On March 21, the 3rd Department delivered four new rulings. Learn more below. 

Kaminski v. Integrated Structures, CV-22-2295 (3^rd Dept. 3/21/24)

The Appellate Division affirmed the Board’s decision to deny a carrier’s 2^nd bite at the apple to litigate whether they would be responsible for 24-hour home health care. In this case, the claimant who had a catastrophic injury from a construction accident was determined to be totally disabled requiring 24-home care in 2017. That decision was affirmed by the Board Panel in 2018. But, in 2022, the carrier filed a request for action to reduce the 24-hour home care to 16 hours based on the carrier’s new expert neurologist report.  But, because the medical evidence in the Board file did not indicate any material change in the claimant’s condition, the Board denied the carrier’s request based on the doctrine of collateral estoppel, which precludes a party from relitigating an issue that was already decided.  The key component here is that there was no new evidence in the medical records that was not previously available for a neurologist expert to give an opinion. 

Dent v. Amazon, CV-22-2154 (3^rd Dept. 3/21/24)

In this case the court refused to extend an exception to the coming-and-going rule to an injury on a public bus. Here, an Amazon fulfillment center worker injured her left foot when she was trampled by other passengers boarding a city bus after her workday ended. Coming and going to work is not generally compensable unless (a) there is a special hazard or (b) a close association of the access route with the work premises. In this case, neither the bus nor the bus stop was maintained by the employer, and “being pushed by tired passengers ‘desperate’ to claim a spot of a crowded bus” is not unique to the employer. 

Leon v. Structure Tech New York, Inc., CV-22-2146 (3^rd Dept. 3/21/24):

The Appellate Division affirmed a finding of compensability after a trial on the factual issue of notice and whether an accident occurred. The claimant, a construction worker, claimed that he injured his neck and back when he fell into a hole at 10:00 a.m. on a jobsite carrying heavy rebar.  The claimant identified working alongside a co-worker who helped him to his feet. He alleged that he told his foreman about the incident and left the jobsite at noon to go to the hospital. The claimant was previously directed to produce his hospital ER visit record, but never did. The foreman, who was the employer witness, testified that the claimant never told him about an accident but did tell him that he needed to leave early to help a family member or friend with a back problem.

The Law Judge and later the Board Panel believed the claimant and found the employer witness to not be credible. The Appellate Division affirmed on the basis that the Board is in the best position to make credibility conclusions.

Practice tip for the carrier: Subpoena the ER records and don’t rely on the claimant to produce it, especially when there is other prima facie medical evidence in eCase. Also try to produce the co-worker, even if no longer employed. Attempt to contact and subpoena him. 

Glasgow v. Con Edison, 535964 (3^rd Dept. 3/21/24)

In this case, the court declined to rule on what they determined to be a non-final issue regarding the production of a decedent’s third-party lawsuit information. The decedent died of an asbestos related illness in 2018.  He was a plaintiff in a class-action asbestos exposure case years earlier, filed in 2001. The Board directed the claimant’s wife to produce information and documents from that lawsuit. They produced only that which was publicly available in court filings.

The Board found that was not enough and particularly required settlement information which was not produced. The claimant appealed. Since there were additional issues before the Board that remained unresolved, the 3^rd Department declined to rule on this limited issue before a final determination was made. 

It is interesting to note that the Board Panel did not find this to be interlocutory, nonetheless the 3^rd Dept. did not believe the issue was ripe for Appellate review. Faced with this issue, my practical advice would be to go forward with an attempt at appellate review too, especially because to not trying to appeal could be a waiver of the issue. 

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