New York 3rd Dept. Weighs in on Surveillance, Sidewalks, Sensitivity Claims and More

The Appellate Division handed down five decisions on Oct. 9:

1. Harmon v. Faxton Sunset St. Luke’s Health Care Center Inc: A nurse had a concussion and her nose broken from being punched in the face two times by a patient. There was no denial that the incident was compensable. But the carrier raised 114-a fraud asserting that video surveillance showed claimant was misrepresenting her condition and capabilities. Claimant reported she needed to wear sunglasses because of headaches and walking, bending, squatting, and driving was limited. Video evidence showed claimant not wearing sunglasses, walking around in stores, and squatting and bending in her yard. However, the Board found that there was insufficient evidence to rise to a level of fraud. The Board noted that the video showed cloudy/overcast days and that there was no definitive statement by claimant that she could not do the things showed in the video.
2. Herrera v. Tempo Carpentry LLC: Here, the carrier was denied an adjournment to have an employer witness testify. The carrier submitted a letter requesting the adjournment 2 days prior to the trial date saying that the employer witness was “leaving on a trip the next day.” The case involved a fall from a ladder. The carrier controverted the claim. The only witness who testified was the claimant, and based on that testimony, the Board found the claim to be compensable. The 3^rd Dept. held the Board was within their right to deny the adjournment, especially when the request did not give any details regarding the trip or why they waited until the last minute before the trial to make the request.
3. Ericson v. FOJP Service Corporation: The 3^rd Dept. affirmed the Board’s decision finding a fall on a public sidewalk outside the employer’s place of business was not compensable. The claimant tried to argue that the employer’s duty pursuant to New York City Code to keep the sidewalk safe automatically makes the employer liable for workers’ compensation regardless of whether the accident arises from employment. The 3^rd Dept. emphatically disagreed and confirmed that workers are only entitled to workers’ compensation benefits if they are both injured out of and in the course of employment. Tripping and falling on the sidewalk before work does not qualify unless the accident occurred in a grey area where the risks of street travel merge with the employment, and specifically there is a special hazard connected to that route. Here, the sidewalk is not limited to the movement of employees and the risk is shared by anyone who uses it.
4. Cho v. New York City Transit Authority: In this case, a claim was established for an exacerbation of preexisting chemical sensitivity in 2019. During Covid, claimant was able to work from home for a time, but when in-person resumed in 2021, the claimant could not return from fear from being exposed to chemicals again and additional psychological trauma because claimant’s boss was critical of claimant’s work. Claimant submitted an expert report regarding the psychological trauma, but the expert admitted that he did not know that the employer actually offered claimant a different location. The Board rejected the claimant’s consequential psychological claims because claimant’s expert did not have complete information, and there is not enough evidence to support claims on the basis of harassment by claimant’s boss.
5. Spada v. Keeler Construction: This was a good decision on occupational hearing loss. Claimant alleged that he had hearing loss due to sustained long-term workplace noise while working as a heavy equipment operator. The Law Judge found in favor of the claimant and that was affirmed by the Board Panel. However, the 3^rd Dept. reversed and found that the Board did not have substantial evidence to support its findings. The claimant’s medical opinions were too speculative. Claimant’s otolaryngologist admitted there could be other reasons for the hearing loss. The carrier’s expert found other sources for the hearing loss, including history of motorcycle riding and hunting. Moreover, the findings on claimant’s audiograms were inconsistent with noise-related hearing loss.

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