WORKERS COMPENSATION LAW

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 11201 New York, NY 10007 Staten Island NY, 10301 (718) 222-9800 (212) 341-7900 (718) 222-9800 Queens Office: Bronx Office: Westchester Office: 118-21 Queens Blvd. 369 East 149th Street 1 North Broadway Forest Hills, NY 11375 Bronx, NY 10455 White Plains, NY 10601 (718) 222-9800 (718) 222-9800 (914) 328-8500 Nassau Office: Suffolk County Office: 1325 Franklin Ave 868 Church Street Suite 5 Garden City, NY 11530 Bohemia, New York 11716 (516) 742-3636 (631) 348-1668 I. THIRD PARTY PRACTICE... 1 II. GENERAL SPECIAL EMPLOYMENT... 9 III. ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT... 11 IV EMPLOYMENT RELATIONSHIP... 12 V. VOLUNTARY WITHDRAWL... 13 VI. NOTICE... 17 VII. AWARDS OF COMPENSATION... 18 VIII. DEATH BENEFITS... 19 IX. WORKERS' COMPENSATION LAW 114... 21 X. OCCUPATIONAL DISEASE... 23 XI. APPORTIONMENT PRE EXISTING INJURY... 24 XII. AVERAGE WEEKLY WAGE... 26 XIII. SUBSTANTIAL EVIDENCE... 27 XIV. REDUCED EARNINGS... 30 XV. PROCEDURE... 31 XVI. INSURANCE COVERAGE... 32 XVII. ATTORNEY FEES... 33 XVIII. TESTIMONY... 33 XIX. CONSEQUENTIAL INJURY... 33 XX. PENALTY...34 XXI. WORKERS COMPENSATION LAW 28...34 XXII. SERVICE OF APPLICATION FOR BOARD PANEL REVIEW... 34 XXIII. VOLUNTEER FIREFIGHTERS BENEFITS LAW... 35 XXIV. WORKERS COMPENSATION LAW SECTION 137... 36 XXV. WORKERS' COMPENSATION LAW 25(A):... 36 XXVI. WORKERS COMPENSATION LAW SECTION 123... 38 XXVII. APPEALS...38 i

I. THIRD PARTY PRACTICE: ALLEN V. ENTERPRISE RENT-A-CAR, 2007 W.L. 610111 (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, 2003. The claimant settled his third-party action with the carrier s consent for $225,000, with a net recovery of $143,574.41. 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, 2003. 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 $46,523.26 reflecting actual 1

payments by the carrier of $96,523.26 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 $139.28 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 $190,329.84 lien. The carrier declined and sought $128,813.08 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

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

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

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

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

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

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

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

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

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

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. 2007 WL 1437438 (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

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

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

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

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 1287957 (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

ICKES V. SAYVILLE ANIMAL HOSPITAL, 2007 WL 1288010 (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, 2005. 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, 2004. Formal notice was not provided to the employer until June 30, 2004. 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 2004. Claimant's delay inhibited the employer from investigating the claim, therefore prejudicing them. 17

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 923074 (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 $75,503.88 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

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

The Board denied benefits ruling that the carrier successfully rebutted the presumptions under Section 21. The Appellate Division affirmed. Although decedent died in the company of a coworker, the absence of an autopsy rendered the death unexplained, thus triggering the presumptions. The carrier's consultant concluded that based upon the decedent's smoking history, obesity, hypertension and family history of heart disease that the death was unrelated to employment. Decedent's widow offered no evidence in opposition of the carrier's medical expert. CRUMP V. SAINT PATRICK'S CHURCH, 831 N.Y.S.2d 576 (App. 3 rd 2007) Decedent, collapsed at work and died shortly thereafter of coronary artery disease. The employer introduced testimony from a medical expert that the was no causal relation between decedent's work activities and his death. The claimant did not submit a medical report but relied upon the presumptions of compensability under Section 21 of the Workers' Compensation Law. The Board denied the claim. The Appellate Division affirmed. Aside from the testimony of the carrier's expert, the Board was presented with evidence that the decedent was not engaged in heavy physical work at the time of his death. MACDONALD V. PENSKE LOGISTICS, 823 N.Y.S.2d 613 (App. 3 rd 2006) In May 2000, decedent was found dead in the cab of his truck a few hours after he completed a delivery. The medical examiner concluded that the cause of death was severe coronary artery disease. The Board found that the carrier presented sufficient evidence to rebut the presumption that the decedent's death arose out of his employment. The Appellate Division affirmed. The carrier presented reports from two medical consultants and the medical examiner who opined that decedent experienced a natural death caused by severe coronary artery disease. Claimant did not present any medical evidence to contradict the findings of the carrier's medical experts. Furthermore, claimant failed to introduce proof that decedent engaged in a work-related activity that brought on the condition. FIERO V. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, 823 NYSD2d 290 (App. 3 rd 2006) Decedent has been diagnosed with a heart condition. As a result, his employer arranged for him to park his car in a lot directly across the street from his office. Decedent was fatally injured when a car struck him as he was walking from the parking lot. The Board denied the claim finding that the decedent's death did not arise out of and in the course of his employment. The Appellate Division affirmed. 20

Accidents that occur on a public roadway usually are not considered work related unless the employee is in close proximity to the employment site where the risks of street travel merge with risks of employment. The risk of being injured by a motor vehicle at the spot of injury was equal for the general public as well as for the claimant. The injury was not a risk of employment. The path the claimant took could not be considered a route endorsed by the employer. DIGREGORIO V. COCA COLA BOTTLING COMPANY, 824 N.Y.S.2d 794 (App. 3 rd 2006) At a February 26, 2003 hearing, the claimant widow was awarded workers' compensation death benefits for her husband's compensable death in 1997. The award was reduced based upon her receipt of Social Security survivor benefits. Thereafter, the Social Security Administration advised the widow that her survivor benefits were retroactively eliminated as of January 2003 due to her eligibility for her own monthly retirement benefits. Based upon this new information a motion was made to recalculate the award without any deduction for Social Security survivor benefits. A Law Judge rescinded the prior finding and made the awards without any deductions. The Board modified the decision concluding that at the time the original award was made the widow was receiving social security survivor benefits. Benefits were directed payable from the date of death until the 2003 hearing with a social security deduction and thereafter with no reduction. On appeal, the Appellate Division modified the decision and remanded for further development. Since the Social Security survivor benefits were terminated as of January 2003 no offset should reduce the award after that date. As the claimant received survivor benefits from 1997 to 2003, any extinguishment of the offset would allow a double recovery. IX. WORKERS' COMPENSATION LAW 114: HUSAK V. NEW YORK CITY TRANSIT AUTHORITY, 2007 WL 1362624 (App. 3 rd 2007) Although the Board established that the claimant sustained an injury to his back while in the course of employment, the carrier sought to rescind the claim based upon the claimant's failure to disclose prior injuries to his back. The Board concluded that the claimant knowingly made a material misrepresentation and disqualified him from receiving benefits. The Appellate Division affirmed. The record indicated that the claimant answer in the negative when asked on four daily activities questionnaires if he sustained any injuries, illness or limitations before the accident of record. The Court was not persuaded by claimant's testimony that he found the questions ambiguous. 21

