SELECTED DECISIONS OF THE APPELLATE DIVISION, THIRD DEPARTMENT FROM THE WORKERS COMPENSATION BOARD JANUARY 2022
Murphy v. NYS Courts: 532023 January 6, 2022
This was a death claim filed under Article 8-A, as claimant had allegedly contracted squamous cell carcinoma of the lung due to rescue/recovery/cleanup work at Ground Zero during the year following the September 11, 2001 terrorist attack.
Claimant passed away on November 20, 2017. A C-62 was filed in January of 2019 and the State Insurance Fund controverted the matter. The WCLJ established the claim for a causally related death under Article 8-A, but on appeal the Board Panel disallowed the claim due to insufficient credible medical evidence.
Claimant, a court officer, had spent several days and nights at the WTC in 2001, searching for bodies, no mask worn. The treating physician testified that claimant’s death was 80% due to WTC exposure, and 20% due to tobacco and exposure to smoke as volunteer firefighter.
The treating physician did not cite to any studies or evidence to support his conclusion. Nonetheless, he testified that it was “well accepted” that there were numerous carcinogens at WTC. Still, there was no contradictory medical evidence.
The Court reversed the Board, holding that while the Board has the power to accept or reject medical opinions, “it may not totally reject uncontroverted medical testimony on the issue of causation and thereby fashion a medical opinion of its own.” Since the treating doctor’s opinion was not speculative and did not provide a general expression of possibility, the Board improperly rejected it.
NOTE: So long as the medical opinion is well supported, if there is no medical evidence to the contrary, the Board must accept it.
Moore v. US Express: 532233 January 6, 2022
Claimant allegedly sustained a back injury on October 26, 2015 and underwent surgery as a result in February of 2016. The WCLJ found that the claim did not arise in or out of the course of employment and disallowed it, and the Board affirmed.
At trial, claimant admitted that he experienced pain on October 15, 2015, which had subsided, and that he did not report it to the employer. The pain allegedly came back, went away, then he felt it again on October 26, 2015, then reported it, did not return to work although he was cleared to do so in December of 2015.
The employer witness stated that claimant reported to her an unrelated injury. Also, medical notes referred to claimant “rolling over in bed.” Further, the treating physician stated that surgery was needed due to abscess caused by an infection, rather than the accident.
Based on the foregoing, the Court affirmed the Board’s disallowance.
NOTE: In order to demonstrate that an injury did not arise in or out of the course of employment, or was unrelated, there must be substantial evidence to rebut the presumption of compensability.
McElroy v. Siena College 532397 January 6, 2022
Claimant, a campus security guard, allegedly injured his right ankle while on duty on May 3, 2019. The C-3, which was filed July 1, 2019, conceded that claimant gave notice to the employer on June 17, 2019. Accordingly, the carrier controverted this matter under Section 18.
At trial, the WCLJ found the employer was not prejudiced by the late notice, and the Board affirmed on appeal.
The Court held that while claimant was two weeks late in providing notice, this did not hinder the employer from investigating the claim or preparing a defense. Accordingly, the establishment of the claim was affirmed.
NOTE: Brief delays of a few weeks after the 30-day deadline do not support an untimely notice defense if the employer and carrier can nonetheless prepare a defense.
Fuller v. ABA Transportation 532903 January 6, 2022
In 2016, claimant was allegedly hit by bus owned by employer. She did not file for workers compensation, but the carrier filed FROI documentation. After the claim was established, she appealed, alleging that the employer was trying to shield itself from liability for negligence, and that she was laid off prior to the date of the accident. The appeal was denied as defective, and the denial was affirmed by the Court in 2019.
She filed for a reopening, claimant that the Board did not have subject matter jurisdiction over the case. The Board found that it did have such jurisdiction, and claimant appealed.
The Court held that the fact that the WCLJ may have made an erroneous decision previously does not divest it of jurisdiction. Since her residence was in the State of New York, as was the location of the accident and the employer, there was indeed jurisdiction.
NOTE: Apparently, claimant did not want this claim established as compensable because she wanted to sue the employer for her personal injuries. In any event, the issues of employer/employee relationship etc. are to be litigated by the Board, and most certainly come within its jurisdiction unless the claim does not have minimal contacts with the State of New York.
