Appellate Victories

For more than 50 years, our firm has helped clients win their cases based on what the law says.  But unlike most law firms, we also have fought to preserve legal rules that protect injured workers and to create new ones by taking more than 150 appeals to the Appellate Division of the Supreme Court and to the New York Court of Appeals.  When an appeals court decides a case, it upholds or creates a rule that is then followed in other cases.  So every time we are successful on appeal we don’t just win for our client – we help tens or hundreds or thousands of injured workers who have similar issues or cases.  One more reason why Grey & Grey, LLP is a leader in the field – and the right choice for you.

 

Here are summaries of many of our appellate victories, with links to the actual decisions.

 

Construction Site Accident – Uncovered Hole Hidden by Debris (2018)

 

Our client was a carpenter who was working from a ladder to install framing on a new construction project.  His work area was strewn with garbage and debris, which prevented him from seeing an uncovered hole in the concrete slab (apparently for the later placement of pipes).  When he came down from the ladder his foot went into the hole and twisted, resulting in serious injury.

The insurance company moved to dismiss the case, arguing that the hole was part of the construction project and that it was our client’s fault for not seeing the hole.  We appealed and the Appellate Division, First Department reversed the judge’s decision.  The Court agreed with us that the owner and general contractor had a duty to provide a safe place for our client to work and that the fact that the hole was left uncovered and then obscured by garbage and debris that should have been cleared away was a violation of the safety rules that apply to construction sites.

Read the Licata decision here.

Workers’ Compensation – Schedule Loss of Use (2018)

 

The Workers’ Compensation Law provides awards for injuries that result in permanent loss of use of a limb – hands, feet, arms, legs, fingers, toes, vision loss, hearing loss, or facial scars.  These are called “schedule loss of use” awards.  The law also provides awards for “permanent partial disability” if an injury to another part of the body (for example the neck, back, head, lungs, or a psychological injury) prevents the worker from returning to work at full wages.  These are called “PPD” cases, in which compensation is paid only for lost wages, but not for the permanent effect of the injury.

 

The Workers’ Compensation Board has created medical guidelines that allow it to find that a neck or back injury has resulted in a permanent partial disability even if the worker has returned to work at full wages and does not require any more treatment for the injury.  The Board’s guidelines also that if an injured worker has a permanent partial disability to one body part, he or she is not entitled to payment of an award for schedule loss of use.

 

In this case, our client injured his neck, back, knee and shoulder in an accident.  He was left with permanent damage to all four body parts, but was able to return to work at full wages.  The permanent injuries to his knee and shoulder entitled him to compensation for schedule loss of use, while the permanent partial disability to his neck and back did not, because he was back to work at full wages.

 

The WCL Judge and the Board held that based on the Board’s guidelines, our client had a permanent partial disability to his neck and back, he was not entitled to be compensated for the schedule loss of use of his arm and leg.  Although the Board’s decision was consistent with its guidelines and with decades of practice in the field, we appealed in an effort to change the law because it is unjust to deny an injured worker compensation for permanent loss of use of a limb simply because they also have another injury.  This means that a worker with more injuries actually gets less compensation than one with fewer injuries, which makes no logical sense and is not a conclusion that is required by the law.

 

In a landmark decision, the Appellate Division, Third Department agreed with our position and held that where an injured worker has a permanent partial disability to one body part and a schedule loss of use to another, if the Workers’ Compensation Board does not make a monetary award for the permanent partial disability to a neck or back, it must provide payment for the schedule loss of use.  This decision is an important change in the law that ensures fair and just compensation to injured workers.

 

Read the Taher decision here.

 

Workers’ Compensation – Work-Related Death Case (2018)

 

For an accident to be covered under the Workers’ Compensation Law, an injured worker must show two things:  that the accident happened while he or she was working, and that it happened because of the work.  In some cases, often involving a death on the job, the accident is unwitnessed or unexplained.  For those cases, the law includes a “presumption” that if the death occurred while the person was working, it was also caused by the work.  While this does not necessarily guarantee a decision in the worker’s favor, it does two things:  it relieves them of the obligation to produce a medical report in support of their case (at least at the outset); and it places an obligation on the employer or insurance company to show that the death was not due to the work.

 

In this case, a transit worker collapsed and died in the employer’s locker room after a day of heavy work.  A WCL Judge properly applied the law and found that the employer had submitted no evidence showing that his death was unrelated to the work.  The judge therefore awarded death benefits to our client, his widow.

 

The Transit Authority appealed and the Workers’ Compensation Board reversed the judge’s decision, finding that the presumption did not apply because of statements contained in medical records in another, unrelated, case for the deceased worker.  We appealed this decision, arguing that the records the Board relied on were not sufficient to defeat the claim, and also that the Board was not entitled to review records from another file in deciding the case without any notice to our client.

 

The Appellate Division, Third Department agreed with our position and reversed the Board’s decision.  The Court held that the Board failed to follow its own rules and that our client “was prejudiced because she was not on notice – until she received the Board decision – that the Board would rely on documents from another case file.”

 

Read the Kaplan decision here.

 

Workers’ Compensation – Due Process (2018)

 

Most of the issues in the workers’ compensation system are concerned with the nature of the injury, the extent of the disability, or the need for medical treatment.  The injured worker’s treating doctor files a medical report with an opinion about the issue, and the insurance company often responds by having the person examined by an “independent medical examiner” (an insurance company medical consultant) who usually has a different opinion.

 

 

When this happens, litigation – testimony by the doctors about their opinions – is often needed.  When a case is litigated, each side has the opportunity to subpoena the opposing side’s doctor and to ask questions about his or her reports.

In this case, the injured worker’s treating doctor did not appear to be questioned (“deposed”) about a request for surgery.  Instead of deciding that the insurance company failed to do what it was supposed to do, the Workers’ Compensation Board ruled that our office had delayed the case by “not having [the doctors] available for cross-examination” – and imposed a penalty against the law firm.