RETZ V. SURPASS CHEMICAL COMPANY, INC, 834 N.Y.S.2d 389 (App. 3 rd 2007) Claimant was injured in 1994. In 2000, the carrier put forth a motion to disqualify the claimant from receiving benefits, The carrier alleged that claimant misled its medical examiner regarding the extent of his injuries. At the examinations, the claimant explained that he was in constant back pain that restricted him from standing, sitting and bending. Video surveillance of the claimant depicted him using a cane and brace when arriving at the carrier's consultant's office. However, other times he was observed walking without the assistance of a cane, playing catch with his children and engaged in physical activity. The video evidence of the claimant was in sharp contrast to his condition on examination. The Board ruled that the claimant's conduct was so egregious that it warranted a permanent disqualification. The Appellate Division affirmed. Workers' Compensation Law 114-a allows the Board to disqualify a claimant from receiving wage replacement benefits despite the existence of a compensable disability. Based upon the evidence in the record the Board did not abuse it authority to disqualify the claimant. MCKENZIE V. REVERE COPPER PRODUCTS, 834 N.Y.S.2d 387 (App. 3 rd 2007) After claimant was awarded benefits it was discovered that she was working as a waitress. The Board found that she did not violate Section 114-a. The Appellate Division affirmed. While the claimant never directly told the carrier that she was working as a waitress, she explained that she was unaware she was obligated to. Furthermore, when questioned about her work activity the claimant was open and honest about the work she performed. She testified that she advised her doctors of the work. HENRY V. BASS-MACI, 820 N.Y.S.2d 166 (App. 3 rd 2006) Claimant, a home health aide was injured while riding on a bus with her patient. The claim was established for various sites of injury. The employer maintained on appeal that the claimant violated Section 114-a by making false statements about previous litigation and work after the accident. The Board concluded that the claimant did not violate Section 114-a in as much as the claimant had medical evidence to support the inability to remember pertinent details of her past due to memory loss. The Appellate Division affirmed. HARABEDIAN V. NEW YORK MEDICAL CENTER, 825 N.Y.S.2d 569 (App. 3 rd 2006) Claimant was arrested on felony fraud charges for repeatedly obtaining reimbursements for medical-related expenses from the worker' compensation carrier while also receiving payments for such expenses from her spouse's health insurance. The 22

Board determined that the claimant violated Section 114-a and that a permanent disqualification of wage replacement benefits was appropriate. The Appellate Division affirmed. GROPPER V. GPA MECHANICAL, 826 N.Y.S.2d 774 (App. 3 rd 2006) Claimant maintained that he developed asbestos related plural disease and asbestosis from his occupational exposure as a steamfitter. The claim was denied as claimant was an executive officer excluded from coverage on the compensation policy. Thereafter, claimant submitted evidence that he was covered on the policy at the time a diagnosis was made. After a new hearing, the matter was established but the Law Judge. The Board rescinded this finding stating that the claimant's testimony was contradicted by written documents submitted. The Board further found the claimant in violation of Section 114-a. The Appellate Division affirmed. The Court found that the claimant's credibility was undermined by representations made in submitted documentary evidence. The documents contradicted his employment history and date of coverage on the policy. X. OCCUPATIONAL DISEASE: MCNALLY V. NEWSDAY, 2007 WL 1499748 (App. 3 rd 2007) Claimant testified that he stopped work in 1998 after his treating doctor advised him that his occupation caused problems with his knees. A claim was not filed until 2003. The Board and the Appellate Division determined that the claim was time barred since it was not filed within two years after the claimant knew his condition was work related. KEENAN V. PINNACLE ENTERPRISES, LTD., 830 N.Y.S.2d 373 (App. 3 rd 2007) Claimant, a laborer, received disability benefits for a back injury linked to a coughing episode at home. Notwithstanding such award claimant submitted a claim for workers' compensation benefits maintaining that his back injury was an occupational disease caused by constant bending, stooping and heavy lifting. After testimony of the claimant and his employer, as well as presentation of medical evidence from the disability claim, a determination was made that the record lacked evidence to support a finding of an occupational disease claim. The Appellate Division affirmed. The developed record established a history of back treatment with positive MRI studies for herniated discs. Although there was some evidence that the claimant's occupation may have aggravated his prior condition there was also evidence that no work-related incident aggravated the condition. It was within the Board's province to accept the opinion of the medical expert who failed to link the condition to the claimant's occupation. 23

CLANTON V. SALON VISENTIN INC., 829 N.Y.S.2d 754 (App. 3 rd 2007) Claimant's job duties as a receptionist required her to schedule appointments on a computer, use a calculator to establish customer fees, swipe credit cards and buzz clients into the building. She was eventually diagnosed with bilateral carpal tunnel syndrome that required surgery. Despite the existence of prima facie medical evidence, a Law Judge determined that the claimant failed to demonstrate a recognizable link between her condition and a distinctive feature of her occupation. The Board and the Appellate Division affirmed. Based on the testimony of the claimant regarding the variety of duties she performed, it was reasonable to conclude that there was insufficient evidence of a specific repetitive movement suggesting a link between a feature of the job and the injuries. LOPEZ V. SUPERFLEX LTD., 819 N.Y.S.2d 165 (App, 3 rd 2006) Claimant filed a claim for benefits alleging that his bilateral kidney failure was causally related to certain solvents and other toxic chemicals he was exposed to while painting and packing industrial hoses. The Board denied the claim finding that there was no evidence in the record as to what chemicals the claimant was exposed to which would have caused his renal dysfunction. The Appellate Division reversed. Claimant testified that he worked with inks and solvents that were shown to contain lead, chromium, methyl ethyl ketone, cyclohexanone, hexone and other toxic chemicals. In addition, the Material Safety Data Sheets for the inks and solvents reflect kidney damage as a potential hazard. Both the claimant's medical expert and the carrier's consultant opined that it was possible that claimant's exposure to such chemicals caused renal failure. Although neither expert could identify which chemical caused the kidney failure, the testimony that the claimant was exposed to chemicals capable of causing kidney failure in the workplace was sufficient to establish the claim. XI. APPORTIONMENT PRE EXISTING INJURY: BREMNER V. NEW VENTURE GEAR, 819 N.Y.S.2d 142 (App. 3 rd 2006) Claimant underwent a right knee replacement surgery in 1991 due to a condition wholly unrelated to his employment. In October 2002, claimant fell at work and sustained injuries to his right shoulder and right knee. As a result, he experienced increasing pain in his right knee attributable to the loosening of its replacement components ultimately requiring surgery. A Law Judge determined that apportionment did not apply to claimant s claim for temporary disability benefits and awarded benefits without prejudice to the employer s claim for apportionment upon a finding of a permanent disability. The Board affirmed. 24

