Third Department Decision 2-13-14

Today the Court decided seven decisions dealing with workers compensation matters. Apparently they dont close either In Matter of Baum , the Court ruled on an Appeal from a decision of the Workers Compensation Board, filed July 22, 2011, which denied the application of the employer and its workers compensation carrier to reopen the claim.

Claimants husband (hereinafter decedent) was murdered at work, and the ensuing claim for workers compensation death benefits was established in 2004. The employer and its workers compensation carrier (hereinafter collectively referred to as the employer) requested that the case be reopened in 2010, pointing to evidence that decedents murder was unconnected with his employment. The Workers Compensation Board denied the application, and the employer now appeals.

The Court rejected the employers assertion that the Board abused its discretion in refusing to reopen the claim and, accordingly, affirm. An application to reopen must be made within a reasonable time after the applicant has had knowledge of the facts constituting the grounds upon which such application is made and, further, must be substantiated by supporting affidavits where allegations of newly discovered evidence are made (12 NYCRR 300.14 [b]). The employers application was expressly based upon newly obtained evidence and, thus, both requirements apply. While the employer allegedly did not ascertain the facts surrounding decedents death until several months before its 2010 application for reopening, it cited a 2005 press release in support of its assertions.1 No affidavit was provided to explain the delay in bringing this information to the Boards attention and, thus, the employers application was properly denied (see Matter of Barone v Inserstate Maintenance Corp., 73 AD3d 1302, 1303 [2010]; Matter of Buffa v Morse- Diesel Diesel Constr. Co., 87 AD2d 929, 929 [1982]).

In Matter of Cook the Court ruled on the carriers Appeal from a decision of the Workers Compensation Board, filed March 6, 2012, which ruled that claimant did not sustain an accidental injury in the course of his employment and denied his claim for workers compensation benefits.

Claimant, a patrol officer for the East Greenbush Police Department, was on duty in January 2009 when he was called to the scene of an incident in which an armed suspect was firing shots at passing motorists and law enforcement officers. Claimant and two fellow officers were then assigned to be part of a contact team, which approached the shooter from behind. With claimant acting as a spotter, the suspect was shot several times and died from those wounds. After claimant began to miss work on a regular basis in January 2010, he filed an application for workers compensation benefits, which was controverted by his employer. Thereafter, he was diagnosed with posttraumatic stress disorder related to the January 2009 incident, which rendered him disabled. Following a hearing, a Workers Compensation Law Judge denied the claim, finding that the events giving rise to claimants injury were part of his job description and responsibilities as a peace officer. On appeal, the Workers Compensation Board affirmed in a split decision. Upon an application for further review, the full Board affirmed the decision. Claimant now appeals. We affirm. For a mental injury premised on work-related stress to be compensable, the stress must be greater than that which usually occurs in the normal work environment (Matter of Charlotten v New York State Police, 286 AD2d 849, 849 [2001]; see Matter of Guess v Finger Lakes Ambulance, 28 AD3d 996, 997 [2006], lv denied 7 NY3d 707 [2006]). Whether the stress experienced by a claimant is more than that normally encountered is a factual question for the Board to resolve, and its finding will not be disturbed when supported by substantial evidence (see Matter of Brittain v New York State Ins. Dept., 107 AD3d 1340, 1341 [2013]; Matter of Charlotten v New York State Police, 286 AD2d at 849). Here, although claimants supervisor described the particular circumstances of the encounter as extraordinary, the regular course of duty for a police officer no matter the size of the department requires that he or she be on notice each day that deadly force may be required to subdue a suspect who is endangering public safety. Accordingly, we decline to disturb the Boards decision (see Matter of Guess v Finger Lakes Ambulance, 28 AD3d at 998; Matter of Charlotten v New York State Police, 286 AD2d at 850; see generally Matter of Taylor v Regan, 103 AD2d 884, 884 [1984]).

In Matter of Malane the liable carrier filed an Appeal from an amended decision of the Workers Compensation Board, filed May 23, 2012, which ruled, among other things, that Beef & Bourbon, LLC was solely liable for workers compensation benefits paid to claimant.

