[WCA] Third Department Decisions dealing with workers’ compensation issues

April 19, 2013

Today the Court decided 3 cases dealing with workers’ compensation.

In Matter of Brown, the claimant appealed a ruling of the law judge that was affirmed by the Board which ruled that claimant violated Workers’ Compensation Law § 114–a
and disqualified him from receiving future wage replacement benefits.

Claimant, an electrician, successfully applied for workers’ compensation benefits as the result of injuries he sustained while driving to a work site in 1998. A Workers’ Compensation
Law Judge found claimant to be permanently partially disabled and awarded him ongoing payments of $400 a week. The employer and its workers’ compensation carrier thereafter
sought to disqualify claimant from receiving benefits pursuant to Workers’ Compensation Law § 114-a, alleging that he had knowingly misrepresented both his work status and the degree of his
disability. The Workers’ Compensation Board ultimately agreed, rescinded wage replacement benefits paid to claimant from November 2009 onward, and disqualified him from receiving those
benefits in the future. Claimant now appeals.

The Court found that contrary to claimant’s contention, substantial evidence supports the Board’s determination that he made materially false or misleading statements
“for the purpose of obtaining wage replacement benefits” (Matter of Church v Arrow Elec., Inc., 69 AD3d 983, 984 [2010]; see Workers’ Compensation Law § 114-a [1];
Matter of Siddon v Advance Energy Tech., 98 AD3d 1202, 1202 [2012]). Claimant informed the carrier in November 2009 that he had not “engaged in any work activity,” and later testified that
he had not worked for pay beyond using his tractor to help a neighbor grade his driveway. Other evidence indicated, however, that he worked by purchasing the contents of abandoned self storage
units and reselling them, and that he further performed a variety of excavation and construction work. The Board was free to credit that evidence to determine not only that claimant
violated Workers’ Compensation Law § 114-a, but that the discretionary penalty of disqualifying him from receiving future benefits was appropriate (see Matter of Losurdo v Asbestos Free,
1 NY3d 258, 265-266 [2003]; Matter of Robbins v Mesivtha Tifereth Jerusalem, 60 AD3d 1166, 1167-1168 [2009]; Matter of Dieter v Trigen-Cinergy Solutions of Rochester, 14 AD3d 748, 749 [2005],
appeal dismissed 4 NY3d 881 [2005]).

In Matter of Camby, the carrier appealed from a decision of the Workers’ Compensation Board, filed September 9, 2011, which ruled, among other things, that claimant sustained a work-related
occupational disease and awarded workers’ compensation benefits.

After passing the mandatory physical required for commercial drivers, claimant was hired in September 2009 by the employer as a tractor-trailer driver working approximately 50 to
60 hours a week. He drove both manual and automatic shift trailers and was responsible for long-haul trips that sometimes required driving 11 hours a day. According to claimant, during
the week of April 4, 2010, he was required to drive in two extensive traffic jams that required him to repeatedly push down on the clutch for lengthy time periods to keep the truck from
shutting off. As a result, claimant reported that he began experiencing pain in his low back, left hip and left leg. Claimant relayed the situation to his supervisor, who assigned
him to a different vehicle without a clutch. Nonetheless, claimant’s pain continued to worsen. He sought medical attention and, in July 2010, his treating orthopedist opined that claimant
was suffering from a temporary total disability and directed that he cease working. An MRI of claimant’s back revealed two disc herniations as well as nerve root irritation. The employer’s
workers’ compensation carrier controverted claimant’s application for benefits. Following hearings, a Workers’ Compensation Law Judge found that claimant had an occupational disease involving
injury to his lower back, left hip and left leg, and the Workers’ Compensation Board affirmed. The employer and its workers’ compensation carrier (hereinafter collectively referred to as the
carrier) now appeal.

“[T]o be entitled to benefits based upon an occupational disease, the claimant must establish a recognizable link between his or her condition and a distinctive feature of
his or her employment” (Matter of Satalino v Dan’s Supreme Supermarket, 91 AD3d 1019, 1019 [2012] [internal quotation marks and citation omitted]; see Workers’ Compensation Law § 2 [15]).
Contrary to the carrier’s argument, the Board’s determination that claimant’s condition is causally related to his employment is supported by substantial evidence in the record (see Matter of
Baker v Weyerhaeuser, 19 AD3d 850, 851 [2005]). Significantly, the carrier’s contentions chiefly involve challenges to the Board’s credibility determinations as to claimant and his medical
providers. However, not only is the Board “the sole and final judge of witness credibility, . . . it is within the province of the Board to resolve conflicting medical evidence regarding causation”
(Matter of Heckerman v Daimler Chrysler Corp., 84 AD3d 1535, 1535 [2011] [internal quotation marks and citations omitted]). Here, stated the Court, there is record proof supporting
claimant’s description of the onset in April 2010 of his acute low back, left hip and left leg symptoms following his excessive use of the clutch while driving a manual transmission vehicle. As
for medical proof concerning causation, the Board credited the testimony of claimant’s treating physicians, who opined that, in light of the history provided by claimant, his condition is causally
related to his employment. While it is true that the independent medical examiner who examined claimant found no causal connection to his employment and attributed his condition to degenerative
disc disease, the Board is entitled to “draw any reasonable inference from the evidence contained in the record, and this Court will not interfere with the Board’s resolution of
conflicting facts even if the evidence rejected by the Board” would have supported a contrary conclusion (Matter of Wilson v Southern Tier Custom Fabricators, 51 AD3d 1228, 1229 [2008]
[internal quotation marks and citation omitted]; see Matter of Ward v General Utils., 100 AD3d 1113, 1114 [2012]). The Court examined the carrier’s remaining arguments and find
them to be unpersuasive.

In Matter of Rankin , the carrier appealed a decision that ruled that claimant was excused from providing timely written notice of her accident pursuant to Workers’ Compensation Law § 18.
Claimant, a school bus driver, alleged that she sustained a work-related injury in November 2007 and applied for workers’ compensation benefits in March 2008. The self-insured employer and
its third-party administrator (hereinafter collectively referred to as the employer) controverted the claim and argued, among other things, that claimant had not provided written notice
of the accident within 30 days after its occurrence (see Workers’ Compensation Law § 18). The Workers’ Compensation Board ultimately found that claimant had provided adequate oral notice
and excused her failure to comply with the statute, prompting the employer’s appeal.

While claimant did not give timely written notice of her injury, her failure to do so may be excused “on the ground that notice could not be given, the employer or its agent had knowledge of
the accident, or the employer was not prejudiced” (Matter of Dusharm v Green Is. Contr., LLC, 68 AD3d 1402, 1403 [2009]; accord Matter of McCarthy v Verizon Wireless,
83 AD3d 1352, 1353 [2011]; see Workers’ Compensation Law § 18). Claimant testified that she verbally informed the bus dispatcher of the accident shortly after it occurred, and the employer’s
employee benefits supervisor confirmed that the dispatcher would be an appropriate individual to whom to report an accident if claimant’s supervisor was unavailable. Claimant also testified
that she orally notified her supervisor of the accident – perhaps the following day – and the Board credited her testimony on this point. Inasmuch as “the sufficiency of a claimant’s oral notice
is a matter within the exclusive province of the Board,” substantial evidence supports its factual determination that claimant afforded adequate notice of her injuries to the employer
(Matter of Pena v Alize II Corp., 77 AD3d 1225, 1226 [2010]; see Matter of Walker v Greene Cent. School Dist., 6 AD3d 965, 966 [2004]). The employer’s remaining contentions, to the extent they
are not rendered academic by the foregoing, have been considered and found to lack merit.