 

We appealed this decision and the Appellate Division, Third Department held that (1) the Board cited the wrong provision of the law in imposing a penalty; and (2) there was no basis for a penalty even if it had cited the correct section of the law; because (3) it is the obligation of the insurance company, not the injured worker or his or her attorney, to subpoena the treating doctors for a deposition.  The Court therefore reversed the Board and imposed an important legal obligation on employers and insurance companies.

 

Read the Murtha decision here.

 

Workers’ Compensation – Due Process (2018)

 

 

If the employer or insurance company decides to contest an injured worker’s compensation case, there are rules and time limits that must be followed.  One rule is that that they must file a timely “notice of controversy,” and another is that they must file a timely “pre-hearing conference statement” explaining the reason for the dispute and what proof they plan to submit.

 

If the employer or insurance company fails to follow the rules, it gives the injured worker an advantage in winning the case.  However, in most cases the injured worker must still submit a medical report showing that the injury was due to their work.  This is called “prima facie medical evidence.”

 

In this case, the WCL Judge found that there was prima facie medical evidence and that the employer had not filed a timely notice of controversy.  As a result, the WCL Judge decided the case in favor of our client.  The employer appealed the decision, and on appeal the Workers’ Compensation Board disallowed the claim on the grounds that the medical evidence was inadequate.

We appealed to the Appellate Division, Third Department, arguing that where the WCL Judge had already found prima facie medical evidence, the Board could not dismiss the case due to lack of evidence without at least giving the worker an opportunity to submit a better medical report.  The Court agreed, writing that the Board could not preclude “claimant from submitting further medical evidence of a causal relationship between her injury and employment.”

 

Read the Nock decision here.

 

 

Construction Accident (2017)

 

Our client was a marble setter who was hurt while at work on a construction site.  His employer was a subcontractor on the project, which was new construction of a 30-story building.  The project supervisor instructed our client to remove his employer’s materials from a room that was being used for storage.  While doing so, he tripped and fell over a stack of metal studs that was left by another contractor. Construction-site accidents — including falls, falling debris, overexertion, ladder and scaffolding incidents, machinery and vehicle accidents, and electrocution — are among the most common causes of on-the-job injuries.

 

In this case, the owner and general contractor argued that our client was not protected by the Labor Law or by the Industrial Code, which prohibits tripping hazards on construction sites.  They argued that a storage room is not part of the construction site.  Other courts had agreed with this theory, and the trial judge dismissed the case.

 

We appealed the judge’s decision, arguing that areas where construction materials are stored are part of the construction site and are covered by the Labor Law and the Industrial Code.  The Appellate Division, First Department, agreed, reversing the judge’s decision and reinstating the case, which was later settled on favorable terms.

 

Read the Caminito decision here.

 

Workers’ Compensation – Lien on Personal Injury Action (2017)

 

A worker who is injured in the course of the employment because of the negligence of a third party – someone other than the employer or a co-worker – may file a workers’ compensation claim and also sue the third party.  When the lawsuit – called a third-party action – settles, the workers’ compensation insurer has a lien against the recovery for the benefits it has paid.  However, the lien is reduced by the insurer’s fair share of the injured worker’s litigation expenses – the personal injury attorney’s fee and disbursements.  The insurer also generally has a credit for the worker’s net recovery, but that credit is also subject to reduction if the injured worker’s personal injury attorney reserves his or her “Burns rights.”

 

We represented our client in both his workers’ compensation and personal injury cases. When then personal injury case settled, we made sure that our client’s “Burns rights” were preserved.  When the workers’ compensation case was settled later with an award for schedule loss of use (for permanent injury to a limb), the insurance company took the position that Burns rights did not apply to that type of case, and that it was entitled to a full credit for our client’s personal injury recovery without paying any portion of the third-party litigation expenses.

 

The WCL Judge, Workers’ Compensation Board, and Appellate Division, Third Department all agreed with the insurance company’s position.  We asked the Court of Appeals, New York’s highest court, for permission to appeal, which was granted.

 

The Court of Appeals unanimously agreed with our position, holding that an injured worker is entitled to “Burns payments” from the workers’ compensation insurer for any type of workers’ compensation award that is entered after the third-party settlementri, including schedule loss awards.  This important decision clarified the law and made certain that injured workers receive the full benefit of their personal injury and workers’ compensation cases.

 

Read the Terranova decision here.

Watch a video of the argument here Terranova

 

Workers’ Compensation – Temporary Disability (2016)

 

Professional drivers face significant health and safety risks.  Common causes of injury and disability for divers include vehicle collisions and accidents related to trailers, lift gates and other moving parts. Loading and unloading trucks can cause significant neck, back and upper extremity disorders.

 

Our client injured her back while at work as a driver.  A Workers’ Compensation Law Judge found that she had a 75% disability during her period of temporary disability, and a permanent 80% “loss of wage earning capacity.”  On the insurance company’s appeal, the Workers’ Compensation Board found that she had a 40% loss of wage earning capacity – and reduced her compensation benefits to the 40% disability rate not only for the period of permanent disability, but also for the period of temporary disability.

 

We appealed the Board’s decision, arguing that the Board incorrectly applied the permanent disability standard to the period of temporary disability.  The Appellate Division, Third Department, agreed, reversing that part of the Board’s decision and returning the case for further consideration.

 

Read the Maddox decision here.

 

Workers’ Compensation – Permanent Total Disability (2016)

 

Slip and fall, or trip and fall, injuries impact all different types of workers in all variety of jobs.  Typical causes include faulty or inadequate lighting; cracked or uneven sidewalks, pavement, or flooring; ice, snow and slippery conditions, and trip hazards such as discarded tools or materials.

