Third Department – 2-14-13

Today the Court decided 3 cases dealing with workers’ compensation.

In Matter of Jarovic, An appeal was taken from a decision of the Workers’ Compensation Board, filed February 1, 2011, which ruled that the employer’s workers’compensation carrier was entitled to a full credit against claimant’s third-party settlement recovery.

The Court noted that the Workers’ Compensation Board’s decision in this claim, in which there was a significant third-party settlement, was rendered before their decision in Matter of Stenson v New York State Dept. of Transp. (84 AD3d 22 [2011]). Aspects of the Board’s decision in this matter the Court found, were inconsistent with Stenson. The Board incorrectly indicated that it lacked authority to address the manner in which the workers’ compensation carrier took credit for the third-party recovery and it failed to specifically address whether the carrier had released itself from its obligation to contribute its proportional share of litigation costs. The Board has since changed its approach to such issues to conform to the holding in Stenson (see Employer: Alpha Masonary, 2011 WL 4847393, *4-6, 2011 NY Wrk Comp LEXIS 5151, *9-15 [WCB 8061 3130, Sept. 14, 2011]; see also Employer: Marcon Dev. Corp., 2012 WL6762129, *1-2, 2012 NY Wrk Comp LEXIS 10475, *3-7 [WCB 0041 6637, Dec. 31, 2012]; Employer: Prudent Engineering LLP, 2012 WL 1893311, *2, 2012 NY Wrk Comp LEXIS 6031, *3-5 [WCB 6070 4660, May 16, 2012]). The matter must thus be reversed and remitted to the Board (see Matter of Stenson v New York State Dept. of Transp., 84 AD3d at 27; see also Matter of Morphew v Aero Transporters, Inc., 90 AD3d 1459, 1460-1461 [2011]). The Court reversed the decision of the Board.

In Matter of Wieneck, the Special Funds filed an appeal to the finding that Liberty Mutual Insurance Company’s claim for reimbursement was not barred by the doctrine of laches.

Claimant sustained injuries in three work-related accidents in 1941, 1952 and 1957. Responsibility for the first claim was transferred to the Special Fund for Reopened Cases in 1959, and responsibility for the latter two claims fell to Liberty Mutual Insurance Company. Liability was apportioned equally among the three claims. Following claimant’s death in 2008, Liberty Mutual sought reimbursement from the Special Fund in the amount of $194,876.83, representing one third of the cost of medical expenses incurred between May 1986 and August 2008. The Special Fund objected upon various grounds – including, insofar as is relevant here, laches Following a hearing, a Workers’ Compensation Law Judge ruled that Liberty Mutual’s delay in seeking reimbursement prejudiced the Special Fund and, therefore, laches applied to bar reimbursement. The Workers’ Compensation Board reversed, rejecting the laches defense altogether and directing the Special Fund to audit the medical expenses for which Liberty Mutual sought reimbursement, pay those expenses to which there was no objection and separately address each expense to which it objected. The Special Fund now appeals.

Initially, The Court agreed with the Special Fund that the Board erred in summarily rejecting its laches defense. Laches may apply within the context of a workers’ compensation claim when a party is guilty of the “[f]ailure to assert a right for an – unreasonable and unexplained length of time, accompanied by other circumstances causing prejudice to an adverse party” (Matter of Holloway v West St. Trucking, 14 AD3d 816, 817 [2005], quoting Matter of Taylor v Vassar Coll., 138 AD2d 70, 73 [1988]; accord Matter of Sacco v Mast Adv./Publ., 71 AD3d 1304, 1306 [2010]). Even assuming, as the Board concluded, that “the doctrine of laches does not apply to questions of apportionment,” the issue here is not apportionment. Rather, the issue is Liberty Mutual’s entitlement to reimbursement for certain medical expenses incurred between 1986 and 2008 and, in this regard, we note that the Board has applied the doctrine of laches to bar a claim for reimbursement under substantially similar circumstances (see Employer: QTS Corp., 2010 WL 2424192, *2, 2010 NY Wkr Comp LEXIS 4750, *4 [WCB No. 2882 6728, May 28, 2010]). Absent an explanation for the Board’s apparent departure from its precedent on this point, the Board’s decision must be modified to permit the assertion of the laches defense here.

