The 3rd Department released nine new decisions on various cases in New York Workers’ Compensation.
CV-22-2159 Matter of Olorode v Streamingedge, Inc.
In this case, the claimant tried to increase his loss of wage-earning capacity (LWEC) which was set at 25% because of depression. The claimant, a computer system support analyst established an occupational disease for his neck, back and bilateral carpal tunnel. However, the Board rejected his attempt to later add depression endured from an alleged hostile work environment that persisted over the same period of time when his physical injuries developed. The Board found that there was insufficient evidence to support an increase the LWEC beyond what was already awarded. The claimant’s psychiatrist conceded that he was capable of part-time work. There was also evidence that the claimant held various professional positions since the date of disablement.
CV-23-0250 Matter of Brown v Plans Plus Ltd.
Here, a claimant tried to invoke an extreme hardship re-determination pursuant to Section 35(3) which allows reclassification of permanent disability under extreme financial hardship circumstances. After an accident in 2014 when the claimant, an enrollment specialist doing data entry, fell off her chair injuring her back, she was found to have an 80% LWEC in 2014. Just before her benefits expired in 2020, she applied for re-determination based on extreme financial hardship. Pursuant to Workers’ Compensation Law § 35 (3), “[i]n cases where the loss of wage-earning capacity is greater than [75%], a claimant may request, within the year prior to the scheduled exhaustion of indemnity benefits under [Workers’ Compensation Law § 15 (3) (w)], that the [B]oard reclassify the claimant to permanent total disability or total industrial disability due to factors reflecting extreme hardship.” WCL § 35 (3). Here, after an evidentiary hearing, considering household income, assets, expenses and other financial criteria, the Board did not find extreme financial hardship. The Board noted that the claimant leased a luxury vehicle and there was no information documenting the purchases which resulted in a monthly credit card bill. The 3rd Dept. agreed that the expenses, just because they exceed the income, without continuing permanency, does not rise to an extreme hardship.
CV-23-0458 Matter of Lujan-Espinzo v Electrical Illuminations by Arnold, Inc.
The 3rd Dept. affirmed the Board’s rejection of the intoxication defense and found in favor of the claimant in this matter. Despite finding that the claimant was “severely intoxicated” when he fell from a ladder in an unwitnessed accident, the Board did not find that the employer met their “heavy burden” of proving that intoxication was the sole cause of the accident. The employer presented a toxicology expert who testified about the negative cognitive and physical impairments resulting from a blood alcohol level as high as the claimant’s. Yet, despite that, the Board credited the claimant’s testimony that another person who is usually present holding the ladder was not there and that any misstep could be attributed to the lack of support from a helper or a “simple misjudgment of footing”. The Court did not comment on why a misjudgment of footing would not most obviously be due to the severe intoxication.
CV-23-0524 Matter of Becker v United Cerebral Palsy Assoc.
The claimant in this matter attempted to tack on a left elbow to her already established right ankle, left hand, right knee, and left ankle injury. In December 2003, the claimant who worked as a counselor, missed a step going downstairs during a fire drill. 18 years later she fell trying to get into her bathtub and sought to relate it back to the original accident claiming that right ankle buckled. And, as a derivative from the right ankle weakness she hurt her left elbow in the bathtub. Even the Board found that this was a bridge too far. The 3rd Dept. affirmed.
CV-23-0661 Matter of Miller v Transdev Bus on Demand LLC
The 3rd Dept. affirmed this COVID-19 death case. The claimant in the earliest days of the pandemic last worked on March 19, 2020, the following day she developed symptoms of COVID. By March 24, 2020, her symptoms deteriorated and week later she died. The Board found that the death was compensable. This case is interesting in that the COVID shutdowns in New York were not announced until March 20, 2020 and there were statewide closures for all non-essential business as of March 22, 2020. Here, the claimant’s exposure period happened before there were any restrictions on public gatherings. Therefore, it would have been easier to be exposed from sources other than at work. Nonetheless, the 3rd Dept. still applied the elevated risk standard of being a worker with significant public contacts. That alone was enough of a basis to find sufficient evidence of a compensable injury.
CV-23-0805 Matter of Lleshaj v Delta D., Inc.
In this truck driver case, the Court found no subject matter jurisdiction where the trucking company was located in Illinois, and the accident occurred in Pennsylvania. The claimant lives in New York. The Board found that there were insufficient contacts with New York. The rule is that there must be sufficient and significant contacts between the state and the employer to support a reasonable conclusion that the employment was to some extent sited in this state. The Board can look at many factors, including residence of the worker, the employer’s office, location of the work, where the employee was hired and how much work the employer ordinarily conducts in New York. Here, the worker’s residence, and the fact that he received job offers via email at his home in New York, and accepted from his computer in New York was not enough to establish jurisdiction.
CV-23-0964 Matter of Lebeau v Meet Caregivers, Inc.
The claimant in this matter alleged to have been assaulted by a co-worker, but the Board disallowed on the basis that she did not prove that an assault occurred. The claimant was working as a nurse when she alleged that a co-worker intentionally hit her with a folding chair injuring her right leg and right knee. The claimant alleged that she called the police, but no report was made. The claimant testified that she was unable to walk or move after the incident. The co-worker who allegedly committed the assault denied that it happened. The Board weighing the evidence found the EMT report to be the most credible. The EMT report indicated normal findings.
Practice tip: Obtain EMT reports whenever possible. Most of the time the report is not contained in the hospital records and must be requested directly from the FDNY, other municipality, or ambulance company if not in NYC.
CV-23-1581 Matter of Gorbea v Verizon New York, Inc.
The 3rd Dept. affirmed the Board’s disallowance of an alleged psychological injury in this case. The claimant, a field line technician alleged that her work exacerbated her preexisting PTSD because she was overworked and subjected to intimidation and harassment. She claimed that her supervisor ordered her to falsify her time sheets. The supervisor denied that. The Board found the claimant failed to prove that her work stress was greater than that which other similarly situated workers experienced in the normal work environment. For a psychological injury alleged to have stemmed from work-related stress to be compensable, a claimant must establish that such stress amounted to a workplace accident.
CV-23-1764 Matter of Northrop v Amphenol Corp.
Here, the Appellate Division affirmed the Board’s finding that the doctrine of laches applied to an insurance carrier who initially accepted a claim; paid on the claim; appeared for a hearing without raising any issue regarding coverage; appealed the decision at that hearing on issues unrelated to coverage, then later alleged that they were not the proper insurance carrier. The insurance company who they argued was the right carrier objected to the claim on the basis that the initial carrier failed to timely raise the issue of coverage to the detriment of the new carrier. Laches in this context means that a carrier’s inexcusable delay in raising the issue of lack of coverage leads to actual prejudice. Here the 2nd carrier was deemed to have been prejudiced because the delay prevented them from investigating and presenting their own evidence to challenge the claim. The initial carrier did not adequately show that their delay was excusable.
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