and braces dragging his lower body. The expert retained by the employer opined that the plaintiff has a total loss of his feet. O'BERG V. MACMANUS GROUP INC., 822 N.Y.S.2d 306 (App. 2 nd 2006) Plaintiff suffered a work-related accident in which a ceiling tile fell down and struck her in the head. As a result, a claim was filed with the Workers' Compensation Board and a cause of action was filed for negligence against the building owner. A thirdparty action was brought by the building owner against the employer for indemnification based upon the terms of a written contract. The Supreme Court dismissed the third-party action as it was barred by Section 11 of the Workers' Compensation Law. The Appellate Division affirmed. 5

7 There was no evidence that the plaintiff sustained a grave injury. Additionally, the contracts relied upon failed to show the existence of an express agreement on contribution or indemnification. CASTILLA V K.A.B. REALTY INC, 829 N.Y.S.2d 691 (App. 2 nd 2007) Plaintiff was injured by a defective saw while working on a construction site owned by Defendant, K.A.B. Realty Inc. ("KAB"). A personal injury claim was filed against KAB, who in turn commenced a third-party action against Marin Construction Corp. ("Marin"). The third-party action sought common law and contractual indemnification based upon a written work performance contract. Marin argued that plaintiff was its special employee thereby precluding a claim based on the exclusivity provisions of the Workers' Compensation Law. The Supreme Court found triable issues of fact as to the common-law and contractual indemnification. The Appellate Division determined that Marin demonstrated that plaintiff was its special employee at the time of the accident and KAB failed to raise a triable issue of fact. Therefore, summary judgment should have been granted on the common law indemnification claim. However, the exclusivity provisions of the Workers' Compensation Law do not bar a claim for contractual indemnification. Section 11 of the Workers' Compensation Law will not override a provision in a written contract, entered into prior to the accident, by which the employer expressly agrees to provide indemnification. The Court determined that KAB was entitled to summary judgment on its third-party claim for contractual indemnification. COQUE V. WILDFLOWER ESTATES DEVELOPERS, INC., 818 N.Y.S.2d 546 (App. 2 nd 2006) Plaintiff sustained severe permanent injuries when he fell from a scaffold. As a result a negligence action was brought. The employer successfully argued for summary judgment on a claim for contractual and common-law indemnification. The medical evidence failed to demonstrate that the plaintiff sustained a grave injury. Furthermore, there was no claim for contractual indemnification as the Defendant was unable to prove that the plaintiff's accident resulted from a negligent act of the employer as required by the specific indemnification clause between the parties. SOSTRE V. JAEGER, 832 N.Y.S.2d 150 (App. 1 st 2007) Plaintiff, a Starbuck's employee was injured by an electrical explosion in a circuit breaker on premises leased by Starbucks and owned by Defendant, Alt Jay Realty Co. An electrical contractor, Bennani, performed the electrical work. Bennani sought indemnification from the employer based upon a written contact. For the purposes of Workers' Compensation Law 11 a clause stating that the employer had agreed to contribution or indemnification for loss suffered by "any other person" was sufficient to include Starbuck's employees. 6

