The Third Department decided 5 cases dealing with workers’ compensation issues

Matter of Worthington , the carrier appealed the establishment of a case as well as awards made in the matter. Claimant, a registered nurse, injured her right foot, left wrist and
face after she fell while making her rounds and checking on patients during her shift at the hospital. According to claimant, she was walking down the hallway when her foot
became stuck and she fell forward sustaining her injuries. Claimant subsequently applied for workers’ compensation benefits. Following a hearing, a Workers’ Compensation Law
Judge found that claimant sustained a work-related injury and awarded benefits. The Workers’ Compensation Board affirmed that decision. This appeal ensued.

The Court affirmed the Board. “Whether a compensable accident has occurred is a question of fact to be resolved by the Board and its determination will not be disturbed
when supported by substantial evidence” (Matter of Cicciarelli v Westchester Health Care Corp., 86 AD3d 733, 734 [2011] [citation omitted]). Furthermore, absent
substantial evidence to the contrary, a presumption exists that an accident that occurs in the course of employment arises out of that employment
(see Workers’ Compensation Law § 21 [1]; Matter of Enriquez v Home Lawn Care & Landscaping, Inc., 77 AD3d 1149, 1151 [2010]; Matter of Lopez v City Univ. of N.Y., 299 AD2d 645,
646 [2002]). The Board credited claimant’s testimony regarding the nature of the fall, namely, that it occurred because her foot stuck to the floor and not because she lost consciousness or
experienced any kind of medical episode. Although the employer presented medical testimony that offered a variety of alternative causes for claimant’s fall, including her preexisting diabetic condition and other idiopathic medical conditions, such conclusions were based upon mere speculation and were insufficient to rebut the statutory presumption contained in
Workers’ Compensation Law § 21. According deference to the Board’s resolution of credibility issues with regard to the conflicting medical evidence and witness testimony (see Matter of
Camby v System Frgt., Inc., 105 AD3d 1237, 1238 [2013]; Matter of Roberts v Waldbaum’s, 98 AD3d 1211, 1211 [2012]), we find that substantial evidence supports the Board’s determination that claimant’s injuries arose out of and in the course of her employment (see Matter of Booker v Intermagnetics Gen. Corp., 53 AD3d 743, 745 [2008]; Matter of Scalzo v St. Joseph’s Hosp., 297 AD2d 883, 884 [2002]).

In Matter of Wetterau, Special Funds appealed the establishment of 25-a on a claim. On December 3, 1999, while working as a warehouse manager for the employer,
claimant injured his back when he slipped and fell against the bumper of a truck. He filed a claim for workers’ compensation benefits and, after having back surgery, he
returned to work. A Workers’ Compensation Law Judge (hereinafter WCLJ) established the claim for a work-related injury to claimant’s back and awarded him benefits. The WCLJ
closed the case on September 27, 2000.

Thereafter, on July 16, 2005, while working for the same employer, claimant stepped backwards on a pallet and again injured his back. He filed a second claim for workers’
compensation benefits. A WCLJ established the claim for work related injuries to claimant’s back and left ankle, awarded him benefits and ultimately classified him, in August 2008, as
permanently partially disabled. The workers’ compensation carrier continued to make payments on the 2005 claim thereafter.

Both claims were subsequently reopened and a hearing was conducted on May 3, 2012 to consider the issues of apportionment between the two claims and the carrier’s request for relief under Workers’ Compensation Law § 25-a with respect to the 1999 claim. Following this hearing, the WCLJ concluded that Workers’ Compensation Law § 25-a was applicable and that the 1999 claim was the liability of the Special Fund for Reopened Cases, not the carrier. The Workers’ Compensation Board affirmed this decision and the Special Fund now appeals.
Workers’ Compensation Law § 25-a (1) provides, in relevant part, that “when an application for compensation is made by an employee . . . after a lapse of seven years from the date of the
injury . . . and also a lapse of three years from the date of the last payment of compensation, . . . if an award is made it shall be against the special fund” (see Matter of Ercole v New York
State Police, 118 AD3d 1211, 1211-1212 [2014]; Matter of Thurston v Consolidated Edison Co. of N.Y., 115 AD3d 1143, 1144 [2014]).

