February Update

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 the employer to reasonably assume that the business was located in New York.

Comment:   This case presents a good example of factors considered by the WC Board to determine whether there is sufficient evidence to bring an out-of-state injury under the jurisdiction of New York State.  Even though the claimant worked for the employer in Florida for eight months out of a year, the fact-based findings indicated this to be a New York State matter.

Matter of Andrews v Combined Life Ins., 2017 NY Slip Op 00360 (NY App Div., 3d Dept., Jan. 19, 2017)

Issue:          Reopening of claim, and imposition of penalty for reopening of claim without reasonable                                  grounds to do so

Facts:          The claimant sustained a work-related neck injury in 2005 and was classified in 2007 as having a permanent partial disability.  From 2007 to 2014, he was paid $400 a week by the insurance company.  In 2014, the insurance company sent a letter to the claimant’s attorney asking for proof that the claimant was taking actions to maintain attachment to the labor market.

Receiving no response from the attorney, the insurance company then requested a rehab counselor to contact the claimant to help find employment or to assess what was being done by the claimant to find employment.  On behalf of the claimant, his attorney denied the contact.  Since it was making no progress in dealing directly with the claimant, the insurance company appealed to the WC board to reopen this claim.

Decision:     The WC Board denied the request for reopening, ruling that there was no proof showing that the claimant was not maintaining attachment to the labor market.  In addition, the board assessed the insurance company a $500 penalty under Section 114-a (3)(i), stating that this appeal for reopening was made without reasonable grounds.

The insurance company appealed, but the appellate court affirmed the WC Board’s decision.  The court reiterated the WC Board’s findings that the company had not supplied sufficient evidence to meet the standard or proof necessary to warrant a reopening.  It noted that the letter written by the rehabilitation counselor to the claimant on behalf of the insurance company did not constitute an actual offer of employment, job search assistance or rehabilitative vocational services, but only a desire to meet to explore same.

However, the court did repeal the $500 penalty, noting that, although unsuccessful, the insurance company’s attempt to reopen the case was reasonable.

Comment:   This is a good example of the requisite proof needed to reopen a closed case regarding the designation of a permanent partial disability.  The standards are rigorous, but certainly any attempt to reopen such a case requires proper documentation regarding the claimant’s attachment (or lack of attachment) to the labor market.

Matter of Quigley v Concern for Ind. Living, 2017 NY Slip Op 00354 (NY App Div., 3d Dept., Jan. 19, 2017)

Issue:         Statutory presumptions of compensability under WCL § 21 (1)

Facts:          A woman claimant fell at her place of employment and injured her left arm.  The accident was not witnessed. Her employer contested the claim, saying it was idiopathic: it could have happened anywhere.  Records from her emergency room treatment that day indicated a history of some problems with balance and that she used a cane.  The claimant said that she could not identify any particular reason for her fall, and an emergency room report from that day indicated her saying that she had “lost her footing and fell.”

Decision:     The WC Board established the case because it happened at work, which presumes that it arose from work, and the employer did not provide substantial evidence to disprove it.  Essentially, the board found the claimant credible and chose her version of events – that she did not know how it happened.

Comment:   The presumption is that if it happened at work, it arose from work.  This puts a heavy burden on an employer to prove otherwise – that the injury is idiopathic.  In this case, perhaps documented testimony from medical personnel regarding the claimant’s pre-existing condition or the likelihood that the accident could have happened anywhere would have resulted in a different decision.


What’s New at the Workers’ Compensation Board


WCB announces the formation of the Special Funds Group

As of 1/1/17 the WCB designated new contact information for the Special Funds with regards to the reimbursement process, correspondence and the submission of Section 32 Waiver Agreements.  See the attached link (WCB Subj # 046-919 dated 2/7/17).