New York Civil Law

New York's Justice for Injured Workers Act - New York Workers' Compensation Law

New York Governor Kathy Hochul signed a bill at the end of 2022 that impacts workers’ compensation and personal-injury lawsuits in New York. “The Justice for Injured Workers Act” adds a new section of New York’s Workers Compensation Law that bars a court or other forum from granting preclusive or collateral estoppel effect to decisions by the Workers’ Compensation Board in any other action or proceeding. The Act will impact construction-site/Labor Law personal-injury lawsuits.

Consider a litigant who claims he was injured at a construction site as an employee of a concrete subcontractor. The litigant claims he fell from a height because he was not provided with appropriate safety devices. The subcontractor has no record of the litigant’s employment or his presence at the jobsite, and has no record or report of the claimed accident. The Workers’ Compensation Board determines in the litigant’s workers’ compensation claim that he was not the subcontractor’s employee and was not present at the jobsite.

Prior to the Act, the owner, general contractor, or employer could argue in the litigant’s personal-injury action (separate from the workers’ compensation claim) that the Board’s findings precluded the litigant from arguing he was the subcontractor’s employee and was injured at the jobsite. The Act now bars a court from granting preclusive effect to the Board’s decisions except on a determination of whether there was an employer/employee relationship.

The Act cuts both ways for the plaintiffs’ and defense bar. The Act’s stated intent was to protect workers and the “no fault” nature of workers’ compensation claims, thereby favoring plaintiffs in personal-injury actions. The Act’s justification notes the “lightning-fast administrative hearings before a Worker’s Compensation Law Judge” were designed to provide quick and consistent benefits for injured workers. It also notes that the hearings “sacrifice[d]” basic procedures and evidentiary rules of  trials “to swiftly decide the claims.” Thus, the Act seeks to protect workers from having less-formal, quick administrative determinations impinge on a workers personal-injury action. As opposed to workers’ compensation claims, personal-injury actions abide by rules of evidence and allow for discovery to flesh out the issues.

The glass is half full for the defense bar, however. The Act now prevents alleged injured workers from arguing in their personal-injury lawsuits that the Board’s determination on whether the work-related accident happened or how it happened precludes the defense from proffering evidence to demonstrate otherwise. The Act’s unintended effect benefits the defense bar in the construction litigation realm, where there are frequent fraudulent claims of unwitnessed, gravity-related accidents. The plaintiffs’ bar can no longer argue that the Board’s findings on the foregoing issues are final.

The Act certainly gives the plaintiffs’ bar a boon. A plaintiff can now argue that the Board’s determination on the existence of an employer/employee relationship precludes the Supreme Court from ruling on the same issue in the plaintiff’s personal-injury lawsuit. Considering the large number of fraudulent construction-site claims in New York, many of them are questionable on the employer/employee relationship issue. In that respect, the Act helps the plaintiffs’ bar.

The Act’s impact on personal-injury lawsuits is one more reason for the insured (owner, general contractor, and subcontractors), the general liability defense attorney, and the workers’ compensation defense attorney to work closely with each other at the early stages of the litigant’s claim. The defense can stem a fraudulent claim at its inception by proving to the Board that there was no employer/employee relationship between the litigant who is claiming injuries at a construction site and the general contractor or subcontractor. Considering the plaintiff-friendly protections under Labor Law §§ 240 (1) and 241 (6), disputing every meritorious issue counts.

The Act is effective immediately.

Photo credit: Arne Hoel / World Bank (license)

New York Workers’ Compensation Law/New York Court of Appeals Grants Leave To Appeal - Presumption of Compensability/Unexplained Death

Matter of Cappellino v. Baumann & Sons Bus Co. (Motion for leave to appeal granted on November 18, 2010)

52 A.D.3d 1058 (3d Dep’t 2008)

This particular appeal has been in the works for quite some time.  It concerns an important Workers’ Compensation Law issue -- i.e., what evidence will rebut the presumption of compensability in the context of an unexplained death.  Even were a death that occurs during the court of employment is unexplained, a claimant is entitled to a presumption of compensability.  However, the Appellate Division  has held that such a presumption may be rebutted by an employer with “substantial evidence to the contrary.”