“The purpose of [the statute] is to save employers and insurance carriers from liability . . . for stale claims of injured employees” (Matter of Riley v Aircraft Prods. Mfg. Corp., 40 NY2d
366, 369 [1976] [internal quotation marks and citation omitted]). Here, the 1999 claim was reopened in 2012, approximately 13 years after the December 3, 1999 injury and 12 years after the September 27, 2000 closing of the case. The Special Fund, however, asserts that the carrier continued to make payments on the 2005 claim that it knew were partially attributable to
injuries sustained by claimant in connection with the 1999 claim and that, consequently, three years did not pass from the date of the last payment of compensation, thereby precluding liability from shifting under Workers’ Compensation Law § 25-a. We note that “[p]ayments that are made voluntarily, and in recognition of the employer’s liability, are considered advance compensation and will prevent the transfer of liability to the Special Fund” (Matter of Thurston v Consolidated Edison Co. of N.Y., 115 AD3d at 1144). Significantly, “whether an advance payment of compensation has been made is a factual question for the Board to resolve, and its determination in this regard, if supported by substantial evidence in the record as a whole, will not be disturbed” (Matter of Guidice v The Herald Co., 88 AD3d 1175, 1176 [2011]). Upon reviewing the record, substantial evidence supports the Board’s finding that the carrier did not make an advance payment of compensation. There is no indication that the carrier knowingly made payments on the 2005 claim that were partially to compensate claimant for injuries sustained in connection with the 1999 claim. Although the independent medical reports prepared in connection with the 2005 claim indicate that his disability was caused, in part, by his preexisting condition, they did not establish that it was specifically due to his 1999 work-related injury. Thus, they did not put the carrier on notice that the payments it made were attributable to this prior injury. In addition, the medical report of the neurologist who treated claimant after both work-related injuries described the 1999 injury as a herniated disc to the lower right side of claimant’s back and the 2005 injury as affecting the lower left side of his back and extremities, including his left leg, ankle and foot. The neurologist further noted that claimant success recovered from surgery following the 1999 injury. Inasmuch as the injuries sustained in the two accidents were distinctly different, and claimant recovered well from the 1999 injury, the Board could rationally conclude that the carrier did not voluntarily make payments on the 2005 claim knowing they also encompassed the 1999 claim. In view of the foregoing, we find no basis to disturb the Board’s decision shifting liability to the Special Fund pursuant to Workers’ Compensation Law § 25-a under the circumstances presented here (see Matter of Clark v SUNY Upstate Med. Ctr., 73 AD3d 1408, 1409 [2010]; compare Matter of Scoppo v American Brake Shoe Co., 43 AD2d 603, 604 [1973]; Matter of Gillette v Staub & Son, 8 AD2d 896, 897 [1959]). Furthermore, we do not find that the Board’s decision constitutes a departure from its prior precedent.

In Matter of Connolly, Appeal from an amended decision of the Workers’ Compensation Board, filed March 28, 2013, which ruled that the self-insured employer is not entitled to
reimbursement from the Special Disability Fund.

