Third Department Decisions 3-13-14

Today the Court decided 3 cases dealing with workers compensation.

In Matter of Danin , the carrier appealed from a decision of the Workers Compensation Board, filed July 13, 2012, which, among other things, denied a request by the employer and its workers compensation carrier to reopen claimants workers compensation claim.

Claimant, a meat packer, sustained a work-related injury to his back in July 2004 while pushing a jack containing 800 pounds of meat across the floor. In February 2008, the parties stipulated to a finding that claimant suffered a permanent partial disability and a Workers Compensation Law Judge directed payment at the rate of $400 per week with no further action planned. Subsequently, as relevant here, the employer and its workers compensation carrier (hereinafter collectively referred to as the carrier) sent a letter to claimants counsel in August, 2011 requesting documentation of claimants search for work within his medical restrictions. Receiving no response from claimant, the carrier filed a request for further action with the Workers Compensation Board in September 2011, seeking a suspension of benefits on the basis that claimant had voluntarily removed himself from the labor market and/or was no longer attached to the labor market.

By decision filed in October 2011, the Board declined the carriers request, finding that the carriers letter and claimants alleged failure to respond, standing alone, were insufficient to warrant a reopening of the claim. The Board noted that its finding was a departure from prior decisions, explaining that those decisions had not accounted for the heavy burden placed upon carriers seeking the suspension of benefits in previously closed permanent partial disability cases pursuant to 12 NYCRR 300.23 (1) (c) (1). However, the Board further opined that the failure of a claimant to respond to another type of communication i.e., an offer by the employer of light duty work or for retraining or job search assistance would raise an issue of fact about whether something other than the claimants disability was the reason for the continued loss of wages.

Subsequently, the carrier sent another letter to claimants counsel, again requesting documentation of claimants search for work within his medical restrictions and further recommend[ing that claimant] seek out and attend job search assistance and/or rehabilitation. In the absence of a response, the carrier again filed a request for further action. The Board denied the request to reopen the claim, finding that the carrier had failed to raise a question of fact as to whether claimants reduction in earning capacity was due to causes other than his disability.

The Court affirmed the Board. The determination whether to reopen a workers compensation claim rests within the sound discretion of the Board and judicial review is limited to whether there was an abuse of that discretion (see Matter of Burris v Olcott, 95 AD3d 1522, 1523 [2012]; Matter of Pucci v DCH Auto Group, 90 AD3d 1255, 1255-1256 [2011]). Pursuant to 12 NYCRR 300.23 (1) (c) (1), where an award for compensation has been made as the result of the finding of a permanent partial disability, payments shall not be suspended or modified until an application is made, accompanied by supporting evidence, to reconsider the degree of impairment or wage-earning capacity. Here, the Board denied the carriers request to reopen the claim based upon its stated policy that the mere failure of a claimant to respond to a request for job search information is not sufficient to raise a question of fact regarding that claimants wage-earning capacity. Moreover, contrary to the carriers contention, its letter to claimant with a recommendation that he seek out and attend job search assistance and/or rehabilitation services did not amount to an offer of such services, the rejection of which the Board would have deemed sufficient to support a reopening. As such, the record provides a rational basis for the Boards decision to deny the carriers request to reopen and, thus, we decline to disturb it (see Matter of Burris v Olcott, 95 AD3d at 1523; Matter of Harris v Phoenix Cent. School Dist., 28 AD3d 1051, 1052 [2006]).

Finally, we disagree with the carrier Finally, we disagree with the carrier that the Board impermissibly departed from its earlier decisions, inasmuch as it acknowledged such a departure in its October 20, 2011 decision and clearly set forth its reasons for doing so (see Matter of Canfora v Goldman Sachs Group, Inc., 110 AD3d 1123, 1124 [2013]; compare Matter of Williams v Lloyd Gunther El. Serv., Inc., 104 AD3d 1013, 1015 [2013]). Claimants remaining contentions have been considered and found to be without merit.

In Matter of Visic, a pro-se claimant appealed from a decision of the Workers Compensation Board, filed October 12, 2012, which denied claimants application to reopen his workers compensation claim.

Claimant injured his back and neck while working for the employer in 2000 and, thereafter, was classified with a marked permanent partial disability. As relevant to this appeal, claimant sought to reopen his claim in July 2010 via the submission of medical reports opining that he was now totally disabled. The Workers Compensation Board denied claimants application on the ground that he had failed to submit new evidence of a change in his medical condition. However, this Court reversed, finding that claimant had sought to introduce new evidence but had been denied the opportunity to do so (96 AD3d 1266 [2012]). On remittal, and following the submission of claimants evidence, the Board once again denied claimants application to reopen his claim, finding that the medical reports submitted were not meaningfully different than those that provided the basis for classifying claimant with a marked permanent partial disability. Claimant now appeals. We reverse. The decision about whether to reopen a case is committed to the sound discretion of the Board and will not be disturbed absent an abuse of that discretion (see Matter of Burris v Olcott, 95 AD3d 1522, 1523 [2012]; Matter of Pucci v DCH Auto Group, 90 AD3d 1255, 1255-1256 [2011]). Notably, while the Board is free to reject the opinion of an expert where it finds such to be unconvincing or incredible (see Matter of Guz v Jewelers Machinist, Inc., 71 AD3d 1272, 1272 [2010]; Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920, 922 [2008]), it may not reject an uncontradicted opinion that is properly rendered (see Matter of Mayette v Village of Massena Fire Dept., 49 AD3d at 922; Matter of Castro v Tishman Speyer Props., 303 AD2d 790, 791 [2003]). Here, in an effort to establish his total disability, claimant submitted the report from a January 2009 MRI indicating a broad central subligamentous disc herniation indenting the anterior aspect of the thecal sac which has developed since the prior examination.

