Third Department Decisions 5-29-14

Today the Court handed down several decisions dealing. with workers’ compensation issues.

In Matter ofClark, claimant filed an appeal from a decision of the Workers’ Compensation Board, filed November 1, 2012, which, among other things, assessed a

monetary penalty against claimant’s counsel pursuant to Workers’ Compensation Law § 114-a (3) (ii). Claimant was awarded workers’ compensation benefits for

numerous injuries she sustained when, in the course of her employment, she was struck by a falling window and office equipment. She settled a third-party action arising out of the

accident for $725,000. The employer and its workers’ compensation carrier consented to the settlement upon the understanding that the carrier’s lien for past benefits paid

would be satisfied out of the settlement proceeds, and that it would have “a credit for any future benefits owed the claimant until the proceeds of the recovery are exhausted” (Matter of

Williams v Lloyd Gunther El. Serv., Inc., 104 AD3d 1013, 1014 [2013]; see Workers’ Compensation Law § 29 [1], [4]). Claimant then sought reimbursement for the carrier’s equitable share of

legal expenses that she had incurred in the third-party action pursuant to Burns v Varriale (9 NY3d 207 [2007]). A Workers’ Compensation Law Judge (hereinafter WCLJ) noted that an executed

closing statement had not been provided, and declined to make an award until claimant submitted one (see 22 NYCRR 691.20 [b]). The Workers’ Compensation Board upheld that decision and,

moreover, assessed $500 in reasonable counsel fees against counsel for claimant (see Workers’ Compensation Law § 114-a [3] [ii])

. Claimant appeals, with the sole issue upon appeal being the propriety of the award of counsel fees.1 We affirm. Workers’ Compensation Law Claimant here requested that the Board make

an award pursuant to Burns v Varriale (supra), but the carrier’s credit for future benefits owed to her needed to be taken into account in apportioning litigation costs (see Burns v Varriale, 9

NY3d at 215; Matter of Stenson v New York State Dept. of Transp., 84 AD3d 22, 25 [2011]). Generally, future benefits do not begin to accrue until “the day that a claimant actually collects the

recovery” in his or her third-party action (Matter of Williams v Lloyd Gunther El. Serv., Inc., 104 AD3d at 1014). The WCLJ accordingly found that he could not make a proper award without a

signed closing statement that indicated the date of payment in the third-party action, and directed claimant to produce that document. Claimant sought Board review of the WCLJ’s decision,

but did not assert that the WCLJ erred in requiring a signed statement and, indeed, filed one shortly after the decision was issued. Substantial evidence thus supports the determination of

the Board that claimant’s application for Board review was unnecessary and, as such, that an assessment of reasonable counsel fees against counsel for claimant was warranted

(see Matter of Wolfe v New York City Dept. of Corr., 112 AD3d 1197, 1198 [2013]).

In Matter of Mejia, The claimant appealed a penalty and a venue change denial. Claimant’s challenge to the validity of a statement of general policy of the Chair of the Board has not been preserved for our review by his failure to raise it before the Board and, in any event, we have recently adjudged that contention to be without merit (Matter of Toledo v Administration for Children Servs., 112 AD3d 1209, 1210 [2013]). With regard to the denial of the requested venue itself, the Chair has controlling authority to designate hearing places, and claimant’s conclusory assertions have not established a valid basis for

disturbing the Board’s decision (see Workers’ Compensation Law § 141; 12 NYCRR 300.7 [b]; Matter of Toledo v Administration for Children Servs., 112 AD3d at 1210). Turning to counsel’s

challenge to the assessment of costs, we have repeatedly upheld the imposition of a penalty pursuant to Workers’ Compensation Law § 114-a (3) (ii) when the record contains substantial evidence,

as it does here, that a venue request was made without a reasonable basis (see Matter of Toledo v Administration for Children Servs., 112 AD3d at 1210; Matter of Wolfe v New York

City Dept. of Corr., 112 AD3d 1197, 1198 [2013]; Matter of Banton v New York City Dept. of Corr., 112 AD3d 1195, 1196-1197 [2013]).

In Matter of Difilipo, again dealt with a denial of a venue change and the Board was affirmed.

In Matter of Goldstein, the claimant appealed a finding of voluntary withdrawal from the labor market.

Claimant, an insurance salesperson, sustained compensable injuries to her head, neck and back when she fell at work in 2001. She retired at the end of that year and, in 2004, was

diagnosed as suffering from Parkinson’s disease. Claimant sought to amend her workers’ compensation claim to include consequentially related Parkinson’s disease and argued that she

We affirm. “Whether a subsequent disability arose consequentially from an existing compensable injury is a factual question for resolution by the Board, and its determination will

not be disturbed when supported by substantial evidence” (Matter of Bailey v Ben Ciccone, Inc., 104 AD3d 1017, 1017 [2013] [citation omitted]; see Matter of Bland v Gellman, Brydges &

Schroff, 100 AD3d 1289, 1291 [2012], lv dismissed 20 NY3d 1055 [2013]). Claimant submitted medical evidence that the head trauma she sustained in the 2001 accident led to her Parkinson’s

disease, but her own neurologist notably declined to draw such a connection. Indeed, a neurologist who conducted an independent medical examination of claimant opined that the head injury she

had sustained was not sufficiently severe to give rise to Parkinson’s disease.

