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We respectfully disagree with the court's decision and are determining how best to move this critical case forward. Legislative and Budget staff became increasingly involved in negotiating state aid for schools, and the Governor and the leaders of the Senate and Assembly made the crucial budget decisions. Oquendo, who represented himself at the sentencing , maintained his innocence in a statement to the court. However, OVR remained under scrutiny. And take it slowly with the shoveling -- it's wet and heavy snow.
II. State Education Department
Contrary to Alliance's claim, the Court found that the Board did not abuse its discretion when it fully considered Alliance's argument with respect to the manner in which the apportionment percentages should have been applied, but chose not to revisit this issue in light of the February decision. No opinions were issued these weeks. Claimant, a major league baseball umpire, was awarded workers' comp due to a hip injury.
Following complications and several surgeries for hip replacement, he was deemed permanently partially disabled. Claimant commenced a third-party action alleging medical malpractice and products liability claims related to his initial hip replacement device.
The Court agreed, finding found that a agreement was entered into with the claimant in connection with the carrier intervening in the third-party action seeking reimbursement of costs and a workers' comp lien. Email the Insider with your comments and questions. Claimant sustained work related injuries in and a consequential injury in In , the carrier raised the issue of a possible non-work-related accident and injury.
Claimant testified at the initial hearing that she was enrolled in a part-time training position for only a month in and she was not certain whether she had informed the carrier of the position.
She also testified that, although it was supposed to be a paid position, she was not paid due to her refusal to participate in the training program. In July , claimant, found to have hypersensitivity reaction to the presence of fungi, had her claim established with a finding of temporary total disability. In , the claim was amended to include multiple chemical sensitivity and awards were continued.
After a Law Judge classified claimant with a permanent total disability, the Board rescinded that finding, referring the matter to an impartial specialist to report on the claimant's disability classification rate. The impartial specialist testified that multiple chemical sensitivity is not a medically-recognized condition and, in any event, it was his opinion that claimant was not suffering from any causally-related disability.
Her January 11, letter seeking a hearing to determine degree of disability resulted in a hearing at which the Law Judge construed the Board's December 19, decision as rejecting his prior decision that claimant suffered a causally-related total disability but continued the case for further development of the record to determine clamant's appropriate, lesser degree of disability. The employer appealed on the grounds that the Board, on December 12, , had precluded further development of the record as there was no causally-related disability.
This appeal was accepted by the Board in a January decision. The Court noted that on January 11, , claimant did file a notice of appeal with the Court as to the December 19, Board decision, but failed to timely perfect that appeal. Claimant received workers comp benefits for work-related injuries until when she returned to work. After her employment ended in April , she raised the issues of permanency and reduced wages.
A Law Judge awarded additional benefits from April 11, to October 29, , but found no further compensable lost time. Under these circumstances, we cannot say that the Board's denial of claimant's application was arbitrary or capricious or an abuse of its discretion.
After claimant filed a claim for benefits stating that he had suffered a stroke while working, a Law Judge determined that there was a causal relationship between claimant's stroke and his employment and established the claim. Prevailing Part y represented by: Claimant opposed, claiming that the appeal was untimely given that the November decision — not the January decision — was final with regard to the SLU. The Court agreed with the Board that, because the Law Judge made the November decision without any explanation of how the As noted by the Board, a schedule award is not given for an injury, but for the residual physical and functional impairments.
Although since claimant has had a neck condition requiring surgeries and intermittent treatment, he worked full time with restrictions until October , when he fell at work sustaining injuries to his back. Thus, we agree with the Board that apportionment is not applicable here. In June , claimant suffered a work-related injury with benefits paid up to June 20, , when plaintiff returned to work. In April , claimant's physician requested authorization for an MRI which, on April 23, , showed a medial and lateral meniscal tear.
On June 26, , the physician requested authorization to perform surgery, which was performed in late July The Court found that the Board incorrectly considered the case closed once the MRI application was approved in April and then was reopened June 26, when surgery was requested. The Court wrote that in prior cases it recognized that " decision authorizing [an] MRI [does] not constitute a true closing of the case as [the] claimant's future treatment depended upon the results of the MRI and, thus, further action was contemplated although not planned at that time.
Accordingly, and despite the fact that the hearing transcript was destroyed, the matter must be remitted for further development of the record as to whether claimant ever received or was even entitled to disability payments subsequent to April 21, and to address the absence of a reduced earnings award in the decision at issue herein.
Schottenstein alleges that Silverman exceeded the scope of his assigned task by reporting that the medical records he reviewed indicated possible fraudulent billing and unnecessary treatment rendered, and recommending that the matter be referred to the Office of Professional Misconduct and the Attorney General's Office.
The Appellate Court ruled that: The complaint fails to state a cause of action for intentional infliction of emotional distress, since defendant's report fails "to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized communit y.