 

Our client, an immigrant from the Dominican Republic, injured his back at work when he slipped and fell in a freezer.  After litigation, the Workers’ Compensation Law Judge found that he had a permanent disability and an 80% loss of wage earning capacity.  We appealed, arguing that he was “industrially totally disabled” – unable to do any sort of work because of a combination of his injuries and his age, education, work background, and literacy.  The Workers’ Compensation Board upheld the judge’s decision, and refused to consider the issue of industrial total disability.

 

We appealed the Board’s decision and the Appellate Division, Third Department, reversed the Board, returning the case to it with instructions to consider the claim we had raised.  The case was later settled on favorable terms.

 

Read the Paez decision here.

 

Workers’ Compensation – Notice to the Employer (2016)

 

The New York State workers’ compensation law has strict requirements about when and how employers must be alerted to workplace injuries.  Failure to follow the requirements can jeopardize compensation for injured workers.  Our client slipped and fell on a wet floor while working as a medical technician.  She reported the accident to her employer, as well as an injury to her left knee.  Later on, she was also found to have injured her right knee, neck, back and shoulders.

 

The employer contested the claim for the additional injuries, arguing that all of the injuries had to be reported within 30 days.  We argued that the worker only needs to report the accident within 30 days, and does not need to specifically identify each injury.  The WCL Judge agreed with the employer, and we appealed.  On appeal, the Workers’ Compensation Board agreed with us that the worker is not required to notify the employer about each injured body part within 30 days.

 

The employer appealed, and the Appellate Division, Third Department also agreed with our position.  Although a worker is required to file a claim with the Board for all injuries within two years of the date of the accident, the employer is only entitled to notice of the accident within 3 days, not each specific injury.

 

This case put an end to an argument that was routinely used by the City of New York to dispute and deny benefits to injured workers.

 

Read the Logan decision here.

 

Workers’ Compensation – Schedule Loss of Use (2015)

 

The Workers’ Compensation Law includes awards for injuries that result in permanent loss or loss of use of limbs (arms, legs, hands, feet, fingers or toes), vision loss, or hearing loss.  The law defines those awards in “weeks of compensation,” and the Workers’ Compensation Board issues decision notices showing that the award is payable during actual calendar weeks.

 

If a worker is being paid for another injury during the same weeks covered by a “schedule loss” award, the awards technically overlap.  As the result of a case called Salvet, when this occurs, the worker could loss all or part of the award for permanent injury to a limb because a worker is limited to payment of the maximum weekly compensation rate in any given week.

 

Our client faced exactly this situation, and under existing law would have lost over 90% of his award for permanent loss of function of his hands because he was disabled from work due to a back injury.  We argued that the “weeks” in the law for a schedule loss of use are simply the way the value of the award is calculated, that they do not match any particular calendar weeks, and that therefore the awards did not truly “overlap.”  We also proposed a rule that would permit full payment of both awards.

 

The Workers’ Compensation Board agreed with our new and novel argument, and created a new legal rule that permitted full payment of both awards.  The insurance company appealed, and the Appellate Division, Third Department also agreed with our argument.

 

This decision changed the law for thousands of injured workers, making certain they receive full compensation for injuries that result in the permanent loss or loss of use of limbs.

 

Read the Walczyk decision here.

 

Workers’ Compensation – Late Payment Penalty (2015)

 

The Workers’ Compensation Board often issues documents called “Proposed Decisions,” which are technically the result of an administrative process called “conciliation.”  The Board adopted a regulation saying that the penalty for failure to make timely payment of an award through “conciliation” is $500.  However, the penalty for late payment after a formal hearing is 20% of the past-due benefits.

 

In this case, the Board refused to award our client the 20% late payment penalty, and instead limited her to the $500 conciliation penalty.  We appealed, arguing that the Board’s regulation violated the statute and should be struck down.  While the case was on appeal, the Board issued a “subject number” suspending the regulation in an apparent attempt to end the appeal.  However, we continued to pursue a decision, and the Appellate Division, Third Department agreed with our position, striking down the Board’s regulation and holding that our client and all other injured workers were entitled to a penalty of 20% of any untimely payment, not just $500.

 

Because the courts rarely strike down an agency’s regulations, this is a notable and important decision.

 

Read the Liberius decision here.

 

Workers’ Compensation – Contested Case (2015)

 

Our client was injured while at work, and the employer contested her case.  Because the claim was “controverted,” the employer was required to file a pre-hearing conference statement.  It did not do so, and the Board ruled that it had waived its defenses because it did not follow the Board’s rules.

 

The employer appealed, but we argued its appeal should be dismissed because it had not waited for the Board to finally decide the case.  The Appellate Division, Third Department agreed with us, and dismissed the appeal as premature.

 

Read the Bellantoni decision here.

 

Workers’ Compensation – Medical Treatment Guidelines (2014)

 

In 2010, the Workers’ Compensation Board created “Medical Treatment Guidelines” that control treatment for injuries to the neck, back, knee and shoulder.  The Guidelines pre-approve some treatment, but pre-deny other treatment.

 

We challenged the Board’s Guidelines, contending that when the Legislature directed the Board to create a list of “pre-approved” treatment, it did not authorize the Board to “pre-deny” everything else.  A divided Appellate Division, Third Department upheld the Board’s authority to issue the Guidelines, and we appealed to the Court of Appeals, New York’s highest court.

 

In a 4-3 decision, a majority of the Court of Appeals upheld the Board’s Guidelines, finding that the Board did not exceed the authority it was given by the Legislature and that the Board’s “variance” process to permit a departure from the Guidelines was adequate to provide due process to injured workers.  Three judges, including the Chief Justice, issued a vigorous dissent that agreed with much of our argument.

 

Read the Kigin decision here.

Watch a video of the argument here Kigin

 

Workers’ Compensation – Employer-Paid Transportation (2014)

 

Travel to and from work is generally not covered by workers’ compensation.  However, when an employer provides transportation to or from work and there is a transportation injury a worker is covered. Likewise, if an employee works both from home and work, and an injury occurs while traveling between the two locations.  Our client worked in a store at Kennedy Airport.  When the airport closed early due to a snow storm, her employer transported her and other workers in a van without seats that was usually used for merchandise.  Our client was injured when she was thrown against the van door during the trip to the employee parking lot.