The Appellate Division affirmed on the rationale that the claimant s preexisting condition was not a compensable injury and that at the time of the work-related accident, claimant was asymptomatic and fully capable of effectively performing his job duties. The Court stated this differed from Scally since this was not a schedule loss of use case. SCALLY V. RAVENA COEYMANS SELKIRK CENTRAL SCHOOL DISTRICT, 819 N.Y.S.2d 137 (App. 3 rd 2006) In 1986, claimant sustained a non work-related injury to her left knee. She subsequently underwent reconstructive surgery to address this injury in 1993. Claimant worked without disability or restrictions until February 12, 2002, when she reinjured her left knee in the course of her employment. Following multiple hearings, a Law Judge found that apportionment of medical expenses for a second surgery was not appropriate notwithstanding testimony from the employer s consultant that 50% of claimant s disability was attributable to the prior injury and 50% was attributable to the 2002 compensable injury. Both the claimant s doctor and the carrier s consultant opined that there would have been a schedule loss of use award following the 1993 surgery had the prior injury been work-related. Upon review, the Board reversed and directed apportionment. In a decision with a dissenting opinion, the Appellate Division affirmed the Board. Generally apportionment is not appropriate where the claimant s prior condition was not the result of a compensable injury and such claimant was fully employed and able to effectively perform his or her duties despite the noncompensable pre-existing condition. The determinative issue in such cases is whether the claimant s prior condition constitutes a disability in a compensation sense. The majority agreed with the Board s rationale that apportionment was appropriate when the prior nonwork-related injury would have resulted in a schedule loss of use award had the injury occurred in the work environment. Since schedule loss of use awards are intended to compensate for the diminution in future earning capacity, the Court reasoned that a nonwork-related injury which would have resulted in a schedule loss of use award is a disability in a compensation sense sufficient to warrant a finding of apportionment. The Court agreed with the Board s justification that a workers compensation carrier should not be made to pay any portion of a schedule loss of use award attributable to a pre-existing loss of range of motion. The Dissenting Justice cited numerous cases in which the Court consistently held that apportionment was not appropriate where the claimant s prior condition was not the result of a compensable injury and claimant was fully employed and able to effectively perform his duties despite the noncompensable preexisting condition. This Justice was concerned with a movement from precedent that required a showing that the preexisting injury restricted the claimant s employability prior to the second injury. This new focus would permit apportionment upon a showing of medical evidence of a preexisting loss of 25

use, range of motion or function of the body part in question which would have resulted in a schedule loss of use finding had the prior injury been compensable. This would permit apportionment despite the fact that the claimants in these cases were fully employed and worked without restriction prior to the compensable injury. BROWN V. HARDEN FURNITURE, 823 N.Y.S.2d 628 (App. 3 rd 2006) While in the course of his employment, decedent, experienced stomach pains while attempting to unload a heavy piece of furniture. Decedent was brought to the hospital where he later died. An autopsy determined the immediate cause of death to be bronchopneumonia associated with hypertensive cardiovascular disease. Medical reports were submitted from the decedent's physician who concluded that the death was related to exertion at work. While the carrier's consultant agreed that the decedent's death was work related, he opined that the decedent's obesity and cardiomyopathy were also significant contributing factors. The Board affirmed the establisment of the claim without any apportionment. The Appellate Division affirmed. Apportionment is not applicable where the preexisting condition was not the result of a compensable injury and the claimant was able to effectively perform his job duties at the time of the work-related incident despite the preexisting condition. XII. AVERAGE WEEKLY WAGE: BARNARD V. JOHN MEZZALINGUA ASSOCIATES, INC 827 N.Y.S.2d 7766 (App. 3 rd 2006) The claimant worked 153 days during the year immediately preceding the date of accident. The Board calculated her average weekly wage using a 200 multiple. The Appellate Division affirmed. Since the claimant did not work substantially the whole of the year preceding her injury and because the record lacked evidence of the earnings of an employee in a position similar to hers, the Board appropriately used Workers' Compensation Law 14(3) to calculate her average weekly wage. The claimant was a full-time employee, who did not voluntarily limit her availability for work. The use of the 200 multiplier was appropriate to accurately reflect earnings. TANGORA V. VOLUME SERVICES AMERICA, 820 N.Y.S.2d 158 (App. 3 rd 2006) Claimant was injured in the course of his employment. An issue arose as to the calculation of claimant's average weekly wage. Claimant maintained that the value of temporary housing provided by the employer during horse racing meets should have been considered as part of his average weekly wage. The Board denied this request. The Appellate Division affirmed. 26

The value of housing provided by an employer shall constitute wages where such housing is provided as part of the employee's compensation under a contract of hire. The testimony reveled that the housing provided was not remuneration for services, but was intended to prevent the employees from having to incur extra living expenses while working away from the primary residence. The record also failed to show that employees who were not provided housing received higher salaries than those who did. XIII. SUBSTANTIAL EVIDENCE: SANTIAGO V. OTISVILLE CORRECTIONAL FACILITY, 832 N.Y.S.2d 831 (App. 3 rd 2007) Claimant, a corrections officer, filed a claim for workers' compensation benefits alleging that he fell and struck his head while conducting a search. The accident resulted in a head injury and psychological conditions. Initially, a Law Judge established the matter. However, the Board reversed. The Appellate Division affirmed. The record demonstrated that the claimant did not seek medical attention until six months after the accident. The medical treatment did not commence until after the claimant was served with a notice of discipline that recommended claimant's termination for improper conduct with inmates. Notice of the alleged accident did not occur until after the claimant was advised that he was being transferred to another unit. Based upon these factors there was substantial evidence to support the Board's denial of the claim. DARLING V. TRANSPORT DRIVERS INC., 824 N.Y.S.2d 806 (App. 3 rd 2006) Medical testimony was scheduled on the issue of causal relation between the claimant's neck condition and his occupation. At the conclusion of testimony, the Law Judge found the opinion of the carrier's doctor more credible then that of the claimant's medical provider. The Board affirmed. On appeal, the Appellate Division affirmed noting that the Board's decision was supported by substantial evidence. Particularly, the Court found that the opinion provided by claimant's treating physician was based upon an inaccurate description of the work duties performed by the claimant therefore insufficient to establish causal relationship. HAAS V. GROSS ELECTRICAL, 828 N.Y.S.2d 680 (App. 3 rd 2007) Claimant injured his back in a work-related motor vehicle accident. Medical records submitted by the carrier established that the claimant previously suffered numerous back injuries prior to the work incident. In addition, the claimant sustained a subsequent accident to his back, seven days after the work incident. Medical testimony from the claimant's treating doctor and the carrier's consultant failed to offer a clear indication as to the causality of the claimant's medical condition. The Board found that 27

the medical evidence did not support an award. The Appellate Division affirmed as the Board's decision was supported by substantial evidence. WASHINGTON V. NEW YORK CITY DEPARTMENT OF BUILDINGS, 833 N.Y.S.2d 264 (App. 3 rd 2007) Claimant injured his neck, back and right knee while in the course of his employment on May 24, 1999. This case resulted is a third-party settlement of $137,500. Subsequently, a second claim was filed alleging that on June 19, 2001 he developed a cyst in the right knee. A Law Judge ruled that the development of the cyst was a separate and distinct injury from the 1999 incident. Upon review, the Board reversed. The Appellate Division affirmed the Board. An impartial orthopedic surgeon appointed by the Board explained that the cyst resulted from leakage of fluid connected to a surgery caused by the 1999 incident. He further opined that the cyst could have developed from degeneration of the meniscus from the 1999 incident. This provided the Board with substantial evidence to support their decision. SALLEY V. NEW YORK CITY POLICE DEPT., 833 N.Y.S.2d 686 (App. 3 rd 2007) Claimant, a school safety agent for the New York City Police Department, heard a popping sound in his right knee while walking a patrol. Fifteen years prior to the accident the claimant had surgery to the same knee. He also regularly experienced pain in the knee before the accident. The Board denied the claim. The Appellate Division affirmed. The record contained substantial evidence to support the Board's decision. Claimant informed his doctor that he was taking painkillers on the date of accident and wore a knee brace to stabilize the knee. DOLLARD V. VAL TECH RESEARCH INC., 2007 WL 1500008 (App. 3 rd 2007) Claimant appealed a decision that determined he had no further causally related disability. This decision was based upon videotape surveillance evidence as well as medical testimony. The Board and the Appellate Division affirmed. Substantial evidence supported the decision. The videotapes depicted the claimant performing numerous dance maneuvers for his band that involved jumping, turning, squatting and balancing, all with no apparent discomfort or limitation. All of the medical experts, including the claimant's concluded that the behavior depicted in the videotapes were inconsistent with the claims set forth. 28