On June 14, , the injured worker, a 56 year old male, was allegedly injured while in a tunnel 60 feet below ground, traveling in a type of train car when the train allegedly stopped violently and abruptly causing him to be thrown forward and backward. The injuries have resulted in pain, deformity, disability, stiffness, tenderness, tingling sensation, weakness and limitation and have further prevented the plaintiff from enjoying the normal fruits of his activities, including but not limited to social, economic, and educational.
The injured worker objected to some of these demands on the grounds that not all these providers treated him for any of the injuries that he sustained as a result of the accident, and that the demands were "irrelevant, and not reasonably calculated to lead to the discovery of relevant evidence.
However, it is equally well-settled that "[t]he waiver of the physician-patient privilege made by a party who affirmatively asserts a physical condition in its pleading does not permit discovery of information involving unrelated illnesses and treatments. The Court noted that when a plantiff asserts claims for loss of enjoyment of life or for lost future earnings due to a permanent disability, the physical or mental conditions that are affirmatively placed at issue are not readily apparent, which complicates the determination as to what would be " related " to the "condition at issue.
After citing different interpretations from the other Appellate Divisions regarding the scope of the waiver of physician-patient privilege when loss of enjoyment of life is claimed, the Court determined that, by pleading "total disability ", a plaintiff has waived the physician-patient privilege as to his entire medical history.
However, a carrier can establish prima facie entitlement to summary judgment on this category without medical evidence by citing other evidence, such as the injured worker's own deposition testimony or records demonstrating that injured worker was not prevented from performing all of the substantial activities constituting customary daily activities for the prescribed period. Once the carrier meets this initial burden, the injured worker must then demonstrate a triable issue of fact as to whether he or she sustained a serious injury The injured worker claims he sustained, inter alia, injuries to his right knee, left shoulder and lumbar spine, and an exacerbation of a preexisting left ankle injury as a result of the August 9, motor vehicle accident.
Thus, injured worker failed to submit any evidence that raises a triable issue of fact sufficient to defeat summary judgment. Petitioner Gonzalez is alleged to have sustained injury on August 14, in a fall while working at the MTA yard in the Bronx.
Time sheets reveal that Gonzalez had regularly attended work at the Bronx railway yard where his injury was sustained during the period beginning October 31 and extending through November 16, , and he does not dispute that he traveled by car. In addition, petitioners do not allege that they were prevented from using alternative methods of public transportation to reach their attorney's office. Petitioners, in Gonzalez's sworn affidavit, have boldly misrepresented their ability to travel into the City to meet with counsel and omitted that Gonzalez actually did travel into the City on numerous occasions in the weeks immediately prior to expiration of the time period for serving a notice of claim.
While the absence of support for a proffered excuse may be outweighed by other considerations petitioners' attempt to deceive the court as to why they were unable to file a timely notice of claim should not be condoned and alone warrants dismissal of the application. With claimant receiving benefits from a injury at the temporary total disability rate since , a Law Judge issued a decision in November that continued benefits at that rate.
Then in May , the Judge issued a decision continuing those benefits but granted the carrier the right to suspend payments if claimant failed to produce current medical evidence. After the employer appealed both decisions, a Board panel affirmed the Judge. With regards to the decision, because the issues of medical evidence not warranting a finding of temporary total disability and voluntary withdrawal from the work force were not raised before the Judge, the Board did not abuse its discretion in refusing to consider them.
When the carrier raised these issues at the hearing and the Judge ruled against them, the Board found that the appeal from that decision was " moot " because the arguments were identical to the ones it refused to consider in the appeal from the November decision.
Under these circumstances, the Court determined that, " the Board failed to engage in its fact-finding role, thereby depriving [the employer] of the opportunity to have the Board consider the merits of an issue that was properly preserved,' [and] its decision must be reversed to allow that review to occur. After filing his claim in March , after a hearing in claimant and his treating physicians appeared and testified, a Law Judge found that the claimant had sustained a work-related injury.
A Board penal reversed, finding that the medical evidence did not support that finding. The claimant testified that he immediately sought medical treatment and the next day he advised the employer. Although the physician noted that claimant lifted heavy objects as part of his job, no mention was made of when or how claimant injured his back, and the physician acknowledged that claimant previously had been treated for back pain by another provider. When claimant returned for a follow-up visit one week later, the physician noted that claimant's "back went out " the preceding Monday and that claimant reported "lift[ing] some furniture at home.
Claimant then was referred to an orthopedist, who evaluated him on October 15, According to the orthopedist's records, claimant's back pain began at home on October 10, , this "recurrent " pain came on "[g]radually" and claimant " denie[d] trauma. Claimant sustained several work-related injuries to his shoulders, causing him to miss time from work.
