Matter of Barnett v Callaway, 2017 NY Slip Op 00366 (NY App Div., 3d Dept., Jan. 19, 2017) Issue: Subject matter jurisdiction Facts: Claimant fell and injured her right arm while working in Florida for her employer as a chef. The employer had no workers’ compensation insurance. A question immediately arose over whether or not the NYS Workers’ Compensation Board would have jurisdiction over this matter. Although the injury occurred in Florida, the claimant resided in New York, was hired in New York, and also worked for the employer in New York where the employer also maintained a residence. Decision: The Appellate Division upheld the WC Board’s ruling that it had jurisdiction over this matter because there were “sufficient and significant contacts” between the state and […]
Martone v. Niagara Frontier Transp. Authority-Metro, 2017 NY Slip Op 00357 (N.Y. App. Div. 3d Dept. Jan 19, 2017) Issue: Loss of Wage Earning Capacity Facts: The WCLJ classified the Claimant with a permanent total disability in two apportioned claims involving the neck and low back. There had been a class 4 medical impairment and aggravating factors such as the Claimant’s age, education level and work experience were considered. On appeal, the WCB found a permanent partial disability and a 75% loss of wage earning capacity (LWEC). The Claimant’s residual functional capabilities had included the ability to ambulate with a walker for short distances as well as the ability to perform some activities of daily living. Both claims were continued in order to address the Claimant’s labor market attachment. The […]
Matter of Cirrincione v. Scissors Wizard, 2016 NY Slip Op 08569 (NY App. Div. 3d Dept. 12/22/16) Issue: Workers’ Compensation Fraud – WCL Section 114-a Facts: The WCB classified the Claimant with a permanent total disability in 1996. When making this determination, the WCB had considered the Claimant’s testimony regarding his activities with his father’s automotive service business. These activities included: occasionally pumping gas, cashing out customers and moving cars. The WC carrier subsequently secured surveillance in 2008 and 2010. The surveillance footage depicted the Claimant engaging in these same activities. The Carrier alleged that the Claimant had violated WCL Section 114-a (the “fraud statute”) because he denied working and because he misrepresented his work status to his physicians. During his testimony the Claimant acknowledged performing these activities […]
Matter of Pravato v. Town of Huntington, 2016 NY Slip Op 07732 (NY App. Div. 3d Dept. 11/17/16) Issue: Loss of Wage Earning Capacity (LWEC) Facts: On 1/3/11 the Claimant had a back injury while working as a sanitation driver. He returned to work one year later but resigned after a few months. At the time of permanency the WCLJ found that there was a 70% LWEC. On appeal, the WCB reversed and found that there was a 40% LWEC since the Claimant had been capable of performing sedentary work. Decision: Reversed. The Court took issue with the WCB’s LWEC analysis. There had been no medical testimony concluding that the Claimant was capable of performing sedentary work. Only the Claimant’s physician had provided an opinion regarding his exertional […]
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 […]
Matter of McNichols v New York City Dept. of Corr., 140 A.D. 3d 1557 (3rd Dept. 2016) Issue: The failure to provide timely notice per WCL Section 18. Fact: A corrections officer sustained multiple injuries when assaulted. The claim was established by the WCB for complaints involving the back and left shoulder. A claim was made to have the matter amended to include the neck as an additional causally-related injury. The employer contested the neck based upon the officer’s failure to provide timely written notice within 30 days of the event as required by WCL Section 18. The WCB included the neck as part of the claim by finding that there had been no prejudice to the employer by the failure to provide timely notice. Decision: The Court affirmed the […]
Topic: Buffalo-area physician Dr. Eugene Gosy was indicted on April 26 on 114 charges of conspiracy to provide medications such as oxycodone and morphine without legitimate medical reasons. Dr. Gosy is well-known among workers compensation attorneys and officials. On Wednesday, April 27, Gosy and Associates announced they were not currently seeing patients. Ed’s Take: To be frank, the indictment did not come as a shock to many of us who deal with workers compensation issues. However, we worry about Dr. Gosy’s current patients and the uncertainty that may lie ahead for them. Perhaps this unfortunate situation is a call for clearer standards for those prescribing such medications.
Topic: The WCB has amended 12NYCRR 300.36 to create a Voluntary Binding Review (VBR) process as an alternative means to resolving determinations of compensation. The VBR reflects another attempt by the WCB to streamline the settlement process. Ed’s Take: I like this initiative because it offers a means to reduce the backlog of appeals that can take up to a year to resolve. It also provides a vehicle to bring both sides together to identify issues that need to be adjudicated – and, in the process, perhaps the entire matter can get settled. On the downside, many stakeholders may be reluctant to use the VBR process because it may involve too much effort without any guarantee of a desirable result. The parties would be entering into a section 32 agreement […]