8 SARMIENTO V. KLAR REALTY CORP, 829 N.Y.S.2d 134 (App. 2 nd 2006) Plaintiff settled his causes of action against all defendants for Labor Law 240 violations.. The plaintiff's employer was impleaded into the cause of action by one of the defendant's based upon the terms and conditions of a purchase order. The employer motioned for summary judgment but that was denied as the Supreme Court found triable issues of fact. The Appellate Division affirmed. The Appellate Division found a triable issue of fact on the issue of contractual indemnification based upon conflicting statements made in the various deposition transcripts. The employer's motion for summary judgment based upon the provisions of Section 11 exclusivity was properly denied. The Court reviewed the employer's workers' compensation insurance policy that failed to afford coverage to injuries that occurred in New York State. It covered injuries in New Jersey. An employer cannot benefit from the protections of Section 11 against third-party liability if it fails to secure workers' compensation insurance. MELSON V. SEBASTIANO, 822 N.Y.S.2d 203 (App. 4 th 2006) Plaintiff was injured when he fell through a roof to the ground approximately 10 feet below. At the time of the accident, the plaintiff was employed by Michael F. Sebastiano Construction Inc, of which defendant Michael Sebastiano was the sole owner and officer. Defendant Marie Sebastiano was the office manager of the corporation. Defendants were the owners of the building where plaintiff was injured. The Appellate Division determined that the Supreme Court properly granted the part of the defendant's motion for summary judgment dismissing the complaint against Michael based on the exclusivity of the Workers Compensation Law. The responsibilities of Michael as sole owner and officer of the corporation were indistinguishable from his responsibilities as property owner. Furthermore, Michael was co employee of the plaintiff for all matters arising from and connected with their employment. However, the summary judgment should not have been granted in regards to the claim brought against Marie. Although plaintiff and Marie were coworkers, this was not enough to confer immunity under the Workers' Compensation Law. Coworker immunity is only justified when the tortfeasor's conduct is within the course of employment. As the office manger, Marie had no responsibility for the safety precautions at the construction site. Therefore, it cannot be said that plaintiff was injured by the negligence or wrong of another in the same employ. Marie's duty of care toward the plaintiff was owed purely in her capacity as the owner of the property. VITA V. NEW YORK WASTE SERVICES, LLC., 824 N.Y.S.2d 177 (App. 3 rd 2006) Plaintiff maintained that he sustained injuries as a result of motor vehicle accident that occurred while employed by Allied Waste Services, Inc. The driver of the other 7

9 vehicle was owned by New York Waste Services, Inc and operated by an employee of New York Waste. Defendant moved for summary judgment alleging that New York Waste was the alter ego of Allied Waste, thereby barring the claim under the exclusivity provision of the Workers' Compensation Law. This motion was denied. The defendant failed to offer evidence of an alter ego relationship. The Appellate Division affirmed. HAGEMAN V B & G BUILDING SERVICES, LLC., 823 N.Y.S.2d 211 (App. 2 nd 2006) Plaintiff was injured while performing demolition work at Home Depot. B & G Electrical contractors employed him. A lawsuit was filed against Home Depot. After depositions and discovery the plaintiff commenced an action against B & G Building Services alleging they contracted with Home Depot to perform the demolition work and that his employment with B & G Electrical contractors was for a separate and distinct entity. Defendant moved for summary judgment maintaining that it was plaintiff's employer thereby covered under the exclusivity provision of the Workers' Compensation Law. The Supreme Court granted the motion for summary judgment as B & G Building Services functioned as the alter ego of B & G Electrical contractors. The Appellate Division reversed. Although B & G Building Services established that it and B & G Electrical contractors were related entities it failed to demonstrate anything other than that the two entities were working at Home Depot on the same demolition project. The evidence showed that the entities might have had some owners in common and offices at the same address. This evidence was not sufficient to establish an alter ego relationship. LAWLESS V. QUELLMAN, 832 N.Y.S.2d 328 (App. 3 rd 2006) Claimant was diagnosed with ruptured biceps as a result of an occupational accident. His treating physician recommended surgical repair. The defendant examined the claimant on behalf of the carrier. He opined that surgery was not needed and instead authorized physical therapy. Eventually, surgery was approved but was ineffective because of the lapse of time following the injury. Plaintiff commenced a medical malpractice action maintaining that the defendant consultant opined that physical therapy would be the appropriate treatment. The plaintiff relied upon this advice to his detriment. The Supreme Court denied defendant's motion for summary judgment. The Appellate Division affirmed. A consultant evaluating on the behalf of the carrier does not normally give rise to a doctor-patient relationship. However, such a relationship may be implied where the consultant affirmatively advises the patient. The plaintiff presented evidentiary facts that show that defendant affirmatively advised him as to the inappropriateness of the surgery. Therefore, a triable issue was raised. 8