KIRCHGAESSNER V. ALLIANCE CAPITAL MANAGEMENT CORP. 834 N.Y.S.2d 392 (App. 3 rd 2007) Decedent was fatally injured after being struck by a tractor-trailer while crossing a street on her way home from work. The Board determined that the decedent's death did not arise out of and in the course of employment. The Appellate Division affirmed, The general rule states that injuries sustained during travel to and from the place of employment are not compensable. Evidence in the record established that 5% to 10% of decedent's work was performed from home. The decedent worked from home approximately 3 days per month. Testimony from the employer indicated that its preference was for employees to come to the office but it did allow work from home at times. The day before the accident, the decedent worked from home for personal reasons. Although there was evidence to the contrary, the Board's decision was supported by substantial evidence. MOLTZON V. COMPUTER ASSOCIATES, 834 N.Y.S.2d 369 (App. 3 rd 2007) Decedent was at La Guardia Airport in New York City for business-related travel when he suffered a fatal heart attack. The Board determined that the decedent's death was not causally related to work-related stress. The Appellate Division affirmed. The death certificate and autopsy report listed the cause of death as atherosclerotic cardiovascular disease. The record was developed with testimony form the claimant's expert and the carrier's consultant. Both doctors offered different opinions as to the cause of death. The Board resolved the conflict in the medical evidence. As that decision is supported by substantial evidence there was no basis to disturb the decision. FERRAINA V. HONDA, 820 N.Y.S.2d 174 (App. 3 rd 2006) Claimant maintained that he developed a stress fracture in his leg from his duties as an auto mechanic. The claimant was diagnosed with hypophosphatemic rickets as an infant and received medical treatment for this condition throughout his life, including leg braces, and several surgeries. The claimant's doctor testified that the cause of the stress fractures was attributable 50% to the preexisting condition and 50% to the repetitive weight-bearing required by his employment. The Board denied the claim crediting the opinion of the carrier's consultant that the claimant's condition was entirely attributable to the progression of his preexisting condition. The Appellate Division affirmed. The Court deferred to the Board's credibility determination as it was supported by substantial evidence. ESPINO V. LOUIS SOLOMON INC, 832 N.Y.S.2d 109 (App. 3 rd 2007) Claimant filed a claim alleging that he sustained an occupational disease to his back and left knee as a result of repetitive movements associated with his position as a warehouse worker. The matter was established for an accidental injury by a Law Judge 29

based upon the uncontroverted testimony of the claimant of a specific incident. However, the Board rescinded the decision based upon inconsistencies between the claimant's testimony and the forms he filed for benefits. The Appellate Division reversed. The Court determined that the developed record failed to rebut the presumptions afforded to an injured worker under Section 21 of the Workers' Compensation Law. The Court stated that Board had the opportunity to further develop the record with testimony of lay witnesses but decided not to do so. It was improper for the Board to penalize the claimant for failing to characterize his injury as an occupational disease or accident on the claim forms especially when the testimony clearly indicated an injury in the course of employment. KANG V. AMNESIA CORPORATION INC., 823 N.Y.S.2d 617 (App. 3 rd 2006) On May 14, 2003 the claimant was injured in the course his employment with an uninsured employer. Several preliminary hearings occurred prior to the trial date. However, it was not until the date of trial that the uninsured employer requested copies of medical reports. Furthermore, at that hearing the employer declined to cross-examine the claimant or offer the employer's testimony. The Board established the matter based on the developed record. The Appellate Division affirmed. Substantial evidence supported the Board's decision. XIV. REDUCED EARNINGS: BALDWIN V. FUNK, INC., 820 N.Y.S.2d 186 (App. 3 rd 2006) Claimant, a mechanic, submitted a claim for workers compensation benefits as a result of work-related injury to his back. Subsequently, the claimant was classified with a permanent partial disability. Thereafter, the claimant started his own lawn and garden equipment repair business, prompting the compensation carrier to question his entitlement to wage replacement benefits. A hearing ensued to determine the proper average weekly wage associated with the new business inorder to calculate reduced earnings. A Law Judge awarded wage replacement benefits to the claimant by computing his actual earnings by subtracting from his gross income costs for vehicles, utilities, insurance, taxes, and licenses. These expenses were deemed to be necessary and mandatory deductions. The Law Judge did not allow deductions for deprecation, legal and professional services, repairs and maintenance, office costs and other expenses in as much as these expenses were optional. The Board and the Court affirmed. 30

CALISE V. HILLSIDE CARTING INC., 832 N.Y.S.2d 107 (App. 3 rd 2007) After claimant was classified with a permanent partial disability, the carrier discovered that he was a principal in a corporation and sought a determination as to whether claimant's post injury income, inclusive of a portion of the corporation's profits, precluded further receipt of benefits. The Board determined that the claimant's average weekly wage should be determined based upon his W-2 statements and personal tax returns. The Appellate Division affirmed. Wage earning capacity is based upon the claimant's actual earnings and profits from a business venture are not considered earnings for the purposes of calculating an average weekly wage. XV. PROCEDURE: NIKOLAEVA V. CATTARAUGUS COUNTY NURSING HOME, 828 N.Y.S.2d 923 (App. 3 rd 2007) Claimant was awarded compensation indemnity benefits at a moderate to marked rate. On appeal, the Board Panel denied the claimant's request to have her compensation increased to reflect a total rate of disability. Claimant then sought reconsideration from the Full Board. This request was denied. Claimant appealed only the decision denying her application for reconsideration. Appellate Division affirmed as the Board's decision was not arbitrary and capricious. SEE ALSO: TAYLOR V. RALEIGHT HOTEL, 826 N.Y.S.2D 796 (App. 3 rd 2006); TONER V. MICHAEL HANLEY MOVING & STORAGE, 2007 WL 1284943 (App. 3 rd 2007) RIVERS V. BLUE RIDGE FARMS, INC., 829 N.Y.S.2d 245 (App. 3rd 2007) The Appellate Division denied review of a decision that the Board determined to be interlocutory. The Court reasoned that it would be inappropriate to undertake a review of a decision where the Board requested further development of the record. WILKINSON V. BENDIX FRICTION CORPORATION, 820 N.Y.S.2d 188 (App. 3 rd 2006) In a decision filed August 8, 2003, the Law Judge established the claim but denied disability benefits. The claimant appealed. In a rebuttal the carrier replied to the claimant's application while objecting to the establishment of the claim. The Board in a decision filed on January 29, 2004 determined that to the extent that the rebuttals sought review of the August 2003 decision, they were untimely. Thereafter, in February 2004 the 31

