New Changes in the Law

Matter of Hartigan v Albany County Sheriff’s Dept.,

2016 NY Slip Op 04280 (2016 NY App. Div. 3d Dept. 6/2/16)

Summary:  An Albany County deputy sheriff had a heart attack while on duty.  The WCB ruled this event to be a work-related injury based in large part on testimony of the employee’s cardiologist, who said that it was possibly related to the claimant’s job duties.  The appellate court reversed the decision and sent it back to the WCB.  The court’s decision stated that the cardiologist’s testimony only cited the possibility – not the probability – that the myocardial infarction was caused by the deputy’s on-the-job activities, and that this fell short of the burden-of-proof standard incumbent upon the claimant.

Comment:  This is a good reminder of the required standard of proof regarding work-related injuries, including cases involving heart attacks.  In this case, the claimant did not provide sufficient medical evidence to show that his job duties were a probable contributor to the heart attack.   In such cases it is very important to examine a claimant’s medical profile for other possible or probable risk factors, such as smoking, family history, obesity, etc.

Matter of Greco-Meyer v Nassau County Police Dept.,

2016 NY Slip Op 03940 (2016 NY App. Div. 3d Dept. 5/19/16) 

Summary:  Claimant had a work-related injury caused by a fall in 2006 for which she received WC benefits.  She continued to work at the police department at full wages on a restricted basis until 2012, when she took a regular service retirement.  After her retirement, she sought a lost-time award.  A WCLJ ruled that her decision to retire was not voluntary, but precipitated by her disability, and that she was entitled to permanent partial disability payments beyond the date of her retirement.  The WCB disagreed on appeal and maintained that the retirement was voluntary – a decision upheld by the Appellate Division.

Comment:  The designation of a permanent partial disability often carries the presumption of entitlement to a lost-time award.  However, the Appellate Court ruled there was no proof that her disability had caused or contributed to her decision to retire, and that she could have opted to continue working full-time.  This case should reinforce for employers that, in the case of an employee with a work injury who goes back on the job and later decides to retire, it is imperative to review all of the medical evidence and to coordinate with HR to fully document that this is a non-disability retirement.   Beware the permanent partial disability designation and its tacit presumption of entitlement to an award.

Matter of Logan v New York City Health & Hosp. Corp.,

2016 NY Slip Op 03776 (2016 NY App. Div. 3d Dept. 5/1216)

Summary:  The claimant, a medical surgery technician, fell at work and injured her left knee in November of 2010.   A year later, she reported additional injuries stemming from the same incident.  A WCLJ disallowed the additional injury claims because they were not reported within 30 days of the incident.  The majority of the WCB panel disagreed, and the Full Board excused the claimant’s failure to report the additional injuries and allowed them.  The Appellate Court affirmed the WCB ruling.

Comment:  The Court basically defined “accident” and “injury” as different terms.  Because the accident – the fall – was reported, the employer had knowledge of it, and subsequent claims of injury resulting from that event would be allowed.  Employers should be thorough in gathering information on the injury, including copies of the incident report, names of witnesses, copies of any and all medical reports and event videotape footage.  With this documentation, a defense might be built on the issue of credibility.