 In Matter of Cappellino, the claimant’s decedent sustained a fatal heart attack while walking through his employer’s bus yard.  After a series of hearings, the Workers’ Compensation Board rendered a decision finding no causal relationship between the decedent’s death and his employment.  An impartial specialist who reviewed the decedent's medical records opined that his death was unrelated to his work activities. This opinion was based upon the decedent's documented medical history which included diagnoses of high blood pressure and high cholesterol and noted a strong family history of coronary artery disease. In addition, these records revealed that the decedent had been a chronic smoker, was markedly obese and had a permanent tracheostomy for obstructive sleep apnea. He had suffered two prior heart attacks for which he had been treated with intracoronary stent insertion and coronary balloon angioplasty.

The claimant submitted contrary medical proof on the issue of causation.  Nevertheless, the Appellate Division concluded that the Board’s determination that the decedent’s fatal heart attack was not work related is amply supported by substantial evidence.

The Court of Appeals on this appeal will address the novel issue regarding rebutting the presumption of compensability.

 

Supreme Court, Nassau County Addresses Interesting Question Regarding Workers' Compensation Law sec. 11 -- Grave Injury

In Paccio v. Whiting Door Manufacturing, Supreme Court, Nassau County (Lally, J.), addresses, among other things, whether the plaintiff sustained an "acquired injury to the brain caused by an external physical force resulting in permanent total disability" as set forth in Workers' Compensation Law sec. 11.   As you remember from Rubeis v. The Aqua Club, this particular injury must render the employee incapable of employment in any capacity; however, the injured plaintiff need not be unable to engage in the functions of daily living or be reduced to a vegetative state (see prior post)

The interesting point about this case is that the Court determined that an issue of fact existed as to whether the plaintiff's injuries qualified for this particular "grave injury," basing its conclusion on the plaintiff's expert affidavit regarding a physical examination that occurred a year before the affidavit's date.  The expert had numerous gaps in her affidavit, failing to clarify whether certain impairments were present prior to the plaintiff's accident.

New York Court of Appeals Addresses Workers' Compensation Bar Issue Tomorrow

The New York Court of Appeals will address an interesting issue tomorrow regarding the applicability of the exclusivity provisions of the Workers' Compensation Law when an injured worker tries to sue a party purportedly acting as the employer's agent.  The issue arises in Fung v. Japan Airlines, Co.

The injured worker's employer was the Port Authority of New York and New Jersey.  He was injured while within the scope of his employment (slipped on ice in subject parking lot).  The Port Authority owned the parking lot and leased it to Japan Airlines Management Corp., which subleased it back to the Port Authority.  The lease/sublease agreement made Japan responsible for maintenance of the property, including snow removal and electrical lighting.   Japan contracted with Aero Snow Removal Corp. for snow and ice clearing.   The injured plaintiff and his wife filed this personal injury action against JAMC and Aero, among others, and JAMC commenced a third-party action against Aero for common law and contractual indemnification.

Japan argued in a motion that insofar as it entered a sublease with the Port Authority whereby it acted as the agent of the Port Authority, it may rely upon the bar provided by the Workers' Compensation Law.  The trial court rejected the argument, but the Appellate Division, Second Department agreed and dismissed the matter.

Now the Court of Appeals will wrestle with the issue.  NYCL will keep you apprised of the Decision.

Tweak on a Workers' Compensation Law Issue -- Appellate Division, Second Department Recent Decision

The Appellate Division, Second Department in Baldwin v. City of New York addressed an interesting tweak on a workers' compensation law issue.  The plaintiff previously injured himself while within the scope of his employment, applied for workers' compensation benefits, and received them.  The plaintiff was being transported to physical therapy by one of his employer's ambulette's when his injuries were aggravated by an automobile accident. 

The defendant employer moved for summary judgment in a personal-injury action that the plaintiff commenced regarding his aggravated injuries.  It argued that the plaintiff's injuries were from only the original, work-related accident.  The Second Department held that issues of fact existed on whether the subsequent accident aggravated the injuries.  The Court noted that a "plaintiff's application for, and acceptance of, Workers' Compensation benefits d[oes] not preclude him [or her] from bringing a separate common-law action to recover damages based on the subsequent acts of negligence which result[] in the aggravation of his [or her] work-related injuries where the aggravation of the injuries did not arise out of or in the course of the plaintiff's employment."