carrier filed an application for review of the 2003 decision. The Board denied the application as untimely. The Appellate Division affirmed. The Board has discretion to accept or reject applications for review filed after the expiration of the 30 day period set forth in Workers' Compensation Law 23. As the Board did not abuse its discretion in denying the carrier's application there was no basis to reverse. HERNANDEZ V. EXCEL RECYCLING CORP., 820 N.Y.S.2d 340 (App. 3 rd 2006) The carrier for the first time during its appeal to the Board Panel raised an issue of the claimant's entitlement for benefits due to his status as an undocumented alien not legally authorized to work in the United States. The Board refused to entertain this issue as it was not properly raised before the Law Judge. The Appellate Division affirmed, as the Board is not obligated to consider an issue that was not raised or developed at the hearing before the Law Judge. MICKENS V NEW YORK CITY TRANSIT AUTHORITY, 821 N.Y.S.2d 676 (App. 3 rd 2006) The claimant and the carrier entered into a written stipulation. The agreement resolved prior rates of compensation as well as the amount of the future weekly rate. The Law Judge approved the agreement as well as a $7,250 counsel fee. The claimant filed a pro se appeal to the Board alleging that the stipulation was not valid and the amount of the counsel fee was excessive. The Board denied the appeal. The Appellate Division affirmed. The Court will not set aside a stipulation if a Law Judge approves it after all rights are explained on the record. The record in this case adequately established that the claimant understood his rights. The counsel fee was appropriate based upon the nature of the work performed by counsel. XVI. INSURANCE COVERAGE: VASQUEZ V. RANFERI CONSTRUCTION CORP, 2007 WL 1287883 (App. 3 rd 2007) Claimant sustained injuries while in the course of his employment in November 2002. The workers' compensation carrier claimed that it had a policy effective June 14, 2002 until June 14, 2003. However, according to the carrier the policy was cancelled on July 22, 2002 at the request of the employer with a cancellation date of June 14, 2002. The Board determined that the employer improperly cancelled the policy. There was no evidence that a notice of cancellation was served on the Board with a specific date of cancellation pursuant to Workers' Compensation Law 54(5). The Appellate Division affirmed. 32

XVII. ATTORNEY FEES: BELL V. GENESSE INN, 826 N.Y.S.2d 772 (App. 3 rd 2006) At the conclusion of the case, claimant's counsel submitted an application for counsel fees, together with an itemized time sheet detailing the hours invested in the matter. The Law Judge reduced the requested fee of $3750 to $2750. The Board and the Appellate Division affirmed. Pursuant to Workers' Compensation Law 24 the Board is vested with the authority to approve counsel fees. The Court will only disturb such approval if it was arbitrary, capricious, and unreasonable or otherwise constituted an abuse of the Board's discretion. The Court failed to find that the Board overstepped its authority. XVIII. TESTIMONY: HICKS V. HUDSON VALLEY COMMUNITY COLLEGE, 825 N.Y.S.2d 287 (App. 3 rd 2006) At the conclusion of the claimant's testimony the Law Judge directed depositions of the claimant's physician and the carrier's consultant. The parties took the depositions of doctors. However, the carrier failed to file the deposition transcript of the claimant's doctor within the proscribed time. The Law Judge precluded the carrier from introducing this transcript. On appeal, the Board and the Appellate Division affirmed. Since the carrier failed to offer an excuse for its failure to timely furnish its evidence, it was not an abuse of discretion for the Board to preclude the testimony. XIX. CONSEQUENTIAL INJURY: DECHICK V. AUBURN CORRECTIONAL FACILITY, 833 N.Y.S.2d 261 (App. 3 rd 2007) Claimant sustained a compensable injury to his right knee. Thereafter, he underwent surgery. The claimant maintained that the surgery aggravated his chronic obstructive pulmonary disease. Claimant submitted medical evidence indicating that the surgery triggered a worsening of his respiratory condition. The Board ruled that this evidence was not sufficient to establish a consequential claim. The Appellate Division affirmed. The Board was free to discount claimant's evidence even though there was no contrary evidence in the record pertaining to this issue of causation. 33

XX. PENALTY: HORTON V. AKZO NOBEL SALT, 825 N.Y.S.2d 301 (App. 3 rd 2006) Although the carrier was under an obligation to make continuous payments to the claimant, six payments were received late. The Board fined the carrier with a penalty pursuant to Workers' Compensation Law 25(1) (e) in the amount of $456 for $780 paid late. On appeal, the Appellate Division reversed. Pursuant to Section 25(1)(e), if the carrier fails to pay any installment of compensation within 25 days after the same became due, a penalty will be levied equal to 20% of the compensation then due. The carrier shall also be assessed the sum of three hundred dollars, which shall be paid to the claimant. The Court interpreted the statute to only require one payment of the $300 penalty. However, the Court remanded the matter back to the Board as prior Board decisions allowed multiple penalties of $300. The Board must explain why it departed from prior holdings. XXI. WORKERS COMPENSATION LAW 28: FIRENZE V. MAYFLOWER VAN LINES, 823 N.Y.S.2d 611 (App. 3 rd 2006) Claimant failed to file his claim within two years of the date of accident. Claimant maintained that there was an advance payment of compensation that would toll the statute of limitations. Specifically he relied on the fact that the third-party administrator for the carrier paid his chiropractor for treatment rendered. The evidence indicated that payments were made to the chiropractor under a separate policy from the workers compensation policy. Therefore, payments were not made in recognition of a workers' compensation claim. The Board denied the claim and the Appellate Division affirmed. A workers' compensation claim that is not filed within two years of the date of accident shall be found untimely pursuant to Workers Compensation Law 28. However, if the compensation carrier made advance payments to the claimant in acknowledgement of liability the time frame shall be tolled. The Court found that the record supports the Board's decision although a contrary result could have been found. XXII. SERVICE OF APPLICATION FOR BOARD PANEL REVIEW: FAELLO V. FEDERAL EXPRESS, 823 N.Y.S.2d 615 (App. 3 rd 2006) Claimant filed an application for review by the Workers Compensation Board. This appeal was served upon the self-insured employer s claims manager but not the 34

employer itself. The Board denied review of the application and found that the employer was not served with the application for review. The Court affirmed. Pursuant to 12 NYCRR 300.13 [a], an application for Board review must be served upon all parties in interest to the proceeding. Since the self-insured employer had an interest in the underlying proceeding, the Board was bound by the service requirements. XXIII. VOLUNTEER FIREFIGHTERS BENEFITS LAW: WEINSTEIN V. SOMERS FIRE DISTRICT, 829 N.Y.S.2d 726 (App. 3 rd 2007) Claimant, a self-employed real estate agent, sustained a back injury in July 2001 while lifting an oxygen tank into an ambulance while performing his duties as a volunteer firefighter. The claimant was found to have a permanent partial disability with a 50% loss of earning capacity. The Appellate Division affirmed this finding. A volunteer firefighter who is injured in the line of firematic duty is entitled to workers' compensation benefits if he demonstrats that there is a loss of earning capacity attributed to performance of employment duties usually and ordinarily performed at the time of the injury. Medical evidence indicated that the injury limited the claimant's ability to perform various functions of a real estate agent. Furthermore, the claimant's work hours were drastically reduced as a direct result of the back injury. SCHUSTER V. VILLAGE OF LAKE GEORGE FIRE DEPARTMENT, 823 N.Y.S.2d 619 (App. 3 rd 2006) Claimant, a volunteer firefighter, was also self-employed in a vehicle repair business. Claimant at various times was retained in his business capacity to perform maintenance on the fire trucks at his station. While performing work on a truck he sustained injuries. Testimony revealed this particular work was done on a volunteer basis and not in the claimant's business capacity. The claimant merely slid under the truck to adjust a pump. This activity could have been performed by anyone in the firehouse. The Board awarded benefits determining that he was acting in his role as a volunteer firefighter at the time he was injured. The Appellate Division affirmed. Pursuant to Volunteer Firefighter's Benefit Law 5(2) (e) the entitlement to benefits hinged on whether the claimant was injured while in the course of firematic duties. Although there was evidence, to the contrary the Board's decision was supported by substantial evidence. 35

