Appellate Division Decisions May 27, 2021

 The Court has issued several noteworthy decisions addressing appeals from Board decisions.

(1)  Joseph Kornreich v. Elmont Glass Company & WCB.

This claim was established for the neck and back from a 2007 accident.  In 2014, claimant pleaded guilty to promoting gambling in the first degree, a felony.

The carrier raised Section 114-a against claimant based on this conviction.  The Law Judge found a violation of this section because claimant had previously denied working on WA-1 forms provided to him by the carrier.  The Board Panel affirmed this finding.

The Court agreed, given the transcript of claimant's 2011 guilty plea, stating that he engaged in bookmaking with others, taking in approximately $5,000.00 per day.  The Court took note of claimant's statements that he had a gambling addiction, and that since he placed bets with bookmakers, but was not a bookmaker himself, this could not be considered work.  However, the Court held that this exculpatory statement "created a credibility issue for the Board to resolve," but this was insufficient to disturb the Board's decision.  

NOTE:  While the issue may have been unclear before, illegal activity from which a claimant profits can be deemed "work," where material misrepresentations as to work activity is raised as a Section 114-a violation.

(2)  Rho v. Beth Israel Medical & WCB.

Claimant alleged that she suffered work-related injuries in 2005, but did not file a claim until 2010.  The carrier controverted this claim, raising Section 28.  Claimant did not appear at the initial hearing for this matter in in 2010, and the claim was marked no further action.

Nearly seven years later, claimant retained counsel and reopened the claim.  She argued that her mental incompetency should excuse the untimeliness.  Following several hearings over the next two years, the Law Judge disallowed the claim as time-barred.  The Board Panel affirmed this finding and noted that claimant had failed to demonstrate that the statute of limitations should have been tolled for her incompetency.

The Court took note of claimant's claim for various psychological conditions that allegedly stemmed from the insomnia and anxiety that were allegedly caused by her working the night shift for the employer.  Claimant last worked on July 6, 2005, and eitker knew or should have known no later than 2006 that her conditions were work-related.  Accordingly, the Court agreed that filing the claim in 2010 rendered it untimely.

Section 115 of the WCL states that no statute of limitations shall run against a mentally incompetent person "so long as he [or she] has no committee or guardian."  This statutory tolling provision is only available to those who cannot assert their own legal rights due to "an overall inability to function in society."  It is claimant's burden to demonstrate, through medical evidence from the relevant period of time, that she was mentally incompetent to file a claim within the two-years period set forth in Section 28.

Claimant did raise these issues in her appeal to the Board Panel, but she did not invoke mental incompetency or the tolling provision before the Law Judge at any of the hearings held in this matter.  

The Court did, however, address the substantive issue of claimant's alleged incompetency, and found that claimant did not offer sufficient proof of same.  The medical records indicated that her thinking and judgement were indeed impaired, but the Board has held that "cognitive dysfunction is insufficient by itself" to toll the statute of limitations, and the records do not indicate that she was incompetent prior to 2010.  Moreover, claimant was able to apply for and obtain social security benefits in 2005 and 2006,  during the very period of time she claims that she was unable to function.  Accordingly, the Court affirmed the disallowance.

NOTE:  The two-year statute of limitations can be tolled for mental incompetence, but the claimant most produce contemporaneous evidence of same.

(3)  Eric DeWald v. Fiorella's Landscaping & WCB.

This claim was established for the neck and back from a 2014 accident.  Awards were made for various periods, and suspended for other periods due to the lack of medical evidence.

In July of 2017, despite the absence of up-to-date medical evidence, a Law Judge directed continuing benefits.  On appeal in November of 2017, the Board upheld this award because an IME found a temporary moderate partial disability within 90 days prior to the hearing in question.  However, since there were no further medical reports, the Board Panel suspended payments as of September 2017.

The matter stayed dormant until August of 2019 when claimant sought reopening and produced contemporaneous medical evidence of a temporary total disability.  At a hearing, the carrier raised labor market attachment, but the Law Judge found that clamant had a total disability and was entitled to continuing benefits.  On appeal, however, the Board Panel found that claimant had not demonstrated labor market attachment and was not entitled to an award.

The Court affirmed this decision.  It referenced the Board Panel's 2017 decision, noting that the Board could adopt the IME findings as grounds to make an award in the absence of evidence from the treating physicians.  In that decision, the Board still found a temporary partial disability prior to its suspension.

The Court also noted that when the Board finds a temporary partial disability, there is an implication that claimant is required to demonstrate attachment to the labor market.  Claimant did argue that the 2017 Board Panel Decision did not contain a direction to produce a work search, but the Court noted that labor market attachment was raised by the carrier as early as 2015, but the Law Judge at that time found that issue to be moot because there was evidence of a total disability about that time.  The Court reasoned that once the Board Panel found a partial disability in 2017, and since the carrier raised that issue at the 2019 hearing, the claimant had a full and fair opportunity to address it then.

Since claimant did not produce evidence of attachment before submitting the evidence of a total disability, the Court affirmed the Board Panel in rescinding the award.

NOTE:  Anytime there is a finding of temporary partial disability, there is an obligation to search for work.  However, it is strongly recommended that practitioners raise this issue whenever that determination is made.  Of course, during the COVID restrictions, the obligation to search for work is suspended, but as pandemic restrictions are lifted statewide, this obligation will most likely be reinstated.

(4)  Wieslaw Gandurski v. Abatech Industries, Inc. & WCB.

Claimant left his employment as an asbestos handling in 2002 and then worked as a union organizer until March of 2019.  In June of 2019, he filed an occupational disease claim, alleging binaural hearing loss due to continued exposure to loud noise while working as an asbestos handler.

