New York Workers' Compensation Ruling Roundup

Weber Gallagher Simpson Stapleton Fires & Newby LLP

Weber Gallagher Simpson Stapleton Fires & Newby LLP

Matter of Fernandez v. NYCTA. CV-23-0309

The 3rd Dept. affirmed the Board’s decision to disallow this COVID-19 death claim. In this case, it involved an essential worker in the early days of COVID-19. The decedent was a track inspector who inspected miles of subway tracks every day. He got COVID-19 in March 2020 and then had a cardiac arrest and died November 2020. The time between COVID-19 and the death was not what the 3rd Dept reviewed. It was disallowed because the claimant’s expert opinions were based on facts that were not established in the record. The claimant’s doctors’ opinions were based on assumptions regarding the claimant’s work environment which were not accurate.  In particular, that he had a “close” work environment and was in regular contact with the public was not supported. 

Practice tip: As a carrier or employer, it is always important to find inconsistencies in the record and that upon which an expert relies.

Matter of Leonard v David's Bridal, Inc. CV-23-0298

This is an established COVID-19 claim but not during the initial shut down period; not for an essential worker; not for a front-facing worker; but for a seamstress working in the back of the shop in March 2021. The claimant’s treating doctor testified there was a “strong probability” she caught it at work.  And the key here really is that the carrier did not get an opinion on it. The claimant demonstrated that a co-worker had it prior to her contracting COVID-19. 

Practice tip: As a carrier or employer, if you get one of these claims, make sure to get an expert opinion that it would be impossible to determine how or where someone caught COVID-19, especially for any case after the shutdown period.

Matter of Singh v Atlas NY Construction Corporation CV-22-2011

The 3rd Dept. rejected a cancellation of insurance defense based on the carrier’s failure to demonstrate strict compliance with the notice requirements per Sec. 54(5). The carrier sent a notice of cancellation via certified mail return receipt but could not prove it. The carrier submitted: a. US Postal Service certified mail bar code; b. the notice of cancellation; c. mailing manifest; and d. Underwriting manager testimony. Yet somehow the Board Panel did not accept it because:

1. The carrier could not prove the notice of cancellation was inside the envelope sent via certified mail.

2.The mailing manifest does not indicate the method of the mailing [no note about certified mail/return receipt].

3.Underwriting manager who testified did not personally do the mailing.

Practice Tip: The carrier or employer must produce evidence from the person who put the notice in the envelope and the person who placed it in the mail. 

Matter of McNulty v Craeco, Inc.  CV-23-0111

Here, we have a claimant who pleaded guilty to criminal sale of a firearm presumably during the time he was collecting temp] and was sent to jail for that offense. Benefits were suspended as a matter of law during the incarceration, but while the claimant was in prison, the carrier asked for 114-a to be found, to rescind prior temporary awards and that all future wage benefits be precluded. The Board would not rule on it until the claimant was released from prison. The 3rd Dept upheld it and further recognized that the conviction in and of itself is not proof of a 114(a) violation.

Practice Tip: Here it is important to note that, even if the crime involves a sale [ostensibly for the consideration of money], this is not on its face a violation of 114-a. You can sell illegal guns and still collect your temporary benefits.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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