XXIV. WORKERS COMPENSATION LAW SECTION 137: OLCZYK V. VERIZON, 822 N.Y.S.2d 338 (App. 3 rd 2006) The carrier arranged for an independent medical examiner to perform an evaluation of the claimant. The report of the evaluation never made it into the Board s electronic case folder but an addendum was subsequently filed. The Board precluded the report and the addendum for noncompliance with Workers Compensation Law 137. The Court affirmed. Since the report was not timely filed the addendum was properly precluded as it relied on the original inadmissible report. XXV. WORKERS' COMPENSATION LAW 25(A): WASHBURN V. BOB HOOEY CONSTRUCTION COMPANY, 833 N.Y.S.2d 696 (App. 3 rd 2007) Claimant was injured in May 1991. Benefits were paid until February 2001 when the claimant returned to work. In March 2004, the claimant reopened the case for additional benefits due to new lost time as well as to amend the claim for neck injuries. The carrier motioned to shift liability to the Special Funds pursuant to Workers' Compensation Law 25(a). The Law Judge denied this motion and the Board affirmed. On appeal, the Appellate Division affirmed. Pursuant to Section 25(a), the Special Fund must cover any payments if a case is reopened more then seven years following the injury and three years following the last payment of compensation. However, the applicability of this section depends on whether the case was officially closed. The record indicated that when the case was closed in 2001 further proceedings were contemplated. At the time of closure in 2001 the claimant's neck condition was not made part of the claim despite medical evidence linking it to the accident. Therefore, a question existed after 2001 as to the compensability of the neck claim. STANFORD V. LEWIS COUNTY OPPORTUNITIES, 822 N.Y.S.2d 341 (App. 3 rd 2006) Claimant suffered a compensable back injury in March 1993. In June 1995 he underwent back surgery. An issue of concurrent employment was raised but not resolved when the matter was closed in 1996. In October 2004 a hearing was held to address a request for a surgical procedure, concurrent employment and liability under Section 25-a. The Board denied the claim for 25-a liability as the matter was not truly closed in 1996 because the issue of concurrent employment was not resolved. The Appellate Division 36

affirmed. A case is not truly closed if further proceedings are contemplated at the time of the closing. KUSY V. SOUTH ORANGETOWN CENTRAL SCHOOL DISTRICT, 825 N.Y.S.2D 786 (App. 3 rd 2006) As a result of a March 13, 1985 compensable motor vehicle accident the claimant settled her third-party action for a net recovery of $3,000. In 2003, the claim was reopened for payment of medical expenses. The compensation carrier sought to shift liability to the Special Funds under Section 25-a. The Board denied this request. The compensation benefits payable after the $3,000 credit represented deficiency compensation benefits. The Appellate Division affirmed. Although liability for a workers' compensation claim can shift to the Special Funds when a case is reopened more then seven years from the accident and after three years from the last payment of compensation. However, the transfer of liability is precluded when an award for deficiency compensation is made pursuant to Workers' Compensation Law 29(4). GRANBERRY V. JCCA EDENWALD INC., 823 N.Y.S.2d 550 (App. 3 rd 2006) Claimant was injured in 1995. Awards of compensation were paid until June 2000. Thereafter various hearings occurred on the issues of surgery and payment for treatment. The carrier motioned to shift liability to the Special Funds under Section 25-a. The Board determined that 25-a was applicable. The Appellate Division reversed. A review of the record revealed that when the matter was marked off the calendar in 2003 there was still an outstanding issue of lost time in 2000. Therefore, there was never a true closing to trigger the provisions of Section 25-a. BARKER V. BUFFALO COLOR CORPORATION, 822 N.Y.S.2d 163 (App. 3 rd 2006) Claimant sustained a work related injury in 1994. Compensation benefits were paid until 1996. In 1999, the case was reopened and claimant was awarded further benefits. When claimant sought authorization for an MRI 2003, the employer raised the issue of shifting liability to the Special Fund under the purview of Workers' Compensation Law 25-a. The Board found this section inapplicable. The Appellate Division affirmed. The 1999 decision stated that the case was continued. Furthermore, the 2003 decision that authorized the MRI did not constitute a true closing since claimant's future treatment depended on the results of the MRI. 37

XXVI. WORKERS COMPENSATION LAW SECTION 123: CAGLE V. JUDGE MOTOR CORPORATION, 819 N.Y.S.2d 333 (App. 3 rd 2006) Decedent sustained an accidental injury to his back in 1988. He died in 1990 before the merits of his claim could be determined. Decedent's widow applied for death benefits alleging that the death was a consequence of the back injury. In 1991, the claim was dismissed for a lack of medical evidence. In 2003 decedent's daughter sought to reopen the case based on alleged new evidence. The Board found that the attempt to reopen the case was untimely pursuant to Workers' Compensation Law 123. The Appellate Division affirmed. The claim was closed in 1991. At that time none of the parties appealed the Board's decision that the file lacked medical evidence. The evidence submitted in 2003 did not rise to the level of newly discovered evidence as it merely summarized the medical evidence previously submitted. XXVII. APPEALS: SALATTI III V. CRUCIBLE MATERIALS CORPORATION, 824 N.Y.S.2d 793 (App. 3 rd 2006) At a hearing held on May 2, 2003 a Law Judge directed reimbursement to the claimant's employer for wages paid. At a hearing held on June 8, 2005 the claimant objected to the May 2, 2003 holding. When the Law Judge refused to disturb the finding, the claimant appealed. The Board Panel declined to consider the application. Although the appeal referenced the 2005 hearing it actually sought review of the 2003 hearing. The Appellate Division affirmed. It was not an abuse of discretion for the Board to deny the application because it was not filed within 30 days of the objected decision. MCCURTY V. SYRACUSE UNIVERSITY, 825 N.Y.S.2d 294 (App. 3 rd 2006) In a reserved decision duly filed in November 2003, the Law Judge denied the carrier's claim for apportionment. No appeal was filed. Thereafter in January 2005, a decision was entered granting the claimant a 50% schedule loss of use. It was not until after this decision that the carrier submitted an application for review of the November 2003 decision. The Board denied the application as untimely. The Appellate Division affirmed. The carrier had 30 days from the filing of the 2003 decision to appeal the apportionment ruling. The Board was within its authority to deny review in 2005 since the carrier failed to offer a valid explanation for an untimely appeal. 38