On June 14, 2008, claimant was a passenger in an employer sponsored van, returning from her place of employment in Orange County to her home in New Jersey, when the van crashed, killing three people and injuring 11. As a result of the accident, claimant suffered catastrophic injuries, including a traumatic brain injury which left her in a persistent vegetative state. A workers compensation claim was thereafter filed on her behalf, naming Beef & Bourbon, LLC and Tacos Ricos as her putative employers. Following a hearing at which claimants mother and a representative from both alleged employers testified, a Workers Compensation Law Judge established that the injuries were work related and found that claimant was an employee of both entities, but had worked for Tacos Ricos on the night of the accident. Tacos Ricos and its workers compensation carrier appealed and the Workers Compensation Board modified the decision to find, as relevant here, that the record did not contain sufficient evidence that claimant worked for Tacos Ricos on the night of the accident and, thus, found that Beef & Bourbon was the employer responsible for the claim. The Board thereafter issued an amended decision clarifying its findings with respect to the identity of claimants employer, and Beef & Bourbon and its workers compensation carrier now appeal.

The Court affirmed. Whether there exists an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its determination will be upheld when supported by substantial evidence (see Matter of Lama v SPK Rest., Inc., 99 AD3d 1135, 1136 [2012]; Matter of Pelaez v Silverstone, 93 AD3d 1042, 1042 [2012], lv dismissed and denied 19 NY3d 954 [2012]). In making such a determination, factors to be considered include control over the claimants work, method of payment, right to discharge, furnishing of equipment and relative nature of the work (see Matter of Jennings v Avanti Express, Inc., 91 AD3d 999, 999-1000 [2012]; Matter of Bran v Wimbish, 73 AD3d 1378, 1379 [2010], lv dismissed 15 NY3d 818 [2010]). Where a claimant has multiple employers, the Board may make an award against any or all of the employers as it sees fit (see e.g. Matter of Carlineo v Snelling & Snelling, LLC, 90 AD3d 1288, 1290 [2011]; Matter of Smallwood v Mereda Realty Corp., 75 AD3d 873, 874 [2010]).

Here, claimants mother testified repeatedly, and without contradiction, that claimant would be picked up and transported to her job at Beef & Bourbon and that, on occasion, she would then be sent to Tacos Ricos to work.This testimony was corroborated by the testimony of Rene Garcia, who worked at Tacos Ricos and who did not initially recognize claimant from her picture, explaining that he knows the employees of Tacos Ricos, but not those of Beef & Bourbon. Although Garcia later stated that he recognized claimant from being in Taco Rico, he gave no indication as to whether claimant was an employee there, the frequency with which she may have worked or whether she was employed there on the night of the accident. Accordingly, we find the Boards decision that claimant was employed at Beef & Bourbon on the night of the accident to be supported by substantial evidence, notwithstanding the existence of evidence in the record that might have supported a different conclusion (see Matter of Smallwood v Mereda Realty Corp., 75 AD3d at 874; Matter of Kane v Unger, 69 AD3d 991, 992 [2010].

In Matter of Martineau, an appeal by the reputed employer challenged a decision of the Workers Compensation Board, filed May 1, 2012, which ruled that claimant was an employee of Larry Ashline and Marlene Ashline and awarded workers compensation benefits, and (2) from a decision of said Board, filed February 27, 2013, which denied a request by Larry Ashline and Marlene Ashline for reconsideration and/or full Board review.

Claimant filed a claim for workers compensation benefits after she was injured by a bull on the dairy farm of Larry Ashline and Marlene Ashline. The Ashlines, who did not carry workers compensation insurance at the time of claimants accident, controverted the claim on the basis that claimant was not their employee. At the ensuing hearing, claimant testified that she had been hired by the Ashlines to perform evening milking duties on their farm and that she was performing these duties at the time of her injury. The Ashlines denied that they had hired claimant to work on their farm and maintained that they had only met her on two occasions when she appeared on their farm uninvited. The Workers Compensation Law Judge found that claimant was employed by the Ashlines and awarded benefits. On review, the Workers Compensation Board affirmed. The Board subsequently denied the Ashlines request for reconsideration and/or full Board review and these appeals ensued.