In 1999, a claim was established for claimant for the occupational diseases of asbestosis, asbestosis-related pleural disease and chronic obstructive pulmonary disease following his
lengthy employment with Consolidated Edison, a self-insured employer. The employer was found to be entitled to reimbursement from the Special Disability Fund pursuant to Workers’
Compensation Law § 15 (8) (ee). Claimant thereafter died on April 29, 2011 and his widow filed a claim for death benefits, which the employer controverted, and the Special Funds
Conservation Committee was put on notice. A Workers’ Compensation Law Judge (hereinafter WCLJ) later granted a request by the Special Funds Conservation Committee to be removed from notice, finding that it was not liable for reimbursement under Workers’ Compensation Law § 15 (8) (ee). After the parties submitted medical proof on causation, a WCLJ established the claim for work-related death and ordered the employer to reimburse claimant’s widow for funeral expenses. The employer sought administrative review. The Workers’ Compensation Board agreed that claimant’s death was causally related. The Board further determined that the employer’s claim for reimbursement from the Special Disability Fund for death benefits was time barred because it was made after July 1, 2010, the outside date for such reimbursement claims under Workers’ Compensation Law§ 15 (8) (h) (2) (A). On appeal by the employer and its third party administrator (hereinafter collectively referred to as the employer), we affirm. Where, as here, an employee is disabled due to a dust disease, Workers’ Compensation Law § 15 (8) (ee) provides that an “employer . . . or carrier shall . . . be reimbursed from the special disability fund . . . for all compensation and medical benefits subsequent to those payable for the first . . . [260] weeks of disability for claims where the date of accident or date of disablement occurred on or after August [1, 1994].” Likewise, if an employee has died due to a dust disease, the statute provides that an “employer or . . . carrier shall be reimbursed from the special disability fund . . . for all death benefits payable in excess of . . . [260] weeks for claims where the date of accident or date of disablement occurred on or after August [1, 1994]” (Workers’ Compensation Law § 15 [8] [ee]). Such reimbursement is expressly subject to the limitations contained in Workers’ Compensation Law § 15 (8) (h) (2) (A), which “bars claims based upon dates of disablement or accident after July 1, 2007″ (Matter of Krausa v Totales Debevoise Corp., 84 AD3d 1545, 1546 [2011]; see Matter of Castelli v NRG, 85 AD3d 1414, 1415 [2011], lv denied 17 NY3d 714 [2011]). That subdivision further expressly provides, as here dispositive, that “[n]o carrier or employer . . . may file a claim for reimbursement from the special disability fund after July [1, 2010] and no written submission or evidence in support of such a claim may be submitted after that date” (Workers’ Compensation Law § 15 [8] [h] [2] [A] [emphases added]; see Workers’ Compensation Law § 15 [8] [ee] [reimbursement is “subject to the limitations of” section 15 (8) (h) (2) (A)]; Matter of Krausa v Totales Debevoise Corp., 84 AD3d 1545 at 1546]). Given the “clear and unambiguous” terms of the reimbursement limitations provision of section 15 (8) (h) (2) (A), this Court has given effect to the plain meaning of the language employed (Matter of Orens v Novello, 99 NY2d 180, 185 [2002]) by recognizing that the provision bars “all new claims after July 1, 2010″ (Matter of Krausa v Totales Debevoise Corp. , 84 AD3d at 1547 [emphasis added]). We reject the employer’s argument that its claimed entitlement to reimbursement from the Special Disability Fund is not a “new” claim, on the premise that it relates back to theoriginal disablement in 1999 thereby establishing its right to reimbursement for a death occurring after July 1, 2010. In this regard, a claim for reimbursement for death benefits is “separate and distinct” from the original claim for reimbursement for disability benefits (Matter of House v International Talc Co., 261 AD2d 687, 689 [1999]; see Workers’ Compensation Law §§ 15 [8] [ee], [f], [g], [h]). That is, “[t]he right to death benefits does not accrue prior to death” and death, while not a new injury or accident, results in a “new claim” for purposes of death benefits reimbursement (Commissioners of State Ins. Fund v Hallmark Operating, Inc., 61 AD3d 1212, 1213 [2009]; see Matter of Zechmann v Canisteo Volunteer Fire Dept., 85 NY2d 747, 751-752 [1995]).

Here, since claimant died in 2011, and the employer’s claim for reimbursement reimbursement for death benefits was necessarily made after the July 1, 2010 cut-off date,
the claim is barred under Workers’ Compensation Law § 15 (8) (h) (2) (A) (compare Matter of Krausa v Totales Debevoise Corp., 84 AD3d at 1546 [death and the death benefit reimbursement
claim occurred in 2009, before the July 1, 2010 cut-off for all new claims]). As we noted in Matter of Krausa, while section 15 (8) (h) (2) (A) bars reimbursement
for claims “based upon dates of disablement or accident after July 1, 2007,” it further and without qualification precludes “all new claims after July 1, 2010″ (id. at 1547). While the
former limitation provision did not bar reimbursement for the November 2007 death of the claimant in that case because his date of disablement was prior to July 1, 2007 (id. at 1547; compare
Matter of Castelli v NRG, 85 AD3d at 1415), here, the employer’s pursuit of reimbursement for death benefits for a death that occurred after July 1, 2010 is barred by the latter provision,
which is not tied to the date of disablement or accident. This conclusion is consistent with “the Legislature’s stated intent to close the Special Disability Fund to new claims” (Matter of
Krause v Totales Debevoise Corp., 84 AD3d at 1547; see Public Authorities Law § 1680-l [3]; Matter of Castelli v NRG, 85 AD3d at 1415; Matter of Jaworek v Sears Roebuck & Co., 67 AD3d 1161, 1162-1163 [2009], lv denied 14 NY3d 704 [2010]). Accordingly, the Board’s decision that the employer’s reimbursement claim for death benefits is barred by Workers’ Compensation Law § 15 (8) (h) (2) is supported by the language and legislative history of that statute.

In Matter of Tangorre, Appeal from a decision of the Workers’ Compensation Board, filed May 16, 2013, which ruled that claimant violated Workers’ Compensation Law § 114-a and
permanently disqualified him from receiving future wage replacement benefits In 2010, claimant suffered work-related injuries to his neck, left shoulder and left arm and was awarded workers’ compensation benefits. In June 2012, the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) raised the issue of labor market attachment. Thereafter, claimant faxed payment invoices to his former attorney that reflected that he had been working part time since February 2012.1 The attorney forwarded the invoices to the Workers’ Compensation Board. The carrier then raised the issue of whether claimant had violated Workers’ Compensation Law § 114- a based upon misrepresentations regarding work activity while collecting benefits. At a subsequent hearing, claimant testified that he had informed his former attorney of the part-time work in February 2012, at the time he started the job, and that he believed that the attorney would have informed the carrier. The Workers’ Compensation Law Judge found, despite having “serious reservations concerning the credibility of the claimant’s testimony,” that there was insufficient evidence of a violation of Workers’ Compensation Law § 114-a. Upon review, the Board reversed, ruling that claimant knowingly made misrepresentations in violation of Workers’ Compensation Law § 114-a by falsely testifying that he reported his return to work to his attorney in February 2012, and determined that, based on both mandatory and discretionary disqualifications, claimant forfeited all benefits received after September 29, 2012. Claimant now appeals.