10 II. GENERAL SPECIAL EMPLOYMENT: CRUZ V. REGENT LEASING LIMITED PARTNERSHIP, 834 N.Y.S.2d 163 (App. 1st 2007) Plaintiff, a janitor employed by a management company, sustained injuries while in the course of his employment. As a result he filed a personal injury action against the building owner. The defendant building owner, motioned for summary judgment alleging it was the special employer of the plaintiff, thus shielded from liability by the exclusivity of the workers' compensation law. The Appellate Division affirmed the lower Court's denial of the summary judgment motion. The management company exclusively controlled and directed the manner, details and ultimate result of plaintiff's work. There was no evidence that at the time of the accident the plaintiff was performing duties on behalf or under the direction of the defendant. AYALA V. MUTUAL HOUSING AUTHORITY, 822 N.Y.S.2d 262 (App. 3 rd 2006) Plaintiff was employed by the defendant as porter at its premises. The daily activities of the plaintiff were directed, supervised and controlled by an employee of the managing agent of the building. The Appellate Division determined that the management agency should be considered plaintiff's special employer and shielded from liability by the exclusivity provisions of the Workers' Compensation Law. MARRERO V. AKAM ASSOCIATES LLC, 834 N.Y.S.2d 285 (App. 2 nd 2007) Plaintiff, a doorman and porter was injured in the employ of the defendant 545 Tenants Corp ("545 Tenants"), was injured while working at a cooperative apartment building owned by 545 Tenants. The defendant Akam Associates was the building managing agent. Workers' Compensation benefits were received from the insurance carrier for 545 Tenants. Akam moved for summary judgment dismissing the claim alleging that it was the plaintiff's special employer at the time of the accident. The Supreme Court denied the motion. The Appellate Division affirmed. Akam failed to meet its prima facie burden of establishing the defense as a matter of law. The evidence relied upon failed to assert any specific facts to support an allegation of supervision and control over the plaintiff's activities. 9

11 MARTINEZ V. FIFTY TWO WEST SEVENTY SEVENTH STREET CORP, 833 N.Y.S.2d 209 (App. 3 rd 2007) Plaintiff was injured when he fell off a ladder while painting a room at the facility of the defendant, West Care Medical Associates ("West Care"), a department of the defendant St. Lukes-Roosevelt Hospital ("St. Lukes"). SLR Management Services ("SLR") provided payroll services to West Care's support staff. SLR was plaintiff's general employer. SLR issued plaintiff's paychecks from funds supplied by St. Luke's. Workers' Compensation coverage was provided through a policy issued in SLR's name and paid for by St. Lukes. Plaintiff was hired and supervised by an employee of St. Lukes's, who had the authority to discipline and fire plaintiff. West Care and St. Lukes moved for summary judgment in a personal injury suit brought against them alleging that they were the plaintiff's special employer. The Supreme Court denied the motion. The Appellate Division reversed. Competent evidence demonstrated a prima facie entitled to judgment as a matter of law. GHERGHINOIU V. ATCO PROPERTIES & MANAGEMENT, 821 N.Y.S.2d 25 (App. 1 st 2006) Plaintiff sustained injuries while performing construction work at a premises owned by his employer, Hemmer Dinger Corporation. Atco Properties was the managing agent of the property and supervised plaintiff on the date of accident. Plaintiff collected workers' compensation benefits from Hemmer Dinger and filed a claim against Atco for violations of the Labor Law. Atco moved for summary judgment maintaining that it was the alter ego of Hemmer Dinger and plaintiff's special employer on the date of accident. The trial court denied the motion but the Appellate Division reversed. Defendant was entitled to summary judgment since it made a prima facie showing that plaintiff was its special employee. Documentary evidence including affidavits established that plaintiff and other employees of Hemmer Dinger were directed and controlled on a daily basis by defendant's employees and executives. Defendant had the exclusive ability to hire and fire the employees of Hemmer Dinger. The payroll and operating expenses of the two entities was paid from a single, joint bank account, and the defendant and Hemmer Dinger were issued a single workers' compensation policy. NAVARRETE V. A & V PASTA PRODUCTS, INC., 821 N.Y.S.2d 268 (App. 2 nd 2006) Plaintiff, was injured while cleaning a pasta-making machine at work. The evidence established that the plaintiff was employed by Greene County Importing Corporation ("Greene"), who lent her out to A & V Pasta Products, Inc. ("A & V"). The month before the accident the plaintiff worked in a pasta factory where she was supervised by members of A & V. The executives of A & V had exclusive control and direction of the manner, details and ultimate result of the plaintiff's work. The pasta 10