The carrier controverted this claim, arguing that there was no causal connection with his work for the employer.

In July of 2019, a Law Judge found prima facie medical evidence for binaural hearing loss.  However, the claim was disallowed because insufficient medical evidence demonstrating a causal connection between the hearing loss and claimant's employment.  The Board Panel affirmed this finding.

The Court held that medical evidence demonstrating a causal relationship must "signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility."  

Claimant testified that he was exposed to loud machinery without hearing protection for five years until he left his employment as an asbestos handling in 2002.  The 2019 reports from his treating physician, Dr. Alleva, concluded that his hearing loss was secondary to his 18 years in the asbestos handling field, and the fact that claimant worked in an office environment, not exposed to noise, after his departure in 2002.

However, the Board's file also contained a 2017 report from Dr. Unkowsa, who found that claimant had "right ear hearing loss for 30 years due to an accident."  Also, claimant conceded during his testimony that during his time working as a union organizer from 2002 to 2019, he still visited construction sites, where there was loud machinery, and that he had attended at least 15 "loud protect demonstrations."  The Board therefore rejected claimant's testimony as he did not provide an accurate history to Dr. Alleva.

Accordingly, this disallowance was affirmed.

(5)  Miguel Ordaz v. Jerrick Associates Inc. & WCB.

This claim is established for multiple sites due to a 2018 accident.  In July of 2019, the carrier raised Section 114-a against the claimant.

At the conclusion of the trial, which included testimony of the claimant, investigators, and the review of surveillance video, the Law Judge concluded that claimant had violated Section 114-a.  Both the mandatory forfeiture penalty and the discretionary disqualification penalty were imposed.  The Board Panel affirmed this finding.

Claimant testified that he could not work since the date of the accident, and could not do so due to back pain and headaches.  He could only stand for 10-15 minutes at a time, could not lift more than five pounds, and could not do any yard work.  However, surveillance videos taken from March 27, 2019 to July 3, 2019 depicted claimant selling candy and ice cream to children outside a school, carrying and setting up a folding table and umbrella, loading and unloading supplies from his car trunk, and standing for hours at a time.  Given the inconsistencies between his testimony and the video evidence, the Court held that the Board's decision was supported by substantial evidence that claimant misrepresented his work activities and degree of disability.

(6)  Terri Goutermout v. County of Oswego & WCB.

Claimant's husband died after suffering a cardiac arrest at work and his widow filed a death claim.  A treating physician completed a Form C-64 as to claimant's death, and an IME physician provided a report finding causal relationship.  Both physicians testified at deposition, and they both stated that they had ex parte communications with claimant's counsel.

Both parties submitted memoranda of law and the Law Judge found that the ex parte communications between both physicians and claimant's counsel were extensive, and assigned no weight to their medical findings as a result.  Given the lack of medical evidence of causal relationship, the Law Judge disallowed the claim.  The Board Panel affirmed this finding.

Citing to Sections 13-a(6) and 137(1)(b), as well as Board Memo 046-124, the Court held that the Board properly assigned no weight to the medical reports.  Specifically, the Court took into account that (a) claimant's counsel's communication with the IME physician took place one day before the deposition at claimant's counsel's office for one hour, during which the attorney and the physician reviewed medical records and discussed what the deposition would entail; and (b) counsel's communication with the treating physician was a review of various records, including the autopsy report and deposition transcripts, for 15 minutes over the phone, in preparation for the drafting of the Form C-64.  The Court disagreed that the communications in question were purely ministerial, given the extensively substantive nature of the discussions.

NOTE:  Per the statutes and memo set forth above, any substantive correspondence with a treating physician must be sent to that physician in writing, copied to all adverse parties and the Board, and must be completely non-leading and non-suggestive.  Any substantive correspondence with an IME physician must be sent to the IME vendor in writing, attached to Form IME-3, and filed with the Board, and must also be completely non-leading and non-suggestive.  Otherwise, the result that the Court affirmed here will almost undoubtedly result.  

(7)  Stefano Napolitano v. City of Batavia & WCB.

Claimant, a fire chief and EMT, allegedly sustained work-related injuries in December of 2018.  He filed a claim for benefits in April of 2019.

The carrier controverted the claim, raising untimely notice under Section 18.  After trial, the Law Judge established the claim for the right knee, holding that claimant did give notice to the employer as soon as the severity became apparent.  On appeal, the Board Panel reversed and disallowed the claim, finding untimely notice without a valid excuse.

The Court noted that it is the claimant's burden to demonstrate that it is the claimant's burden to demonstrate that the employer was not prejudiced by late notice, but that even if lack of prejudice is proven, the Board is still not required to excuse the late notice.

It was undisputed that claimant provided untimely notice to the employer.  Claimant did not argue that he was unable to provide the notice, or that the employer was independently aware of the accident.  Moreover, as a fire chief, claimant himself had advised his own subordinates to provide timely notice of their work-related injuries.  Moreover, since he had received a prior SLU award for both knees, he was already aware of of the required procedures for filing a workers compensation claim.  Despite this, claimant chose not to notify the employer of the December 2018 injury for four months, deciding to "muscle through it."  Per his own admission, notice was not provided to the employer until "the pain would just not subside."

Accordingly, the Court affirmed the Board's disallowance of this claim for lack of timely notice within 30 days of the accident under Section 18.

NOTE:  While the Board has provided many excuses for claimants to have claims proceed despite untimely notice, where claimants remain silent about their injuries, try to "muscle through them" until they can no longer do so, and the employer is not otherwise aware that the accident happened, this will now be the result.  The Court seemed particularly influenced by the fact that this claimant knew or should have known about the 30-day statutory deadline.