NYS Department of Transportation (WCB # 9020 4441; July 26, 2019) Issue: Post Jacobi and whether awards at the classification rate can be modified Facts: This is a non-capped claim with an 8/16/02 date of injury. The Claimant was classified with a 66 2/3rd permanent partial disability (PPD). Per the Notice of Decision filed 2/9/08, continuing awards were directed at the corresponding weekly rate of $335.25. The Claimant underwent causally related surgery on 5/14/14. Per a Notice of Decision filed 9/17/14 the Self-Insured Employer agreed to increase awards at the temporary total rate as of the surgery date. In light of the WCB’s determination in Jacobi Medical Center (WCB # 0082 5967; February 11, 2019) the SIE filed an application on 3/25/19 to retro-actively reduce awards to the PPD rate […]
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 […]
Matter of Santangelo v. Seaford U.F.S.D., 2018 N.Y. App. Div. LEXIS 6753, (3rd Dept. October 11, 2018) Issue: WCL Section 114-a Facts: The Claimant, sustained a work injury to his back and right leg while lifting timber. He underwent lumbar fusion surgery which resulted in him using a cane and knee brace to walk. He was classified with a permanent total disability in November 2014. In June 2016 the WC carrier re-opened the claim and raised the issue of a violation of WCL Section 114-a. Surveillance video taken between August 2015 and March 2016 showed the Claimant walking without a limp, standing for long periods of time, bending over, and lifting heavy items. The carrier’s medical expert testified that the activities observed on video were inconsistent with the Claimant’s reports […]
In re Robinson, 2018 N.Y. App. Div. LEXIS 5580 (3rd Dep’t Aug. 2, 2018) Issue: Schedule Losses of Use – Extent of Credit to be Taken Facts: The claimant injured her right shoulder and received a 42.5% schedule loss of use (SLU) award for the right arm. The disability payments paid to her by the WC carrier totaled $133,807.48 ($14,995.42 for temporary total benefits and $118,812.06 for temporary partial benefits). The gross amount of the SLU award totaled $102,494.50, less payments already made. These prior payments could be recouped by the WC carrier. As a result, no additional money was appreciated by the claimant. She had argued that there was no legal basis for the WC carrier to take credit against the SLU award for the prior periods in which […]
Matter of Pickerd v Paragon Envtl. Constr., Inc., 2018 N.Y. App. Div. LEXIS 3700 (3rd Dept. 2018) Issue: Heart attack Facts: The Claimant suffered a fatal myocardial infarction after operating an excavator and retrieving a pipe wrench from his truck. The Claimant had numerous pre-existing risk factors such as a smoking habit and high cholesterol. The carrier’s medical expert opined that the cause of the heart attack was the decedent’s significant risk factors. A cardiologist who had reviewed the case on the behalf of the decedent’s estate concluded that although the risk factors had contributed, the decedent’s work activities immediately prior to his collapse were significant precipitating factors that had caused the plaque rupture leading to the myocardial infarction. Decision: The decision […]
Matter of Brennan v New York State Dept. of Health, 2018 N.Y. App. Div. LEXIS 1851, (3rd Dept. 2018) Issue: Off-premise injury. To and from work. Facts: The Claimant, who worked for a state agency, tripped and fell on a public sidewalk about 20 feet outside of her place of employment. She had parked in a parking lot owned by the state which was one block away from the entrance to the building. The WCLJ had found the claim compensable and a divided panel of the WCB had affirmed the decision. Decision: Reversed. Generally, accidents that occur in public areas outside of the workplace and outside of work hours are not compensable. However, there is a “gray area” where the risks of travel and the risks of employment merge and […]
Matter of Calderon v New York City Dept. of Corr., 144 A.D.3d 1382, (3rd Dept. 2016) Issue: Fraud – The failure to disclose prior injuries Facts: The Claimant had completed an application for workers’ compensation benefits (WCB form C-3) and failed to relate that he had sustained prior injuries to the same body parts. The medical examiners who performed permanency evaluations on behalf of both the employer and the Claimant were not advised that he had sustained any similar injuries in the past. The WCB found that the Claimant had violated WCL Section 114-a (engaged in workers’ compensation fraud) by failing to disclose the prior injuries. It was factually significant that the Claimant subsequently testified at a workers’ compensation hearing that he had “totally forgot” about his prior injuries when […]
Matter of Sanchez v Sts Steel, 2017 N.Y. App. Div. LEXIS 7001 (N.Y. App. Div. 3d Dep’t Oct. 5, 2017) Issue: Apportionment to prior non-work-related injury Facts: The claimant underwent right knee arthroscopy to repair a non-work-related meniscus tear in 2005. He then returned to work. In 2007 he injured his right knee at work while exiting the back of a truck. He had a second right knee arthroscopy. A doctor who had performed an IME on behalf of the carrier concluded that the claimant’s prior right knee surgery involved excision of the meniscus and would have resulted in a 7 ½ % SLU even if his symptoms had fully resolved before the work injury in 2007. After deposition testimony from two doctors was taken, the WCLJ […]
Matter of Xie v JP Morgan Chase, 2017 N.Y. App. Div. LEXIS 3515 (N.Y. App. Div. 3d Dep’t May 4, 2017) Issue: Procedural Requirements (Know Your Responsibilities) Facts: The WCB Panel affirmed the WCLJ’s determination that a claimant had not sustained an injury arising out of or in the course of her employment. On appeal the claimant raised for the first time two very relevant procedural requirements which had not been followed by the carrier. First, per WCL § 25 (2) (b) the carrier should be precluded from asserting its defense that the claimant’s injuries did not arise out of or in the course of her employment. The carrier failed to file its notice of controversy within 25 days of the claim’s indexing by the WCB. Second, per WCL […]
Matter of Novak v St. Luke’s Roosevelt Hosp., 2017 N.Y. App. Div. LEXIS 2437 (N.Y. App. Div. 3d Dep’t Mar. 30, 2017) Issue: Work-related stress Facts: The claimant alleged PTSD, depression and severe social phobia resulting from harassment from coworkers after being reinstated following a six-month suspension without pay. The claimant, a registered nurse, was suspended for six months after abandoning her post for ninety minutes. After returning to work she claimed that she was harassed by her colleagues. Decision: The decision of the WCB that the claimant did not sustain a compensable injury was upheld. Mental injuries caused by work-related stress are compensable when claimant can establish that the stress that caused the injury was greater than that which other similarly situated workers experienced in the normal work […]