12 equipment was owned by A &V. The Supreme Court denied A & V's motion for summary judgment. The Appellate Division reversed. The defendant submitted sufficient proof to demonstrate as a matter of law that the plaintiff was a special employee. SPENCER V. CROTHALL HEALTHCARE INC., 834 N.Y.S.2d 194 (App. 3 rd 2007) Plaintiff, an employee of Sound Shore Hospital, slipped and fell on a wet floor. A lawsuit was filed against Crothall Healthcare Inc., which managed the hospital's housekeeping department. Defendant's moved for summary judgment arguing that the housekeeping staff members were employee's of the Hospital therefore any cause of action would be barred under the exclusivity provisions of the Workers' Compensation Law. The Supreme Court granted the motion. The Appellate Division affirmed, The members of the housekeeping staff were paid by the Hospital and covered under the Hospital's workers' compensation policy. The Hospital retained the sole ability to discipline and fire them. There was no evidence that the Hospital surrendered control over the employees to the defendant. VILLANUEVA V. SOUTHEAST GRAND STREET GUILD, 829 N.Y.S.2D 459 (App. 1 st 2007) Plaintiff, a maintenance worker, was injured when he fell from a ladder while painting at 410 Grand Street. He was awarded compensation benefits for his injury. A personal injury action was maintained against Residential Management Associates, Inc. ("Residential"). A motion was made for summary judgment by Residential alleging that the plaintiff was its special employee. The Supreme Court denied the motion but the Appellate Division reversed. Residential established as a matter of law that it controlled and directed the manner and details of the plaintiff's work. The record contained testimonial and documentary evidence that Residential supervised the maintenance workers. III. ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT: MASON V. REUNION INDUSTRIES, 820 N.Y.S.2d 168 (App. 3 rd 2006) Claimant maintained that stress from his occupation aggravated his preexisting panic disorder. According to the claimant, the occupational stress occurred when a new plant manager was hired, there was a reduction in maintenance staff and claimant was required to perform additional work duties. The Board denied the claim finding that the stress experienced by the claimant was both typical to his work environment and the result of a lawful employment decision. The Appellate Division affirmed. 11

13 Pursuant to the Workers ' Compensation Law, a claim for stress will be compensable if the stress encountered was greater than which usually occurs in the normal work environment. The Court found no basis to disturb the factual determination that claimant's work-related stress did not exceed that, which could be in his normal work environment. BOGERT V. E.B. DESIGNS, 833 N.Y.S.2d 279 (App. 3 rd 2007) Claimant was injured while playing softball at a company picnic organized by the employer. The employer organized the picnic and the softball game. Notices were sent out advertising the event. Employees were advised to bring a glove for the softball game. The employer paid for the rental of balls and bats. The Board found that the claimant's injury was compensable. The Appellate Division affirmed. Pursuant to Workers' Compensation Law 10(1) an injury sustained in an off-duty athletic activity shall be compensable if the employer required the employee to participate in the activity, paid the worker to do so or sponsored the activity. To show sponsorship there must be some form of overt encouragement by the employer. The evidence in the record supported the Board's decision that the employer sponsored and encouraged the softball event. IV. EMPLOYMENT RELATIONSHIP: JOYNER V. EVENT DESIGN ASSOCIATES, INC WL (App. 3 rd 2007) The Defendant owner authorized an employee to hire someone to deliver furniture and supplies to a party in Long Island. Claimant was selected to perform the job. Event Design Associates leased and paid for a truck for claimant to use. Claimant was provided with specific job instructions, paid by Event Design Associates. The defendant retained the right to terminate clamant if he did not perform the job as directed. While performing the job the claimant was injured. The Board determined that an employment relationship existed between the claimant and Event Design Associates. The Appellate Division affirmed. While no one factor is dispositive of an employment relationship, relevant factors to consider are the furnishing of equipment and supplies, the method of payment, the right to schedule and control and the right to discharge TULLY V. LIVE RIGHT REALTY CORPORATION, 827 N.Y.S.2d 362 (App. 3 rd 2007) Claimant, a painter and plasterer, performed work for Jules Reich for four years. Reich was the president and sole employee of Live Right Realty Corporation, a company 12

