NEW YORK TOP CASES, powered by New York Workers' Compensation Handbook (updated 12/10/2009)

NEW YORK TOP CASES, powered by New York Workers' Compensation Handbook (updated 12/10/2009)

These case summaries are brought to you by the legal editors for the New York Workers' Compensation Handbook (LexisNexis).

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Barge was a “vessel” under the Longshore Act; Labor § 240(1) and § 241(6) actions against barge owner were accordingly barred. Lee v. Astoria Generating Co., L.P., 2009 N.Y. LEXIS 4079 (Nov. 23, 2009). Plaintiff was working on a barge containing an electricity generating turbine when he fell eight feet, hurting his back. As a result of the accident, plaintiff was awarded benefits under the Longshore and Harbor Workers' Compensation Act because he was injured on navigable waters. Plaintiff then filed Labor Law § 240(1) and § 241(6) against the barge owners. The owners contended that plaintiff’s sole remedy was under the LHWCA. The issue turned on whether the barge on which plaintiff was working was a “vessel” under the LHWCA. The trial court held that it was and granted the barge owner’s motions and dismissed the complaint primarily. The Intermediate appellate court court held that the trial court erred in concluding that the barge was a vessel; therefore, plaintiff's § 240(1) and § 241(6) claims against the barge owners were not precluded by the LHWCA. The Court of Appeals of New York reversed. The barge, and other barges belonging to the owners, had been tugged on water approximately once a decade to a maintenance station and, at least once, to provide energy to another part of New York City in an emergency. The barge was practically capable of being used as a means of transportation on water. Although the barge was stationed at a particularly facility, because it was not permanently anchored or moored, it had not lost its status as a vessel. Accordingly, the barge was a vessel under § 905(b) and the §§ 240(1), 241(6) were preempted. See generally Larson's Workers' Compensation Law, § 146.02.
 
Presumption of compensability rebutted by death certificate, medical opinion that decedent suffered from hypertension and high cholesterol and that he felt ill the evening before his fatal attack. Puig v. New York Armenian Home, Inc., 65 A.D.3d 1444; 885 N.Y.S.2d 785 (3rd Dep’t 2009). Claimant's husband was discovered lying on the floor of a bathroom that he had just cleaned in the nursing home where he was employed as a maintenance worker. He had no pulse and was not breathing when emergency personnel arrived, and shortly thereafter he was declared dead as a result of cardiopulmonary arrest. Claimant's subsequent application for workers' compensation death benefits was challenged by decedent's employer and its workers' compensation carrier on the basis that decedent's death was not causally related to his employment. A Workers' Compensation Law Judge denied the claim. Upon review, the Workers' Compensation Board reversed and the employer appealed. The appellate court observed that the employer's medical expert testified that, despite a recent increase in the number of hours decedent worked per week, his death was not in any way related to his work. The expert also cited decedent's history of hypertension and high cholesterol, and opined that coronary artery disease was the underlying cause of death. Similarly, the notice of death completed by the physician who pronounced decedent dead indicated that his death was caused by cardiopulmonary arrest and myocardial infarction with hypertension and high cholesterol as contributing factors. The proof of death form signed by decedent's treating physician further set forth an opinion that hypertension and high cholesterol contributed to decedent's death. Finally, evidence in the record suggests that decedent felt ill the night before the incident and went to work despite not feeling well that morning. He was advised to go home, but did not. The appellate court indicated the employer had presented substantial evidence sufficient to overcome the presumption of compensability; the burden accordingly shifted to claimant to establish that decedent's death was causally related to his employment. The matter was, therefore, remitted for a determination of whether claimant established that decedent's work activities contributed to his death. See generally Larson's Workers' Compensation Law, § 130.06.
 