 

A WCL Judge found against our client, but we appealed and the Workers’ Compensation Board found that she was entitled to benefits.  The insurance company appealed, and the Appellate Division Third Department found in our favor.  Although travel to and from work is generally not covered by workers’ compensation, in this case the employer provided and controlled the transportation, which brought the travel into the course of the employment and created workers’ compensation coverage.

 

Read the Noboa decision here.

 

Workers’ Compensation – Labor Market Attachment (2014)

 

On-the-job injuries to the back can be caused by lifting, bending or reaching, as well as by falls and other accidents. Overuse of muscles can cause strains, torn ligaments, or herniated disks, extremely debilitating injuries that can force employees to miss work and lose income.  Our client injured his back in 2004 while working as a meat packer, and in 2008 he was found to have a permanent partial disability.  Years later, the insurance company began sending him letters to “seek out and attend job search assistance and/or rehabilitation.”  When the client did not respond to these letters, the insurance company applied to reopen the case and suspend his payments.  We opposed the application, which was denied by the Board, and the insurance company appealed.

 

We defended the Board’s decision on the appeal, and the Appellate Division, Third Department agreed, continuing payments to our client.

 

Read the Danin decision here.

 

Workers’ Compensation – Settlement of a Personal Injury Case (2013)

 

Although an injured worker cannot sue his or her employer for a work-related injury, a lawsuit can be filed against a “third party” who was responsible for the accident.  A “third-party lawsuit” cannot be settled without written consent from the workers’ compensation insurance company.  The insurer also usually has a “lien” against the worker’s lawsuit, and is entitled to recover some of what it paid in workers’ compensation and medical bills.

 

However, the insurer’s right to recover its lien, and also its right to take credit for the worker’s personal injury recovery, go along with its obligation to pay a share of the attorney fees and expenses connected with obtaining the third-party lawsuit recovery.  That obligation can be used to reduce the amount of the repayment to the workers’ compensation insurer.

 

We settled a personal injury case for our client and argued that the workers’ compensation lien should be eliminated entirely based on these legal principles.  The Judge agreed, and the insurance company appealed.  The Appellate Division, First Department, rejected almost all of the insurance company’s arguments, and we were ultimately able to resolve the lien and credit issues on terms favorable to our client.

 

Read the Seickel decision here.

 

Workers’ Compensation – Labor Market Attachment (2012)

 

Our client left work because of an on-the-job injury in which she suffered serious injuries to her left shoulder and neck.  She was eventually found to be permanently partially disabled by the Workers’ Compensation Board.  Over the years, she returned to work on and off as her condition permitted and jobs were available within her restrictions.

 

During a period in which she was out of work, the insurance company took the position that she was only entitled to benefits if she was “attached to the labor market” and argued that her efforts to find work were inadequate and therefore her compensation payments should be suspended.  A WCL Judge disagreed, finding that she had stopped work involuntarily as a result of being injured, and that her efforts to find work were reasonable.

 

The insurance company appealed, and the Workers’ Compensation Board found that although she did not stop work voluntarily, she was still required to look for work as a condition of receiving benefits and that her work search was inadequate.  The Board suspended her payments.

 

We appealed, and the Appellate Division, Third Department reversed the Board in a 3-2 decision.  The majority of the Appellate Division found – consistent with the law for many years – that where an injured worker stops work involuntarily due to the work-related disability, benefits are due for a partial disability regardless of whether they are “attached to the labor market.”

 

The insurance company and the Board appealed the Appellate Division’s decision.  In a 4-3 opinion, a majority of the Court of Appeals, New York’s highest court, held that the Board may – but is not required to – require proof of labor market attachment as a condition of receiving benefits even where he or she stops work because of the work-related disability.  The dissent strongly disagreed.

 

Based in part on the dissent, which adopted many of our arguments, the New York State Legislature amended the law in April of 2017 to overrule the Court of Appeals decision in cases involving permanent partial disability.  However, the issue of labor market attachment remains in cases of temporary partial disability.

 

Read the Zamora decision here.

Watch a video of the argument here Zamora

 

Personal Injury – Motor Vehicle Accident (2012)

 

Our client was injured when struck by a car operated by the defendant.  After a trial, the jury concluded that the defendant was negligent in operating her motor vehicle, but that her negligence was not the cause of the accident.  We filed a motion to set aside the verdict because it was contrary to the evidence in the case.  The judge granted our motion, set aside the verdict, and directed a new trial.  The defendant appealed.

 

The Appellate Division, Second Department agreed that it was “logically impossible to find negligence without also finding proximate cause,” and upheld the judge’s decision to grant a new trial.  The case later settled on terms favorable to our client.

 

Read the Stewart decision here.

 

Workers’ Compensation – Aggregate Trust Fund Deposit (2011)

 

In 2007, the Legislature amended the Workers’ Compensation Law to impose time limits, or caps, on permanent partial disability benefits.  It also required insurers to deposit permanent partial disability awards with the Aggregate Trust Fund if it did not reach a settlement with the injured worker.

 

The insurers took the position that the Aggregate Trust Fund deposit requirement only applied to the “capped” permanent partial disability cases, and not to older cases in which permanent partial disability benefits were a lifetime award (and in which the amounts of the deposits were therefore much larger).  The Workers’ Compensation Board and the Appellate Division, Third Department held that the deposit requirement applied to all permanent partial disability cases, both those that were “capped” and those that were not.

 

The insurers appealed to New York’s highest court, Court of Appeals.  We appeared in the case both on behalf of one of the injured workers and on behalf of the New York State AFL/CIO, which appeared in the case as an amicus curiae (friend of the court).