14 that managed, sold and rented apartments. The claimant suffered a heart attack while renovating an apartment. The testimony revealed that Reich told the claimant where and when to work and what work needed to be performed. The claimant received all of his materials from Reich and was paid directly from him. The Board concluded that the claimant was an employee of Reich and not Live Right. On appeal, Reich maintained that the evidence indicated that the claimant was an employee of Live Right. The Appellate Division affirmed. As the record indicated a relationship between the claimant and Reich there was no basis to disturb the decision. ELLINGWOOD V. LIBERTY GROUP PUBLISHING, 833 N.Y.S.2D 274 (App. 3 rd 2007) Decedent delivered newspapers for Liberty Group Publishing. He was killed in a motor vehicle accident while in the course of his employment. Liberty maintained that the claimant was an independent contractor and not an employee. The Board found an employment relationship between the decedent and Liberty. The evidence established that Liberty exercised control over the timing and method of decedent's delivery of the newspapers. The accident occurred within the time frame that the decedent was required to deliver newspapers and at a location in the area of decedent's route. The Appellate Division affirmed. CARLSON V. AKIN, 821 N.Y.S.2d 671 (App. 3 rd 2006) Claimant was working as a laborer at a construction site when a nail that he was hammering struck his right eye. Martin Akin hired the claimant. The rate of pay and hours of work was determined by Akin. While the claimant brought his own hammer to the job site, Akin supplied all other necessary tools. Akins's truck was used to transport supplies to the work site. The Board found an employment relationship between the claimant and Akin. The Appellate Division affirmed. V. VOLUNTARY WITHDRAWL: BACI V. STATEN ISLAND UNIVERSITY HOSPITAL, 820 N.Y.S.2d 160 (App. 3 rd 2006) Claimant, a registered nurse, sustained injuries to her back and right knee in March 2002 when she fell on the job. Benefits were ceased as of December 3, 2002, upon a finding that the claimant refused light-duty work and, thus, had voluntarily withdrawn from the labor market. However, since the claimant had undergone total right knee replacement surgery on May 10, 2004 benefits were commenced on the date of the surgery. On appeal, the Board denied benefits subsequent to the surgery as the disability did not cause any lost wages since the claimant had no wages to lose given her prior voluntary withdrawal from the labor market. 13