Although a Law Judge ruled a temporary total disability and awarded benefits for several of periods of time when he was not working, the employer did not file a request for reimbursement for two of those time periods until after the awards of compensation for those periods had been made.
When the Law Judge later awarded an SLU, he precluded the employer from seeking reimbursement for the two time periods for which it had not timely filed claims for reimbursement. That statute provides that "any salary or wages paid to. In rejecting the employers argument the Court wrote: To analyze these provisions, "the text of a statute is the best evidence of legislative intent and, where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used.
Because these two provisions are related statutes in the Workers' Compensation Law, they "must be construed together unless a contrary legislative intent is expressed, and courts must harmonize the related provisions in a way that renders them compatible.
These cross appeals resulted when the Albany County Supreme Court, on September 4, , among other actions. After the employer, in , raised the issue of attachment to the labor market and sought the testimony of claimant and his medical providers on the issue, a Law Judge denied the employer's request for claimant's testimony, but continued the matter for cross-examination of two of claimant's medical providers.
In reversing, the Court noted that: After viewing the video surveillance, the physician concluded that "claimant clearly is capable of doing far more home-based activities than he admitted to during my independent examination.
Under these circumstances, the Board's finding that "[t]he video surveillance does not show any images of the claimant engaging in physical activities inconsistent with any representation he had made to any of the parties' doctors" was determined not to be supported by substantial evidence in the record. Similarly here, the physician who performed the independent medical examination stated that the surveillance revealed claimant to be "capable of doing far more home-based activities than he admitted to during [the] independent examination.
The Court returned the case to the Board for a determination of whether claimant's failure to disclose the extent of his abilities was material, and done both knowingly and for the purpose of obtaining benefits. She had surgery in and, in , a nerve conduction study revealed possible mild left carpal tunnel syndrome as well. Her doctor's progress report submitted to the Board diagnosed a continued carpal tunnel syndrome in both hands.
But the Board found the progress report left issues regarding the left hand unresolved at the time that the employer sought transfer of liability. Accordingly, the Board's determination that the case was never truly closed was supported by substantial evidence and the transfer of liability was properly denied. In March , claimant — now employed by the City of Geneva Police Department hereinafter GPD — was arrested and charged with driving while intoxicated. Shortly thereafter, he began receiving mental health treatment, resigned from his employment with GPD, filed a claim for workers' comp citing his time at the WTC as the cause of injury, naming HPD as his employer.
The carrier appealed to the Court on the basis that contended claimant's activity did not constitute participation in the rescue, recovery, or cleanup operations such that it would be covered by Article 8-A and the Board improperly denied their application for FBR.
After 15 years working as a school custodian, in , claimant sought medical treatment for problems, resulting in surgery on both elbows and knees. He filed a claim in September for workers comp based on injuries attributable to " repetitive use of physical labor going up and down the stairs, lifting heavy boxes, [and] shoveling snow. The law judge reestablished the claim, set the data disablement as January 19, , and included the left knee in the claim.
Given that the cited precedent is a prior decision in this case, the applicable doctrine is law of the case. In view of this, the Law Judge's September 10, reserved decision did not foreclose further consideration of this issue by the Board. Technically speaking, the doctrine of res judicata "precludes a party from litigating 'a claim where a judgment on the merits exists from a prior action [or proceeding] between the same parties involving the same subject matter'". Inasmuch as a prior action or proceeding is not involved here, this doctrine is inapplicable.
Although he knew his problems were related to his work as of March and had surgery and medical treatment for a year and a half before filing his claim, he left the employer with no knowledge that the injuries were work-related nor giving it an opportunity to investigate the claim. Here, claimant acknowledged that he spent most of his time at a membership cafe and occasionally, among other things, unlocked the cafe door in the morning and swept the premises in exchange for the owner, his cousin, allowing him to sleep in a room above the cafe following marital difficulties.
According to claimant, he received no compensation for any minimal activity that he performed at the cafe. The employer's surveillance videos and testimony of its private investigator did not contradict claimant's testimony, which primarily show claimant sitting or standing outside the cafe smoking, talking on a cell phone or drinking coffee.
To the extent that the employer challenges the denial of its application for full Board review on the ground that it was denied solely by the chair on behalf of the Board, we find that such challenge is moot given that a three-member panel subsequently considered and denied that application for full Board review as set forth in a decision filed June 23, Injured in , claimant first sought medical treatment in April and continued to work until March The filing of his claim [ Ed.
The Court noted that decisions on compensation claims issued by arbitrators pursuant to an authorized alternative dispute resolution program are not reviewed by the Workers Comp Board, but may be appealed directly to the Court. Also, the substantial evidence standard does not apply to appeals of claims reaching the Court through the latter procedural route; rather, these cases are reviewed under the standard applicable to review of arbitration awards in general.