Discrimination action could proceed where evidence showed actor was injured, was away from the employment for three months during recuperative period, and was terminated when he returned to work. Vig v. The New York Hairspray Co., L.P., 885 N.Y.S.2d 74 (1st Dep’t 2009). Plaintiff actor sued defendant production company, alleging employment discrimination based on a disability in violation of Executive Law § 296 and the Administrative Code of the City of NY § 8-107. The Supreme Court, New York County, granted the production company's motion and dismissed the case. The actor appealed. The actor had been injured while performing in the production company's show. Although he continued performing, eventually he took off three months for surgery to repair the injury. When he returned after that three-month period, he was told he had been terminated. The appellate court found that the actor stated disability discrimination claims under both the state Human Rights Law, Executive Law art. 16, and the city Human Rights Law, Administrative Code of the City of NY § 8-101, et seq. The actor sufficiently pleaded that he suffered a disability when he was injured. Indeed, as a result, the actor received a workers' compensation award. He further alleged that at the time of his termination, he was still capable of resuming his employment as a performer. The production company's stated reason for termination was directly related to his disability, or its perception that he was disabled, i.e., that he was not eligible for the medical leave he had taken after his surgery. Moreover, was it clear that the disability, surgery, resulted in the actor's termination under a union contract as well, a contract that guaranteed him employment for the run of the show. The judgment was reversed, and the claims were reinstated. See generally Larson's Workers' Compensation Law, § 104.07.
 
Payment of workers’ compensation benefits by subcontractor did not conclusively determine that injured carpenter was the subcontractor’s employee; issues of fact precluded summary judgment based upon exclusive remedy provisions of workers’ compensation law. Weitz v. Anzek Const. Corp., 65 A.D.3d 678, 885 N.Y.S.2d 314 (2nd Dep’t 2009). Plaintiff was a carpenter hired through his union to work at a school construction project. He sustained injuries when the six-foot-long metal object he was holding allegedly came into contact with overhead electrical wires. He sought and obtained worker's compensation benefits, indicating that the defendant subcontractor was his employer. His wages for the project, as well as W-2 information came from another construction firm, however. He then filed a negligence action against multiple defendants, including the subcontractor through whom he had recovered workers’ compensation benefits. The defendant subcontractor filed a motion for summary judgment, contending the action was barred by the exclusive remedy provisions of the workers’ compensation law. The motion was denied. The appellate court affirmed, finding in relevant part that the subcontractor's evidence, including the deposition testimony of its president, revealed that there were issues of fact as to the actual identity of the carpenter's employer. The administrative finding that the injured the carpenter was entitled to recover compensation benefits from the subcontractor was not conclusive proof that he was employed by it. The subcontractor also failed to show that the carpenter was its special employee. Since the subcontractor failed to establish that it lacked the authority to control or supervise the activity that allegedly caused the injury, it was not entitled to dismissal of the common-law negligence and Labor Law §§ 200, 241(6) causes of action. See generally Larson's Workers' Compensation Law, § 111.04.
 
For statute of limitation purposes, independent medical examination is “medical treatment;” two-year malpractice statute applies, not three-year tort statute of limitations. Bazakos v. Lewis, 12 N.Y.3d 631, 911 N.E.2d 847 (2009). Plaintiff sued a doctor, seeking damages for injuries allegedly arising from the doctor's negligence in performing an Independent Medical Examination (IME) in a separate case. The trial court dismissed the case was time-barred. The Supreme Court of New York, Appellate Division, Second Department, reversed. The doctor appealed. The complaint alleged that the doctor injured the plaintiff during the IME when he rotated the plaintiff’s head with his hands. This case was filed approximately 2 years 11 months later. The intermediate appellate court found that, because a physician performing an IME and the person undergoing it did not have a physician-patient relationship, the action was not for medical malpractice, and thus, the three-year period of CPLR 214(5) applied, not the shorter CPLR 214-a period. The intermediate appellate court certified the question of whether its order was proper. The Court of Appeals of New York found, however, that the act on which the suit was based-the doctor's manipulation of a body part of a person who came to his office for an examination-constituted "medical treatment by a licensed physician," and the negligent performance of that act was an act of malpractice. There was no good reason why the statute of limitations should have been longer than it would have been if the doctor were accused of making exactly the same error on a patient who came to him for consultation or care. As a medical malpractice claim, the suit was governed by the 2 year, 6 month period of CPLR 214-a and was not timely. See generally Larson's Workers' Compensation Law, § 112.02.
 