The existence of an employer-employee relationship is a factual issue for the Board to resolve and its determination must be upheld if supported by substantial evidence (see Matter of Brzezinski v Gambino, 100 AD3d 1192, 1192 [2012]; Matter of Blotko v Solomon Oliver Mech. Contr., 91 AD3d 990, 991 [2012]). In this case, resolution of this issue turned upon the sharply conflicting testimony of claimant and that of the Ashlines and their witnesses. The Board credited claimants testimony and specifically found the testimony of the Ashlines and their witnesses to be lacking in credibility. Given the significant deference accorded to the Boards resolution of issues of credibility, and despite proof in the record that could support a different result, we find that the Boards determination is adequately supported by the record (see Matter of Brzezinski v Gambino, 100 AD3d at 1193; Matter of Pelaez v Silverstone, 93 AD3d 1042, 1043 [2012], lv dismissed and denied 19 NY3d 954 [2012]; Matter of Blotko v Solomon Oliver Mech. Contr., 91 AD3d at 991). We also find that, based upon the Ashlines actual notice of the accident, the Board did not abuse its discretion by excusing claimants failure to file written notice pursuant to Workers Compensation Law $ 18 (see Matter of Conyers v Van Rensselaer Manor, 80 AD3d 914, 916 [2011]; Matter of Pisarek v Utica Cutlery, 26 AD3d 619, 620 [2006]; Matter of Thousand v Human Resources Admin., Community Dev. Agency, 252 AD2d 664, 665 [1998], lv denied 92 NY2d 816 [1998]). Upon review of the record and submissions, we find no basis upon which to conclude that the Boards denial of reconsideration and/or full Board review was either arbitrary and capricious or an abuse of discretion (see Matter of Pelaez v Silverstone, 93 AD3d at 1043). The Ashlines remaining argument pertaining to their obligation to maintain workers compensation insurance was not raised before the Workers Compensation Law Judge or the application for Board review and is, therefore, not properly before us (see Matter of Hilbrandt v Village of Red Hook, 75 AD3d 1025, 1026 [2010]; Matter of Beers v Jump Start Advanced Academics, 57 AD3d 1026,1028 [2008]).

In Matter of Gibs, Appeal from a decision of the Workers Compensation Board, filed April 27, 2012, which refused to review a decision of the Workers Compensation Law Judge and assessed a penalty against the self-insured employer pursuant to Workers Compensation Law $ 23.

Claimant filed a claim for workers compensation benefits alleging that she suffered from plantar fasciitis and heel spurs due to repetitive standing as a result of her employment as a stock worker supervisor at a hospital. After the self-insured employer controverted the claim, the matter was scheduled for a prehearing conference. At the conference, the employer raised issues of, among other things, accident and notice, and the case was set down for an expedited hearing under Workers Compensation Law $ 25 (3) (d). At the next scheduled hearing, claimant testified regarding her claim of work-related injury. Following her testimony, the Workers Compensation Law Judge (hereinafter WCLJ) noted that he found accident and notice based upon the uncontroverted testimony of claimant, however, the notice of decision specifically stated that the case was continued to address, among other things, Accident Within Meaning of Workers Compensation Law, Accident Arising Out of And In The Course Of Employment, Occupational Disease . . . , Notice [and] Causally Related Accident Or Occupational Disease. Thereafter, the employer sought review of that decision from the Workers Compensation Board, requesting that the WCLJs decision finding accident and notice be rescinded. The Board refused to consider the employers application, ruling that the WCLJs decision was not reviewable by it until final. Additionally, the Board found that the application for review was brought for the purpose of delay and upon frivolous grounds and, therefore, imposed a penalty upon the employer. This appeal ensued. The Boards decision is not appealable. The Board made no final rulings and declined review of the WCLJs decision based upon 12 NYCRR 300.38 (i), which provides that WCLJ [d]ecisions containing only orders or directions made . . . in connection with the pre-hearing conference and expedited hearing process in controverted cases . . . shall not be reviewable by the Board . . . until a decision has been made by a [WCLJ] establishing or disallowing the claim (emphasis added). Although the employer argues that the Boards refusal to review the WCLJ decision is erroneous because findings related to accident and notice are dispositive and cannot be considered non final orders or directions within the meaning of 12 NYCRR 300.38 (i), we note that it appears from a plain reading of the WCLJ decision at issue in this expedited case that all questions relating to, among other things, accident and notice were not finally decided and no decision as to the establishment or disallowance of the claim was rendered. In any event, regardless of the ultimate merit of the employers contentions, the fact remains that the Boards decision declining review of these issues and imposing a penalty is interlocutory and not presently appealable in that it neither resolved all substantial issues in the claim nor reached threshold legal issue (Matter of Garti v Salvation Army, 80 AD3d 1101, 1102 [2011] [internal quotation marks and citation omitted]; see Matter of Hosler v Smallman, 106 AD3d 1218, 1219 [2013]; Matter of Dow v Silver Constr. Corp., 83 AD3d 1270, 1270- 1271 [2011]). Thus, we agree with the Board that the subject appeal must be dismissed as premature (see Matter of Garti v. Salvation Army, 80 AD3d at 1102).