We affirm. “The Board is the sole arbiter of witness credibility and its determination that claimant violated Workers’ Compensation Law § 114-a will be upheld if supported by
substantial evidence” (Matter of Hammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d 1252, 1252 [2009] [citations omitted]; see Matter of Borgal v Rochester-Genesee Regional Transp. Auth., 108 AD3d 914, 915 [2013]). Here, although claimant testified that he informed his attorney in February 2012 of his return to work, the Board found that this testimony was not credible, based upon its determination that the letter sent by claimant to his attorney in June 2012 accompanying the payment invoices constituted the first time that claimant had reported that he had returned to work. In the letter, claimant described the job to his attorney, including where he was working, when he started, the hours he was working and the rate of pay. In the letter, claimant also asked his attorney whether claimant should forward the invoices to anyone else. In light of the Board’s broad authority to resolve issues of credibility and draw reasonable inferences from the record evidence (see Matter of Rolleri v Mastic Beach Ambulance Co., Inc., 106 AD3d 1292, 1293 [2013], lv denied 21 NY3d 865 [2013];Matter of Caballero v Fabco Enters., 77 AD3d 1028, 1029 [2010], lv dismissed 16 NY3d 780 [2011]), we conclude that the Board’s decision is supported by substantial evidence.

In Matter of Estwick, Appeal from a decision of the Workers’ Compensation Board, filed August 16, 2013, which, among other things, assessed a monetary penalty against claimant’s counsel pursuant to Workers’ Compensation Law § 114–a (3) (ii). Claimant, who resides in Brooklyn, sustained a compensable injury involving her right shoulder while working for her employer in Brooklyn. Claimant retained counsel, who submitted to the Workers’ Compensation Board, among other things, a request by claimant that the venue of any hearings be held in the City of White Plains, Westchester County on the ground that it was the “most efficient” and would limit the amount of time lost from work. A Workers’ Compensation Law Judge (hereinafter WCLJ) denied the request, finding that the change of venue application was made without reasonable ground, and assessed penalties of $250 against claimant’s counsel under Workers’ Compensation Law § 114–a (3) (i) and (ii). The Board modified the WCLJ’s decision by rescinding the penalty assessment pursuant to Workers’ Compensation Law § 114–a (3) (i), finding that, pursuant to that subsection, such penalty can only be assessed against a party, not a party’s counsel. However, the Board found the penalty of counsel fees under section 114–a (3) (ii) to be warranted and, given the fact that counsel appealed the WCLJ’s decision asserting arguments regarding the venue request which counsel was aware were improper or had been previously rejected by the Board, increased the assessment against counsel to $500. Claimant appeals. The Court affirmed. We have repeatedly upheld the imposition of a penalty of reasonable counsel fees pursuant to Workers’ Compensation Law § 114–a (3) (ii) when, as here, the record contains substantial evidence that a venue request was made without a reasonable basis (see Matter of Maiorano v Alman Plumbing, 119 AD3d 1254, 1254 [2014]; Matter of Mejia v Camabo Indus., Inc., 117 AD3d 1362, 1363 [2014]; Matter of Toledo v Administration for Children Servs., 112 AD3d 1209, 1210 [2013]; Matter of Wolfe v New York City Dept. of Corr., 112 AD3d 1197, 1198 [2013]; Matter of Banton v New York City Dept. of Corr., 112 AD3d 1195, 1196 [2013]). The record reflects that there was no legitimate basis for seeking the venue change and the Board had previously rejected several similarly-worded venue change requests by counsel. Under these circumstances, the Board did not exceed its authority in assessing a penalty against counsel based upon the filings of the request to change venue and the appeal to the Board without reasonable grounds (see Workers’ Compensation Law § 114-a [3] [ii]; see also Workers’ Compensation Law §§ 23, 142), and its decision will not be disturbed (see Matter of Wolfe v New York City Dept. of Corr., 112 AD3d at 1198; Matter of Banton v New York City Dept. of Corr., 112 AD3d at
1196-1197).

Newsletter