Designation of some funds within workers' compensation settlement as future medical expenses does not always mean such funds are not income for purposes of computing child support. Matter of Ashley v. Worsell, 2009 N.Y. App. Div. LEXIS 7606 (3rd Dep't, Oct. 29, 2009). A county family court affirmed a magistrate's decision that, among other things, granted an application by petitioner mother to modify a prior support order, and directed the father to pay the mother 17 percent of the total amount he received in a workers' compensation settlement, as well as counsel fees. The father appealed. The father argued that $ 70,000 of the settlement was specifically earmarked to pay for his future medical expenses and, as such, was not income for purpose of any child support calculation. However, the appellate court found the father did not use the proceeds of the settlement to pay for medical expenses but, rather, spent the entire amount on expenses that were not medically related. Thus, the proceeds were used to supplement his income and pay for routine expenses. As such, for child support purposes, the money was properly counted as income and, in part, used to support his child pursuant to Family Ct Act § 413(1)(e). Given the father's payment history, the trial court also had ample justification to require that the payment be made in a lump sum. However, the father should not have been required to pay the mother's counsel fees. The mother failed to provide a factual basis establishing that the amount requested was reasonable. There was no written retainer agreement between the mother and her counsel and no evidence was submitted that detailed the services provided to the mother. The order was modified by vacating so much thereof as directed the father to pay counsel fees. Otherwise, the order was affirmed. See generally Larson's Workers' Compensation Law, § 89.08.
 
Insurer on the risk at time worker became disabled from occupational disease, rather than insurer on the risk at last injurious exposure, is responsible for paying benefits. Matter of Mlodozeniec v. Trio Asbestos Removal Corp., 887 N.Y.S.2d 339 (3rd Dep't, Oct. 22, 2009). At the time of a worker's employment as an asbestos handler, the State Insurance Fund ("SIF") provided workers' compensation insurance to the employer. After the worker left the employment, the employer replaced SIF's policy with one written by Zurich American. This second policy was in effect when the worker's health deteriorated and he was diagnosed with an occupational condition. A workers' compensation law judge concluded that Zurich American was responsible for the payment of the claim, but the Board reversed, finding that because SIF was the insurer when the worker was last employed by the employer and sustained injurious exposure, it was liable for the payment of the claim. The appellate court found, inter alia, that there was no question the employer, as the last entity to employ the worker to perform asbestos removal work, was responsible for the payment of the claim. Because Zurich American was the carrier on the risk on the date of the worker's disability resulting from the occupational disease, it, not SIF, was responsible for payment of the award under Workers' Compensation Law § 44. See generally Larson's Workers' Compensation Law, §§ 153.01, 153.02.
 
Auditor's work writing checks to victims in the aftermath of the September 11 terrorist attacks was not "rescue, recovery, or cleanup" operations that would allow the special benefits provided by § 161(1). Williams v. City of New York, 2009 N.Y. App. Div. LEXIS 7409 (3rd Dep’t, Oct. 22, 2009). The employee worked as an auditor with the city. After September 11, 2001, however, she was reassigned to write checks that provided disaster funds to various individuals who had suffered immediate financial impact from the terrorist attack on that day. She claimed that this assignment led to an exacerbation of her respiratory condition. The board determined that the employee's work was not activity falling under N.Y. Work. Comp. Law § 161(1), which provided special benefits for workers who “participated in the rescue, recovery, or cleanup operations at the World Trade Center site.” The employee argued that the board construed the qualifying activity in the statute too narrowly and focused unduly in her case on the word "rescue" rather than "recovery." The appellate court found that the legislature realized that the determination in cases such as this would be fact-driven. The court noted that in several decisions, the board had decided cases favorably to claimants whose actions could be characterized “recovery” work--a technician who worked installing and repairing telephone lines in the relevant area of lower Manhattan (Verizon NY, Inc., 2008 NY Wrk Comp LEXIS 7135, 2008 WL 2878810 [July 15, 2008]), a bus driver assigned to transport police and firefighters from the staging area to ground zero (NYC Transit Auth., 2009 NY Wrk Comp LEXIS 5438, 2009 WL 525476 [Feb. 20, 2009]), and a mechanic assigned to help restore gas lines in the vicinity (Con Edison, 2008 NY Wrk Comp LEXIS 1247, 2008 WL 593651 [Feb. 12, 2008]). Each word of a statute was to be given effect. So long as the Board's construction and application of the statutory words (rescue, recovery, cleanup) was consistent with the general accepted meaning of such terms, and the underlying factual basis for making its determination was supported by substantial evidence, its determination would be upheld. See generally Larson's Workers' Compensation Law, § 7.02.
 