In Matter of Dizenzo , claimant Appealed from a decision of the Workers Compensation Board, filed December 5, 2012, which ruled that claimant did not sustain a further causally related injury. Claimant slipped and fell on ice while working for the employer in January 2011, and his claim for workers compensation benefits was established for injury to his right wrist, right shoulder and left knee. Thereafter, claimant submitted a report from one of his treating physicians indicating additional injuries to his neck and back. Following depositions of, among others, both of claimants treating physicians, a Workers Compensation Law Judge concluded that claimant did not sustain causally related neck and back injuries. Upon review, the Workers Compensation Board affirmed, prompting this appeal. It was claimants burden to establish a causal relationship between his workplace accident and his claimed neck and back injuries (see Matter of Perez v Mondial Tiles, Inc., 104 AD3d 998, 998 [2013]; Matter of Jaquin v Community Covenent Church, 69 AD3d 998, 999 [2010]), which requires medical opinion evidence regarding the probability of a causal relationship supported by a rational basis; a general expression of possibility will not suffice (see Matter of Benjamin v Sprint/Nextel, 67 AD3d 1277, 1278 [2009]; Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890, 891 [2009]). Here, claimants treating physicians opined that his fall may have exacerbated existing degenerative conditions, but failed to convincingly or conclusively establish that this was in fact the case. Notably, claimants physicians acknowledged that there was no evidence of acute injury to claimants neck or back, and his initial complaints and corresponding medical treatment did not include those areas. Accordingly, we find that the Boards determination is supported by substantial evidence and we will not disturb it (see Matter of Jaquin v Community Covenant Church, 69 AD3d at 999-1000; Matter of Benjamin v Sprint/Nextel, 67 AD3d at 1278- 1279). The Court affirmed.

In Matter of Conway-Acevedo, the carrier Appealed from a decision of the Workers Compensation Board, filed October 26, 2012, which ruled that the employers workers compensation carrier is not entitled to reimbursement from the Special Disability Fund.

Claimant sustained work-related injuries in 2001 and was awarded workers compensation benefits. Subsequently, the employer and its workers compensation carrier (hereinafter collectively referred to as the carrier) sought reimbursement from the Special Disability Fund pursuant to Workers Compensation Law $ 15 (8) (d). After considering the testimony of claimant, a physician retained by the carrier and a physician retained by the Fund, as well as reports prepared by the physicians, a Workers Compensation Law Judge found that the carrier was not entitled to reimbursement.

On appeal, the Workers Compensation Board affirmed, prompting this appeal. To establish its entitlement to reimbursement from the Fund, the carrier was required to demonstrate that claimant suffered from (1) a preexisting permanent impairment that hindered job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than would have resulted from the work-related injury alone (Matter of Burley v Theriault Transp., 85 AD3d 1423, 1423 [2011]; see Workers Compensation Law $ 15 [8] [d]). Initially, we find that the Boards decision, as a whole, reflects that the Board applied the proper legal standard. Moreover, we find substantial evidence to support the Boards decision that the carrier failed to prove that claimants preexisting osteoarthritis of the hips hindered or was likely to hinder her employment (see Matter of Pawlitz-Delgaizo v Community Gen. Hosp., 106 AD3d 1365, 1366 [2013]; Matter of Minichelli v Maine-Endwell Cent. Sch. Dist., 104 AD3d 997, 997-998 [2013]; Matter of Weiner v Glenman Indus. & Commercial Contr. Corp., 95 AD3d 1516, 1518 [2012]). While the opinion offered by the carriers expert indicated that, generally, such a condition would cause pain and pose a hindrance to employment, the record does not reflect that claimant was experiencing pain due to her arthritic hip condition, that she missed any time from work or that she was under any restrictions prior to her workplace accident. Accordingly, the Court affirm.

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