The Board assessed these conflicting medical opinions and, according deference to its decision to credit the latter, we find that substantial evidence supports the Board’s

decision (see Matter of Bland v Gellman, Brydges & Schroff, 100 AD3d at 1291). Contrary to claimant’s further contention, the Board properly determined that her

“retirement constituted a voluntary withdrawal from the labor market” (Matter of Richardson v Schenectady City School Dist., 96 AD3d 1335, 1335 [2012]). While claimant testified

that she missed work due to her injuries and that the lost time caused her to miss her sales quota and forced her to retire, the Board aptly noted that the documentary evidence

in the record does not support those claims. Claimant admittedly never told the employer that she was unable to work, never received medical advice to retire, and made no

effort to seek a disability retirement pension. “Thus, despite the existence of evidence that may have supported a different result, we find the Board’s determination to be supported

by substantial evidence” (id. [citations omitted]; see Matter of Danussi v Chateaugay A.S.A.C.T.C., 56 AD3d 856, 856-857 [2008]; Matter of Lombardi v Brooklyn Union Gas Co.,

306 AD2d 704, 705-706 [2003]). –

In Matter of Ancola , Appeal from a decision of the Workers’ Compensation Board, filed March 1, 2013, which ruled, among other things, that

claimant’s case was not truly closed for the purpose of shifting liability to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a.

Claimant established a work-related injury to his lower back and, in December 2000, began to receive workers’ compensation benefits from the self-insured employer and its

third-party administrator (hereinafter collectively referred to as the employer). Claimant continued to receive benefits for intermittent lost time resulting from his injury, which included,

as relevant to this appeal, a May 2006 finding by a Workers’ Compensation Law Judge (hereinafter WCLJ) that claimant was temporarily partially disabled beginning February 6, 2006.

However, a subsequent decision by the Workers’ Compensation Board rescinded all awards after February 6, 2006 pending further development of the record.

Thereafter, an August 28, 2007 WCLJ decision held in abeyance any awards for the period between February 6, 2006 and October 28, 2006. A subsequent WCLJ decision,

rendered August 14, 2008, failed to address the period held in abeyance but, as relevant here, awarded claimant benefits for a temporary total disability between

January 21, 2008 and April 1, 2008 and stated that no further action was planned by the Board. In August 2011, at a hearing instigated by the employer’s objection to certain

treatments, the issue of the transfer of liability to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a was first raised. The WCLJ, noting that

there was still a period in 2006 for which benefits were being held in abeyance, found that a transfer of liability was premature, but placed the Special Fund on notice.

Thereafter, in January 2012, the employer submitted a request for further action, citing the fact that it had new documentation regarding the period held in abeyance, namely,

a letter from claimant’s counsel stating that the relevant period could be marked for no compensable lost time. decision or schedule a hearing. Accordingly, a hearing was

scheduled for February 2012, after which a WCLJ decision found no compensable lost time for the period between February 2006 and October 2006. That decision also awarded

claimant benefits for the period between January 23, 2012 and February 14, 2012, as he had again lost time as the result of his work-related injury. The employer again sought

further action in March 2012, seeking to shift liability to the Special Fund. Finding that there was never a true closure in the case, a WCLJ again found

transfer of liability to the Special Fund to be premature. On appeal, the Board determined that, because awards for the period in 2006 had been held in abeyance and resolution of that issue

was not affected until February 2013 – after claimant had again started to lose compensable time – the case had never truly been closed. Accordingly, the Board affirmed the WCLJ’s finding that

Workers’ Compensation Law § 25-a liability was premature. The employer now appeals. The Court affirmed affirm They noted liability for compensation shifts to the Special Fund

when an application to reopen a case is made after a lapse of seven years from the date of the injury and three years from the date of the last payment of compensation, upon a showing

that the case has been “‘truly closed'” (Matter of Porter v New York State Elec. & Gas Corp., 113 AD3d 987, 988 [2014], quoting Matter of Mucci v New York State Dept. of Corr., 98 AD3d 1223,

1223 [2012]; see Workers’ Compensation Law § 25-a [1]). Whether a case has been truly closed is a factual question to be resolved by the Board based primarily upon its determination as to whether

further proceedings were contemplated (see Matter of Mucci v New York State Dept. of Corr., 98 AD3d at 1223-1224; Matter of Hosey v Central N.Y. DDSO, 91 AD3d 993, 994 [2012]). Such decision of

the Board will not be disturbed when supported by substantial evidence (see Matter of Porter v New York State Elec. & Gas Corp., 113 AD3d at 988; Matter of Nanni v Source Corp., 98 AD3d

1225, 1226 [2012]). Notably, cases in which the payment of compensation has been held in abeyance pending the presentment of further medical evidence have been held to have not been truly

closed (see Matter of Hammond v Dutchess Bldg. Specialists, 83 AD3d 1276, 1278 [2011]; Matter of Granberry v JCCA Edenwald, Inc., 33 AD3d 1102, 1103 [2006]).

