Third Department Decision 12-13-13

In Matter of Cerda, the claimant appealed a decision that she did not sustain an accident. The Claimant, an identification manager for the employer, was responsible for issuing credentials to individuals who were permitted to enter race track grounds. Claimant expressed concerns to the employer regarding the legality of granting credentials to individuals with possible immigration issues. Finding the employer’s response to her concerns to be insufficient, she resigned. One year later, claimant applied for workers’ compensation benefits, asserting that the situation had led to stress, anxiety and depression. Upon review from a decision of a Workers’ Compensation Law Judge, the Workers’ Compensation Board disallowed her claim, prompting this appeal.

Finding that there is substantial evidence in the record for the Board’s determination, we affirm. “Mental injuries caused by work-related stress are compensable if the claimant can show that the stress that caused the injury was ‘greater than that which other similarly situated workers experienced in the normal work environment’” (Matter of Young v Pentax Precision Instrument Corp., 57 AD3d 1323, 1324 [2008], quoting Matter of Spencer v Time Warner Cable, 278 AD2d 622, 623 [2000], lv denied 96 NY2d 706 [2001]; see Matter of Brittain v New York State Ins. Dept., 107 AD3d 1340 [2013]; Matter of Coleman v Schenectady County Dept. of Social Servs., 80 AD3d 837, 838 [2011]). Here, it is undisputed that the employer neither took nor threatened to take any disciplinary action against claimant as a result of her job performance or the concerns that she raised. Claimant testified, however, that the employer informed her that she should not be concerned about the immigration status of the individuals who sought credentials and directed her to issue those credentials as long as they had the required proof of identification. As a result, claimant alleged that she feared that she could possibly face criminal prosecution if she performed her job responsibilities as directed by the employer.

However, various employees testified to the contrary and stated that claimant’s concerns were taken seriously and were being reviewed by the employer when claimant abruptly resigned.

The Board credited such testimony and essentially concluded that claimant’s stress was unjustified and self-imposed. The Board ultimately determined that claimant failed to establish that her stress was greater than that which would have been experienced by her peers. In this regard, “the Board is the arbiter of credibility determinations to which this Court will accord deference where, as here, no irrationality is evident” (Matter of Pecora v County of Westchester, 13 AD3d 916, 918 [2004]). Therefore, notwithstanding proof in the record that could support a contrary result, the Court found substantial evidence to support the Board’s determination that claimant did not suffer a compensable injury (see Matter of Veeder v New York State Police Dept., 102 AD3d 1072, 1073 [2013], lv denied 21 NY3d 854 [2013]; Matter of Young v Pentax Precision Instrument Corp., 57 AD3d at 1324; Matter of Spencer v Time Warner Cable, 278 AD2d at 623), and we decline to disturb it.

In Matter of Scalo , Appeal from a decision of the Workers’ Compensation Board, filed September 17, 2012, which denied the request of the employer and its workers’ compensation carrier for reconsideration and/or full Board review.

Claimant filed a claim for workers’ compensation benefits based upon a back injury he sustained while working for the employer in July 2010. The employer controverted the claim asserting that claimant’s injury was not the result of a work related accident and that any such injury would be subject to apportionment. Following a hearing, a Workers’ Compensation Law Judge found that claimant was disabled due to a work-related injury and awarded benefits without apportionment. On administrative appeal, the Workers’ Compensation Board affirmed.

The subsequent application by the employer and its workers’ compensation carrier for reconsideration and/or full Board review was denied and this appeal ensued.

Applications for Board review are to Applications for Board review are to be considered by a panel of at least three members and may not be decided by the chair, or any other single member of the Board, alone (see Workers’ Compensation Law §§ 23, 142 [2]; Matter of Drummond v Desmond, 295 AD2d 711, 713 [2002], lv denied 98 NY2d 615 [2002]; Matter of Greene v Sproat, 18 AD2d 420, 421-422 [1963], lv denied 13 NY2d 596 [1963]). The record before us provides no indication that the application for reconsideration and/or full Board review was considered by a three-member panel. Rather, the decision appears to have been made solely by the chair “on behalf of the Board.” Accordingly, this matter must be remitted to the Board for proper consideration of the application by a panel of the Board consisting of not less than three members.

In Matter of Stratton, Appeals (1) from a decision of the Workers’ Compensation Board, filed September 12, 2011, which ruled that claimant sustained an injury arising out of and in the course of her employment, and (2) from a decision of said Board, filed November 8, 2012, which denied a request by the employer and its workers’ compensation carrier for reconsideration and/or full Board review.

In February 2011, claimant, who is employed by the Comptroller, parked her car in a surface lot owned or maintained by the state and, while walking through that lot to her office, slipped on black ice and fell, breaking her left ankle in two places. Claimant filed a claim for workers’ compensation benefits, and the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) controverted the claim – contending that claimant’s injury did not arise out of and in the course of her employment. Following a hearing, at which claimant was the only witness to testify, a Workers’ Compensation Law Judge denied the claim. Claimant sought review of that decision and, in opposition thereto, the carrier submitted information suggesting that the parking lot in question was available for use by the general public. The Workers’ Compensation Board reversed and awarded claimant benefits, finding that claimant suffered a compensable work related accident. The carrier now appeals from the Board’s decision, as well as from the Board’s denial of its subsequent request for reconsideration and/or full Board review.