Substantial evidence and employer's failure to explain absence of medical records from its own medical department support Board's finding of work-related carpal tunnel syndrome. Matter of Curtis v. Xerox, 887 N.Y.S.2d 280 (3rd Dep't, Oct. 8, 2009). During the course of her 33-year employment with the employer, claimant worked in various positions that required that she spend most of her day performing data entry on a keyboard. After developing severe pain and swelling in her wrists, hands and fingers, claimant stopped working pursuant to her doctor's orders and, thereafter, submitted a claim for workers' compensation benefits. During hearings, claimant testified that she visited the employer's plant medical department and a Workers' Compensation Law Judge directed the employer to produce the medical records. After multiple further proceedings during which the records were not produced, the WCLJ rendered a decision finding that claimant had not established occupationally acquired injuries. The Workers' Compensation Board rescinded the decision and directed that the medical records be produced by the employer within two weeks, or the Board would infer a diagnosis of a causally related occupational disease. At a subsequent hearing, the WCLJ allowed lay testimony from its workers' compensation coordinator that no medical records existed for claimant. In an ensuing decision, the WCLJ determined that, based upon the remaining evidence, claimant had failed to submit prima facie medical evidence of a work-related injury. The Board again reversed, finding that the WCLJ erred in allowing lay testimony regarding the nonexistence of the medical records and that claimant was entitled to an inference that the records existed and showed a diagnosis favorable to claimant that, along with the other medical evidence, established a causally related occupational disease. The employer appealed. The appellate court disagreed that there was any error allowing the lay testimony as to the lack of records. But the appellate court also indicated that it was well within the Board's authority to draw an inference in favor of the claimant. The court also indicated that the Board's holding that claimant had sustained a work-related occupational disease was supported by substantial evidence even without the inference. The claimant's treating physician opined that her condition was likely carpal tunnel syndrome or severe arthritis due to long hours of typing, and that he could find no evidence that her condition was caused by anything other than her employment. An orthopedic surgeon who performed an independent medical examination agreed that the claimant had an industrial history that could cause carpal tunnel syndrome and that the claimant's condition was a result of the overuse of her hands. See generally Larson's Workers' Compensation Law, § 128.02.
 
Claimant voluntarily withdrew from the workplace where, following a layoff due to market conditions, he only performed minimal job search and moved to Florida. Matter of Magerko v. Edwin B. Stimpson Co., Inc., 2009 N.Y. App. Div. LEXIS 8561 (3rd Dep't, Nov. 25, 2009). Claimant has an established permanent partial disability due to a variety of ailments related to a 1990 work-related injury. In June 2003, he was laid off when his employer moved part of its operations out of state. Following hearings, a Workers' Compensation Law Judge found that, among other things, claimant had not voluntarily withdrawn from the labor market following his layoff. Upon review, the Workers' Compensation Board disagreed and rescinded all awards from June 2003 onward. Claimant appealed. The appellate court affirmed, noting that while the testimony in the case revealed that claimant collected unemployment insurance benefits and made some effort to locate work soon after he was laid off, his job search amounted to preparing a resume, submitting it to an unspecified number of potential employers at job fairs and attending one interview. Although claimant stated that his physical constraints prevented him from doing the job for which he interviewed, there was no indication that he asked that potential employer to accommodate his disability. Thereafter, the court indicated claimant began receiving Social Security disability benefits, moved to Florida in 2004, and made no subsequent effort to find a job. The court indicated that while claimant alleged that his failure to seek employment was due to his work-related disability, the physicians who examined him agreed that he was capable of working within certain limitations. Substantial evidence supported the Board's determination that claimant voluntarily withdrew from the labor market after he was laid off. See generally Larson's Workers' Compensation Law, § 84.04.

