May 2021 Newsletter

Centeno v. Academy Group Props., LLC, 2021 NY Slip Op 02205 (3rd Dept. April 8, 2021)

Issue:               Procedure – the failure to properly complete the cover sheet of an appeal.

Facts:              Two employers were found to be uninsured on the date of injury and penalties were assessed.  The WCB denied their appeal regarding employer-employee relationship because the cover sheet was improperly completed.  A schedule loss of use was subsequently awarded.  The employers appealed and again attempted to argue the lack of employer-employee relationship.  The WCB declined their attempt to relitigate the issue.

Decision:         Affirmed.  The court referenced the employers’ failure to properly complete the cover sheets for the 2 Applications for Board Review, including the failure to indicate when the objection to the adverse ruling was made.

Comment:      This case is another example of the dangerous pitfalls associated with the failure to complete a cover sheet according to the WCB’s specifications.  Regardless of how good your brief is, it can be denied for procedural grounds instantly.  Therefore, utmost caution is advised

 

Weishar v. Dan Tait, Inc., 2021 NY Slip Op 02199 (3rd Dept April 8, 2021)

Issue:               Section 32 settlement.

Facts:              The parties entered into a Section 32 agreement which was provisionally approved by the WCB subject to the 10-day waiting period.  The Claimant passed away for unrelated reasons within that waiting period.  The WC Carrier was notified outside those 10 days and sought reversal.  The WCB nullified the agreement.

Decision:         Affirmed.  The Court recognized the jurisdiction of the WCB to determine if a settlement was “unfair, unconscionable or improper.”  The Decedent’s death nullified the settlement as the WC carrier had been unable to make a final request to withdraw within the 10-day waiting period.

Comment:      This case provides a good example of the WCB’s jurisdiction to nullify an agreement if it is deemed unfair to either party. We should continually monitor the claim within the 10 day waiting period after settlement to make sure that there has been no drastic change in the Claimant’s circumstances.

 

Rivera v. Joseph L. Balkan, Inc., 2021 NY Slip OP 02207 (3rd Dept April 8, 2021)

Issue:               Withdrawal from the labor market and credibility.

Facts:              The Claimant sustained a back injury, was awarded intermittent lost time and stopped working approximately 1 year later.  The WCB denied benefits because the Claimant withdrew from the labor market.

Decision:         Affirmed.

Comment:      The Court focused on the WCB’s jurisdiction to assess the credibility of the parties when denying benefits.  It was significant that the Claimant failed to follow-up with a healthcare facility used by the employer for an evaluation. It was also significant that the Claimant’s indicated that he was not returning to work and failed to provide any medical to support his intentions.  The WCB had found the employer’s testimony credible on these issues and emphasis was placed on the lack of medical.  This case is good to consider when we are dealing with a “retirement case.”  We need to look at the medical evidence to determine whether there was any justification for the Claimant’s decision.