15 The Court affirmed. Since the claimant voluntarily removed herself from the labor market prior to the time of her knee replacement surgery, she had no causally related wages to lose as a consequence of the disability from the surgery. O SHEA V. INITIAL CLEANING SERVICE, 819 N.Y.S.2d 364 (App. 3 rd 2006) During the course of his career as a carpet cleaner the claimant was exposed to a variety of chemicals. After experiencing lung problems for which he underwent surgery, he was advised by his physician to stop working with chemicals. The employer reassigned the claimant to cleaning marble floors, but this caused him to be exposed to ammonia. Claimant was eventually terminated for failing to report for work without calling the employer in advance. Thereafter, a claim was filed for workers compensation benefits. In 2004, the Board denied the claimant s application for benefits finding that he voluntarily removed himself from the labor market. The Appellate Division reversed and restored the matter. Upon remittal, the Board concluded that the claimant was discharged from his employment for misconduct unrelated to his occupational disease. The claimant failed to establish that his permanent partial disability was a cause of his subsequent inability to obtain employment. The Court affirmed. The discharge from employment defeated the inference that subsequent loss of wages was attributable to a casually related permanent partial disability. The claimant failed to satisfy his burden of establishing by substantial evidence that the limitations on his employment due to his occupational disease were a cause of his subsequent inability to obtain employment. There was no evidence in the record to show that the claimant unsuccessfully sought employment within his limitations. PECK V. JAMES SQUARE NURSING HOME, 823 N.Y.S2d 630 (App. 3 rd 2006) Claimant sustained a compensable injury to her right leg in 1992 and a consequential back injury thereafter. In 1995, she was classified with a permanent partial disability. In 2004, a hearing was held to determine whether the claimant had searched for work within her restrictions. Compensation benefits were continued, even though the claimant failed to present evidence to prove she looked for employment within her medical restrictions. On appeal, the Board rescinded awards on the ground that the claimant had an obligation to seek work within her medical restrictions. The Court affirmed. Where a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions. Although the claimant was classified with a permanent partial 14

16 disability there was no finding that claimant had involuntarily retired. Therefore, she was obligated to search for work. BRYANT V. NEW YORK CITY TRANSIT AUTHORITY, 819 N.Y.S.2d 150 (App. 3 rd 2006) Claimant, a bus driver, suffered a seizure and blacked out while driving a bus. The bus then struck a tree, causing the claimant to suffer numerous physical injuries. Claimant attempted to work afterwards but was unable to continue due to his physical injuries. He was granted a disability retirement based upon his seizure disorder. The Board determined that the claimant suffered a compensable permanent partial disability due to his physical injuries which contributed to his decision to cease employment. However, the Board denied benefits because the claimant testified that he had not sought work within his physical limitations. The Appellate Division reversed. A finding that the claimant's involuntary retirement was due to a permanent partial disability gave rise to an inference that his postretirement loss of earnings was due to his disability. This inference is rebuttable by direct and positive proof that something other than the disability was the sole cause of the claimant's reduced earning capacity after retirement. Proof that a claimant has not sought work after retirement by itself is not sufficient to rebut the presumption in a case where the claimant has been found to involuntarily retire due to a permanent partial disability. O'DELL V. CONSOLIDATED EDISON, 824 N.Y.S.2d 789 (App. 3 rd 2006) Claimant retired from the employer in November 1996 after he had a benign mass removed from right lung. It was not until October 1999 that the claimant was diagnosed with occupational asbestosis and asbestos related pleural disease. The Board Panel determined that the claimant's cessation from employment was not causally related to his occupational pulmonary disease. The Appellate Division affirmed. Whether a claimant's retirement was voluntary is a factual determination to be made by the Board. Such decision will be affirmed if the supported by substantial evidence. Although, claimant testified that he retired due to problems with his breathing, stamina and energy and that he verbally advised his employer of this, the retirement letter authored by claimant indicated that he was retiring to move on with the next phase of his life. An exit interview made no mention of any health-related issues. Moreover, there was no evidence that the claimant was advised by his doctor to retire. 15