In Split Decision, Appellate Court (3rd Dept.) Denies Application For Reconsideration And/Or Full Board Review on Stress Claim. D'Errico v. New York City Dep't of Corrections, 2009 NY Slip Op 6262, 2009 N.Y. App. Div. LEXIS 6102 (App. Div. 3rd Dept August 20, 2009). In 2002, claimant was diagnosed with severe major depressive disorder with psychotic features, posttraumatic stress disorder and panic disorder with agoraphobia. He sought workers' compensation benefits, asserting that his illness was caused by his exposure to violent incidents in the course of his employment as a maintenance worker for the New York City Department of Corrections. The Board ultimately denied the claim, concluding that claimant was not exposed to a greater amount of work-related stress than that normally experienced by similarly situated employees at correctional facilities. Claimant's subsequent application for full Board review and/or reconsideration was denied. A majority of the appellate court observed that claimant separately appealed from both the underlying decision denying his application for benefits and the denial of full Board review, but he failed to timely perfect his appeal from the underlying decision. The majority concluded, therefore, that the merits of that decision were not properly before the court. The majority indicated the grounds for seeking review or reconsideration were narrow; the movant must generally show that newly discovered evidence existed, that there had been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination. According to the majority, the rare instances in which the appellate court had found that the Board abused its discretion in denying an application for reconsideration have involved the Board's disregard of either newly discovered evidence or a material change in conditions. The majority indicated that here claimant did not seek to present newly discovered evidence or allege a material change in conditions; the Board's decision not to revisit an issue that it had fully considered and resolved could not be deemed arbitrary and capricious. The majority also indicated that it had no difficulty discerning that the Board had fully considered the issue of the appropriate stress level with which to compare the claimant's stress levels was the average worker in New York City or other employees within the correctional system, observing that the latter comparison had appropriately been used. Based on the foregoing, the majority saw no abuse of discretion in the Board's decision to deny full Board review. Justice Garry dissented, indicating that remittal was required. According to the dissent, the Board panel failed to adequately consider and address the legal standard applied in its determination that claimant was not exposed to a greater stressful environment than that normally experienced by other correctional facility employees. According to the dissent, this failure was of such significance, and was so directly addressed within the request for reconsideration, that the determination to deny reconsideration and/or full Board review was an abuse of the Board's discretion. See generally Larson’s Workers’ Compensation Law § 130.03.

Claimant's Left-Hand Carpal Tunnel Claim Found Barred When Pain Began More than Two Years Prior to Filing of Claim and Physician Indicated Employment Connection of Her Injury at that Early Time. Feliciano v. New York City Health and Hosp. Corp., 2009 NY Slip Op 6212, 2009 N.Y. App. Div. LEXIS 6047 (App. Div. 3rd Dept August 13, 2009).  In December 2003, claimant sought medical treatment for pain in her left hand from a physician who indicated to her that she was suffering from carpal tunnel syndrome caused by the duties she performed as a nursing assistant. She continued to work until February 2006 when she underwent surgery for that condition. After she began to feel similar pain in her right hand, surgery was performed on that hand on August 28, 2006. Approximately one month later, claimant submitted an application for workers' compensation benefits for bilateral hand injuries.  A law judge found that claimant's application for the injury to her left hand was time-barred pursuant to Workers' Compensation Law § 28, but that claimant suffered an occupational disease of carpal tunnel syndrome in her right hand and established August 28, 2006 as the date of disability.  Claimant appealed, contending that the claim for her left hand should not be considered time-barred and that August 28, 2006 should be found to be the date of disability for both hands. The Board left alone the conclusion that August 28, 2006 was the proper date of disability for claimant's right hand, noted that the law judge had failed to establish a date of disability for claimant's left hand and, on its own motion, set December 2003 as the date of such disability. Consequently, the Board modified the law judge's decision to the extent of finding that the application for benefits with respect to claimant's left hand was untimely, prompting further appeal.  The appellate court disagreed that the Board had erred in establishing two dates of disability, noting that according to her own testimony the pain in claimant's left hand existed for two years before pain in her right hand began.  The court also indicated that the claim regarding claimant's left hand was filed more than two years after she had reason to know that the pain was due to the nature of her employment.  There was no basis to disturb the Board's finding. See generally Larson's Workers' Compensation Law, § 126.06

