DECEMBER NEWSLETTER

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 as a form of therapy.  Additionally, his father testified that he had encouraged the Claimant to visit his business in order to stay active.

The WCB found that there had been no fraudulent conduct.  The Claimant had previously acknowledged performing the same activities which were seen on the footage, albeit they took place some sixteen years after his original testimony on the issue.

Decision:         Affirmed.  The Court determined that there had been no evidence for the WCB to have concluded that the Claimant willingly concealed his activities or misrepresented his status to his physicians.  The explanations provided by the Claimant and his father were deemed to be credible.  Simply put, there was no evidence that the Claimant had “knowingly mad[e] a false statement or representation as to a material fact…” as provided by WCL Section 114-a.

Comment:       The actions taken by the Carrier were clearly warranted.   The Claimant’s permanent total disability classification had created the presumption that he would be unemployable for the remainder of his life.  However, the key deciding factor here involved the Claimant’s actions of disclosing the full extent of his activities before the WCB.  This case provides a good example of the deference given to the WCB’s determinations regarding credibility on such issues.

Rasiej v. Syska Hennesy Group, Inc., 2016 NY Slip Op 08574 (NY App. Div. 3d Dept. 12/22/16)

Issue:               Death Benefits:  Standard of Proof & Statutory Presumptions – WCL Section 21

Facts:               The Decedent died while traveling on a business trip.  The death had been unwitnessed, and the Decedent had been found near a desk in his hotel room.  He had sustained an acute cardiac event.  The Estate pursued a claim for benefits and argued that the Decedent’s death occurred while he was furthering his employer’s business.  The death certificate identified the immediate cause of death as coronary arteriosclerosis.  Also, the Decedent’s history of smoking and hypertension were identified as significant contributing factors.  The Carrier’s IME concluded that the cause of death was progressive arteriosclerosis which was completely unrelated to his employment.  The Decedent’s cardiologist was never asked to comment on causality.

The WCB disallowed the claim.  The Decedent’s unwitnessed death had occurred in the course of his employment (as a traveling employee).  Therefore, the Estate was entitled to the presumption of WCL Section 21(1) that his death had arisen out of his employment as well.  However, the Carrier had rebutted this presumption by offering “substantial evidence to the contrary” in the form of the death certificate and the opinion of their IME regarding the cause of death.  Thereafter, the Estate failed to present any additional evidence linking the Decedent’s death to his employment.

Decision:         Affirmed.  The Court found that the WCB’s determination had been supported by substantial evidence.  Specifically, there had been credible medical evidence presented to rebut the presumptions of compensability and the Estate had failed to demonstrate causality.

Comment:       This is a very good example of the burden shifting analysis that is utilized in death cases.  First, if the death occurred at work then it will be presumed to have arisen from the work activities in question.  Second, the burden then shifts to the Employer/WC Carrier to provide substantial (i.e., compelling) evidence to the contrary.  If the Employer satisfies its burden then the burden shifts to the Estate in order to prove causal relationship, usually in the form of a medical opinion.

This case also illustrates the great weight given to death certificates/autopsy reports as well as prior medical records highlighting any risk factors that a Decedent may have possessed.

If you are ever presented with a death claim then it will be very important to secure a certified copy of the death certificate and the entire autopsy report (if one was performed) as soon as they are signed out.  Obtaining any and all prior medical records will be similarly necessary.  Once these records are analyzed, then a determination needs to be made as to whether a medical file review by an IME will be warranted.  In some cases they may not be warranted.

Johnson v. T.L. Cannon Mgt., 2016 NY Slip Op 08262 (NY App. Div. 3d Dept. 12/8/16)

Issue:               Timely Notice per WCL Section 18

Facts:               The Claimant alleged that he had a work related accident in 2/12.  He failed to file a claim for WC benefits until 4/13.  The Claimant alleged that oral notice had been provided to his manager on a timely basis and that the accident had been witnessed by a co-worker.  During his testimony the manager could not recall ever receiving contemporaneous notice.  There were no other lay witnesses produced for testimony besides the Claimant.  The WCB disallowed the claim based upon the Claimant’s failure to provide notice within thirty days of his accident as required by WCL Section 18.  Further, he failed to satisfy his burden of demonstrating that any failure to provide timely notice had not prejudiced the employer’s ability to defend the claim.  It was also significant that one of the Claimant’s physicians had failed to document any history of a work related accident until many months after initiating treatment.

Decision:         Affirmed.  The Court recognized that WCL Section 18 required claimants to provide written notice to their employers within 30 days of the date of injury.  Late notice may be excused where a claimant demonstrated that notice could not be provided, the employer had actual knowledge or where the employer had not been prejudiced by the delay.  However, the Court also recognized that the WCB did not have to automatically excuse late notice, even where one of the “excuse” grounds had been proven by the Claimant.

Comments:      Traditionally, the late notice defense under WCL Section 18 is weak.  However, it becomes much more viable if there are also credibility issues to be addressed.  Here, there had been enough factual evidence to place this Claimant’s credibility into question.  First, he had not done himself any favors by failing to produce the co-worker who allegedly witnessed his accident.  Second, his testimony contradicted the testimony of his supervisor.  Third, there had been no contemporaneous documentation provided to corroborate his allegations.

If you believe that there would be a viable defense based upon a claimant’s failure to provide timely notice it will be important to determine if there are potential credibility issues as well.  Accordingly, you should obtain any and all relevant medical records to verify the histories related by the Claimant.  Additionally, it is important for you to identify and speak to any potential witnesses as soon as possible.

 

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