Matter of Oathout v Averill Park Central School,  142 A.D.3d 749 (3d Dept., 8/25/16)

Topic:  Injuries arising out of and in the course of employment.

Summary:  A school custodian experienced a pop in her right foot while walking in a hallway and was subsequently diagnosed with a metatarsal fracture.  Compensation was awarded it by the WCB.  The school appealed, claiming this was an idiopathic injury and unrelated to her work duties.   However, Section 21 of the WCL states that, if an injury occurs in the course of employment, the presumption shall be that the injury similarly arose from that employment.  Thus the burden of proof was upon the employer to prove with compelling evidence that the injury was not caused by the employee’s work.  In this case, the Appellate Division affirmed the WCB’s determination, ruling that the employer did not meet that standard of proof.

Comment:  This is a good illustration of the erosion of the argument regarding idiopathic injuries, which at one time was used to build a strong case for employers.  It represents the very high standard of proof required for employers to prove that an injury did not arise out of one’s employment.  In fact, it might mean current and prior medical evidence that the injury was due to a pre-existing condition is necessary.  It might also mean that contemporaneous statements made to his or her co-workers would carry the most weight in a trial hearing.

Matter of Franklin v New England Motor Freight,  142 A.D.3d 747 (3d Dept., 9/25/16)

Topic:  Periods of temporary partial disability.

Summary:  A tractor-trailer operator injured his back on the job in June 2012 and received WC benefits for an initial period of temporary total disability.  He returned to work in January 2013, but in October 2013 experienced back and knee pain and became unable to work.  He was eventually classified as having a permanent partial disability in 5/14, indicating a presumption of a lifetime of continuing back problems.  However, beginning in 1/14 during a prior period of temporary partial disability, a WC law judge, citing medical, vocational and educational factors, ruled the claimant had sustained a 75% loss of wage earning capacity subsequent to that time.  Awards were made at that rate.  The WCB agreed with the causally-related disability finding, but ruled that vocational factors should not have been taken into account when determining a temporary disability.  That was strictly a medical issue.  In accordance, the WCB reduced the award to reflect the moderate temporary disability rate.  The claimant appealed, but the appellate division affirmed the WCB decision.

Comment:  This matter shows the court’s willingness to affirm a decision if there is substantial evidence to do so.   Vocational matters are not considered in period involving a temporary disability.

Matter of Walker v Darcon Construction Co.,  142 A.D.3d 740 (3d Dept, 8/25/16)

Topics:  Labor market attachment, and total industrial disability.

Summary:  The WCB ruled that a claimant had not maintained an attachment to the labor market because he was not actively participating in vocational rehabilitation, and therefore suspended his benefits.  The WCB also ruled that the claimant did not have a total industrial disability based upon the medical evidence as well as the claimant’s failure to actively seek employment.    The Appellate Division affirmed the WCB’s decision that the claimant had not actively attempted to remain attached to the labor market.  However, the court found a lack of evidence to support the WCB’s decision regarding a total industrial disability, stating that there was no reference in the decision to factual findings regarding the medical evidence as related to a total industrial disability.  Therefore, the court reversed the WCB’s decision on the total industrial disability matter.  The case was remitted for further development on the issue.

Comment: The decision indicates that, for a total industrial disability, the burden will be upon claimants to provide sufficient evidence that they are incapable of working based upon both work-related and non-work-related factors.


Overpayments:   Remember, when claiming an overpayment for indemnity benefits substantial documentation must be produced.  Per WCL Section 22, the WCB has the authority to direct the amount and procedure for an employer or carrier to recoup the overpayment.  In cases involving an existing direction to continue awards, there cannot be a unilateral recoupment made.  There needs to be involvement by the WCB and a request for further action should be filed instead along with the requisite proof.  Otherwise, we run the risk of having penalties imposed.

Privacy Provisions:   The disclosure of medical records or other contents of a WC file to a person not acting within the scope of handling or evaluating a workers’ compensation claim would not fall under the authorized disclosure requirements of WCL Section 110-a before disclosing the records.  In other words, the records relating to the WC case should only be used for that case, and the appropriate authorizations need to be signed.