CASE LIST CASE NAME PAGE ALLEN V. ENTERPRISE RENT-A-CAR, 2007 W.L. 610111 (App. 3 rd 2007) 1 ALTONEN V. TOYOTA MOTOR CREDIT CORPORATION, 820 N.Y.S.2d 263 (App. 1 st 2006) 4 AUGUSTINE V. SUGRUE, 831 N.Y.S.2d 424 (App. 2 nd 2007) 3 AYALA V. MUTUAL HOUSING AUTHORITY, 822 N.Y.S.2d 262 (App. 3 rd 2006) 9 BACI V. STATEN ISLAND UNIVERSITY HOSPITAL, 820 N.Y.S.2d 160 (App. 3 rd 2006) 13 BALDWIN V. FUNK, INC., 820 N.Y.S.2d 186 (App. 3 rd 2006) 30 BARKER V. BUFFALO COLOR CORPORATION, 822 N.Y.S.2d 163 (App. 3 rd 2006) 37 BARNARD V. JOHN MEZZALINGUA ASSOCIATES, INC 827 N.Y.S.2d 7766 (App. 3 rd 2006) 26 BELL V. GENESSE INN, 826 N.Y.S.2d 772 (App. 3 rd 2006) 33 BENEDETTO V. CARRERA REALTY CORPORATION, 822 N.Y.S.2d 542 (App. 2 nd 2006) 5 BOGERT V. E.B. DESIGNS, 833 N.Y.S.2d 279 (App. 3 rd 2007) 12 BREMNER V. NEW VENTURE GEAR, 819 N.Y.S.2d 142 (App. 3 rd 2006) 24 BROWN V. HARDEN FURNITURE, 823 N.Y.S.2d 628 (App. 3 rd 2006) 26 BRYANT V. NEW YORK CITY TRANSIT AUTHORITY, 819 N.Y.S.2d 150 (App. 3 rd 2006) 15 BURNS V. VARRIALE, 820 N.Y.S.2d 655 (App. 3 rd 2006) 1 CAGLE V. JUDGE MOTOR CORPORATION, 819 N.Y.S.2d 333 (App. 3 rd 2006) 38 CALISE V. HILLSIDE CARTING INC., 832 N.Y.S.2d 107 (App. 3 rd 2007) 31 CARLSON V. AKIN, 821 N.Y.S.2d 671 (App. 3 rd 2006) 13 CASTILLA V K.A.B. REALTY INC, 829 N.Y.S.2d 691 (App. 2 nd 2007) 6 CASTILLO V. 711 GROUP, INC., 833 N.Y.S.2d 642 (App. 2 nd 2007) 4 CLANTON V. SALON VISENTIN INC., 829 N.Y.S.2d 754 (App. 3 rd 2007) 24 COFFEY V. SHOP-RITE SUPERMARKETS NORTH, 833 N.Y.S.2d 308 (App. 3 rd 2007) 17 COQUE V. WILDFLOWER ESTATES DEVELOPERS, INC., 818 N.Y.S.2d 546 (App. 2 nd 2006) 6 CRUMP V. SAINT PATRICK'S CHURCH, 831 N.Y.S.2d 576 (App. 3 rd 2007) 20 CRUZ V. REGENT LEASING LIMITED PARTNERSHIP, 834 N.Y.S.2d 163 (App. 1st 2007) 9 CUCCI V. REXER'S TANG SOO DO KARATE ACADEMY, 823 N.Y.S.2d 292 (App. 3 rd 2006) 18 DARLING V. TRANSPORT DRIVERS INC., 824 N.Y.S.2d 806 (App. 3 rd 2006) 27 DECHICK V. AUBURN CORRECTIONAL FACILITY, 833 N.Y.S.2d 261 (App. 3 rd 2007) 33 DOLLARD V. VAL TECH RESEARCH INC., 2007 WL 1500008 (App. 3 rd 2007) 28 ELLINGWOOD V. LIBERTY GROUP PUBLISHING, 833 N.Y.S.2D 274 (App. 3 rd 2007) 13 ESPINO V. LOUIS SOLOMON INC, 832 N.Y.S.2d 109 (App. 3 rd 2007) 29 FAELLO V. FEDERAL EXPRESS, 823 N.Y.S.2d 615 (App. 3 rd 2006) 34 FERRAINA V. HONDA, 820 N.Y.S.2d 174 (App. 3 rd 2006) 29 FIERO V. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, 823 NYSD2d 290 (App. 3 rd 2006) 20 FIRENZE V. MAYFLOWER VAN LINES, 823 N.Y.S.2d 611 (App. 3 rd 2006) 34 FLEMING V. GRAHAM, 824 N.Y.S.2d 376 (App. 2 nd 2006) 4 FLYNN V. ACE HARDWARE CORPORATION, 833 N.Y.S.2d 682 (App. 3 rd 2007) 17 FUNG V. JAPAN AIRLINES COMPANY, LTD., 820 N.Y.S.2d 89 (App. 2 nd 2006) 3 GHERGHINOIU V. ATCO PROPERTIES & MANAGEMENT, 821 N.Y.S.2d 25 (App. 1 st 2006) 10 GRANBERRY V. JCCA EDENWALD INC., 823 N.Y.S.2d 550 (App. 3 rd 2006) 37 GREGORIO V. COCA COLA BOTTLING COMPANY, 824 N.Y.S.2d 794 (App. 3 rd 2006) 21 GROPPER V. GPA MECHANICAL, 826 N.Y.S.2d 774 (App. 3 rd 2006) 23 HAAS V. GROSS ELECTRICAL, 828 N.Y.S.2d 680 (App. 3 rd 2007) 27 HAGEMAN V B & G BUILDING SERVICES, LLC., 823 N.Y.S.2d 211 (App. 2 nd 2006) 8 HAMMER V. TURNER CONSTRUCTION CORP. 833 N.Y.S.2d 633 (App. 2 nd 2007) 2 HARABEDIAN V. NEW YORK MEDICAL CENTER, 825 N.Y.S.2d 569 (App. 3 rd 2006) 22 39