Workers' Compensation Law Judge Has Considerable Discretion in Judging Credibility of Witnesses.  Matter of Gardner v. Nurzia Constr. Corp., 2009 NY Slip Op 5040, 63 A.D.3d 1385, 881 N.Y.S.2d 529 (2009). Claimant sought workers' compensation benefits, alleging that he had fallen from a ladder and sustained disabling head injuries while working alone at the employer's construction site. Finding claimant's testimony to be incredible, a law judge disallowed the claim. The Board affirmed and claimant appealed.  Claimant contended that the statutory presumption that an unwitnessed accident at the time and place of employment arose out of that employment applied.  The appellate court indicated the presumption could not, however, be used to establish that claimant had suffered his accident while at work.  The court indicated that the central issue was whether an accident occurred at work. As it was a factual question for the Board, its determination would not be disturbed if supported by substantial evidence.  According to the appellate court, the law judge rejected claimant's account of the injury, deeming his alleged actions to be unusual, inconsistent and uncorroborated.  Since the Board had broad authority to credit the testimony of the employer's witness and discredit claimant's testimony, the decision could not be disturbed on appeal. See generally Larson's Workers' Compensation Law, § 130.03.

Claimant's Exaggerations and Inconsistencies Support Board's Finding That Her Version of the Events Surrounding Injury Were Incredible and Could Not Support an Award.  Matter of Donovan v. BOCES Rockland County, 2009 NY Slip Op 4777, 63 A.D.3d 1310, 880 N.Y.S.2d 783 (2009).  Claimant sought review of a decision of the Board that reversed the decision of a law judge who had determined that the claimant's left shoulder injury was work-related.  The claimant argued that the Board erred in finding that she lacked credibility. The appellate court found that the Board pointed out a pattern of exaggerations by the claimant, noted that her description of the underlying encounter which allegedly caused the injury lacked consistency and escalated in magnitude over time, and found her testimony as to her physical limitations considerably belied by a surveillance videotape. The Board's factual determinations were supported by the record and, thus, the Board's assessment of the claimant's credibility would not be disturbed.  The decision was affirmed. See generally Larson's Workers' Compensation Law, § 130.03.

Claimant's Claims Fails Where She Failed to File Expert's Medical Report Prior to Hearing and Serve Copy on all Parties. Matter of Porcelli v. PMA Assoc., 2009 NY Slip Op 5923, 2009 N.Y. App. Div. LEXIS 5771 (App. Div. 3rd Dept July 23, 2009). Claimant's husband ("decedent") was employed as a printer for over 30 years by several different employers. Decedent died in 1998 as a result of respiratory failure. Claimant applied for workers' compensation death benefits, claiming that decedent's death was attributable to his inhalation of toxic chemicals during the course of his employment. The law judge determined that decedent's death resulted from an occupational disease and awarded claimant benefits. On review, the Board found that claimant's failure to timely furnish her medical expert's original report to the Board and other parties pursuant to 12 NYCRR 300.2(d)(12) required preclusion of the report, as well as an addendum to the report and the expert's hearing testimony. Based on this preclusion, the Board found that claimant failed to establish a causal relationship between decedent's death and his employment. The case was closed with no award of benefits and claimant appealed. The appellate court noted that when a party intends to refer at a hearing to the report of a physician who reviewed medical records without a physical examination, the report must be furnished to the law judge and all parties "prior to that hearing," that the original report of claimant's expert was not filed with the Board prior to the hearing where the expert was to testify, and that the employer objected to the report on that basis and the matter was adjourned. The court observed further that on the new hearing date two months later, the report still had not been filed with the Board. While the record revealed that some of the parties had a copy of the report a year prior to the hearings, it was unclear whether all parties were furnished with the report. Based upon claimant's failure to file the report with the Board, as well as the uncertainty concerning whether the report was provided to all parties prior to the hearing, the record supported the Board's conclusion to preclude the report. Without claimant's expert proof, the Board's determination that claimant failed to establish a causally-related death was supported by substantial evidence. See generally Larson’s Workers’ Compensation Law § 124.06.