Sun v. SIF 531567 January 13, 2022
Claimant had two workers’ compensation claims: The first was from October 2002, established as an occupational disease for bronchitis, for which she was classified with 40% permanent partial disability in 2012. The second was from 2008, established to the back, right shoulder, and right elbow, for which she was classified with 40% LWEC, entitling her to 275 weeks of payments, in January of 2015. Benefits were apportioned equally between both claims.
In January of 2020, claimant sought to reopen both claims, seeking an increase in her payments and additional financial assistance, claiming that due to the expiration of her benefits and worsening of her conditions, she could not afford basic living expenses. In a decision filed August 14, 2020, the Board held that there was insufficient evidence to document a change in condition and an extreme hardship determination under Section 35(3).
The Court noted that there was no medical report demonstrating that claimant’s condition had deteriorated, and that since claimant did not timely file an extreme hardship application prior to the exhaustion of her benefits, and since the LWEC finding on her 2008 claim did not exceed 75%, there was no basis for redetermination there either.
Molina v. Delta Airlines 533303 January 13, 2022
Claimant, a flight attendant, experienced respiratory problems after she began wearing her employer-issued uniform in July of 2018. Over the next year, her symptoms worsened, and in June of 2019, a toxicologist found – based in part on his experience with other patients who had similar symptoms wearing the same employer’s uniform – that they were causally related. She stopped wearing it after the employer provided an exemption, and her symptoms improved.
The carrier’s IME found that the uniform was not the cause of her symptoms. Following testimony, the WCLJ disallowed the claim.
On appeal, the Board reversed, established the claim as an occupational disease for respiratory conditions, and set the date of disablement as June 10, 2019, the date the treating toxicologist determined the conditions were causally related.
The Court noted that the Board correctly found that the treating physician’s findings were based on the fact that the symptoms began when claimant wore the uniform, and subsided when she was not wearing it. The uniform was never tested and the carrier’s IME conceded that he had been advised that additional chemicals are added to the uniforms before they are distributed. Further, the Court noted that the Board has “the exclusive authority to resolve conflicting medical opinions . . . and is not bound by the credibility determinations of the WCLJ.”
Urena v. Mulligan 530363 January 20, 2022
Claimant sustained injury in July of 2017 while working for Abcal, a Pennsylvania company, that was subcontracted to a contractor to perform work in Brooklyn, New York. In February of 2019, a WCLJ ruled that a policy issued to Abcal by Norguard Insurance Company provided coverage on the date of accident. Norguard appealed, but its appeal was denied for procedural irregularities.
In June of 2019, the WCLJ established the claim and held that Abcal was the proper employer. Norguard appealed this claim as well. The Board held that the earlier denied appeal was interlocutory, and accordingly addressed the merits of the later appeal. The Board affirmed the finding that Abcal was the correct employer, and also found that Norguard was the correct carrier.
Norguard argued to the Court that its policy did not cover the accident location. Item 3A of the declaration page applied to Pennsylvania. Part 3(2) of the policy indicated that if Abcal began work in any states listed in Item 3C (which included New York), and had no other coverage for work in those states, it would have the same coverage as that provided in Item 3A. However, Part 3(4) stated that if Abcal performed work in any state not listed in Item 3A, Norguard would not afford coverage if Abcal did not timely provide notification. Accordingly, Norguard argued that where Abcal did not notify it of work being performed in New York “on the effective date of the policy” within 30 days after that date, there was no coverage.
The Board, however, interpreted this clause to mean that Abcal would have had to be actively performing work on the effective date of the policy. The Court held that this reasoning was proper, as there was no proof that Abcal was actively working in New York on April 1, 2017, the date the policy went into effect, as opposed to July of 2017, when the accident occurred.
Abcal entered a subcontract in April of 2016, but it was revised by a new agreement in April of 2017 that “replaced all previous agreements” and required proof of insurance “before commencing work.” The certificate of insurance was provided by Abcal on May 2, 2017. Accordingly, the Court held that the Board properly concluded that there was coverage, as the work began more than 30 days after the effective date of the policy.
NOTE: Policy language is to be strictly construed, particularly when dealing with out-of-state endorsements and exclusions.