April 2019 Newsletter

Matter of Sheikh v White & Blue Group Corp., 90 N.Y.S.3d 704, (3rd Dept. January 10, 2019)

Issue:               WCL Section 18

Facts:               The Claimant was a taxicab driver who was allegedly assaulted by a dispatcher while working on 7/5/14.  He did not provide timely written notice to his employer because he was “unable to go to the garage”.  He also could not recall specifically when he had provided verbal notice, but a supervisor testified that it was approximately one month after the event.  The Claimant failed to produce any witnesses to the incident and asserted that no police report had been filed despite his testimony that he had called 911 to report the assault.  The WCB determined that the Claimant had failed to demonstrate that the employer was not prejudiced by the delay.  The Claimant’s account of the incident was found to not be credible.  The claim was disallowed as timely notice had not been provided within 30 days.

Decision:         Affirmed.  The Court noted that the Claimant’s delay in reporting the event had prevented the employer from properly investigating the event. Although the Claimant testified that he had provided verbal notice shortly after the event, there was no evidence in the record to substantiate this assertion.  The Court also agreed that the Claimant was not credible, pointing out several inconsistencies in his description of the event.

Comment:       Where a Claimant is alleging an injury related to a specific event, timely notice allows an employer to conduct a proper investigation.  Workers’ Compensation Law § 18 requires that a claimant seeking workers’ compensation benefits must provide written notice of an injury within 30 days after the accident causing such injury.  The failure to give timely written notice generally precludes a claim unless the Board excuses the failure on the ground that notice could not be given, the employer or its agent had knowledge of the accident or the employer did not suffer any prejudice.  Even if one of the foregoing grounds is proven, the Board is not required to excuse a claimant’s failure to provide timely notice.

Matter of Figueroa v Consolidated Edison Co. of N.Y., Inc., 168 A.D.3d 1329 (3rd Dept. 2019)

Issue:               Re-attachment to the labor market

Facts:               The Claimant worked as an office assistant and developed pain in her hands and wrists.  Shortly after filing her claim she retired at the age of 59. Approximately 3 years later the Claimant began looking for work but was unable to secure employment.  She had engaged with One Stop Employment Center and submitted job applications to several employers.  She testified that the only explanation for why she had not been hired was that the positions had already been filled.  The WCLJ determined that the Claimant had a 33% LWEC and had demonstrated a good faith effort to look for work.  Accordingly, the Claimant was entitled to received permanent partial disability benefits.  Additionally, the WCLJ held that the Claimant had not violated Section 114-a by misrepresenting the reasons for her retirement.  Subsequently, a majority Board Panel decision held that the Claimant’s retirement was voluntary making it unnecessary to consider whether she re-attached to the labor market, and that she had violated 114-a which disqualified her from further indemnity benefits.  The Claimant sought a mandatory full Board review.  The full Board determined that the Claimant had not violated 114-a and that she had demonstrated re-attachment to the labor market entitling her to further indemnity benefits.  The employer appealed arguing that the Claimant had failed to meet her burden of demonstrating that her inability to find a job was due to her causally related disability rather than other factors.

Decision:         Rescinded.   The Court noted that it had repeatedly held that where a claimant voluntarily retires, but later attempts to re-attach to the labor market, she must demonstrate that her inability to find employment has been adversely affected by her causally related disability.  In particular, this burden requires the claimant to show that other factors unrelated to their disability did not adversely affect their earning capacity.  The claimant here had failed to provide any evidence that her disability was a factor in her inability to find employment.  Therefore, she had failed to re-attach to the labor market and the awards were rescinded.

Comment:       When a claimant has voluntarily retired from the labor market, the standard for re-attachment is higher.  See Matter of Pontillo v. Consolidated Edison of N.Y., Inc. 156 A.D.3d 1064 (3rd Dept. 2017).  The claimant must provide evidence that their disability has adversely affected their employability rather than factors such as economic conditions or the claimant’s age.

Matter of Ferrari v Darcon Constr. Inc., 2019 N.Y. App. Div. LEXIS 2211 (3rd Dept. 2019)

Issue:               WCL Section 21(1) presumptions.

Facts:               The Claimant, a construction worker, alleged work-related injuries as a result of falling on broken concrete.  The WCLJ disallowed the claim and the Board upheld, noting that the Claimant’s testimony was inconsistent and that substantial evidence disputed the Claimant’s allegations.  The Claimant had testified that he had tripped over a hole in the floor, but then later clarified that by stating that he tripped over a broken piece of concrete.  He claimed that a witness had seen him fall, but that witness provided a sworn statement which related that he had only seen the claimant on the ground and had not witnessed him fall.  Additionally, the Claimant alleged that he had notified a foreperson of the accident.  However, he was unable to identify the foreperson and the Claimant’s supervisors testified that they did not have knowledge of the accident until well after the alleged accident had occurred.  The Board had found that the witnesses for the employer had been more credible in upholding the disallowal.

Decision:         Affirmed.  The Court stated although WCL Section 21(1) provides a presumption that an accident that occurs in the course of employment also arises out of that employment, it does not relieve a claimant of the burden of demonstrating that the accident did, in fact, arise of the employment.  The Board was entitled to deference in its credibility assessments and there was substantial evidence to support its determination that the claimant’s injuries did not arise out of the course of his employment.

Comment:       Section 21 presumptions can be difficult to overcome.  However, when an investigation reveals red flags such as untimely notice, inconsistent medical histories within medical reports, or a failure to seek medical treatment close to the time of the accident, the presumptions may be more easily rebutted.