New Jersey Carrier's Liability for Injury to Worker In New York Depends Upon Multiple Factors. Matter of Chmura v. T&J Painting Co., 2009 NY Slip Op 5730, 881 N.Y.S.2d 724 (App. Div. 3rd Dept July 9, 2009). The employer was a New Jersey corporation with its sole office located in that state. It maintained New Jersey workers' compensation insurance through Travelers Indemnity Company. Claimant fell while working as a painter for the employer in New York and filed a workers' compensation claim in the latter state. Travelers contended that its policy did not cover this New York accident, but following a hearing, a law judge determined that indeed Travelers was the proper carrier. The Board affirmed, finding that the work done by claimant in New York was temporary and, thus, was covered under the employer's insurance policy. Travelers appealed. The appellate court observed that the employer's New Jersey insurance policy contained a "limited other states insurance endorsement," that in order for Travelers to pay benefits under that endorsement, certain conditions needed to be met: the employee claiming benefits must have been hired in New Jersey; at the time of the injury the employee must have been principally employed in New Jersey; the employer must not be required by law to have separate workers' compensation insurance coverage in the state where benefits are being sought; and the work being performed in the other state must be temporary. The appellate court agreed with the Board's conclusion that the work that claimant was performing was temporary. It indicated, however, that resolution of the case did not end there; all conditions must have been met for the policy's endorsement to apply. Because the Board only addressed one condition before holding that Travelers was the proper carrier, the court remitted the case for the Board to determine whether all of the policy endorsement's conditions had been met. See generally Larson’s Workers’ Compensation Law § 151.02.

Worker's Spinal Cord Injury While Participating in Exercise Class Found Compensable. Matter of Torre v. Logic Tech., 2009 NY Slip Op 5676, 881 N.Y.S.2d 675 (App. Div. 3rd Dept. July 2, 2009. Claimant, employed by a firm that performed on-site contracting work for General Electric Company, suffered a spinal cord injury while participating in an exercise class at the G.E. Fitness Center during work hours. Following a hearing, a Workers' Compensation Law Judge determined that claimant's injury arose out of and in the course of his employment. The Workers' Compensation Board affirmed, prompting this appeal. The appellate court observed that a claimant could not recover workers' compensation benefits for an injury arising out of his or her voluntary participation in an off-duty athletic activity not constituting part of the employee's work related duties unless the employer (a) required the employee to participate in such activity, (b) compensated the employee for participating in such activity or (c) otherwise sponsored the activity. The court assumed that claimant was off duty when he took the exercise class and was neither compensated for, nor required to participate in it. In that case, the claimant was required to show that the employer sponsored the activity, which generally required an affirmative act or overt encouragement by the employer to participate. The court observed that claimant was encouraged by the employer to have a gym membership; the employer offered reimbursement to its employees for half of their G.E. Fitness Center membership fees. Moreover, claimant's position required him to develop contacts with current and prospective clients, and both he and the employer's president stated that participating in the exercise class furthered that function. Given those facts, the appellate court concluded that the Board's determination was supported by substantial evidence. See generally Larson’s Workers’ Compensation Law § 22.04.