Pursuant to that standard, courts have limited power to review an arbitrator's award and the Court cited a prior ruling: Claimant has not shown that the award was irrational, which would require a showing of an utter lack of any proof to justify the award.
Claimant presented proof that his first treatment occurred in April As claimant concedes that the date of disablement is a discretionary determination and the date of first medical treatment is a proper option, the arbitrator's selection of that date was not irrational.
Singer of counsel to the Special Funds respondent. The carrier appealed, during which time the claimant died from causes unrelated to the underlying injury. The carrier then requested that the decisions directing it to make a lump-sum payment to the ATF be rescinded because of claimant's death. The Board upheld the decision by a 2 to 1 vote. Because there was a dissent, the carrier was entitled to and sought full Board review.
As noted in my e-mail BULLETIN issued this afternoon, just after the Court of Appeals issued this decision, it is my sense that the legislation was either purposely muddled or designed in the same way as the proverbial elephant: Langan, a former U. Treasury official who wrote the following in an op-ed entitled " The Language of Diplomacy ": At one point in my federal government career, I wrote up an explanation of a complicated matter in which I considered to be an extremely clear, cogent manner.
The senior government official to whom I reported read it carefully, ruminating and adjusting his glasses as he read it. Then he looked up at me and said " This isn't any good.
I understand it completely. Take it back and muddy it up. I want the statement to be able to be interpreted two or three ways. After a claim was placed for a November work related injury, the carrier controverted the claim on the grounds that the employer's policy had been canceled in August due to failure of the employer to pay the premiums.
In affirming the Board, the Court noted that the record showed that the carrier had sent the cancellation notice, by certified mail, return receipt requested, to the employer's chief executive officer at her home address, on or about August 4, , with an effective date of cancellation of August 18, Claimant sustained non-work-related, serious injuries to his neck, back and left shoulder as the result of and automobile accidents.
He continued working as a car inspector for the self-insured employer until , when after developing incapacitating neck, back and leg pain, he applied for workers' comp, asserting that his physical problems and a consequential psychiatric injury were related to repetitive work-related tasks and constituted an occupational disease. Although 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, the Judge, later affirmed by a Board panel, found the opinions of claimant's treating physicians regarding causation to be incredible and disallowed the claim.
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. The Court then noted that:. The record here reflects that claimant has been receiving related medical treatment from at least onward.
Claimant sought more intensive treatment after his pain worsened in , 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 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. After a work-elated back injury resulted in the claimant leaving the nursing profession because of her moderate, permanent partial disability and began working in a delicatessen, at a lower wage. Upon claimant's application for review, the Board increased claimant's degree of disability and concluded that her wage loss benefits should be based upon her actual reduced earnings from the delicatessen where she now works, as opposed to her degree of disability, and adjusted her weekly awards accordingly.
The Court of Appeals has repeatedly explained that, for claimants who have demonstrated that they remain attached to the labor market, "where actual earnings during the period of the disability are established, wage earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period.
As the result of a work-related automobile accident, claimant successfully filed a claim for injuries to his the neck and back later that year, with claimant directed " to submit medical evidence for all additional sites claimed. In April , after alleging that he had sustained mental injuries as a result of the incident, that claim was combined with his case which was amended to include consequential posttraumatic stress disorder, depression and anxiety.
The claimant did return to work but suffered from various stress issues on his return, all of which were clearly delineated by his treating psychologist who stated in no uncertain terms that those conditions flowed from the May incident. Racketeer Influenced and Corrupt Organizations Act. The Insider September 18, This case has been posted because there are a number of very unhappy injured workers who feel that the NYS workers compensation systems, i.
This decision basically tells them that seeking redress through the federal courts will not work. That is an overstatement. Email the Insider with your c omments and questions. The Court noted in a footnote that: I have sent an e-mail to the law firm inquesion asking about the continuing to appel Board decisionson this issue and will print their response next week.
One year after receiving an award 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, she sought to amend her claim to include causally-related cardiac conditions of hypertension, mitral and tricuspid heart valve insufficiency and an enlarged left atrium. The result of several hearing found no further causally-related disability and no entitlement to payment for intermittent lost time.
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. As to the request for intermittent lost time benefits, the claimant had been taking off an entire day for a minute appointment, which her psychologist said could have been scheduled for later in the afternoon.
The self-insured employer SIE asserted that she had staged the fall. A Law Judge, after conducting hearings and viewing video footage of the incident, established the claim. The employer alleged that claimant misrepresented the degree of his disability.
After several hearings, decisions by Law Judges, Board panels, and a full board review, it was determined that while the Fund does not have standing "t o 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 the Fund.
