Third Department Decisions 9-4-14

The Court decided five cases dealing with workers’ compensation issues.

In Matter of Schwartz , the Claimant Appealed (1) from a decision of the Workers’ Compensation Board, filed April 25, 2012, which ruled that claimant’s alleged

cardiac conditions were not causally related to her established claim, and (2) from a decision of said Board, filed May 2, 2012,which, among other things,

ruled that claimant was not entitled to payment for intermittent lost time.

In 2007, claimant was awarded workers’ compensation benefits based upon her claim that work-related stress caused her to develop an adjustment disorder

with mixed depressed mood and anxiety and chronic emotional stress. In 2008to amend her claim to include causally-related cardiac conditions

of hypertension, mitral and tricuspid heart valve insufficiency and an enlarged left atrium. Following hearings, the Workers’ Compensation Law Judge concluded,

among other things, that claimant had failed to demonstrate a further causally-related disability. Upon review, in a decision filed April 25, 2012, the

Workers’ Compensation Board affirmed. In a subsequent decision, filed May 2, 2012, the Board found, among other things, that claimant was not entitled to payment

for intermittent lost time.

The Court affirmed the Board the Court found the carrier’s Ime complied with Section 137, and in regard to claimant’s request to amend her claim

to include alleged cardiac conditions noted that “the Board is vested with discretion to resolve conflicting medical opinions” (Matter of Benjamin v Sprint/Nextel,

67 AD3d 1277, 1278 [2009]; see Matter of Pengal v Chloe Foods Corp., 111 AD3d 1030, 1031 [2013]). Here, the independent medical examiner opined, based upon

an examination of claimant and a review of her medical records, including the results of a 24-hour halter blood pressure monitor test administered to claimant,

that she does not suffer from hypertension. He further opined that the minimal mitral and tricuspid valve insufficiency levels evidenced in claimant’s

echocardiogram report were normal, as such trace conditions are commonly found in most people. Finally, he opined that claimant’s enlarged left atrium could not have

been caused by stress or psychological factors, based upon the results of the echocardiogram. Accordingly, the Board’s April 25, 2012 decision, that claimant has not demonstrated

a further causally related disability, is supported by substantial evidence and will not be disturbed, despite the existence of evidence that would have supported a contrary

result (see Matter of Cuffe v Supercuts, 83 AD3d 1344, 1345 [2011], lv denied 17 NY3d 705. [2011]; Matter of Ancrum v New York City Bd. of Educ., 66 AD3d

1094, 1095 [2009]).

The Court also affirmed the Board’s May 2, 2012 decision, where claimant had sought intermittent lost time benefits for certain time off that had been charged as sick leave.

The record reflects that claimant was working full time Monday through Thursday. She has a weekly appointment with her psychologist, related to her

established claim, every Friday from 2:30 p.m. to 3:00 p.m. Despite this half-hour afternoon appointment, claimant was taking the whole day off every Friday. Claimant’s psychologist

testified, however, that there was no psychological reason for claimant to take the entire day off and that her disorder would not prevent her from functioning at the same level on a Friday as

she would on the other days of the week. He further testified that he could schedule claimant’s appointments later in the afternoon. In light of this testimony, substantial evidence

supports the Board’s determination that claimant took every Friday entirely off from work based upon convenience and not due to her inability to work because of her disability. Therefore,

we will not disturb the Board’s decision that claimant is not entitled to intermittent lost time benefits for the full days charged against her sick leave.

In the Matter of Wait , The Court again affirmed the Board. The carrier appealed the establishment of a claim for a woman who alleged she fell entering her place of employ.

The carrier and employer argued the claimant staged the accident.

The Court stated “Whether a compensable accident has occurred presents a question of fact for resolution by the Board and its decision will be upheld when supported by substantial evidence”

(Matter of Rolleri v Mastic Beach Ambulance Co., Inc., 106 AD3d 1292, 1292 [2013], lv denied 21 NY3d 865 [2013] [citations omitted]; accord Matter of Dixon v Almar Plumbing, 111 AD3d 1230,

1231 [2013]). Claimant was on crutches due to an unrelated surgical procedure, and testified that she pressed a handicap button that opened the door to her workplace. The door began

closing abruptly and, as she hurried to cross the threshold, she tripped or slipped and fell backwards onto her right arm. While claimant’s account of her fall varied somewhat over time, the

emergency room physician who treated claimant causally linked her injuries to the fall and testified that victims of acute trauma such as claimant often “don’t remember exactly how it happened.”

