November Newsletter

Matter of Pravato v. Town of Huntington,   2016 NY Slip Op 07732 (NY App. Div. 3d Dept. 11/17/16)

Issue:               Loss of Wage Earning Capacity (LWEC)

Facts:               On 1/3/11 the Claimant had a back injury while working as a sanitation driver.  He returned to work one year later but resigned after a few months.  At the time of permanency the WCLJ found that there was a 70% LWEC.  On appeal, the WCB reversed and found that there was a 40% LWEC since the Claimant had been capable of performing sedentary work.

Decision:         Reversed.  The Court took issue with the WCB’s LWEC analysis.  There had been no medical testimony concluding that the Claimant was capable of performing sedentary work.  Only the Claimant’s physician had provided an opinion regarding his exertional capabilities and physical impairment.  Also, the Employer’s IME failed to comment on the Claimant’s exertional capabilities or identify the type of work that the Claimant could perform.

Comment:       The Court recognized that both medical and vocational factors needed to be considered for a proper LWEC analysis.  However, it also recognized how important the medical evidence was when considering a claimant’s physical impairment or limitations in the analysis as well.

Matter of Cuva v. State Ins. Fund,   2016 NY Slip Op 07734 (NY App. Div. 3d Dept. 11/17/16)

Issue:               Work Related Stress

Facts:               The Claimant, a claims supervisor, was involved in a heated work related discussion with one of her employees in 3/13.  She filed a workplace violence report with the employer’s Human Resources department as a result of this event.  Her allegations were not substantiated by the employer’s investigation.  The Claimant was transferred to another work area due to a reorganization.  She subsequently commenced a claim for work related stress based upon the event of 1/13, the actions taken by the employer in response to her report of workplace violence and the employer’s requirement that she undergo a psychological evaluation.  The WCB affirmed the WCLJ’s disallowance of this claim.

Decision:         Affirmed.  Initially, there was a credibility determination.  The Claimant’s testimony was found to be inconsistent with her actions taking place immediately after the 3/13 event and the history that she had provided to her own physician.  It was also noteworthy that the employer was found to have had acted appropriately when responding to the Claimant’s allegations.

Comment:       This is a good illustration of the Court’s willingness to follow the line of cases which hold that a claim for work related stress cannot stand where there is no evidence that an employer’s conduct had not been extraordinary, outrageous or egregious and that the stress being claimed had been no greater than what a similarly situated worker could have expected to encounter from time to time at work.

Matter of Fetahaj v. Starbucks Corp.,   2016 NY Slip Op 07730 (NY App. Div. 3d Dept. 11/17/16)

Issue:               Employee Discharge under WCL Section 120.

Facts:               The Claimant and a co-worker submitted incident reports alleging that the Claimant was injured while learning against a bin.  The employer’s surveillance footage had indicated that the reports were not accurate.  Additionally, the co-worker acknowledged that he had provided false information.  The Claimant could not recall how she had been injured.  She was fired for filing a false report in violation of company policy.  She pursued a claim under WCL Section 120 alleging wrongful termination for filing a workers’ compensation claim.  The WCB affirmed the WCLJ’s determination that the Claimant had been terminated for misconduct and not in retaliation for pursuing workers’ compensation benefits.

Decision:         Affirmed.  The Court recognized that it is the Claimant who has the burden of proving that they had been discriminated by an employer for pursuing a WC claim.  The Court examined the evidence and agreed that the Claimant had been fired for violating a known work rule.  The surveillance footage was also telling.  Most importantly, the Court stated that WCL Section 120 was enacted to protect employees from being retaliated against for filing a WC claim and that it could not be used to “shield” them from their own misconduct.

Comment:       A Claimant who prevails in a claim commenced under WCL Section 120 can be reinstated for his or her job and even receive back pay.  However, this case stresses that the burden remains on the Claimant to establish a “causal link” between their pursuit of a workers’ compensation claim and the employer’s retaliatory response.  It similarly provides a good illustration regarding the weight that the WCB and the Court can place on demonstrative evidence such as surveillance footage and employee handbooks when reaching its determination.

 

UP AND COMING

 

The next Ed Talks is January 20, 2017 at RIT Inn and Conference Center.  More details to follow!!

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