New York's NYCRR Will Soon Be Available On-Line and For Free

New York was sorely missing a vital legal resource on the Web: a free on-line version of the NYCRR. No longer. Governor Spitzer just signed Bill A7885A into law, requiring that the New York Department of Statement to post or maintain a link on its website to an unofficial version of the New York Codes, Rules and Regulations, at no cost to the public. The Department of State's Website has not yet complied with this Bill.

Appellate Division, Third Department Addresses Issues of First Impression Regarding "Grave Injury" Under Workers' Compensation sec. 11

The Appellate Division, Third Department in Giblin v. Pine Ridge Log Homes, Inc. recently addressed an issue of first impression regarding whether the loss of an eye constituted, as a matter of law, a "permanent and severe facial disfigurement" as set forth under the definition of "grave injury" in section 11.  As you probably remember, Workers' Compensation Law sec. 11 allows impleader of an employer as a third-party to a tort action of an injured employee in only two instances: where contractual indemnification exists or where the injured worker sustains a "grave injury."  The decision has several important holdings beyond the actual interpretation of "grave injury."

First, the Court held that the plaintiff (the injured plaintiff) could raise issues on the appeal because it was an aggrieved party.  The Court reasoned that the plaintiff had an interest in securing the source of payment for the award that might be ultimately granted.

Second, the Court held that failing to plead that the plaintiff sustained a "grave injury" was not fatal to the third-party plaintiff.

Third, the Court held that the loss of an eye on the record before it did not constitute a "severe facial disfigurement."    The Court reasoned:

Although a surgically removed eye clearly results in a permanent condition, plaintiff wears a prosthesis which is removed only once a year for cleaning. As Supreme Court aptly noted, the photographs of plaintiff wearing the prosthesis demonstrate little difference, if any, in his facial appearance before and after the accident.

This decision fits exactly with the New York Court of Appeals' prior decisions that have stated that courts should narrowly interpret the injuries set forth in sec. 11 with an eye toward the legislative intent  of the statute.  For the Court of Appeals' discussion of the legislative intent, Castro v United Container Mach. Grp. and Rubeis v. Aqua Club Inc. are good places to start.

New Entry in No-Fault Song Parody Contest

Remember my proposition of submitting a song parody based on the no-fault law? (see prior posts here and here).  Well, I received yet another song parody.  This song comes to us from one of my close sources, who wishes to remain anonymous. 

“Cripple Creep” sung to the tune of Up on Cripple Creek, by The Band (listen here for the song)

When I get off of this gurney

You know where I want to go

Straight up the five line subway

To Bronx Borough Medical

Bronx Expert Radiology

Little radiologist that I once knew

And he told me just to come on by

If there's anything he could do

Up for DME he sends me

If I spring a disc he mends me

I don't have to speak my lawyer defends me

An insurance dream if I ever did see one

Phantom driver had just struck me

To the dentist I did go

He bet on TMJ

And I got my prescription to go

Odds were in my favor

I had the adjuster five docs to one

When that IME appointment came around

I was sure that I had won

I took all of my MRIs

And I gave that IME doctor half

And he looked at them and just shook his head

And I just had to laugh

Now there's one thing in the whole wide world

I sure would like to see

That's when that IME report shows up

And they try to use it to deny me

Up for NCVs he sends me

I just sign the sheets he pays me

I don't have to work he disables me

An insurance dream if I ever did see one

Loo, loo hooooooo . . .

Lodi, lodi, lodi hoooooo . . . . .

Now, there's arbitration out in Queens

And this massage therapy is getting old

And this living off no-fault wages

Is almost three years old

So I guess I'll call up my employer

Tell him I'll be rolling in

But you know, deep down, I'm kinda tempted

To go and see my chiropractor again.

Up for EMGs he sends me

Household help and mileage he gets me

I don’t have a maid but I get paid

An insurance dream if I ever did see one

Loo, loo hooooooo . . . .

Lodi, lodi lodi hoooooooo . . . .

Article Explains Recent Workers' Compensation Case - Burns v. Varriale

New York Civil Law wrote about a very important Appellate Division, Third Department decision concerning Workers' Compensation Law -- Burns v. Varriale (see post here).  In this month's Albany County Bar Association newsletter, Raymond Seligman explains the impact of the decision (see article here: Download albanyworkers_comp.DOC).