Third Department Cases 5-9-13

Today the Court dealt with 1 case directly dealing with workers compensation benefits and 2 cases that were not specific compensation cases but had related issues.

In Matter of Hosher , the employer filed an appeal from a decision of the Workers Compensation Board, filed September 9, 2011, which rescinded a decision of the Workers Compensation Law Judge and restored the case to the trial calendar for further development of the record.

Claimant filed a claim for workers compensation benefits alleging that he suffered a back injury after falling off a roof in 2007. According to claimant s application for benefits, he was employed as a full-time seasonal handyman/laborer by James Smallman and Susan Smallman at their marina in the Town of Malone, Franklin County. (The Claimant also sued the Smallman s civilly) The Workers Compensation Board thereafter received notice that the Smallman s were disputing that claimant was their employee, and an investigation by the enforcement unit of the Board ensued.  Subsequently, the Smallmans homeowner s insurance carrier, New York Central Mutual Insurance Company (hereinafter NYCMIC), gave notice that it was accepting the claim and taking the position that claimant was covered through the residence employees endorsement contained in the Smallmans homeowner s insurance policy. The Workers Compensation Law Judge (hereinafter WCLJ), among other things, found that claimant was a covered employee on the date of the accident and awarded benefits. Upon the Uninsured Employers Fund s application for review, the Board ruled that there was insufficient proof as to the number of hours the claimant worked per week and whether the claimant may be a covered employee. Consequently, the Board rescinded the WCLJ s decision and remitted the matter for further development of the record on that issue. The Smallman s and NYCMIC appealed.

The Court found that the Board s decision was interlocutory and did not dispose of all of the substantive issues or reach a potentially dispositive threshold legal issue and, thus, is not appealable (Matter of Dow v Silver Constr. Corp., 83 AD3d 1270, 1270 [2011]; see Matter of Hollis v Morelli Masons, Inc., 98 AD3d 1196, 1197 [2012]; Matter of Sawyer v Orange Motors, 24 AD3d 1117, 1117 [2005]). Significantly, the existence of an employer-employee  relationship in a particular case is a factual issue for the Board to resolve (Matter of Brzezinski v Gambino, 100 AD3d 1192, 1192 [2012] [internal quotation marks and citations omitted]) and, inasmuch as the Board continued the case to further develop of the record on that question, we find no reason to conduct a piecemeal review of the relevant issues (see Matter of Dow v Silver Constr. Corp., 83 AD3d at 1271; Matter of Ogbuagu v Ngbadi, 61 AD3d 1198, 1199 [2009]). To the extent that it is argued that the Board is barred from considering the issue of covered employment as a result of NYCMIC s acceptance of coverage during the hearing before the WCLJ, we are not persuaded. Even assuming, arguendo, that NYCMIC s acceptance of coverage was uncontested and constituted a valid stipulation as contemplated by 12 NYCRR 300.5 (b),2 it is beyond cavil that even an otherwise valid stipulation is subject to final review by the Board, which has the power to disregard it if it so chooses (see Matter of Lloyd v New Era Cap Co., 80 AD3d 1016, 1019 [2011]; see also 12 NYCRR 300.5 [b] [2]). Since the nonfinal decision now before us is reviewable upon an appeal from the Board s final decision (see Matter of Dow v Silver Constr. Corp., 83 AD3d at 1271; Matter of Ortiz v Martin Viette Nurseries, Inc., 82 AD3d 1480, 1480 [2011]), the Court dismissed the appeal.

In Matter of Kesick, a Plaintiff sought coverage under the supplementary uninsured-underinsured motorist (hereinafter SUM) policy which he held with defendant. Defendant denied coverage on two grounds – first, that plaintiff was not injured as a result of a motor vehicle accident and, second, that the SUM policy prohibited duplicative awards and plaintiff had received benefits under the Workers Compensation Law.

The Court concluded that defendant failed to establish its entitlement to judgment based upon the non-duplication provision in the SUM policy. Pursuant to such provision, coverage will not duplicate any [b]enefits payable under workers compensation or non-occupational disability benefits under article nine of the Workers Compensation Law. Inasmuch as the record did not reflect how much plaintiff received in workers compensation benefits and such benefits would not compensate plaintiff for any noneconomic damages he suffered, defendant has not demonstrated that recovery would necessarily be duplicative of the benefits he received (see generally State Farm Mut. Auto. Ins. Co. v Langan, 16 NY3d at 355-356).

Finally in Matter of MURRAY BRESKY CONSULTANTS, LTD a former Workers compensation Trust member sued for reimbursement the decision can be viewed at .