CASE NAME PAGE HERNANDEZ V. EXCEL RECYCLING CORP., 820 N.Y.S.2d 340 (App. 3 rd 2006) 32 HICKS V. HUDSON VALLEY COMMUNITY COLLEGE, 825 N.Y.S.2d 287 (App. 3 rd 2006) 33 HORTON V. AKZO NOBEL SALT, 825 N.Y.S.2d 301 (App. 3 rd 2006) 34 HUSAK V. NEW YORK CITY TRANSIT AUTHORITY, 2007 WL 1362624 (App. 3 rd 2007) 21 ICKES V. SAYVILLE ANIMAL HOSPITAL, 2007 WL 1288010 (App. 3 rd 2007) 17 JOYNER V. EVENT DESIGN ASSOCIATES, INC. 2007 WL 1437438 (App. 3 rd 2007) 12 KANG V. AMNESIA CORPORATION INC., 823 N.Y.S.2d 617 (App. 3 rd 2006) 30 KEENAN V. PINNACLE ENTERPRISES, LTD., 830 N.Y.S.2d 373 (App. 3 rd 2007) 23 KIRCHGAESSNER V. ALLIANCE CAPITAL MANAGEMENT CORP. 834 N.Y.S.2d 392 (App. 3 rd 2007) 29 KUSY V. SOUTH ORANGETOWN CENTRAL SCHOOL DISTRICT, 825 N.Y.S.2D 786 (App. 3 rd 2006) 37 LACROIX V. SYRACUSE EXECUTIVE AIR SERVICE, INC., 2007 WL 923074 (Ct. Appeals 2007) 18 LAING V. MARYHAVEN CENTER OF HOPE 834 N.Y.S.2d 398 (App. 3 rd 2007) 16 LAWLESS V. QUELLMAN, 832 N.Y.S.2d 328 (App. 3 rd 2006) 8 LOPEZ V. SUPERFLEX LTD., 819 N.Y.S.2d 165 (App, 3 rd 2006) 24 MACDONALD V. PENSKE LOGISTICS, 823 N.Y.S.2d 613 (App. 3 rd 2006) 20 MARCUS V. CITY OF TROY, 833 N.Y.S.2d 296 (App. 3 rd 2007) 19 MAROPAKIS V. STILLWELL MATERIALS CORP. 833 N.Y.S.2d 122 (App. 3 rd 2007) 3 MARRERO V. AKAM ASSOCIATES LLC, 834 N.Y.S.2d 285 (App. 2 nd 2007) 9 MARTINEZ V. FIFTY TWO WEST SEVENTY SEVENTH STREET CORP, 833 N.Y.S.2d 209 (App. 3 rd 2007) 10 MASON V. REUNION INDUSTRIES, 820 N.Y.S.2d 168 (App. 3 rd 2006) 11 MCCURTY V. SYRACUSE UNIVERSITY, 825 N.Y.S.2d 294 (App. 3 rd 2006) 38 MCKENZIE V. REVERE COPPER PRODUCTS, 834 N.Y.S.2d 387 (App. 3 rd 2007) 22 MCNALLY V. NEWSDAY, 2007 WL 1499748 (App. 3 rd 2007) 23 MELSON V. SEBASTIANO, 822 N.Y.S.2d 203 (App. 4 th 2006) 7 MENTESANA V. BERNARD JANOWITZ CONSTRUCTION CORP., 828 N.Y.S.2d 522 (App. 2 nd 2007) 4 MICKENS V NEW YORK CITY TRANSIT AUTHORITY, 821 N.Y.S.2d 676 (App. 3 rd 2006) 32 MOLTZON V. COMPUTER ASSOCIATES, 834 N.Y.S.2d 369 (App. 3 rd 2007) 29 NAVARRETE V. A & V PASTA PRODUCTS, INC., 821 N.Y.S.2d 268 (App. 2 nd 2006) 10 NIKOLAEVA V. CATTARAUGUS COUNTY NURSING HOME, 828 N.Y.S.2d 923 (App. 3 rd 2007) 31 O SHEA V. INITIAL CLEANING SERVICE, 819 N.Y.S.2d 364 (App. 3 rd 2006) 14 O'BERG V. MACMANUS GROUP INC., 822 N.Y.S.2d 306 (App. 2 nd 2006) 5 O'DELL V. CONSOLIDATED EDISON, 824 N.Y.S.2d 789 (App. 3 rd 2006) 15 OLCZYK V. VERIZON, 822 N.Y.S.2d 338 (App. 3 rd 2006) 36 PECK V. JAMES SQUARE NURSING HOME, 823 N.Y.S2d 630 (App. 3 rd 2006) 14 REINOSO V. ORNSTEIN LAYTON MANAGEMENT, INC. 823 N.Y.S.2d 517 (App. 2 nd 2006) 5 RETZ V. SURPASS CHEMICAL COMPANY, INC, 834 N.Y.S.2d 389 (App. 3 rd 2007) 22 RIVERS V. BLUE RIDGE FARMS, INC., 829 N.Y.S.2d 245 (App. 3rd 2007) 31 SALATTI III V. CRUCIBLE MATERIALS CORPORATION, 824 N.Y.S.2d 793 (App. 3 rd 2006) 38 SALLEY V. NEW YORK CITY POLICE DEPT., 833 N.Y.S.2d 686 (App. 3 rd 2007) 28 SANCHEZ V. CONSOLIDATED EDISON COMPANY, 2007 WL 1287957 (App. 3 rd 2007) 16 SANTIAGO V. OTISVILLE CORRECTIONAL FACILITY, 832 N.Y.S.2d 831 (App. 3 rd 2007) 27 SARMIENTO V. KLAR REALTY CORP, 829 N.Y.S.2d 134 (App. 2 nd 2006) 7 SCALLY V. RAVENA COEYMANS SELKIRK CENTRAL SCHOOL DISTRICT, 819 N.Y.S.2d 137 (App. 3 rd 2006) 25 SCHUSTER V. VILLAGE OF LAKE GEORGE FIRE DEPARTMENT, 823 N.Y.S.2d 619 (App. 3 rd 2006) 35 SCHWARTZ V. HEBREW ACADEMY OF THE FIVE TOWNS, 834 N.Y.S.2d 400 (App. 3 rd 2007) 19 SOSTRE V. JAEGER, 832 N.Y.S.2d 150 (App. 1 st 2007) 6 SPENCER V. CROTHALL HEALTHCARE INC., 834 N.Y.S.2d 194 (App. 3 rd 2007) 11 STANFORD V. LEWIS COUNTY OPPORTUNITIES, 822 N.Y.S.2d 341 (App. 3 rd 2006) 36 40

CASE NAME PAGE TANGORA V. VOLUME SERVICES AMERICA, 820 N.Y.S.2d 158 (App. 3 rd 2006) 26 TAYLOR V. RALEIGHT HOTEL, 826 N.Y.S.2D 796 (App. 3 rd 2006) 31 TERRY V. MAURICE PASTRIES, INC., 826 N.Y.S.2d 2 (App. 1st 2006) 3 TONER V. MICHAEL HANLEY MOVING & STORAGE, 2007 WL 1284943 (App. 3 rd 2007) 31 TULLY V. LIVE RIGHT REALTY CORPORATION, 827 N.Y.S.2d 362 (App. 3 rd 2007) 12 VAN HORN V. COUNTY OF CAYUGA, 823 N.Y.S.2d 591 (App. 3 rd 2006) 18 VASQUEZ V. RANFERI CONSTRUCTION CORP, 2007 WL 1287883 (App. 3 rd 2007) 32 VILLANUEVA V. SOUTHEAST GRAND STREET GUILD, 829 N.Y.S.2D 459 (App. 1 st 2007) 11 VITA V. NEW YORK WASTE SERVICES, LLC., 824 N.Y.S.2d 177 (App. 3 rd 2006) 7 WASHBURN V. BOB HOOEY CONSTRUCTION COMPANY, 833 N.Y.S.2d 696 (App. 3 rd 2007) 36 WASHINGTON V. NEW YORK CITY DEPARTMENT OF BUILDINGS, 833 N.Y.S.2d 264 (App. 3 rd 2007) 28 WEINSTEIN V. SOMERS FIRE DISTRICT, 829 N.Y.S.2d 726 (App. 3 rd 2007) 35 WILKINSON V. BENDIX FRICTION CORPORATION, 820 N.Y.S.2d 188 (App. 3 rd 2006) 31 WOODWORTH V. CLIFTON SPRINGS HOSPITAL 826 N.Y.S.2d 800 (App. 3 rd 2006) 16 41