Singer of counsel to the Special Funds. The plaintiff was assigned by TemPositions to Columbia University and, while walking to the coatroom where she was working, tripped and fell. Columbia University established its prima facie entitlement to judgment as a matter of law dismissing the complaint through the deposition testimony and affidavit of the general manager at Columbia and the affidavit of TemPositions' chief executive officer, that the defendant controlled and directed the manner, details, and ultimate result of the plaintiff's work.
The defendant also had the authority to discharge the plaintiff, and the work she performed was in furtherance of the defendant's business. In addition, the plaintiff, at her own deposition, the transcript of which was submitted by the defendant in support of its motion, stated, inter alia , that TemPositions told her where and to whom to report, but that the defendant's supervisors instructed her on her work duties.
Thus, the defendant established, prima facie , that it was the plaintiff's special employer. It therefore cannot be the exclusive remedy. However, the critical distinction in this case is that the motor vehicle accident involved vehicles operated by coemployees. The prescribed SUM endorsement language at issue is plain and unambiguous. Indeed, as noted above, the standard form for SUM coverage was promulgated in order to "eliminate ambiguity, minimize confusion and maximize its utility.
In the overwhelming majority of those decisions, all interpreting similar "legally entitled to recover damages" policy language, the courts have concluded that, because of workers' compensation exclusive remedy provisions, a plaintiff is not entitled to uninsured motorist benefits. Here, pursuant to the plain language of the SUM endorsement, plaintiff is not "legally entitled to recover damages" from the owner and operator of the offending vehicle because of the status of the operator, Cathlyn Haggerty, as plaintiff's coemployee.
Claimant, a police sergeant, filed a claim for workers' comp benefits asserting that he suffered a work-related myocardial infarction December 18, , first experiencing mild symptoms while exercising that morning and that, after ascending a flight of stairs at work, he began experiencing shortness of breath, chest pain and arm numbness. His subsequent visit to the hospital showed he suffered a myocardial infarction.
The Board ultimately ruled that the infarction was precipitated by the stair climbing, and that it constituted an accident arising out of and in the course of claimant's employment. As the two cardiologists who participated in this case opined that the stair climbing at work acted to trigger a myocardial infarction and no medical evidence was presented to call the opinions of those physicians into question, substantial evidence in the record supported the Board's determination that claimant's myocardial infarction was causally linked to his employment.
After the claimant testified in that she had not worked for anyone in any capacity during the time following her injury, the carrier presented surveillance videos and a written report prepared by a private investigator reflecting claimant leaving her home, driving to a chiropractor's office and remaining there for several hours, wearing a uniform bearing that office's logo, and running errands with other people from that office.
The Court agreed that this constituted substantial evidence supporting the Board's determination that claimant was working after her injury and concealed her employment for the purposes of receiving benefits. The employer conceded, however, that it did not raise this issue either before the WC Law Judge or in its initial application for review by the Board panel, and the Board did not address it. In both cases, ' claimants ' appealed, challenging both the denial of venue transfer and the penalty.
In fact, these two cases bring to a total of three that have been argued, and lost, on this one issue by the Law Offices of Joseph Romano, since December of last year. After the claimant had obtained benefits, she and the carrier stipulated that claimant had sustained a permanent partial disability and had not voluntarily removed herself from the work force, with a decision to that effect issued in Several years later, an IME found claimant capable of working with restrictions.
The Board, noting its departure from prior precedent, held that " a claimant's failure to respond to a work search inquiry without something more may not constitute sufficient evidence of a triable issue of fact upon which a reopening may be based. If this case appears familiar, it is.
The petitioning law firm, the Law Offices of Joseph A. Claimant was an employee of Alitalia until his position was eliminated as part of a staff reduction program at which time he was hired by Swissport to, in effect, perform for Swissair exactly the same duties under the same manner of supervision and work rules.
The employer ILT is a tutoring referral and billing service that provides in-home tutors to clients seeking assistance with school work and test preparation. After being assessed for unemployment insurance contributions on behalf of the tutors, ILT countered that its tutors were independent contractors. Claimant injured his back while working and thereafter worked intermittently both for his original employer and at a new employer, LKQ Broadway where he was ultimately terminated absenteeism.
After he ceased working and received unemployment insurance benefits, a Law Judge concluded that his separation from employment was due to his compensable back injury and that he did not voluntarily withdraw from the labor market. A Board panel, in a split decision, reversed the Law Judge and on Full Board Review, determined that claimant's awards must be rescinded, finding that claimant failed to produce sufficient evidence of an attachment to the labor market.
Nevertheless, "even though there is in the record substantial evidence to support the determination made," the Board's "failure to conform to [its] precedent will. Although the Board found that the claimant was actively participating in a search with One-Stop, because claimant did not provide documentation of his participation, the Board concluded that he failed to adequately demonstrate attachment to the labor market.
