Last week, three Appellate Division decisions were made that will affect New York Workers’ Compensation matters:
1. Giesselmann v. Rotterdam Steel, LLC CV-23-1921
This was a good decision from the 3rd Dept., affirming a finding of a discretionary penalty for willful misrepresentation pursuant to Sec. 114-a. Claimant was disqualified from all future wage benefits including permanency. The claimant injured his shoulder working as a welder in 2016. The shoulder injury was not disputed. But the degree of his permanency was an issue. Claimant’s treating physician found a 70% Scheduled Loss of Use (SLU) for the right arm. Claimant told his physician that he was unable to complete the examination because of his pain and it was noted that he had “profoundly limited motion”. Then 1 month later, claimant was caught on surveillance video lifting lawnmowers weighing 45-50 pounds to waist level, picking up a 10-lb screen door over his head and other activities. Interesting here, the claimant’s physician admitted at his deposition that he suspicious of claimant’s efforts during his examination given that he previously found during his treatment that claimant had less pain, and more range of motion.
2. Kretunski v. Citywide Environmental Services LLC, CV-23-0875
Claimant was an asbestos removal handler who claimed to have repetitive use injury to his hands and joints from carrying heavy bags and equipment. Claimant testified that he would carry up to 1,000 bags of debris weighing 60-70 pounds per bag every day for 30 years. The employer’s project manager testified that claimant would never carry that many bags, and there may be 30 helpers on a job every day with big jobs and bags would never weigh more than 15 lbs. The Law Judge ultimately did not believe the Claimant and found the employer witness more credible. As a result, because the Claimant’s expert medical opinions were based on the Claimant’s description of his work, which was determined to be incorrect facts, the Law Judge discredited the Claimant’s expert opinions in their entirety. The Board Panel agreed with the Law Judge and the 3rd Dept. affirmed.
3. Quick v. State Farm Mutual Automobile Ins. Co. CV-24-0456
This case does is not an appeal of Workers Compensation Board claim. But does relate to the workers compensation law. Here, a truck driver was injured in course and scope of his work as a truck driver in an automobile accident. Instead of filing for workers compensation benefits, the driver filed for no-fault benefits and filed a direct lawsuit against the no fault carrier when they denied his benefits. The entity that the driver was working for did not have workers compensation insurance. There was an issue whether the driver was also a 1099 contractor. The trial court granted the no-fault carrier’s motion to dismiss because plaintiff’s [the injured worker’s] recourse was exclusively to file for workers compensation insurance pursuant to Section 11 of the WCL. To the extent that this plaintiff may be entitled to workers compensation benefits is a primary matter, that the WCB has the exclusive jurisdiction to determine. And even if the potential employer was uninsured, the Uninsured Employer’s Fund was created to stand in the shoes of uninsured employers before the Workers Compensation Board. And, while there is a possibility that the WCB might find this driver to not be entitled to workers compensation as a result of his status as an independent contractor, the forum to make that determination is the Workers Compensation Board.
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