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 § 25 (2-b)(f) the carrier failed to object to the WCB’s proposed decision establishing this claim within 30 days. The only action that the carrier took was filing its notice of controversy 4 days after the WCB issued the proposed decision. The WCB subsequently took action to rescind the proposed decision.
Determination: Affirmed. The WCB determination to disallow this claim was proper. The court would not consider the claimant’s procedural challenge regarding the carrier’s failure to timely file its notice of controversy as required by WCL § 25 (2)(b) because it had not been raised before the WCLJ or before the WCB on appeal. Additionally, the court recognized that the WCB had exercised its continuing power per WCL § 123 to rescind, on its own accord, the proposed decision. Also, it appeared significant that the propriety of the WCB’s rescission of the proposed decision during the administrative proceedings had not been challenged.
Comment: This case is a good illustration of the procedural pitfalls that all parties to a claim may face if they do not raise their appropriate issues and defenses in a timely manner at the hearing level. The claimant in this case had a very good and reasonable argument regarding the carrier’s late filing of the notice of controversy. In fact, this claim could have been established if claimant had pursued the issue during the hearing phase. Also, even though the WCB properly relied upon its continuing jurisdiction to rescind its proposed decisions, the carrier should have followed proper procedure by issuing a written formal objection in order to guarantee that its position would be preserved. The bottom line is that everyone needs to respond timely and accordingly every time that a notice of indexing and/or proposed decision is received from the WCB. You will only have one opportunity to do so and everything needs to be done correctly.
Matter of Bordonaro v Genesee County Sheriff’s Off., 148 A.D. 1507 (N.Y. App. Div. 3d Dep’t March 30. 2017).
Issue: Claim for Death Benefits. Burden of Proof.
Facts: This was our case. It involved a claim for death benefits due to work–related stress resulting in a fatal cardiac condition. The only medical opinion regarding causal relationship produced was rendered by the claimant’s consultant. The WCB reversed its establishment and disallowed it for two reasons. First, there was insufficient evidence that the decedent was in the course of his employment at the time of death. As a result the presumptions contained within WCL § 21(1) were not applicable, and the burden remained on the claimant to prove, with competent medical proof, that the death was work-related. This burden had not been satisfied as the diagnosis rendered by the medical expert had not been supported by the information contained within the autopsy report and death certificate. Second, the claimant had failed to show that the stress allegedly experienced by the decedent immediately prior to his date of death, had been no more than what could be experienced by “similarly assigned” members of law enforcement. The claimant appealed.
Determination: Affirmed. The court noted that there had been a lack of evidence, medical or otherwise, to conclude that the decedent was in the course of his employment when he died and therefore the presumptions of WCL § 21(1) did not apply. Further, the medical expert acknowledged during testimony that the autopsy report had not attributed the cause of death to any acute occurrence. As a result, the WCB was justified to reject the opinion as speculative. There was an interesting footnote in which the court indicated that the WCB had erroneously placed the burden on the claimant to show that the stress experienced by the decedent had been greater than what could be experienced by “similarly situated workers.” This standard applied to claims involving mental injury caused by work-related stress. The footnote further indicated that in the past claims involving a heart attack or stroke resulting from stress had been established without any specific determination that the stress had been more than what could be typically experienced at work. This WCB’s error was deemed to be harmless as there had been substantial evidence to support its threshold determination regarding causal relationship.
Comment: This case shows how important it is to scrutinize the medical evidence presented. The opinion of the medical expert here was found to lack evidentiary support. It also showed the considerable weight placed on the findings that are contained within a death certificate and an autopsy report. As a result, the burden shifting analysis utilized in determining whether an employer had sufficiently rebutted the presumptions of WCL § 21(1) was never reached in this case. Rather, everything remained within the realm of determining whether claimant could prove that an accident occurred. Whenever facing a claim for death benefits it is crucial for the parties to secure their own copies of the death certificate and the autopsy report, provided that an autopsy had been performed. This case equally serves as a good illustration of showing that a claim for a physical condition such as a cardiac or event due to stress cannot be exclusively defended by the “similarly situated worker” argument. As an aside, please keep in mind that our 2017–2018 final state budget has included a provision prohibiting the disallowance of the claim for a first responder’s mental stress if the only defense was that the stress was not greater then what a “similarly situated worker” could encounter in the course of their work. More on that topic to follow.
Mancini v Office of Children and Family Servs., 2017 N.Y. App. Div. LEXIS 5208 (N.Y. App. Div. 3d Dep’t June 29, 2017)
Issue: Whether additional payments under WCL § 15(3)(v) should be made in accordance with WCL § 15(3)(w); Effective date of the durational Caps under WCL § 15(3)(v).
Facts: This claim contains the most unusual, and yet increasingly relevant, set of facts. The claimant (DOB 1967) injured his non-dominant shoulder on 6/6/08. The WCLJ awarded him a 50% SLU for the arm pursuant to an Amended Notice of Decision filed 12/22/09. At that time it was noted that the schedule loss of use would be exhausted as of 6/4/11, a period of 76.6 weeks.
In 1/13 the claimant applied for additional benefits under WCL § 15(3)(v). This statue permits the payment of additional weekly compensation where a claimant is awarded at least a 50% SLU or greater. The claimant is required to prove that their compensable disability was the sole cause of their loss of wage earning capacity. Additionally, they are required to have either completed a WCB approved rehabilitation program or they were deemed not to be a feasible candidate for re-training. If successful the claimant can receive ongoing benefits until they reach “normal” Social Security age. These requirements can be difficult to prove.
In this case, the claimant had completed job retraining through VESID and was working with reduced earnings beginning 1/13. Pursuant to a Notice of Decision filed 4/19/13 the WCLJ found the claimant entitled to additional benefits under WCL § 15(3)(v). On 4/18/14 the WCB Panel found that an analysis of the claimant’s loss of wage earning capacity under WCL § 15(3)(w) was needed based upon the WCL § 15(3)(v) finding. The case was restored in order to consider the claimant’s functional impairment, residual medical impairment and vocational factors which are associated with a loss of wage earning capacity analysis per WCL § 15(3)(w). The WCLJ found that there was a 37.5% loss of wage earning capacity which entitled the claimant to receive an additional 275 weeks of benefits effective 6/4/11. On appeal, the WCB affirmed the determination of the WCLJ regarding the claimant’s loss of wage earning capacity but, set the effective date of the capped benefits as 7/21/14.
Cross appeals were filed. The claimant argued that the additional benefits awarded pursuant to WCL § 15(3)(v) were not subject to the durational limits as set forth in WCL § 15(3)(w). The employer appealed by arguing that the WCB’s determination regarding the effective date of the capped benefits, 7/21/14, was arbitrary and capricious.
Determination: Affirmed on all issues. The court found that the WCB “rationally interpreted” that the statutory language of WCL 15(3)(v) did not prohibit the setting of a durational cap on the number of weeks in which awards could be made. Furthermore, the court found that the WCB had rationally set the effective date of the durational limits as of the date that the WCLJ made the determination regarding the claimant’s loss of wage earning capacity.
Comment: This case may be a good illustration of what is yet to come. If a claimant is motivated, and if they satisfy the requirements of WCL § 15(3)(v) then they may apply for a reinstatement of weekly benefits. However, it is important to note that the durational caps will still apply if they are successful. This is still a difficult burden for the claimant to prove and benefits should still expire when he or she reaches the age in which they are entitled to receive SSI Benefits (i.e., 62.5 years of age).