 

A unanimous Court of Appeals agreed with our position that the Aggregate Trust Fund deposit requirement applied to both “capped” and uncapped permanent partial disability awards.  This decision resulted in significant settlements for injured workers across the state who had “uncapped” permanent partial disability awards and wanted to settle their cases for a lump sum payment.

 

Read the Collins decision here.

Watch a video of the argument here Collins

 

Workers’ Compensation – Apportionment (2009)

 

Everyone is at risk of suffering an injury to the legs, ankles, knees or hips. However, professionals who are on their feet for long stretches of time as part of their job are particularly susceptible to this kind of injury.  Injuries can range from ACL and meniscus tears, sprains to fractures and permanent disability.  Our client injured his knees when he slipped and fell on the job as a sanitation worker.  When he was found to have a permanent loss of function of both of his legs, the insurance company took the position that the award should be “apportioned” to pre-existing arthritis.  We argued that there was no evidence that the arthritis had limited his ability to work, caused any symptoms, or needed any treatment before the accident, and that therefore the loss was entirely due to the work-related injury.  The Board agreed with our position, and the insurance company appealed.

 

The Appellate Division, Third Department, upheld the full award to our client, agreeing that “there is no indication that [his] pre-existing arthritis constituted a compensable injury and the employer does not contend that [he] was unable to work full time” before the injury.

 

This is one of many cases in which we have successfully preserved and extended the legal rule that a worker’s compensation benefits should not be reduced because of a previous injury or condition that did not prevent him or her from working.

 

Read the Sattanino decision here.

 

Workers’ Compensation – Stroke (2009)

 

Heart attacks and strokes frequently occur at the workplace as a result of the jobs that employees perform. As such, these are workplace injuries and affected workers can file workers’ compensation claims. Our client, a track worker for the Transit Authority, developed weakness on the left side of his body while picking up flags on the tracks.  He was admitted to the hospital the next day and was diagnosed with a stroke.

 

We filed a workers’ compensation claim, arguing that when an injury occurs in the course of employment (while someone is working), the law presumes that it also arose out of the employment (was caused by the work).  The Workers’ Compensation Board denied the claim, finding that the worker was required to produce a medical report connecting the stroke to work before going forward with his case.

 

We appealed the Board’s decision and the Appellate Division, Third Department reversed the Board’s decision, agreeing with our argument that the worker was entitled to the benefit of the legal presumption and that it was the employer’s obligation to produce contrary evidence.  The Board later awarded benefits to our client.  This is one of a number of cases in which we have preserved and advanced the legal rule that workers who are injured while at work are presumed to be entitled to workers’ compensation unless the employer proves otherwise.

 

Read the Browne decision here.

 

Construction Accident – Fall From a Ladder (2009)

 

Working on ladders, roofs and scaffolding is extremely dangerous, and many serious on-the-job injuries result from falls during this type of work.  Our client was an electrician who was installing an exit sign in a store.  As he was coming down from a ladder, it shifted underneath him and he fell.

 

The defendant store owner moved to dismiss the case, arguing that our client was not protected by the Labor Law because installing an exit sign does not qualify as “construction,” and also that the law did not make it responsible for his fall from the ladder.  The trial court denied the defendant’s motion, and they appealed.

 

The Appellate Division, Second Department found that our client was performing construction, that he was protected by the Labor Law while working on a ladder – and that the defendant was 100% liable under the law, without the need for a trial.  The only remaining issue in the case was the amount of damages, and the case was later settled.

 

Read the LaGiudice decision here.

 

Personal Injury – Construction Accident (2009)

 

New York State’s “Scaffold Law” states that contractors and property owners must ensure that scaffolds and other platforms for construction and repair are constructed and operated to protect workers.  Our client worked as a laborer on a construction project in New York Harbor.  In order to reach his work location, he had to walk across wood planks set at different heights above the water on steel pilings.  While lowering himself from one plank to another, his glove caught on a piece of metal, leaving him dangling in mid-air and rupturing his bicep.

 

Based on the Scaffold Law, which protects construction workers who work in elevated work sites, we moved for summary judgment in favor of our client on the issue of liability, which the judge granted.  On appeal, the Appellate Division, Second Department upheld the decision in our client’s favor, leaving the only issue in the case the amount of damages.  The case later settled on terms favorable to our client.

 

Read the Triola decision here.

 

Workers’ Compensation – World Trade Center Responder (2009)

 

Workplace exposure to toxins and irritants can contribute to many different lung diseases.  Conditions at work may significantly worsen asthma, for instance, or cause chronic obstructive pulmonary disease, hypersensitivity pneumonitis, lung cancer, lung infections and fibrotic lung disease. Workers who suffer from lung-related injuries and diseases based on conditions at their workplace are entitled to workers’ compensation.

 

Our client was employed as an auditor for the City of New York.  After the September 11, 2001 attack, she was assigned “to write checks that provided disaster funds to various individuals who had suffered immediate financial impact from the attack.”  She performed these duties 7 days a week at two different locations in lower Manhattan, and later developed respiratory problems.

 

We filed a claim for workers’ compensation benefits under Article 8-A of the Workers’ Compensation Law, which provided benefits for “rescue, recovery and clean-up” workers in lower Manhattan who became ill later on.  Although a Workers’ Compensation Law Judge found in favor of our client, the Workers’ Compensation Board reversed the judge’s decision, fidning that she was not a “rescue, recovery or clean-up” worker and that she was therefore not covered by the law.

 

We appealed the Board’s decision and the Appellate Division, Third Department reversed, holding that the Board had failed to consider the entire statute in denying the claim, and that it needed to consider separately whether our client’s work was rescue or recovery or clean-up.  The Board then concluded that her work did qualify as “recovery,” and that she could be protected by the law.

 

Read the Williams decision here.

