Third Department Decisions 11-13-14

Today the Court decided 4 cases dealing with workers’ compensation.

In Matter of Hasbrouck, the carrier appealed from a decision of the Workers’ Compensation Board, filed July 25, 2012, which, upon reconsideration, ruled, among other things, that claimant was an employee of Christopher M. Harloff. In November 2008, claimant was injured while splitting firewood on the property of Christopher M. Harloff and, in October 2009, he applied for workers’ compensation benefits. Workers’ Compensation Law Judge, in two decisions, found that an employer-employee relationship existed between claimant and Harloff, established the claim, found Harloff in violation of Workers’ Compensation Law § 50 and authorized medical care.

Upon review, a panel of the Workers’ Compensation Board reversed, finding, among other things, that although an employer-employee relationship existed, the claim was barred due to claimant’s failure to provide timely notice to Harloff pursuant to Workers’ Compensation Law § 18. Claimant appealed and, before the appeal could be perfected, the full Board rescinded the decision of the Board panel and referred the case back to the Board panel for further consideration. Upon reconsideration, the Board panel found that the statutory notice requirements had been met and affirmed the Workers’ Compensation Law Judge’s decisions. Harloff then appealed.

The Court affirmed, finding “Whether an employer-employee relationship existed presents a factual issue for the Board, and its determination thereof will not be disturbed if supported by substantial evidence in the record” (Matter of Duma v Baca, 83 AD3d 1228, 1228 [2011] [citations omitted]; accord Matter of Pelaez v Silverstone, 93 AD3d 1042, 1042 [2012], lv dismissed and denied 19 NY3d 954 [2012]). Here, the Board credited the testimony of claimant and his witness that Harloff hired claimant in 2007 to work at Harloff’s property maintenance business, and that claimant was working in that capacity when he was injured. While the testimony of Harloff and his witnesses sharply conflicted with that of claimant and his witness, this created a credibility issue for the Board’s resolution (see Matter of Martineau v Ashline, 114 AD3d 1009, 1010 [2014], lv dismissed and denied 23 NY3d 943 [2014]; Matter of Brzezinski v Gambino, 100 AD3d 1192, 1192-1193 [2012]). Accordingly, notwithstanding the evidence in the record to the contrary, substantial evidence supports the Board’s finding that claimant was Harloff’s employee (see Matter of Martineau v Ashline, 114 AD3d at 1010; Matter of Pelaez v Silverstone, 93 AD3d at 1043). Further, inasmuch as there is proof in the record that Harloff had actual knowledge of the injury, the Board did not abuse its discretion in excusing claimant’s failure to provide Harloff with timely notice of his injury pursuant to Workers’ Compensation Law § 18 (see Matter of Martineau v Ashline, 114 AD3d at 1010; Matter of Conyers v Van Rensselaer Manor, 80 AD3d 914, 916 [2011]).

In Matter of Bonilla, the employer appealed from a decision of the Workers’ Compensation Board, filed March 14, 2013, which ruled, among other things, that the employer’s workers’ compensation policy was properly canceled.

In November 2010, claimant was injured and submitted a claim for workers’ compensation benefits. The case was controverted by the workers’ compensation carrier on the ground that the employer’s policy had been canceled in August 2010 due to a failure of the employer to pay the premiums. A Workers’ Compensation Law Judge (hereinafter WCLJ) determined that the policy had not been properly canceled due to the carrier’s failure to comply with the notice requirements of Workers’ Compensation Law § 54 (5). The carrier submitted an application and a supplemental application for full Workers’ Compensation Board review. The Board thereafter reversed the WCLJ’s determination and found, among other things, that the policy had been properly canceled and that the employer was uninsured at the time of claimant’s injury. The employer now appeals. To cancel a workers’ compensation policy, a carrier must comply with Workers’ Compensation Law § 54 (5), which requires, among other things, that written notice of cancellation be served on the employer (see Matter of Estes v Metropolitan Warehouse, Inc., 50 AD3d 1341, 1342 [2008]; Matter of Rue v Northeast Timber Erectors, 289 AD2d 787, 788 [2001], lv dismissed 98 NY2d 671 [2002], lv denied 99 NY2d 503 [2002]). As relevant here, “[s]uch notice shall be served on the employer . . . by sending it by mail, by certified or registered letter, return receipt requested, addressed to the employer at his, her or its last known place of business; provided that, . . . if the employer be a corporation then notice may be given to any agent or officer of the corporation upon whom legal process may be served; and further provided that an employer may designate any person or entity at any address to receive such notice . . . and that service of notice at the address so designated upon the person or entity so designated by delivery or by mail, by certified or registered letter, return receipt requested, shall satisfy the notice requirement of this section” (Workers’ Compensation Law § 54 [5]).

Here, the carrier sent the cancellation notice, by certified mail, return receipt requested, to the employer’s chief executive officer, Rachel McAdam, at her home address on or about August 4, 2010, with an effective date of cancellation of August 18, 2010. McAdam’s name and address are listed on the policy at issue here as the employer’s address and, pursuant to the terms of the policy, any cancellation notice is to be mailed to McAdam at that address. Notably, the employer had specifically requested that its address in relation to its insurance policy be changed from its place of business to McAdam’s address in an endorsement to its original policy with the carrier’s predecessor, and there is no proof in the record that the employer made any subsequent address changes with the carrier. Inasmuch as the carrier sent the notice by certified mail, return receipt requested, to the address designated by the employer, substantial evidence supports the Board’s decision that the carrier complied with the requirements of Workers’ Compensation Law § 54 (5) (see Matter of Frazer v Additional Personnel, 108 AD2d 948, 949 [1985]; Matter of Muszynski v Dennis Puricelli Masonry & Concrete, 92 AD2d 666, 667 [1983]). Consequently, the decision will not be disturbed.