Here, the employer contends that the claim was truly closed by the WCLJ decision filed on August 14, 2008. However, this contention ignores the fact that, pursuant to the August 28, 2007

WCLJ decision, compensation for the period between February 2006 and October 2006 had been held in abeyance and was, as of yet, unresolved. Although the employer further argues that the case

should have been considered truly closed because no further evidence was submitted regarding the periods held in abeyance, that contention is belied by the fact that the employer itself

affirmatively addressed the issue in January 2012, evincing the fact that said compensation was still at issue. Accordingly, we find that substantial evidence supports the Board’s decision that

the case was never truly closed and, thus, transfer of liability to the Special Fund would have been premature (see Matter of Hammond v Dutchess Bldg. Specialists, 83 AD3d at 1278; see

generally Matter of Hartwell v Amphenol Interconnect Prods., 51 AD3d 1245, 1247 [2008]). We have examined the employer’s remaining contentions and find them to be without merit.

Matter of Crane , carrier appealed a decision denying reimbursement from Special Funds. Claimant successfully applied for workers’ compensation benefits after injuring her left

shoulder in 2004 and was found to have sustained a permanent partial disability. After learning that claimant suffered from, among other things, preexisting

hypertension and degenerative disc disease, the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) applied for reimbursement

from the Special Disability Fund (see Workers’ Compensation Law § 15 [8] [d]). The Workers’ Compensation Board denied the carrier’s application, prompting this appeal.

The Court affirmed . In order to obtain reimbursement from the Fund pursuant to Workers’ Compensation Law § 15 (8) (d), the carrier “must 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]; accord Matter of Pawlitz-Delgaizo v Community Gen. Hosp., 106 AD3d 1365, 1366 [2013]). Here, the Board found that the carrier failed to prove that claimant’s preexisting conditions

hindered or were likely to hinder her job potential. While the carrier presented evidence from several physicians who opined that claimant’s hypertension and back condition posed a potential

hindrance to her employability, neither the medical testimony nor any other evidence in the record indicated that such conditions in fact did so. Indeed, claimant testified that her hypertension

and back condition had not affected her ability to work in any way, that she had only briefly sought treatment for back pain and that her hypertension was controlled with medication, and her

treating physician confirmed that claimant’s hypertension was under “good control.” We therefore conclude that the Board’s decision is supported by substantial evidence (see Matter of

Pawlitz-Delgaizo v Community Gen. Hosp., 106 AD3d at 1366; Matter of Hartman v Top’s Mkt., Inc., 104 AD3d 1043, 1044 [2013]).

Matter of Hodzic, claimant filed an appeal from a decision of the Workers’ Compensation Board,filed March 7, 2013, which ruled that claimant violated Workers’

Compensation Law § 114-a and imposed a penalty. In 2005, claimant injured his lower back while working and successfully applied for workers’ compensation benefits. The

employer and its workers’ compensation carrier disclosed that claimant had been placed under surveillance and thereafter raised the issue of whether he had violated

Workers’ Compensation Law § 114-a.

The Workers’ Compensation Board ruled that claimant knowingly misrepresented his medical condition for the purpose of receiving benefits and, accordingly, found him to be in violation

of Workers’ Compensation Law § 114-a. The Board further assessed a discretionary penalty and permanently disqualified claimant from receiving wage replacement benefits beginning September 23,

2010. Claimant now appeals. Substantial evidence supports the Board’s decision and, thus, we affirm. Workers’ Compensation Law § 114-a (1) disqualifies a claimant who

“knowingly makes a false statement or representation as to a material fact . . . from receiving any compensation directly attributable to such false statement or representation.

” Notably, “in making such a finding, the Board is vested with the discretion to evaluate witness credibility and to weigh conflicting evidence” (Matter of Hadzaj v Harvard

Cleaning Serv., 77 AD3d 1000, 1001 [2010], lv denied 16 NY3d 702 [2011]; see Matter of Denman v Cobbler’s Rest., 106 AD3d 1289, 1290 [2013]).

Here, claimant testified that he experienced pain after walking or standing for long periods of time, did not lift items weighing more than 10 pounds, and avoided engaging in housework,

yard work or exercise. His claims were belied, however, by evidence that he rode his bicycle and took long walks without any apparent discomfort, and he was observed carrying or dragging

tems such as a beverage cooler, barbecue gas grill, folding table, lawn chairs and heavy groceries. Moreover, despite claimant’s assertion that he used a walker or cane “[m]ost of the

time,” he was only observed using a walker immediately before and after medical and legal appointments. In light of the evidence that claimant had knowingly misrepresented his condition in an

effort to influence the award of benefits, the Board appropriately found not only that he had violated Workers’ Compensation Law § 114-a, but that the discretionary penalty of

permanently disqualifying him from receiving wage replacement benefits was warranted (see Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265-266 [2003]; Matter of Denman v Cobbler’s Rest., 106

AD3d at 1290-1291; Matter of Robinson v Mesivtha Tifereth Jerusalem, 60 AD3d 1166, 1167-1168 [2009]). The Court denied the balance of the claimant’s arguments.

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