Appellate Division for Workers Compensation 6-21-12

Today the Court ruled on 4 cases dealing with workers’ compensation.

In Matter of Belaska, the claimant appealed a decision which denied her claim for workers’ compensation benefits.

Claimant, a clerk for the Department of Law, sustained injuries to her chest, neck and right shoulder after she was involved in an altercation with a fellow passenger on the shuttle bus ride to a satellite parking lot in September 2009. Subsequently, claimant sought workers’ compensation benefits for her physical injuries, as well as for consequential posttraumatic stress disorder. The State Insurance Fund, as the workers’
compensation carrier for the employer, controverted the claim. Ultimately, the
Workers’ Compensation Board denied the claim, finding that the injuries did not arise out of claimant’s employment.

The Court affirmed the Board and the injuries stemming from an assault which arose in the course of employment are presumed to have arisen out of the employment unless substantial evidence is presented that the assault was motivated by purely personal animosity (see Matter of Rosen v First Manhattan Bank, 84 NY2d 856, 857 [1994]; Matter of Wadsworth v K-Mart Corp., 72 AD3d 1244, 1244-1245 [2010]; Matter of Turner v F.J.C. Sec. Servs., 306 AD2d 649, 649 [2003]). Here, claimant testified that, at the end of the bus ride to her car after work, a passenger tried to exit before claimant and she told the passenger to wait for her because of her disabilities. When that
passenger became frustrated because claimant was not getting off the bus fast enough, a verbal altercation ensued which then became physical, leading to claimant’s injuries. Notably, claimant testified that she had never before met the person who allegedly assaulted her. Thus, we find that substantial evidence supports the Board’s determination that the assault on claimant arose from personal hostilities unrelated to her employment (see Matter of Perez v Victory Motor Inn, 2 AD3d 963, 964 [2003]; Matter of Turner v F.J.C. Sec. Servs., 306 AD2d at 650; see also Matter of Wadsworth v K-Mart Corp., 72 AD3d at 1245).

In Matter of Visic, the claimant appealed a denial for reconsideration and / or Full Board Review.

Claimant sustained compensable injuries to his back and neck in 2000 while lifting a bag of cement and he, thereafter, was awarded workers’ compensation benefits. Following back surgery in 2002, claimant was classified with a permanent partial disability. In September 2008, as relevant here the Workers’ Compensation Board found claimant to have a marked permanent partial disability. That determination was
affirmed by this Court (74 AD3d 1646 [2010]). In July 2010, claimant submitted
a request for further action, seeking to reopen his claim for the purpose of finding him totally disabled. The Board, in a January 2011 decision, refused claimant’s request to reopen the claim, finding that claimant had not submitted new evidence to support his application or evidence of a change in medical condition, and that there was no basis for reopening the claim in the interest of justice. Thereafter, claimant sought full Board review and/or reconsideration. The Board denied that application, and claimant now appeals.

Because claimant only appealed the denial for Full board review the Court stated there analysis is limited to deciding whether such denial was arbitrary and capricious (see Matter of Capalbo v Stone & Webster Constr. Srvc, 91 AD3d 1263, 1264 [2012]; Matter of Dipippo v Accurate Signs & Awnings, 88 AD3d 1044, 1045 [2011]). That standard is met when the record shows that the Board failed to address all relevant issues or
failed to consider evidence that was not previously available (see Matter of Capalbo v Stone & Webster Constr. Serv Plaintiff’s June 2010).

Here, the Board’s determination as to claimant’s level of disability was issued in September 2008. In July 2010, claimant’s request for further action was based upon medical reports from January 2009, February 2009 and April 2009 opining that he was totally disabled. Thereafter, in rendering its January 2011 decision to deny claimant’s request to reopen the claim, the Board stated that claimant had failed to submit
new evidence to establish a change in his condition because the aforementioned
reports were available for presentation at a March 25, 2009 hearing. Likewise, in denying the motion for reconsideration, the Board stated that “[n]o new evidence relative to the issues raised has been offered which could not have been produced earlier. Based on the fact that there was new evidence available the Court reversed the Board finding their refusal to grant a new hearing arbitrary and capricious.

In Matter of Roman Catholic Diocese of Albany, New York , the self-insured employer submitted requests for 15 (8)(d) reimbursement that were denied as untimely.

Plaintiff’s June 2010 requests, however, were rejected as untimely by defendant Special Funds Conservation Committee – which evaluates section 15 (8) reimbursement requests – pursuant to 2007 legislation reforming the workers’ compensation system. As relevant here the extensive reforms included amendments to Workers’ compensation Law § 15 (8) intended to close the Fund by barring new claims and instituting a requirement that requests for reimbursement on established claims be filed by the later of one year after payment of benefits or one year after the effective date of the law, March 13, 2007 (see Workers’ Compensation Law § 15 [8] [h] [2]; § 2 [19], [20]; see generally Matter of Raynor v Landmark Chrysler, 18 NY3d 48, 53 [2011]).