Under these circumstances, the Board has not adequately explained its departure from its prior precedent. Accordingly, the decision of the full Board must be reversed and the matter remitted to the Board for further proceedings. Claimant sought psychiatric treatment shortly thereafter and successfully filed a claim for posttraumatic stress and adjustment disorder.
The employer argued that the verbal threat could not give rise to a compensable stress claim, noting mitigating factors such as the presence of others in the operating room and claimant's familiarity with the surgeon's " difficult " personality. However, the Board determined that claimant's uncontroverted psychiatric diagnoses were caused by the incident, and that, threats of physical violence made by her supervisor constituted greater stress than that which normally occurs in similar work environments.
Inasmuch as such determination is supported by substantial evidence and this Court cannot "reject the Board's choice simply because a contrary determination would have been reasonable," it must be upheld. While working as an assistant store manager, he made a telephone call to a coworker at her home to discuss a work-related matter. Following that telephone call, the coworker's husband became convinced that claimant and the coworker were engaged in a romantic relationship, prompting the coworker's husband to undertake a course of threatening and harassing conduct against claimant, culminating in an unsuccessful murder-for-hire plot against him.
Additionally, the coworker's husband contacted claimant's supervisor regarding the alleged affair, which triggered an internal investigation by the employer and ultimately resulted in claimant requesting a transfer to another store. As a result, claimant's preexisting posttraumatic stress disorder was exacerbated to the point that he was unable to continue to work. Claimant the successfully filed a claim for workers' compensation benefits, affirmed by a split Board panel and a Full Board review.
Here, the work-related phone call from claimant to his coworker's home was the basis for the subsequent harassment of claimant at his place of employment, the employer's internal investigation and claimant's request for a transfer, all of which exacerbated claimant's preexisting stress disorder. And since the record revealed no connection between claimant and the coworker's husband outside of claimant's work-related duties, the Board properly found the required nexus between the threatening conduct that exacerbated claimant's preexisting condition and claimant's employment.
Joseph of counsel to James A. In , claimant's husband hereinafter decedent was found to be permanently partially disabled due to injuries to his lungs and he received benefits until his death in The Court agree with the Board that substantial evidence was represented by the decedent's death certificate listing the immediate cause of death as sepsis, as a consequence of respiratory failure and a C medical report completed by decedent's physician of 20 years, who most recently saw decedent in June , opined that decedent's death was caused either directly or indirectly by his work-related illness.
In , plaintiff determined that the Trust was insolvent and assumed its administration. Several appeals and cross appeals were made by all the parties regarding leal fees how much and by whom. After claimant suffered compensable injuries, he was awarded a schedule loss of use and the case closed in Thereafter, his condition deteriorated and, in September , his orthopedic surgeon requested authorization to perform surgery, a request which, because the carrier did not respond within 30 days, was approved, in November , by WCB Chairman issuing " an order stating that such request is deemed authorized.
In March , a Law Judge shifted liability to the Fund effective , but held that the carrier remained liable for the surgical costs due to its failure to properly administer the request for authorization.
The Court ruled that: Here, the employer entered into an agreement with claimant on December 30, that permitted claimant to retain the proceeds of the third-party action in exchange for, among other things, his forbearance of future indemnity benefits. In our view, these proceeds constituted a lump-sum payment for purposes of the statute. Thus, because the settlement agreement effectively " disposed " of the employer's obligation to pay future indemnity benefits in exchange for claimant's retention of a lump-sum payment from the third-party action, application of the statute is appropriate to bar transfer of liability for future medical benefits to the Special Fund.
The Court reversed the Board, sending the case back for the Board to calculate the date to which the amount paid in the settlement would extend? Claimant was not registered or affiliated with any volunteer organization or agency during the course of these two days, and he did not aid in the rescue or recovery operations after September 12, A Board panel, citing the definition of "first response emergency services personnel " as set forth in the final revised Order of the Chair No.
In reversing the Board, the Court summarized its position: Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint. Benefits were awarded and, then, rescinded August 28, by a Board Panel.
A year later, on August 14, , a Law Judge awarded benefits for January 21 to April 1, but omitted mention of the 9-month period. However, this contention ignores the fact that, pursuant to the August 28, WCLJ decision, compensation for the period between February and October 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 , 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.
Singer of counsel to the Special Funds and Iris A. After the claimant was classified with a permanent partial disability due to a left shoulder injury, the carrier leaned that the claimant suffered from, among other things, preexisting hypertension and degenerative disc disease.
Singer of counsel to the Special Funds Conservation Committee, respondent. Claimant, an insurance salesperson, sustained compensable injuries to her head, neck and back from a fall at work, retiring at the end of that year and, in , was diagnosed with Parkinson's. She sought to amend her claim adding consequentially related Parkinson's and seeking post retirement benefits. The WCB determined her disease was unrelated to the accident and that she had retired voluntarily.