 

Workers’ Compensation – Course of Employment (2008)

 

The Workers’ Compensation Law provides coverage for accidents that “arise out of and in the course of employment.”  Generally, this means that the accident has to occur while someone is working, and that it must happen because of the work.  However, the law also provides coverage for accidents that happen during minor breaks or deviations from work (such as a coffee or bathroom break), or where what the worker is doing at the time of the accident was a benefit to the employer.

 

Our client, a taxi driver, was on a break when a motorist asked him to help jump start his car, which had a dead battery.  When our client placed jumper cables on the battery it exploded.  He lost his eye in the accident.  A WCL Judge found that our client was engaged in a “personal act” at the time of his accident, and was not covered by the law.  A Workers’ Compensation Board Panel upheld the Judge’s decision, and we applied for Full Board Review.  The Full Board found that our client was injured in the course of his employment, and the insurance company appealed.

 

The Appellate Division, Third Department upheld the Full Board’s decision in favor of our client, finding that the time and location of his break was dictated by the nature of his employment, and that our client’s activity – even while on his break – “created a good will benefit to the employer” and therefore were in the course of his employment.

 

Read the McFarland decision here.

 

Construction Accident – Fall From a Ladder (2008)

 

Working on scaffolding and ladders is particularly dangerous and can lead to many different workplace injuries.  Our client was a painter who was assigned to spackle a “tunnel” that ran from the ceiling of a utility room up to a skylight in the roof.  Although he asked to use one of the “Baker’s scaffolds” on the job site, he was told that they were being used by carpenters and that he should use an A-frame ladder instead.  While he was spackling the tunnel, the ladder fell from under him and he was seriously injured.

 

We filed suit against the building owner and the general contractor, arguing that our client was entitled to the protection of the Labor Law, which holds owners and contractors responsible for job site safety when workers are at risk of falling or being struck by falling objects.  We later moved for “summary judgment” – a ruling that the defendants were completely responsible for the accident as a matter of law.  The trial judge denied our motion.

 

We appealed, and the Appellate Division, Second Department agreed that our client was entitled to judgment as a matter of law, without a trial on the issue of liability.  The case was later settled on terms favorable to our client.

 

Read the Reaber decision here.

 

Personal Injury – Chemical Exposure (2007)

 

Our client lived above a nail salon, and became ill as a result of exposure to the chemicals used in that business.  We filed a lawsuit against the nail salon, but its insurance company refused to defend the claim, relying on a “pollution exclusion” in its policy.  The insurance company moved to be dismissed from the case, which was opposed by both the business and by us.  The trial judge denied the insurance company’s motion, and it appealed the decision.

 

The Appellate Division, First Department upheld the judge’s decision, finding that the insurance company was required to provide coverage because our claim was not based on “pollution,” and the language of the insurance policy did not specifically exclude our claim.

 

Read the Breyter decision here.

 

Workers’ Compensation – Reduced Earnings (2007)

 

Our client was injured while employed as a sanitation worker.  He later started his own business, and had both wages and profits from the company.  The insurance company took the position that the corporate profits – in addition to his wages – should be counted as earnings.  A WCL Judge agreed with the insurance company, and we appealed.  The Workers’ Compensation Board agreed with our position, and the insurance company appealed that decision.

 

The Appellate Division, Third Department agreed with our position (which the Board had adopted), finding that “profits from a business venture are not earnings for the purposes” of calculating workers’ compensation benefits for loss of wages.  This resulted in an ongoing weekly award to our client.

 

Read the Calise decision here.

 

Workers’ Compensation – Due Process (2007)

 

Our client was permanently disabled due to injuries she suffered while working as a veterinary technician.  While she was receiving permanent partial disability benefits, the insurance company requested a hearing because she had not returned a “work activity” statement.  At the hearing, the insurance company raised the issue of “voluntary withdrawal from the labor market” for the first time.  The WCL Judge continued payments, and the insurance company appealed.

 

On appeal, the Workers’ Compensation Board suspended payments to our client, finding that she had “voluntarily withdrawn from the labor market.”  We appealed, and the Appellate Division, Third Department reversed the Board’s decision, finding that our client “was afforded no opportunity to be heard on the issue of voluntary removal or even to ask for an adjournment for that purpose.”  In short, our client had a due process right to be notified about the issue before the hearing and to submit her evidence on the issue, which did not occur in this case.  Therefore, it was improper for the Board to suspend payments to her.

 

Read the Ickes decision here.

 

Personal Injury – Motor Vehicle Accident (2007)

 

Car accidents are a leading cause of personal injuries, including neck, back, chest and spine injuries, broken bones, soft tissue damage, burns and head and brain trauma.  Our client was injured in a motor vehicle accident when the other driver failed to observe a yield sign.  We moved for summary judgment in favor of our client on the issue of liability, which a judge granted.  The defendant appealed, claiming that there was an issue of comparative negligence by our client.

 

On appeal, the Appellate Division, Second Department upheld the judge’s ruling in favor of our client, leaving the only issue in the case the amount of damages.  The case later settled on terms favorable to our client.

 

Read the Breyter decision here.

 

Construction Accident – Fall From a Ladder (2006)

 

The New York State Labor Law provides protection for workers who are working at heights while performing construction, excavation or demolition work.  When a worker falls from a ladder, scaffold or other elevated safety device – or when the device fails – serious injuries often occur.  To encourage owners and contractors to pay attention to job site safety, the law holds them responsible when a worker falls from a height.

 

Our client was assigned to repair a light fixture on a pole in a parking lot owned by the State of New York.  The light fixture was controlled by a photo cell on the roof of a nearby shed, and it developed that the photo cell was broken.  After repairing the photo cell, our client was injured when a ladder twisted underneath him as he was descending from the roof of the shed.

 

The State moved to dismiss the case, arguing that our client was not protected by the Labor Law because other cases have found that the law does not cover changing light bulbs.  The judge in the Court of Claims agreed, and we appealed.