The Board credited that proof and, in so doing, rejected the employer’s contention that a video of the incident established that claimant staged the event. Claimant’s inconsistent

explanations as to how the accident occurred created a credibility issue for the Board to resolve (see Matter of Poulton v Griffin Mfg. Co., 102 AD3d 1071, 1072 [2013]). According

deference to the Board’s assessment of credibility, substantial evidence thus supports its finding that claimant had sustained compensable injuries (see Matter of McCluskey v Certified Moving

& Stor., 106 AD3d 1349, 1349-1350 [2013]; Matter of Conyers v Van Rensselaer Manor, 80 AD3d 914, 915-916 [2011]). The above proof similarly constitutes substantial evidence to support the Board’s

finding that claimant did not violate Workers’ Compensation Law § 114-a (see Matter of Eccles v Truck-Lite, Inc., 92 AD3d 1175- 1175-1176 [2012]; Matter of Monzon v Sam Bernardi Constr., Inc.,

60 AD3d 1261, 1262-1263 [2009]).

In Matter of Van Etten, carrier appealed a finding in regard to Section 114-a .

Claimant obtained workers’ compensation benefits for a right inguinal hernia and lower back injury that he sustained in 2008. The self-insured employer and its third-party

administrator (hereinafter collectively referred to as the employer) alleged in 2010 that claimant had violated Workers’ Compensation Law § 114-a by knowingly misrepresenting the degree

of his disability. The Workers’ Compensation Board ultimately determined that claimant had violated section 114-a, but found the discretionary penalty of disqualifying him from receiving

future wage replacement benefits to be unwarranted. The employer now appeals.

The parties do not dispute that claimant violated Workers’ Compensation Law § 114-a (1); rather, the employer contends that the Board erred in failing to disqualify

claimant from receiving future wage replacement benefits. The refusal to impose that discretionary penalty will only be disturbed, however, if the Board abused its discretion as a

matter of law (see Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]; Matter of Liguori v Beloten, 76 AD3d 1156, 1157 [2010], lv denied 16 NY3d 702 [2011]; Matter of Peguero v Halo’s Rest.,

24 AD3d 986, 987 [2005]). Surveillance footage in this case demonstrated that claimant was capable of walking normally and performing other tasks in a manner that was inconsistent with his

behavior in the presence of physicians. Claimant testified that his ability to perform those tasks was dependent upon when he had taken his pain medication and the dosage used. His family

physician concurred that “,the medication could help him be more mobile.” The Board elected not to impose the discretionary penalty because of this evidence that claimant’s varying degrees

of mobility did not entirely stem from an intent to mislead and, inasmuch as the Board’s leniency is not “so disproportionate to the offense, in the light of all the circumstances, as to be

shocking to one’s sense of fairness,” we decline to disturb the penalty (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester

County, 34 NY2d 222, 233 [1974] [internal quotation marks and citation omitted]; see Matter of Losurdo v Asbestos Free, 1 NY3d 258, 267 [2003]). As a final matter, the cases cited by the employer are

“sufficiently distinguishable from the [present matter] to warrant a different result” (Matter of Malone v Bernhardt Paving, 2 NY3d 756, 757 [2004]).

In Matter of Cedeno , was another case dealing with change of venue and monetary penalty against claimant’s counsel pursuant to Workers’

Compensation Law § 114-a (3) (ii).

In Matter of Khomich , the carrier appealed from a decision of a panel of the Workers’ Compensation Board, filed April 26, 2013 which, upon remittal from the full Board,

rescinded the transfer of liability to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a, without prejudice.