17 WOODWORTH V. CLIFTON SPRINGS HOSPITAL 826 N.Y.S.2d 800 (App. 3 rd 2006) Claimant, a registered nurse, sustained work-related injuries to her back and was awarded indemnity benefits. She returned to work at various jobs after the accident until she stopped working for personal reasons. Thereafter, she was classified with a permanent partial disability. The Board denied indemnity benefits as the claimant failed to establish that her back condition was a limiting factor in her search for employment and that she failed to conduct a reasonable and diligent search for employment within her restrictions. The Appellate Division affirmed. Since the claimant's loss of employment was due to a factor other than her work-related injury, she had the burden to establish by substantial evidence that her disability contributed to her continued unemployment. The medical testimony revealed that the restrictions on continued employment was to refrain from maneuvering objects over 10 pounds. SANCHEZ V. CONSOLIDATED EDISON COMPANY, 2007 WL (App. 3 rd 2007) Claimant sustained a compensable injury to her neck, shoulder and wrist. Claimant had two shoulder surgeries. The second surgery prevented her from returning to work. The Board classified the claimant as permanently partially disabled, but denied benefits as she failed to seek employment within her medical restrictions. The Appellate Division affirmed. While a partially disabled person need only seek employment within their medical restrictions, the claimant testified that she did not look for work at all even after her second surgery. The claimant failed to present evidence that her inability to obtain employment was caused by or related to her permanent partial disability. As the Board had not made a finding that the claimant's cessation of employment was involuntary the claimant had the duty to seek employment. LAING V. MARYHAVEN CENTER OF HOPE 834 N.Y.S.2d 398 (App. 3 rd 2007) Claimant was classified with a permanent partial disability due to her compensable injuries. At a hearing, she testified that she had not looked for work or sought employment since her accident. The medical record established that the claimant could work with restrictions of no overhead lifting of more then 25 pounds. The Board concluded that the claimant removed herself from the labor market by failing to seek employment consistent with her limitations. The Appellate Division affirmed. As there was no finding that the claimant involuntarily left her employment she became obligated to search for work with her medical restrictions. 16

18 ICKES V. SAYVILLE ANIMAL HOSPITAL, 2007 WL (App. 3 rd 2007) Claimant, a veterinary technician, was questioned at a hearing about her attachment to the labor market. She testified that she not returned to, or looked for work because her doctor was contemplating surgery. The Board found that the claimant voluntarily removed herself from the labor market. The Appellate Division reversed and remanded. The hearing in question was set based upon the claimant's failure to submit a work affidavit requested by the carrier. Therefore, the claimant had no notice that the issue of voluntary withdrawal would be raised at the hearing. Claimant was afforded no opportunity to be heard on the issue of voluntary removal or even present evidence. The matter was restored for further development of the record on the issue of attachment to the labor market. VI. NOTICE: COFFEY V. SHOP-RITE SUPERMARKETS NORTH, 833 N.Y.S.2d 308 (App. 3 rd 2007) On December 20, 2004, claimant slipped and fell while in the course of employment. A written report of the incident was filed on April 9, The accident was witnessed by a coworker, who immediately notified the employer's assistant manager. The assistant manager helped the claimant up from the floor. The Board found that the claimant was excused from giving timely notice as the employer had actual knowledge of the incident. The Appellate Division affirmed. Workers' Compensation Law 18 requires a claimant to provide written notice of a work-related injury within 30 days of the underlying accident. A failure to comply with this may be excused for various reasons. Actual knowledge of the incident by the employer or its agent shall serve as excuse for a failure to give timely notice. FLYNN V. ACE HARDWARE CORPORATION, 833 N.Y.S.2d 682 (App. 3 rd 2007) Claimant began to experience neck pain on March 25, 2004 while in the course of his employment. Claimant ceased work on April 19, Formal notice was not provided to the employer until June 30, The Board determined that the claimant failed to provide timely notice. The Appellate Division affirmed. Although the failure to provide timely notice may be excused, the claimant bears the burden of demonstrating that the employer was not prejudiced by any delay. The developed record showed that the claimant applied for disability benefits in April 2004 for neck problems not associated with his occupation. The medical documentation from the claimant's doctor did not report a work related incident until at least June Claimant's delay inhibited the employer from investigating the claim, therefore prejudicing them. 17