 

On appeal, the Appellate Division, Second Department agreed with our position, finding that our client was doing work that is protected by the Labor Law because his assignment was not merely “changing a light bulb,” but was far more involved.  The Court went on to find that our client was entitled to judgment in his favor without a trial, leaving the only question in the case the amount of damages he should be awarded.  The case later settled on terms favorable to our client.

 

Read the Fitzpatrick decision here.

 

Personal Injury – Serious Injury in a Motor Vehicle Accident (2006)

 

In order to sue for personal injury in a motor vehicle accident, the plaintiff must show that he or she suffered a “serious injury.”  This is defined by the law as missing 90 out of the first 180 days from your usual and customary activities, a fracture, or a permanent limitation of a body organ, function or system, disfigurement, or loss of a fetus.

 

In the Nussbaum case, as in many similar cases, the defendants moved to have the case dismissed on the grounds that our client did not suffer a “serious injury” as defined by the law.  The judge denied their motion, and they appealed.  The Appellate Division, Second Department upheld the judge’s decision, which entitled our client to a trial in his case.

 

Read the Nussbaum decision here.

 

Workers’ Compensation – Death Benefits (2004)

 

Our client’s husband, an accountant, had a heart attack while in his office while he was discussing a tax matter with an associate.  We filed a claim for workers’ compensation benefits, arguing that where death occurs in the course of employment (while someone is working), the law presumes that it also arose out of the employment (was caused by the work).  The Workers’ Compensation Board denied the claim, finding that the legal presumption did not apply because the “death was not unwitnessed” since the co-worker saw the man collapse.

 

We appealed, and the Appellate Division, Third Department reversed the Board’s decision, agreeing with our argument that the rule applies to accidents that are “unexplained,” even if they are not unwitnessed.  When the case returned to the Board, death benefits were awarded to the widow.  This case created a new legal standard for death claims, holding for the first time that “unwitnessed” and “unexplained” have the same fundamental effect on whether the legal presumption in favor of the worker is to be applied.

 

Read the Koenig decision here.

 

Workers’ Compensation – Occupational Disease (2003)

 

An occupational disease is any disease or condition that arises out of employment, and can range from hearing and vision loss to cardiac events, respiratory disorders and cancer. Our client worked as an assembler in an electronics factory, where she was exposed to a chemical called trichloroethylene and another called trichloroethane every day for over four years.  She developed Hodgkin’s disease, and we filed a claim for workers’ compensation benefits.

 

Based on the testimony of our client and a specialist in occupational medicine, we were successful before the Workers’ Compensation Board, which found that her Hodgkin’s disease was caused by her occupational exposure.  The insurance company appealed, but the Appellate Division, Third Department also agreed with our position that the case had been proven.

 

This was the first case in which a New York court found that Hodgkin’s disease had been caused by occupational exposure.  We also won the first legal decision connecting lung cancer with diesel exposure, and have successfully represented workers in claims for leukemia (due to benzene exposure), Parkinson’s disease (due to argon gas), formaldehyde exposure, and other toxic chemicals.

 

Read the Gandolfo decision here.

 

Workers’ Compensation – Knee Injury (2003)

 

Our client was a teacher who twisted her knee while walking around a desk to talk to a student.  The school district contested her case, arguing that walking on a flat surface could not be the cause of a work-related injury.  The Workers’ Compensation Board agreed with the employer, and we appealed.

 

The Appellate Division, Third Department agreed with our position that an accident that occurs during work is presumed to have been caused by the work.  The Court reversed the Board’s decision, found in favor of our client, and returned the case to the Board to make an award.

 

Read the Keevins decision here.

 

Workers’ Compensation – Permanent Total Disability (2003)

 

Workplace eye injuries are common and can be extremely debilitating. Proper protection is necessary to shield eyes from chemicals and pesticides, tools and tool parts, dust and other airborne particles, flying objects and solar radiation, all of which can injure a worker.

 

Our client, who was legally blind in his left eye, injured his right eye at work in 1980.  He was represented by another law firm, who closed his case in 1987 with a finding that he had a 100% loss of vision in his right eye and an award for that loss.

 

In 1998, almost eighteen years after the accident, he came to our office.  We immediately applied to reopen his case arguing that there was clear evidence before the Board that the accident had left him blind in both eyes, and that as a result he had a permanent total disability as a matter of law.

 

A Workers’ Compensation Law Judge found in our client’s favor, and the insurance company appealed.  The Workers’ Compensation Board upheld the judge’s conclusion that there was a permanent total disability, but limited payment to two years before our application to reopen – denying our client almost 10 years of benefits.

 

We appealed, and the Appellate Division, Third Department, reversed the Board, writing that it “was obligated to assess the prejudice” in denying our client nearly 10 years of benefits.  When the case returned to the Board, the full award was made.  This case created a new standard to make sure that workers do not lose the benefits they are entitled to by law simply because too much time has passed.

 

Read the Jansch decision here.

 

Workers’ Compensation – Reduced Earnings (2002)

 

Injuries involving the neck, back, heart or lung function, concussions, traumatic brain injury, psychological injury can result in permanent partial disability.  Injuries to limbs may also fall into this category if the condition is unstable (like a knee that buckles), progressive (like severe arthritis), or chronically painful (like a person who develops reflex sympathetic dystrophy (now known as chronic regional pain syndrome).

 

Our client was a licensed practical nurse who was permanently partially disabled, but returned to work at a reduction in earnings.  She later moved to Tennessee, where she continued to work at reduced earnings.  The Workers’ Compensation Board terminated her payments, finding that her reduced earnings were due to her move to Tennessee, instead of her disability.

 

We appealed the Board’s decision, and the Appellate Division, Third Department reversed, finding that there was no evidence to support the Board’s decision and also that it was contrary to the law.  The Board later made an award of the benefits required for reduced earnings.

 

Read the LaPietra decision here.