In addition, claimant submitted a February 2009 report from his treating physician, Franco Vigna, who took note of the MRI and opined that claimant was totally disabled. In denying claimants application, the Board did not reject Vignas opinion, but rather stated that there is no evidence that the herniation increased claimants degree of disability. Thus, where the only evidence before the Board was Vignas uncontradicted opinion that claimant is now totally disabled, we find the Boards denial of the application to reopen to be an abuse of its discretion. The Court reversed and remanded the matter.

In Matter of Cerbasi , Appeal by the carrier from a decision of the Workers Compensation Board, filed September 12, 2012, which ruled that New Jersey Manufacturers Insurance Company was responsible for the payment of claimants workers compensation benefits.

The employer is a New Jersey business that maintains workers compensation insurance in that state through New Jersey Manufacturers Insurance Company (hereinafter NJMIC). Claimant worked for the employer at a construction site in New York and, in December 2009, injured his left arm in the course of his employment. Claimant applied for workers compensation benefits, and a dispute arose as to whether his accident was covered by NJMICs policy. Following hearings, a Workers Compensation Law Judge determined that the policy did cover the accident, as New York was not included in a list of states specifically excluded from coverage on the declarations page submitted by NJMIC, and an attempt by NJMIC to amend the policy to add New York to this list about a month before claimants accident was ineffective. The Workers Compensation Board affirmed, and NJMIC appeals. We affirm. Contrary to NJMICs argument, the Board did not err in failing to make an explicit finding that the policy provided New York coverage prior to the attempted amendment.

Such a determination is implicit in the Boards findings that the policy did not identify New York as an excluded state, that NJMIC was required to comply with the cancellation requirements of Workers Compensation Law $ 54 (5) in seeking to exclude New York, and that because the statutory requirements were not followed, the policy provided coverage. As the Board noted, workers compensation insurance policies extend to all employees who are employed during the policy period in question and not shown to be excluded; exclusions are strictly construed and ‘are not to be extended by interpretation or implication’ (Matter of Senay v BH Motto & Co., 269 AD2d 647, 648 [2000], quoting Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984]; see Workers Compensation Law $ 54 [4]; Matter of Daughtrey v Enertex Computer Concepts, 149 AD2d 872, 873 [1989]). NJMIC argued that claimants accident was excluded from coverage under the limited other states insurance endorsement that confined the policys New York coverage to temporarily assigned New Jersey employees. However, no such provision was included in the endorsements that NJMIC supplied; further, despite NJMICs claim that the limitation was part of the policys Other States Insurance provision, that section of the declarations page merely stated that Part Three of the policy applies to covered states without describing Part Threes contents or mentioning the conditions that it purportedly contains and Part Three itself was not provided. As NJMIC failed to provide the full policy and failed to demonstrate that its terms excluded claimants accident, we do not find the Boards refusal to find an effective exclusion irrational (see Matter of Hutchinson v Lansing Conduit Corp., 68 AD3d 1362, 1363 [2009]; Matter of Ovando v Hanover Delivery Serv., Inc., 13 AD3d 780, 781-782 [2004]; Matter of Daughtrey v Enertex Computer Concepts, 149 AD2d at 873; compare Matter of Chmura v T&J Painting Co., Inc., 83 AD3d 1193, 1194-1195 [2011].

Substantial evidence in the record supports the Boards conclusion that NJMICs attempt to cancel the policys New York coverage was ineffective because the notice requirements of Workers Compensation Law $ 54 (5) were not followed (see Matter of Laird v All Pro Air Delivery, Inc., 45 AD3d 924, 925-926 [2007]; Matter of Rue v Northeast Timber Erectors, 289 AD2d 787, 788-789 [2001], lv dismissed 98 NY2d 671 [2002], lv denied 99 NY2d 503 [2002]). NJMICs contention that Workers Compensation Law $ 54 (5) does not apply to a partial cancellation was not raised before the Board, and is thus unpreserved (see Matter of Brown v New York City Dept. of Correction, 74 AD3d 1592, 1592 [2010]). The remaining claims have been reviewed and found to be unpersuasive. Accordingly, the Boards decision will not be disturbed.

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