Claimant admitted never informing her employer that she was unable to work, never received medical advice to retire, and made no effort to seek a disability retirement pension. The Court concluded, " 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. Although claimant testified at length about his many disabilities, limited lifestyle, etc, evidence showed this not to be true.
In both cases, the claimant, on an undated form on his counsel's letterhead, requested that hearings on his claim be conducted in the City of White Plains, Westchester County for convenience even though the claimant did not live in that county nor was injured in that county. If this cases appears familiar, it is. On December 19, , the 3rd A. The 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" The Law Judge 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 Law Judge's decision, but did not assert that the Law Judge erred in requiring a signed statement and, indeed, filed one shortly after the decision was issued. The Court then added a footnote: The Court previously reversed the Board on this same issue in this case on March 14, AD3d , .
When the carrier appealed that decision, this Court reversed the Board, holding that past Board decisions had permitted a carrier to begin taking its credit for a third-party recovery as of the date of consent — when such right was specifically reserved in the consent letter — and that the Board had not provided a rational basis for departing from such precedents, rendering its decision arbitrary. The Court again reversed the Board, noting among its many objections, the following: Although claimant sustained a work-related injury to her right shoulder in and experienced pain in that shoulder, it was not until she underwent surgery to repair a rotator cuff tear.
When a Board panel affirmed, it assessed a penalty against claimant's attorney for seeking review without reasonable grounds. Thus, substantial evidence in the record supports the Board's finding that claimant's knee injury was a direct, not a consequential, injury. After hearings regarding permanency and degree of cognitive impairments, a Law Judge expanded the claim to include a left eye injury, traumatic brain injury, and encephalomalacia, and then credited medical evidence that claimant had sustained a permanent total disability.
In December , claimant, a production laborer in a food processing plant, suffered a work-related knee injury. Claimant argues that the Board erred in relying solely upon her level of medical impairment and failing to consider vocational factors in determining the compensation rate for her temporary disability during the week period following the IME.
The Court noted that since this is primarily an issue of statutory construction and analysis, the Board's interpretation is not entitled to deference. Prevailing arguments presented by: Because the loss of business, as the result of an action seeking the collection of the pro rata share of the deficit assessment or as the result of a potential stop work order, is an imminent risk that is " impossible, or very difficult, to quantify ,' " we conclude that the court did not abuse its discretion in determining that petitioners established by clear and convincing evidence that there is a risk of irreparable harm.
The orginal motion and the Court's page decision issued October 21, to accept it can be found here. Decedent collapsed while working as a laborer at a construction site, and was later pronounced dead at the hospital. Just returning from a lunch break, the decedent bent down to pick up a pipe, collapsed without warning, and was taken to a hospital where efforts to revive him were unsuccessful.
An autopsy later determined that decedent had a massive cardiomegaly, or an enlarged heart. Nash attributed evidence of decedent's lack of sleep as a contributory factor, but did not rule out decedent's work as playing a role in his death.
Claimant, a senior court officer, was injured shortly before the beginning of his work shift when he slipped and fell on ice. The incident occurred on a public sidewalk that he was traversing to reach the government center after parking his car on the street.
Although a Law Judge established the claim, a Board panel denied his ensuing application, finding that his injury did not arise out of and in the course of his employment. Although "[a]ccidents that occur on a public street away from the place of employment and outside working hours generally are not considered to arise out of and in the course of employment" , as this accident occurred near claimant's place of employment, his claim falls within " a gray area where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation.
While the public sidewalk here was near the government center, it was open to the public and there was no showing that it was " otherwise controlled by the employer, that workers were encouraged to use it or that it existed solely to provide access to the workplace.
The ice on the sidewalk, moreover, constituted "a danger that existed to any passerby traveling along the [sidewalk] in that location" and bore no relation to claimant's employment. Prevailing argument presented by: Decedent, suffering from severe scoliosis, had since childhood fixation rods surgically installed to stabilize her spine.
In , she fell down a flight of stairs while working, suffering back injuries. The fixation rods appeared to be intact in X rays taken immediately after the accident.
However, after subsequent X rays taken eight months later showed that one of the rods had broken, she requested authorization from the Board for surgery to remove the broken rod and take other steps to restore spinal stability.
The Board credited the surgeon's testimony which, despite medical evidence to the contrary, provided substantial evidence for finding a causal link between the work accident and subsequent back surgery.
His failure to file C-4's during his detention was excused as he submitted C-4 forms indicating treatment for his established injuries prior to and immediately after his immigration detention.
He also provided medical records reflecting continuing symptoms and treatment for his work-related injuries while he was detained. Thereafter, claimant's attorney sought to amend the claim for additional sites, submitting a report from Dr.