19 VII. AWARDS OF COMPENSATION: CUCCI V. REXER'S TANG SOO DO KARATE ACADEMY, 823 N.Y.S.2d 292 (App. 3 rd 2006) Claimant was injured when a piece of glass he was carrying in the course of his employment shattered causing a severe neck laceration. The Board found that although the scar was entirely below the claimant's jaw it was covered by the provision of Workers' Compensation Law 15(3)(t) and awarded $10,000. The Appellate Division reversed. The photographic evidence established that the resulting scar fell within the region set forth in the statute. Pursuant to Section 15(3)(t) if the earning capacity of an injured worker is impaired for any serious facial disfigurement an award of compensation can be made not to exceed $20,000. The Court remanded the matter back to the Board to determine if the claimant's present or future earnings were impacted by the injury. LACROIX V. SYRACUSE EXECUTIVE AIR SERVICE, INC., 2007 WL (Ct. Appeals 2007) Claimant was awarded a 75% schedule loss of use for her left arm. The Board directed immediate payment of the award in a lump sum rather then over a weekly period. The Board explained that the assignment of a specific amount of weeks was solely for calculation purposes and not for payment. The Appellate Division affirmed. The Court of Appeals reversed. The Court of Appeals was asked to rule on whether a schedule loss of use award is payable as lump sum or payable over time. The Court reversed the Appellate Division and held that the schedule award was payable over time. The Court stated that the conceptual framework for a schedule award as unallocable to a particular period of lost wages is separate and distinct from the award's method of payment. However, the payment of the schedule award is not allocable to any particular period of disability The Court of Appeals remitted the case to the Appellate Division with directions to remand it to the Board for further proceedings. VAN HORN V. COUNTY OF CAYUGA, 823 N.Y.S.2d 591 (App. 3 rd 2006) Claimant sustained work-related injuries to his left arm and left leg. As a result he was awarded a 47.5% schedule loss of use of the left arm and a 15.8% schedule loss of use of the left leg. This resulted in $75, in compensation benefits, less payments already made. The award was directed to be paid in full in accordance with the holding in Miller v. North Syracuse Central High School Dist., 767 N.Y.S.2d 142 (App. 3 rd 2003). The carrier appealed contending that the Board erred when it provided for a lumpsum payment. The Court reiterated its position in Miller, that the method of computing a 18

20 schedule award pursuant to Workers Compensation Law 15(3) does not transform the schedule award into an award of compensation that must be paid periodically and in a like manner as wages. The schedule in Section 15(3) is a measure by which the total amount of the award is to be determined and the payment of a schedule award is not allocable to any particular period of disability. VIII. DEATH BENEFITS: STEPIC V ADC CONSTRUCTION, 825 N.Y.S.2d 834 (App. 3 rd 2006) During the course of his employment, the decedent laborer noticed a dumpster containing construction debris from an unrelated work site. Inside the decedent noticed a shotgun. Decedent showed the shotgun to a coworker when it accidentally discharged, fatally wounding decedent. The Board determined that the decedent's death did not arise out employment. The Appellate Division affirmed. To be compensable a death must arise out of and in the course of employment. The dumpster and its contents were not used in the course of decedent's employment. Furthermore, it was not customary for workers to look into the dumpsters. This provided substantial evidence to support the Board's determination that the decedent's action in handling the discarded firearm was unreasonable and completely unrelated to his employment. SCHWARTZ V. HEBREW ACADEMY OF THE FIVE TOWNS, 834 N.Y.S.2d 400 (App. 3 rd 2007) Decedent, the executive director of the Hebrew Academy of the Five Towns, was found dead in a men's bathroom in the employer's building. The death certificate listed hypertensive and atherosclerotic disease as the immediate cause of death, with diabetes mellitus as a contributing condition. The Board found that the claimant failed to produce any medical evidence establishing a causal connection between decedent's death and his employment and that the employer had rebutted the presumption of Workers' Compensation Law 21(1). The Appellate Division affirmed. An unwitnessed or unexplained death that occurs during the course of employment is presumed to be compensable. However, this may be overcome by substantial evidence to the contrary. The death certificate itself contained conditions that were sufficient to rebut the presumption. The claimant failed to submit any other medical evidence that contradict the cause of death found on the death certificate. MARCUS V. CITY OF TROY, 833 N.Y.S.2d 296 (App. 3 rd 2007) Decedent and his coworker had just finished a coffee break and were returning to work in the employer's truck, when decedent suddenly suffered convulsions and died. 19

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