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{ September/07/2010 }
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Article 81 Guardianship Prectice: Perspectives From the Bench & Bar
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News & ArticlesMarch/1/2010 Workers' CompensationBy Ray Seligman Claimants continue to expire while on the job. In RUPER v. TRANSPORT SYS., 58 A.D.3d 930 [3d Dept 2009] the claimant, a tractor- trailer driver, died after suffering a cardiac arrest. He was found slumped against a flatbed trailer in the employer's parking lot and his death was unwitnessed. This case gave the Court an opportunity to again speak to the issue of Section 21 presumptions which can be rebutted by the production of "substantial evidence to the contrary" by the carrier. The Court made it clear that a death certificate indicating death is the result of arterial sclerotic coronary artery disease is sufficient to rebut the presumption. Those of us who have had an opportunity to review death certificates in this type of a situation understand that the evidence contained therein is limited at best. Just by the construction of the actual death certificate form, there is no place for a detailed history as to the claimant's activities prior to his death. This is also a matter that is probably not a primary concern to the emergency room staff that are trying to save the claimant's life. In short, we can only repeat it over and over and over. Don't rely on section 21 presumptions if the carrier has even the slightest amount of contrary evidence. But in MATTER OF DROOGAN v. RAYMARK INDUS., INC., 59 A.D.3d 803 [3d Dept 2009] the Claimant died from complications of a recent non-compensable stroke. In establishing the claim nonetheless as a valid death case, the court noted that the decedent's previously established compensable asbestosis contributed to his deterioration after the stroke. Again affirming Matter of Imbriani v Berkar Knitting Mills, 277 AD2d 727, 730 [2000] the Court stated that the illness "need not be the sole or even the most direct cause of death, provided that the claimant demonstrates that the asbestosis was a contributing factor in the decedent's demise". In WEBB v. COOPER CROUSE, 62 A.D.3d 57 [3d Dept 2009] an underlying pulmonary disease was found to be 75% compensable. Upon the death of the claimant as result of his pulmonary condition, the carrier sought to pay 75% of the death benefits. "No" says the Court, noting that section 16 of the WCL does not speak to apportionment and that this issue has been addressed previously. "[A] claim for death benefits - often, as here, involving the quite different question of whether the injury was causally related to the death - is a separate and distinct legal proceeding brought by the beneficiary's dependents and is not equated with the beneficiary's original disability claim" (Matter of Zechmann v Canisteo Volunteer Fire Dept., 85 NY2d at 751; Virtually every time you come across this case the caption will be "Death is not apportionable") In MESIVTHA TIFERETH JERUSALEM et al., ROBBINS v. JERUSALEM, 60 A.D.3d 1166 [3d Dept 2009] the Claimant had apparently told both his own treating physician and the carrier's consultant that he could not engage in certain activities. Nope. No way. Can't do it. In particular, contrary to the Claimant's testimony, video showed footage of claimant reaching, turning and bending while washing an all terrain vehicle, walking a large dog without putting any weight on his cane, fishing and casting in a stream while wearing hip boots, climbing a rocky embankment, carrying a backpack and crawling under a truck to repair it, all allegedly demonstrating that the Claimant was far from his Permanent Total Disability as originally found by the Board. It did not help the Claimant's argument that his own physician was not aware he could engage in these activities. Videos often give a misleading and unfair picture of the actual restrictions endured by a Claimant as those restrictions affect his/her ability to work. The videos often give rise to questions regarding degree of disability. However, when one is receiving Permanent Total Disability benefits the increased scrutiny is certainly to be expected. A finding of fraud was upheld. Call a worker an independent contractor. Put it in a written contract. Do it in a nice font. On quality paper. It simply doesn't resolve the issue holds the Court in MATTER OF BROWN v. CITY OF ROME, 505442 [3d Dept 10-8-2009] 2009 NY Slip Op 07174. Rather we need to consider, among other facts, who controls the work, who sets the work schedule, the method of payment, the furnishing of equipment and the right to discharge the relative nature of the work at issue. My wife calls me interesting. Doesn't make it so. You can call a worker an independent contractor instead of an employee. That doesn't make it so either holds the Court. IN RE BROWNE v. NEW YORK CITY TR. AUTH., 506636 [3d Dept 10-29-2009] is a very interesting presumption case. While it should be clear to all that Section 21 presumptions will not win the day in establishing the claim where the carrier presents virtually any contrary evidence, the presumptions WILL serve well in getting the case moving forward. Here the Claimant suffered a stroke on the job. Was it due to the actual employment? Unknown initially but the fact that it occurred on the job allowed the Section 21 presumptions to kick in without the need for a prima facie medical. Should the carrier have medical evidence showing otherwise, then the Claimant will need to provide some prima facie evidence (and more if they intend to win) but initially, the fact that it occurred on the job will obviate the need for the initial Prima facie medical. The Claimant in IN THE MTR. OF FIG. v. PER. SHOULDER CO., 506841 [3d Dept 12-31-2009] MEMORANDUM AND ORDER suffered a tragic injury. In order to be at work on time, the Claimant often arrived approximately 15 minutes early due to unpredictable traffic and had to remain outside until allowed into the facility. While sitting in his car on a public street he was rear ended and rendered quadrapalegic. In affirming compensability the Court accepted the findings of the Board finding a nexus between the accident and the employment. Clearly a question of fact no doubt impacted by the tragic consequences of the injury. More interesting and probably of more consequence are the procedural aspects the Board has implemented or is trying to implement. Last year the Board sought to do away with stenographers at hearings and substituting the latest electronic gadgetry. Following legislative hearings this issue was tabled and appeared dead. “State workers’ compensation law clearly requires the use of stenographers to record and transcribe the minutes of workers’ compensation hearings and to certify the accuracy of the transcripts,” said Senator Onorato. “Unless the Legislature decides to change this law, which it has not, the Workers’ Compensation Board is left without the legal authority to replace stenographers with recording equipment.” But it has arisen again and the Board is seeking to enter contracts with private concerns to provide electronic transcription services. Again brought before legislative committees, it appeared that virtually no one was in favor of such a change. This needs to be watched closely to see where it will go. For some time the Workers Compensation Board had a program of "conciliation" in which conciliator would make decisions without a hearing involving claims for lost time of less than 12 weeks. Subsequently this was expanded to 52 weeks denying many Claimants an opportunity to be heard by an Administrative Law Judge. Recognizing the lack of success with the program it was essentially tabled only to be reborn now as “MAP”. This new program would be even more restrictive in allowing Claimants their day in court. The new “Managed Adjudication Path” allows examiners to set cases for hearings, issue administrative determinations, or send a work request to adjudication asking a judge or senior attorney to issue a proposed decision. They then will issue proposed determinations and if the Claimant disagrees they can object in writing within 30 days. Of course they will have little in the way of experience to determine whether or not they should object. And to make matters interesting, if an Administrative Law Judge ultimately finds that a party rejected the proposed decision without reasonable grounds, the judge may assess costs under section 114-a of the WCL. How is a Claimant to know? Legislative hearings are set in late February and many concerned practitioners and interested parties will be in attendance to voice a strong opinion. Regrettably Google reports there are no more Workers’ Comp jokes. None. In the complete, entire universe. They are extinct. I may have to expand to doctor jokes but I need a second opinion on whether or not that would be a good idea. |
 
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