Ultimately, the Law Judge granted a posthumous SLU award to claimant's widow based upon the medical report. When the carrier appealed contending that such award was not supported by substantial evidence, aa Boad panel agreed, reversing the Law Judge, The Court agreed, findings that " [t]hough the Board may not fashion its own expert medical opinions, it may reject medical evidence as incredible or insufficient even where.
After having been approved to receive home health aide services 10 hours per day, claimant's sister began providing these services. In dismissing the appeal the Court found that the claimant was receiving the approved home health care and the only issue was the rate of pay.
At different points between and January , WCB deemed each of the trusts insolvent and assumed their administration.
WCB commenced this action, as the governmental entity charged with administering the state's workers' compensation system and as successor in interest to the trusts, asserting causes of action for breach of fiduciary duty, breach of contract, aiding and abetting breach of fiduciary duty, fraud and unjust enrichment.
Supreme Court partially granted the motions. This Court found that " [t]he cause of action for aiding and abetting breach of fiduciary duty is premised on SGRisk's knowledge of the fiduciary duties owed by CRM and UHY to the trusts, and allegations that SGRisk intentionally continued to underestimate the trusts' future claims liabilities with the knowledge that this would aid and abet breaches of fiduciary duty by CRM and UHY.
Because the allegations of fraud perpetrated by SGRisk are essential to this claim, a six-year statute of limitations pursuant to CPLR 8 is applicable, rendering the claim timely. Thereafter, by decision and amended decision, the Board granted a subsequent request by claimant that it consider new medical and scientific evidence submitted by claimant regarding the causal connection between his illness and exposure the toxic chemicals.
After a work-related back injury was established and claimant classified as permanently partially disabled, claimant was paid intermittent lost time benefits covering periods between and and, in January , his case was closed.
Scotti , Consolidated Edison Company of N. In supporting the Board interpretation of the medical evidence, the Court wrote that, "[W]hile the Board cannot rely upon expert opinion evidence that amounts to nothing more than pure speculation, the Workers' Compensation Law does not require that medical opinions be expressed with absolute or reasonable medical certainty.
All that is required is that it be reasonably apparent that the expert meant to signify a probability as to the cause and that his [or her] opinion be supported by a rational basis. Claimant filed for comp benefits alleging that work-related stress caused her to develop depression, anxiety and posttraumatic stress disorder.
Suffering from a work-related injury and receiving compensation, claimant or, at his behest, his wife represented that he was not performing any unpaid work in several questionnaires submitted to the carrier and independent medical examiners, testifying to this in front of a Law Judge. Claimant's husband hereinafter decedent , after repeated exposed to asbestos in the course of employment, had his claim established in , finding him to be permanently partially disabled by asbestos-related pleural disease.
After decedent passed away from lung cancer and congestive heart failure in , claimant successfully sought survivor death benefits. After the employer sought reimbursement for the death benefits from the Fund, which required a showing that decedent's "lung cancer [was] causally related to, or was precipitated by, a dust disease such as asbestosis" , the Board determined that reimbursement was inappropriate because decedent's underlying claim had not been established for asbestosis.
After the employer sought to reopen decedent's claim for workers' comp benefits to include a diagnosis of asbestosis, as well as to establish the death benefit claim for that condition, the Board 1 denied the employer's request to reopen decedent's claim as untimely and 2 determined that, in any case, there was no proof connecting decedent's lung cancer to asbestosis.
The Board had found that it was the employer who successfully fought to prevent the claim from being established for asbestosis. Claimant, who worked as a bond trader on the 84th floor of the WTC of September 11, , had a brief absence from work as a result but returned to work in the same capacity for other firms, then was a principal in a bond trading firm. In , after a move into the financial services field and a corresponding reduction in income, he filed a claim for workers' comp which was established in for work-related posttraumatic stress disorder PTSD with a reduced earnings award as of January 1, and continuing.
Accordingly, the record does not demonstrate that claimant's withdrawal from his former profession was involuntary, particularly in light of the fact that he engaged in the profession for more than seven years following the events that precipitated his condition and does not claim lost wages for most of that period.
Visic successfully argued that Board, in denying his request to reopen his case, simply ignored the only medical evidence in the file, evidence which supported the claimant. Election forms must be submitted to the Human Resources Office for approval. Requests for changes to medical coverage must be submitted to the Benefits Office before payroll deductions and coverages can be updated. McDonald , Superintendent of Schools. Baldwinsville Central District Office.
New Excellus identification cards will be mailed to your home address prior to October 1, All medical plan participants will be automatically enrolled in an new vision plan through Davis Vision.
Vision identification cards will be mailed to your home address on or about October 1, Prescription drug coverage will continue to be provided through Excellus under the new Classic Plan. Summary Medical Insurance Rates: Box , Eagan, MN