 

Workers’ Compensation – Due Process (2002)

 

Neck injuries can be caused by a variety of actions ranging from motor vehicle accidents to awkward sitting positions.  Our client injured her neck and shoulder on the job.  The employer claimed that there was no further disability to her neck and that the case should be closed with a finding of a “schedule loss of use” of her arm.  After litigation, the judge agreed with the employer, and we appealed the decision.  The Workers’ Compensation Board refused to consider the appeal because it found no formal “exception” was taken to the judge’s decision.

 

We appealed the Board’s decision to the Appellate Division, Third Department.  The Court agreed that there was no requirement “to take an exception to the” judge’s decision where the issue and our position was made clear by the litigation.  The Court went on to say that the Board’s decision was inadequate because there was no evidence the Board read the record before making its decision, which it is obligated to do.

 

The Court therefore sent the case back to the Board to read the record and make a decision on the issues we had raised.

 

Read the Spector decision here.

 

NOTE:  In 2017, the Workers’ Compensation Board changed its regulations to specifically require attorneys to “note their exception” to a judge’s decision.  In view of the decision in Spector, there is some question about whether the Board’s regulation is valid.

 

Trip And Fall Accident (1998)

 

It is extremely easy to slip on stairs, or to trip and fall on stairs, especially if the stairs do not conform to building codes, or if the stairs are broken or faulty in any way. Building codes for stairs cover riser height, tread depth, step riser slope and step riser uniformity, among other items. The injuries that can result from tripping and falling on stairs can be very serious due to the extra distance a person may fall.

 

Our client tripped and fell on stairs while exiting a building in Queens.  At trial, we produced an expert who was “an engineer with extensive knowledge of the Building Code, who testified that defendant’s building violated several sections of that code,” and that those violations were the cause of the accident.  The trial judge refused to give the jury the building code violations, and the jury then found that the defendant was not negligent.

 

We appealed, and the Appellate Division, First Department found that “it was error for the court to deny the … request to charge the Building Code violations to the jury” and that a new trial was needed.  The case was later settled.

 

Read the Manning decision here.

 

Workers’ Compensation – Settlement of a Personal Injury Case (1998)

 

Although an injured worker cannot sue his or her employer for a work-related injury, a lawsuit can be filed against a “third party” who was responsible for the accident.  A “third-party lawsuit” cannot be settled without written consent from the workers’ compensation insurance company.  The insurer also usually has a “lien” against the worker’s lawsuit, and is entitled to recover some of what it paid in workers’ compensation and medical bills.

 

Where the injury is the result of a motor vehicle accident, the insurer still has the right to approve any settlement of a third-party lawsuit, but it does not have a lien if its payments are the same as the benefits that would have been paid under New York’s “No-Fault Law” for a car accident.

 

Our client was represented by another attorney, who settled her third-party lawsuit without the insurer’s (in this case, the City of New York’s) consent.  The City argued that she had forfeited all further workers’ compensation benefits – even the benefits that were equal to No-Fault benefits, against which the City had no lien.  The Workers’ Compensation Board agreed with the City, and we appealed.

 

The Appellate Division, Third Department found that the Board’s decision was inconsistent with its decisions in other similar cases.  It reversed the Board, and returned the case to it for a new decision.

 

Read the Waters decision here.

 

Construction Accident – Slip And Fall (1998)

 

The time limitation for a lawsuit is ordinarily three years from the date of the accident.  However, when a municipality or governmental authority is involved, special rules apply and the time to sue is shorter.  Often, a document called a Notice of Claim must be filed within 90 days of the accident and the lawsuit must be started within one year and ninety days of the accident if a municipality or governmental authority is involved.

 

Our client was employed as a plumber.  His employer was a subcontractor on a job for the New York City Transit Authority. While our client was working in a bus depot, Transit Authority workers pressure testing a nearby pump sprayed him and his work area with oil.  As our client stood up to walk away so he could clean himself off, he slipped on the oil and fell, injuring his right knee.

 

When he came to us, the time limitation to file a claim against the Transit Authority had expired, so we instead brought a case against the general contractor, arguing that there were violations of the Labor Law and the Industrial Code for which the general contractor was legally responsible.  The general contractor moved to dismiss the case, contending that it did not have “notice” of the condition in time to correct it before our client was injured.

 

The trial judge dismissed the case, and the Appellate Division, Second Department affirmed the dismissal on the strength of its recent decision in another case.  We asked the Court of Appeals, New York’s highest court, for permission to appeal, which was granted.

 

On appeal, the Court of Appeals unanimously agreed with our argument that the Labor Law is intended to provide construction workers with greater protection than simple negligence laws, and that if our client was required to prove that the defendant had “notice” of the condition, then the protection of the Labor Law would essentially be eliminated.  The Court reinstated our case under the Labor Law, and also reinstated our negligence case against the defendant, accepting our argument that the general contractor had the authority to control the work site and should have prevented the Transit Authority workers from pressure testing a pump in the area where our client was working.

 

The case later went to trial, resulting in a verdict in our clients’ favor.  The Court of Appeals decision remains one of the most important decisions in the history of the Labor Law.

 

Read the Rizzuto decision here.

Watch a video of the argument here Rizzuto

 

Construction Accident – Fall From a Ladder (1997)

 

Falls from a height, one of the most common and debilitating workplace injuries, can occur while working on a ladder, scaffold, roof, fragile surface or large machinery. Our client fell when a ladder slipped out from under him while he was repairing a window in a condominium development, suffering serious injuries.  We asked the trial court to find in favor of our client as a matter of law, and the defendants asked the judge to dismiss the case as a matter of law.  The judge agreed with the defendants, and we appealed.

 

The Appellate Division, Second Department agreed that it was a mistake for the judge to dismiss the case, and that at a minimum, a trial was required.  The case was later settled on terms favorable to our client.

 

Read the Wender decision here.

 

 

 

Newsletter