The Court affirmed . As a finding, as a general rule, “accidents that occur in public areas away from the workplace and outside of work hours are not compensable” (Matter of Figueroa v Perfect Shoulder Co., Inc., 68 AD3d 1586, 1587 [2009]; see Matter of O’Neil v City of Albany Police Dept., 81 AD3d 1048, 1048 [2011]). However, “by making arrangements for employee parking, [an employer] may be found to have extended its premises to the area of the approved parking facility so that an accident that occurs therein may be found to have arisen within the precincts of the claimant’s employment, rendering it compensable. This is particularly true where the claimant is injured on the way to work and in such physical proximity to his or her worksite as to establish a relationship between the accident and the employment” (Matter of Thatcher v Crouse-Irving Mem. Hosp., 253 AD2d 990, 991 [1998] [citations omitted]; see generally Matter of Brooks v New York Tel. Co., 87 AD2d 701, 701 [1982], affd 57 NY2d 643 [1982]). If the Board’s resolution of this factual issue is supported by substantial evidence, it will not be disturbed (see Matter of O’Neil v City of Albany Police Dept., 81 AD3d at 1049; Matter of Figueroa v Perfect Shoulder Co., Inc., 68 AD3d at 1587).

Here, claimant testified that following the approval of her application to park in the subject lot, she was given a hang tag to display in her vehicle’s window and a parking fee was deducted from her biweekly paycheck (compare Matter of Littles v New York State Dept. of Corrections, 61 AD3d 1266, 1267 [2009]). Although a portion of the parking lot occasionally was set aside for vendors participating in events at the nearby Times Union Center, the lot was not -to the best of claimant’s knowledge -open to the public during the work week. Finally, claimant described the route traveled from the surface lot to her building and testified that “[e]veryone” who parked in the vicinity of the lot “usually [took the] same route into [the employer’s] building” (see Matter of Bernard v Holiday House of Sloatsburg, 110 AD2d 941, 941-942 [1985]; compare Matter of Fiero v New York City Dept. of Hous. Preserv. & Dev., 34 AD3d 911, 912-913 [2006]). Under these circumstances, “substantial evidence supports the Board’s ruling that there was a sufficient nexus in time and place between the parking facility, the use of which was fully endorsed by the employer, and the employer’s premises to render claimant’s accident compensable” (Matter of Thatcher v Crouse-Irving Mem. Hosp., 253 AD2d at 991).

Although the carrier contends that the Board’s decision ignores its post-hearing proof suggesting that the lot in question is open to the public, the Board was free to reject this submission in the absence of an explanation as to why this evidence was not tendered at the time of the hearing (see 12 NYCRR 300.13 [g]; Matter of Pelaez v Silverstone, 93 AD3d 1042, 1043-1044 [2012], lv dismissed and denied 19 NY3d 954 [2012]; Matter of Estrella v Broadway 69 Assoc., 79 AD3d 1536, 1537 [2010]). Thus, we cannot say that the Board’s denial of the carrier’s application for reconsideration “was either arbitrary or capricious or an abuse of discretion” (Matter of McCorkle- Spaulding v Lowe’s, 95 AD3d 1513, 1514 [2012]; see Matter of Mazzaferro v Fast Track Structures, Inc., 106 AD3d 1302, 1302 [2013].

In Matter of Jones , Appeals from two decisions of the Workers’ Compensation Board, filed December 20, 2011 and December 13, 2012, which, among other things, ruled that Erie County was not liable for workers’ compensation benefits under Workers’ Compensation Law § 56.

In October 2006 a number of trees located within recreational areas owned by Erie County were damaged during a heavy snow storm, prompting the County to enter into a written agreement with American Site Developers LLC to cut the damaged branches and place them along the nearby rights-of-way for removal. American, in turn, subcontracted the work to Ray Debris Removal, and Ray further subcontracted the work to claimant’s employer, Rhonda Hartley Construction (hereinafter RHC).Claimant was injured in January 2007 when he fell while trimming tree limbs in one of the affected parks.

Claimant subsequently filed a claim for workers’ compensation benefits, and his case was established for injuries to his right leg, upper lumbar spine and lower thoracic spine. Following extended proceedings, a Workers’ Compensation Law Judge determined, insofar as is relevant here, that RHC, Ray and American were uninsured for workers’ compensation purposes, thereby imposing liability for claimant’s benefits and medical expenses upon the Uninsured Employers’ Fund. The Fund appealed, primarily contending that the County should be liable as an owner of timber pursuant to Workers’ Compensation Law § 56. The Workers’ Compensation Board disagreed, and the Fund now appeals.

We affirm. Workers’ Compensation Law § 56 provides, in relevant part, that “[a]n owner of timber other than farm lands, who contracts with another to carry on or perform work or service in connection therewith, which work or service is, involves or includes a hazardous employment, shall for the purposes of this section be deemed a contractor, and such other a subcontractor.”

Although the parties debate whether the Board erred in refusing to extend the definition of “timber” to include storm-damaged tree limbs, this issue need not detain us. Regardless of whether the County qualifies as an “owner of timber” within the meaning of the statute, the record makes clear that the County did not have a contract with RHC for the branch-removal work. Absent the requisite contractual relationship, liability may not be imposed upon the County under Workers’ Compensation Law § 56 (see Employer: Carlos Echevia, 2010 WL 3577308, *2 [2010], 2010 NY Wkr Comp LEXIS 7581, *4 [WCB No. 3070 6658, Sept. 9, 2010]; see also Reynolds v International Paper Co., 249 AD2d 727, 729 [1998], lv denied 92 NY2d 808 [1998]; Matter of Gray v Aldrich, 39 AD2d 492, 493 [1972], affd 34 NY2d 553 [1974]). The Fund’s remaining argument on this point have been examined and found to be lacking in merit.

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