In Matter of Cunningham, the claimant appealed from a decision of the Workers’ Compensation Board, filed April 9, 2013, which ruled that claimant did not sustain a causally related occupational disease and denied his claim for workers’ compensation benefits. Claimant sustained serious injuries to his neck, back and left shoulder as the result of 1988 and 2003 automobile accidents that were not work related. He continued working as a car inspector for the self-insured employer until 2010, when he developed incapacitating neck, back and leg pain. Claimant thereafter applied for workers’ compensation benefits, asserting that his physical problems and a consequential psychiatric injury were related to repetitive work-related tasks and constituted an occupational disease. The employer failed to timely file a notice of controversy and, as such, was precluded from submitting evidence on the issue of whether claimant’s condition arose out of and in the course of his employment (see Workers’ Compensation Law § 25 [2] [b]; Matter of Cappellino v Baumann & Sons Bus Co., 18 NY3d 890, 891-892 [2012]). A Workers’ Compensation Law Judge nevertheless found the opinions of claimant’s treating physicians regarding causation to be incredible and disallowed the claim.

The Workers’ Compensation Board upheld that determination, and claimant now appeals.

The Board affirmed. The employer’s failure to timely file a notice of controversy did not “relieve[] claimant from his burden to demonstrate a causal relationship” between his employment and medical condition (Matter of Lumia v City of N.Y., Off. of Queens Borough President, 21 AD3d 600, 601 [2005]; see Matter of Coleman v Schenectady County Dept. of Social Servs., 80 AD3d 837, 838 [2011]). Claimant accordingly submitted undisputed medical evidence to draw that causal link, which the Board was free to “reject . . . as incredible or insufficient” (Matter of Jaquin v Community Covenant Church, 69 AD3d 998, 1000 [2010]; accord Matter of Kondylis v Alatis Interiors Co., Ltd., 116 AD3d 1184, 1186 [2014]). The record here reflects that claimant has been receiving related medical treatment from at least 2002 onward. Claimant sought more intensive treatment after his pain worsened in 2010, but no physician drew a causal link between the condition and his employment until he raised the issue with his physicians at a friend’s urging. An orthopedic surgeon who treated claimant further testified that claimant gave conflicting accounts as to how he had aggravated the condition in 2010 and that claimant’s spinal and shoulder problems could have resulted from degenerative changes. The Board was free to reject this less-than-compelling medical evidence as incredible and, as such, substantial evidence supports its finding that claimant did not show the existence of a causally related occupational disease (see Matter of Dizenzo v Henderson & Johnson, 114 AD3d 1014, 1014 [2014]; Matter of Jaquin v Community Covenant Church, 69 AD3d at -3- 518434 1000; Matter of Newton v Sears Roebuck & Co., 293 AD2d 862, 863- 864 [2002]). Claimant’s remaining arguments have been examined and found to lack merit.

In Matter of Lewis, Appeal from a decision of the Workers’ Compensation Board, filed June 17, 2013, which, among other things, denied a request for review of a decision continuing the matter for testimony. In 1997, claimant injured his head and right shoulder in the course of his employment and was awarded workers’ compensation benefits. The Workers’ Compensation Board classified him as having a permanent total disability in 2009 but this Court reversed on appeal due to the improper denial of the employer’s request to cross-examine claimant’s physician (90 AD3d 1345, 1346 [2011]). At hearings held upon the Board’s return of the case to the trial calendar for further development of the issues of permanency and proper award rate, the self-insured employer presented an unsigned, proposed draft stipulation that would have, among other things, classified claimant with a permanent partial disability and stipulated to particular compensation rates during certain time frames. The Workers’ Compensation Law Judge (hereinafter WCLJ) did not approve the stipulation or refer to it in decisions following the hearings, but continued the case for medical depositions and additional testimony. The employer appealed, arguing that the WCLJ should have approved the stipulation and that the WCLJ should have been removed from the case because he had prejudged the degree of claimant’s injury. The Board noted that the proposed stipulation did not resolve certain open issues and that the employer sought to stipulate to issues beyond its authority to resolve, and determined, in any event, that there was no valid, signed stipulation in the record or decision regarding the stipulation for the Board to review. The Board also declined to remove the WCLJ from the case. The employer and its third-party administrator now appeal.

Inasmuch as “[t]he Board’s decision was interlocutory and did not dispose of all of the substantive issues or reach a potentially dispositive threshold legal issue,” it is not appealable (Matter of Hosler v Smallman, 106 AD3d 1218, 1219 [2013] [internal quotation marks and citation omitted]; see Matter of DePascale v Magazine Distribs., Inc., 116 AD3d 1100, 1101 [2014]). The Board has the power to disregard even a valid stipulation if it chooses (see Matter of Hosler v Smallman, 106AD3d at 1219). Here, the Board continued the case with respect to the issues addressed by the stipulation, and “[w]e will not conduct a piecemeal review of the issues presented in a non final decision in workers’ compensation cases that will be reviewable upon an appeal of the Board’s final decision,” which has since been issued (Matter of DePascale v Magazine Distribs., Inc., 116 AD3d at 1101). The appeal was dismissed.

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