As to the merits of the defense, while there can be little dispute that Liberty Mutual’s delay in submitting many of the bills for which it seeks reimbursement was excessive, the Special Fund did nothing more than point to the length of the delay and register what the Board aptly described as a blanket objection to all of the bills submitted. Inasmuch as the “[m]ere lapse of time does not establish prejudice” (Matter of Hopkins v Alcas Corp., Cutco Cutlery, 63 AD3d 1342, 1344 [2009] [internal quotation marks and citation omitted]), the Special Fund’s proof – at this juncture – falls short. However, once the underlying audit is complete and the Special Fund has, consistent with the Board’s directive, made particularized objections where appropriate, it may have grounds, including laches, for denying reimbursement of specific bills. Stated another way, while laches ultimately may bar some or all of Liberty Mutual’s claim for reimbursement, such a determination cannot be made until the subject audit is complete and the Special Fund has articulated specific objections (such as lost or otherwise unavailable evidence) to the bills at issue. The parties’ remaining contentions, including Liberty Mutual’s assertion that the instant appeal is premature, have been examined and found to be lacking in merit. The Court modified , without costs, by reversing the ruling that Liberty Mutual Insurance Company’s claim for reimbursement was not barred by the doctrine of laches, and, as so modified, affirmed.

In Matter of Bland, Claimant appealed from a decision of the Workers’ Compensation Board, filed June 14, 2012, which denied claimant’s request for a variance.

In 1993, a workers’ compensation claim was established for claimant (claim No. 1), and responsibility for such claim was thereafter transferred to the Special Fund for Reopened Cases in 2008. A second claim was established with a 2008 date of disablement (claim No. 2), for which Travelers Insurance Company is responsible, and liability was thereafter apportioned equally between the claims. In October 2011, claimant’s treating physician requested a variance for approval of 10 weeks of aquatic therapy and the Special Fund and Travelers both denied the request. Claimant requested a review of such denials and, following a hearing, a Workers’ Compensation Law Judge approved the treatment. However, upon review, the Workers’ Compensation Board reversed, finding, as relevant here, that the record does not establish that claimant’s treating physician served upon the Board the MG-2 form requesting the variance in the same manner and on the same date that it was transmitted to the Special Fund. The Board further found that there was no evidence that claimant properly filed a request for review of the variance denials.

The Court reversed. Pursuant to 12 NYCRR 324.3 (a) (3), a treating medical provider requesting a variance must serve an MG-2 form upon the carrier, the claimant and the Board on the same day. Here, the Board concluded that there was no evidence in the record establishing that the MG-2 form requesting a variance was submitted to the Board and the Special Fund as required. However, both the Special Fund and Travelers concede that the MG-2 form was filed with the Board on October 14, 2011. Instead, they argue that the MG-2 form only identifies Travelers as the carrier and only references the second claim number. To the contrary, the record contains a copy of claimant’s MG-2 form, which refers to both claim numbers and has a stamp recorded at the top of the page indicating that is was received by the Board via fax on October 14, 2011, the same day it was faxed to both the Special Fund and Travelers. Further, the fact that both carriers received the variance request is made evident by their denials of that request. The Board further concluded that claimant did not timely request review of the carriers’ denials of the variance. In this regard, a request to review a denial of a variance must be made within 21 business days of receipt of the denial (see 12 NYCRR 324.3 [c]). Here, the Special Fund denied claimant’s variance request on October 18, 2011. Claimant requested review of this denial on the MG-2 form, which was signed and dated on October 24, 2011. The MG-2 form in the Board’s file indicates that it was transmitted to the Board by fax on October 24, 2011.

Additionally, this form is accompanied by a fax cover sheet, which contains both claim numbers, bears the same date and approximate time of the MG-2 form, and indicates that a four-page fax was sent and received by the Board via fax. As a result, the Board’s determination that there was “no evidence” that the variance request was served upon the Board or that claimant timely requested review of the denial is not supported by substantial evidence (see generally Matter of Iannaci v Independent Cement Corp., 66 AD3d 1194, 1195-1196 [2009]; compare Matter of Flynn v Ace Hardware Corp., 38 AD3d 1143, 1145 [2007]; Matter of Salatti v Crucible Materials Corp., 34 AD3d 1145, 1146 [2006]), and the variance request should not have been denied on those grounds. As a result of the foregoing, the parties’ remaining contentions are either not properly before this Court or have been rendered academic by our decision.

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