Claimant was injured in 2004 and, after her case was established, she was paid compensation through February 2007. In 2011, claimant requested reimbursement for unpaid medical bills

totaling approximately $130 and compensation for seven months of lost time in 2010. The parties entered into a stipulation on September 21, 2011, agreeing to resolve all outstanding issues,

with the workers’ compensation carrier paying $4,750 to claimant as reimbursement for medical and transportation expenses (hereinafter M & T)1 and a finding of no compensable lost time

after 2007. The carrier then sought to transfer liability for the claim to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a.

The Special Fund asserted in response that the payment for M & T was, in actuality, compensation for lost time, but was labeled “M & T” in an attempt to create an improper basis for

transfer of liability under Workers’ Compensation Law § 25-a. A Workers’ Compensation Law Judge directed the parties to produce information to explain the basis for the payment, and a panel of

the Workers’ Compensation Board initially reversed, determining that a payment of M & T does not constitute compensation and, thus, liability transferred to the Special Fund. The Board panel

further concluded that the Special Fund has no standing to challenge M & T reimbursement. The full Board later rescinded that decision, and returned the matter to the Board panel for

further consideration. Upon further review, the Board panel concluded that, although M & T reimbursement is not a payment of compensation within the meaning of Workers’ Compensation Law

§ 25-a, the Special Fund has standing to litigate whether the payment made to claimant herein was, in fact, an advance payment of compensation that would preclude transfer of liability. The

Board panel also determined that questions of fact exist in that regard, and rescinded the transfer of liability to the Special Fund, without prejudice, pending production of evidence

demonstrating that the payment to claimant was for medical or travel expenses.

The employer and carrier appeal from this decision. The transfer of liability to the Special Fund “is appropriate when an application to reopen a closed case is made more

than seven years from the date of injury and more than three years after the last payment of compensation” (Matter of Thurston v Consolidated Edison Co. of N.Y., Inc.,

115 AD3d 1143, 1144 [2014] [internal quotation marks and citations omitted]; see Workers’ Compensation Law § 25-a [1]). Voluntary payments that are made during the

relevant time frame and in recognition of the employer’s liability constitute advance compensation that will prevent transfer of liability to the Special Fund (see Matter of

Thurston v Consolidated Edison Co. of N.Y., Inc., 115 AD3d at 1144; Matter of Schroeder v U.S. Foodservice, 107 AD3d 1135, 1136 [2013]).

Moreover, while the Special Fund does not have standing “to litigate the primary issues of compensability of the underlying claim for benefits” or “to reopen a claimant’s

case and contest the compensability of the claim,” it does have standing with respect to proceedings involving claims against such fund

(Matter of Ruffino v Rosen & Sons, 142 AD2d 177, 180 [1988], affd on op below 74 NY2d 861 [1989] [internal quotation marks and citation omitted];

see Matter of McDonald v Water Tunnel Contrs., 51 AD3d 1151, 1152-1153 [2008]). Here, it is undisputed that a true payment of M & T would not preclude transfer of liability to

the Special Fund because M & T does not constitute compensation within the meaning of the statute. The Special Fund argues, however, that the record is

unclear regarding whether the $4,750 M & T payment was a reimbursement for out-of-pocket medical expenses, or a disguised payment of indemnity benefits that would preclude transfer of

liability. As the Special Fund is challenging whether an advance payment was made for the purposes of Workers’ Compensation Law § 25-a – an issue involving a claim against the Special Fund –

the Board properly concluded that the Special Fund has standing (see e.g. Matter of Iannaci v Independent Cement Corp., 66 AD3d 1194, 1195-1196 [2009]). Contrary to arguments of the employer,

carrier and claimant, the Board adequately distinguished its prior precedent holding that a payment of M & T does not constitute compensation, explaining that this was not the basis

of the argument by the Special Fund. Finally, we note that because the Board’s decision “reach[ed] a potentially dispositive threshold legal issue” – i.e., standing – it is appealable

despite the Board’s remittal to the Workers’ Compensation Law Judge for further development of the record (Matter of Hosler v Smallman, 106 AD3d 1218, 1219 [2013] [internal quotation marks

and citations omitted]).

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