Third Department Cases – 2-21-13

Today the Court issued two decisions dealing with workers’ compensation issues.

In Matter of Runge , the claimant appealed a finding that his 1997 claim was time barred.

In 1997 the claimant injured both knees while on a treadmill as part of an annual physical in March 1997. The employer and its workers’ compensation carrier did not
controvert the claim, but submitted a form C-669 in February 1998 indicating that payment had not begun because there was no lost time beyond seven days. Claimant did not
appear at an April 1998 hearing and the case was closed. Nonetheless, the carrier continued paying medical expenses into 2002 related to the injury
and, in April 2004, claimant sought to reopen the claim by seeking authorization for a total left knee arthroplasty. The carrier put the Special Fund for Reopened Cases on notice and
raised the applicability of Workers’ Compensation Law § 123. A Workers’ Compensation Law Judge found that the case had been truly closed in April 1998 and, therefore,
Workers’ Compensation Law § 123 served to bar further proceedings. The Workers’ Compensation Board affirmed and the claimant appealed.

Workers’ Compensation Law § 123 presents an exception to the Board’s continuing jurisdiction over compensation claims wherein, as relevant here, “no claim for compensation . . . that
has been disallowed after a trial on the merits, or that has been otherwise disposed of without an award after the parties in interest have been given due notice of hearing or hearings and
opportunity to be heard and for which no determination was made on the merits, shall be reopened after a lapse of seven years from the date of the accident” (see Matter of Ford v New York
City Tr. Auth., 27 AD3d 792, 793-794 [2006], lv dismissed 7 NY3d 741 [2006]). Although the instant claim was closed in April 1998, claimant has proffered evidence – and the employer and
carrier do not dispute – that the carrier reimbursed medical expenses associated with the claim between December 1997 and February 2002.

The Court stated they had previously indicated that where a carrier voluntarily pays for causally related medical treatments during the relevant time period, it should not be
permitted to then use Workers’ Compensation Law § 123 with regard to such time. Matter of Schneider v Durst Mfg. Co., 265 App Div. 1022, 1022-1023
[1943]; see also Employer: Northern Manhattan Nursing Home, 2010 WL 2593681, 2010 NY Wrk Comp LEXIS 5409, [WCB No. 00043228, June 23, 2010]; Employer: City of Glen Cove, 2007 WL
4111771, 2007 NY Wrk Comp LEXIS 10119, [WCB No. 29319950, Nov. 13, 2007]; cf. Matter of D’Ornellas v Roger Maffei, Inc., 77 AD2d 763, 763 [1980]). Based on same the Court reversed the Board and remanded for further proceedings.

In Matter of Bailey, the claimant appealed a decision which ruled that decedent’s death was not causally related to his employment and disallowed claimant’s claim for workers’
compensation death benefits.

The claimant’s husband (hereinafter decedent) worked as a truck driver and heavy equipment mechanic for the employer for more than 20 years. Decedent, who had a preexisting heart condition,
was admitted to a local hospital in September 2007, at which time he was found to be suffering from atrial fibrillation, exacerbation of congestive heart failure, morbid obesity,
hypertension and hyperlipidemia, and a heart catheterization performed on November 15, 2007 “revealed diffused coronary disease involving . . . all three coronary systems.”Various
medications were prescribed, and decedent returned to work without restrictions on November 21, 2007.

On November 30, 2007, decedent worked his normal shift (7:00 a.m. to 3:30 p.m.) and thereafter remained on the employer’s premises to perform certain repairs to his personal
vehicle. At some point between 7:30 p.m. and 8:00 p.m. that evening, the employer’s plant manager arrived and observed decedent working on his vehicle in the employer’s garage.
Shortly thereafter, the plant manager found decedent unresponsive on the floor of the garage, started CPR and called 911. Decedent was pronounced dead later that evening.
Following a hearing, a Workers’ Compensation Law Judge disallowed the claim finding, insofar as is relevant here, that claimant was not entitled to the presumption set forth in Workers’
Compensation Law § 21 (1) and, further, failed to demonstrate a causal relationship between decedent’s death and his employment. The Workers’ Compensation Board affirmed that
decision and subsequently denied claimant’s application for reconsideration and/or full Board review. Claimant now appeals from the Board’s decision denying her claim for death benefits.

The Court affirmed the Board noting, Although claimant testified that decedent telephoned her on the night in question and indicated that he was staying late “to clean the pit,”
there is nothing in the employer’s records to suggest that decedent either worked a double shift on the day of his death, incurred any overtime on that date or actually was performing work for the employer at the time of his death. Accordingly, we have no quarrel with the Board’s finding that decedent “cannot be
considered to have been in the course of his employment at [the] time of his demise.”
The Court went on to address causal relationship stating that the claimant bore the burden of establishing – by competent medical evidence – that a causal connection existed between decedent’s death and his employment (see Matter of Droogan v Raymark Indus., Inc., 59 AD3d 803, 804 [2009]; see also
Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890, 890-891 [2009]). Contrary to claimant’s assertion, this is not a case where the Board ignored uncontroverted medical evidence and impermissibly fashioned its own opinion; rather, this is a case where the medical proof adduced by claimant was insufficient to establish the required causal connection (see Matter of Zahm v National Fuel, 72 AD3d 1311, 1312-1313 [2010]; Matter of Albert v Miracle Makers of Bedford Stuyvesant HFDC, Inc., 13 AD3d 925, 926 [2004]; Matter of
Freitag v New York Times, 260 AD2d 748, 749 [1999]).

Claimant’s treating doctor stated that it was “extremely likely” that the “heavy work” that decedent performed on the day of his death contributed to his passing, and both claimant’s cardiologist and the physician who conducted an independent review of decedent’s medical records reached a similar conclusion. However, a review of the record reveals that these opinions were based upon erroneous assumptions and facts not borne out by the documentary evidence or hearing testimony – namely, that decedent worked a double shift and was engaged in strenuous physical activity on the day of his death (see id.; compare Matter of Owoc v Syracuse Univ., 301 AD2d 765, 766 [2003], lv denied 100 NY2d 501 [2003]). As noted previously, there is no support for a finding that decedent worked a double shift or otherwise incurred overtime on the day of his death. Similarly, the employer’s president testified that heavy lifting was “[n]ot . . . a normal part of [decedent’s] job”, as “various types of equipment” were available to lift anything over 50 pounds. The employer’s president further testified that he was aware that decedent did not “feel well” and “was struggling,” as a result of which “[n]obody was pushing [decedent] too hard.”The Court also noted that the Ime who had given causal relationship initially rescinded that opinion in an addendum after reviewing additional evidence
and trial transcripts. In light of such testimony, the Court determined substantial evidence supported the Board’s finding that claimant failed to establish a causal connection between decedent’s employment and his death.