Purported Employee Fails to Establish Employer-Employee Relationship Where Evidence Tended to Show that Owners of Business Had Never Seen "Employee" Outside the Litigation. Matter of Hassanein v. Yankee Stop Corp., 2009 NY Slip Op 5658, 881 N.Y.S.2d 705 (App. Div. 3rd Dept July 2, 2009). Claimant alleged that he worked at a delicatessen operated by Yankee Stop Corporation and was injured while attempting to move a steam table. He applied for workers' compensation benefits, which were denied by a law judge on the ground that claimant was not working for Yankee. On appeal, the Board reopened the record to allow for the submission of further evidence, but again the law judge found that no employer-employee relationship existed. The Board. The appellate court also affirmed. Noting that the existence of an employer-employee relationship exists was a factual issue for the Board, the appellate court noted that two of Yankee's owners testified that claimant did not work for the company. One of the owners even testified that he did not know claimant and had only seen him in connection with the legal proceedings. While claimant and others testified that claimant did in fact work for Yankee, the Board was free to credit the owners' testimony and the appellate court, therefore, declined to disturb the decision. See generally Larson’s Workers’ Compensation Law § 130.05.

Claimant May Not Reopen Claim to Re-litigate Medical Issues. Matter of Defayette v. Verizon, 2009 NY Slip Op 5661, 2009 N.Y. App. Div. LEXIS 5393 (App. Div. 3rd Dept July 2, 2009). Claimant suffered a work-related injury to his back in January 2003 and was awarded workers' compensation benefits. In October 2004, although claimant's physician opined that claimant remained totally disabled, an IME concluded that claimant had no disability and could work without any restrictions. Based on the latter opinion, the self-insured employer suspended claimant's workers' compensation benefits. Following two hearings at which medical testimony was provided, a law judge concluded that claimant's complaints of pain were not substantiated by any objective findings and the Board affirmed and closed the case. Claimant's request for full Board review was denied and an appeal to the appellate court was not perfected. Thereafter, claimant—represented by new counsel—submitted multiple reports from treating physicians in an attempt to establish that he remained disabled. After a further hearing, a different law judge declined to reopen claimant's case, finding that all relevant issues had been fully litigated, addressed and resolved. The Board concurred and upheld the law judge's determination. Claimant appealed, contending that the Board failed to consider all of the pertinent medical evidence prior to rendering its decision. The appellate court disagreed. The appellate court observed that reopening was allowed where "certain material evidence not available for presentation before the [B]oard at the time of hearing [was] now available." [12 NYCRR 300.14[a][1]]. The exercise of that power, however, lay within the discretion of the Board. Absent an abuse of discretion, the decision would not be overturned on appeal. The appellate court also noted that the additional evidence proferred by claimant had either been available at the time of the prior determinations or such evidence failed to indicate a material change in claimant's condition. There was no basis upon which to disturb the Board's denial of claimant's request to reopen his claim. See generally Larson’s Workers’ Compensation Law § 131.03.

Appellate Court Affirms Board's Finding That Claimant Did Not Knowingly Make False Statement or Misrepresentation About His Physical Activity. Matter of Dory v. New York State Elec. & Gas Corp., 2009 NY Slip Op 5669, 881 N.Y.S.2d 683 (App. Div. 3rd Dept July 2, 2009. Claimant received workers' compensation benefits for a permanent partial disability. In June 2006, an investigator hired by the employer's workers' compensation carrier observed claimant using a squat press machine. Claimant testified in November 2006 that he did not do squat presses and his physicians testified that he should not do so. The employer and carrier thereafter sought to disqualify claimant from receiving benefits, arguing that his testimony represented a knowingly false statement or misrepresentation of a material fact as set out in Workers' Compensation Law § 114-a. Following a hearing, a law judge found, among other things, that the employer and carrier had failed to prove that claimant made this statement. The Board affirmed in relevant part and the employer and carrier appealed. The appellate court noted that claimant had specifically been asked in November 2006 if he "engaged[d] in squat pressing" as a follow-up question inquiring whether he lifted weights. Claimant was not asked if he had ever used a squat press machine and in explaining his negative answer, claimant admitted that he had used the machine in question twice, at most, but did not know its actual name. The court also observed that claimant stated that his conception of a squat press involved the use of free weights and that he never equated his two uses of this particular machine with either lifting weights generally or a squat press specifically. The court held that the Board was free to credit claimant's testimony, and such testimony was substantial evidence that claimant did not knowingly make a false statement or misrepresentation of a material fact. See generally Larson’s Workers’ Compensation Law § 39.03.

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