Plaintiff’s June 2010 requests for reimbursement covered payments made between November 2004 and April 2009; it does not dispute that the requests were untimely under the filing deadlines imposed by the 2007 legislation. Rather, in this action, plaintiff asserts claims of actual and constructive trust, conversion and unjust enrichment, and seeks an accounting, injunctive relief and a declaration that the time limitation
in Workers’ Compensation Law § 15 (8) (h) (2) (B) is unconstitutional. The Supreme Court granted defendant’s motion to dismiss.

Plaintiff alleges that it had a property interest in the assessments that it paid into the Fund or a contractual right to the money in the Fund itself, and that the time limitation on reimbursement requests that was added by Workers’ Compensation Law § 15 (8) (h) (2) (B) constitutes both an unconstitutional deprivation of that interest without due process of law and a taking without compensation. We disagree, and conclude that Supreme Court properly dismissed the complaint.

The Court stated that Absent any statutory language granting carriers a property right in their assessments or the Fund itself, there is no constitutionally protected property interest therein arising by reason of the fact that the moneys to be used in reimbursing carriers are derived from assessments on them (see Methodist Hosp. of Brooklyn v State Ins. Fund, 102 AD2d 367, 378 [1984], affd 64 NY2d 365 [1985], appeal dismissed 474 US 801 [1985]; cf. Alliance of Am. Insurers v Chu, 77 NY2d 573, 579-580,
585 [1991] Nor does plaintiff point to any statutory language “manifest[ing] a legislative intent to create private rights of a contractual nature enforceable against the State” (Medical Society. of State of N.Y. v Sobol, 192 AD2d 78, 81 [1993], appeal dismissed 82 NY2d 802 [1993], lv denied 82 NY2d 917 [1994], cert denied 511 US 1152 [1994] [internal quotation marks and citation omitted]; see Methodist Hosp. of Brooklyn v State Ins. Fund, 64 NY2d at 377). Indeed, the statute provides that the assessments are deposited “for the benefit of [the] [F]und” (Workers’ Compensation Law § 15 [8] [h] [4]; former [h]).

To the extent that plaintiff, having received “benefits under statutory and administrative standards defining eligibility for them[,] has an interest in continued receipt of those benefits that is safeguarded by procedural due process” (Board of Regents of State Colleges v Roth, 408 US 564, 576 [1972]; see Methodist Hosp. of Brooklyn v State Ins. Fund, 102 AD2d at 380), we conclude that it received constitutionally adequate
process. Here, the enactment and publication of the 2007 legislation provided sufficient notice of the statute, and the statutory grace period of at least one year gave plaintiff ample time in which to become familiar with the new limitations period and to comply with it, Held v State of New York Workers’ Compensation Bd., 85 AD3d at 46).

Finally, the statute at issue here did not work a taking of any property right that plaintiff may have had inasmuch as plaintiff’s expectation of reimbursement “can continue to be realized as long as [it] complies with reasonable regulatory restrictions the [L]egislature has imposed” (United States v Locke, 471 US at 107). That is, it was plaintiff’s own “failure to file on time – not the action of [the Legislature] – that caused [its reimbursement] right to be extinguished” (id.) and, thus, its takings claim fails.

In Matter of Soluri , the claimant filed an appeal as to his permanent degree of disability. The claim was established for injury to his low back and
left hip. The degree of claimant’s disability was brought into question, and he
was initially determined to have a total permanent disability. The workers’ compensation carrier sought review of this determination. Due to significant differences in the
medical opinions provided, the Workers’ Compensation Board referred the case to an impartial specialist for an opinion on the degree of claimant’s disability. Thereafter, the Board determined that claimant has a mild permanent partial disability.

Claimant argues that the Board improperly relied upon the opinion of the impartial specialist because he did not refer to the Board’s medical guidelines. We disagree. While the guidelines provide useful criteria to be used in assessing a claimant’s degree of disability, the ultimate determination rests with the Board and must be upheld if it is supported by substantial evidence (see Matter of VanDermark v Frontier Ins. Co., 60 AD3d 1171, 1172 [2009]; Matter of Hare v Champion Intl., 50 AD3d 1254, 1255 [2008], lv denied 11 NY3d 863 [2008]). Consistent with the reports of two other physicians who
examined claimant, the impartial specialist indicated that there were no objective or physiological findings to explain claimant’s complaints of pain and concluded that he has a mild partial disability. The impartial specialist was asked about the criteria set forth in the guidelines regarding total permanent disability and his testimony reflected that claimant did not meet the criteria. Inasmuch as the Board is empowered to resolve conflicting medical opinions and the foregoing constitutes substantial evidence supporting the Board’s decision, the Court refused to disturb it (see Matter of Visic v O’Nero & Sons Constr. Co., 74 AD3d 1646, 1647 [2010]; Matter of Hare v Champion Intl., 50 AD3d at 1254-1255).

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