Not Our Week: Three NY Third Dept. Decisions, All Headwinds for the Defense

Two new 3^rd Dept. workers’ compensation cases this week plus one Unemployment Insurance decision on independent contractor status.  None of them are good for the defense.

Paron v. Bilingual Birdies: This is an Unemployment Insurance decision, which affirmed a finding that the claimant was an employee of a placement agency for foreign language instructors. The claimant was a French language instructor who signed up with the placement company to teach at a preschool. The agency objected on the grounds that the teacher was an independent contractor. The Unemployment Insurance Board held an employment relationship existed because the claimant answered an ad; was vetted; was given best practices guidance; was provided songs and props; and received offers to teach at the school. There was no reference to the facts that would have supported a independent contractor finding, but the Court noted that there was “evidence that could support a contrary result,” but there was also enough evidence to support the Board’s finding. The school was also not identified as an employer.

Moe v. America Ootoya Chelsea: Here, the Board issued a determination that all defenses were waived because the carrier failed to file a notice of controversy within 25 days of the Notice of Indexing. This was an occupational disease case for bilateral elbow injuries from working as a line cook. The carrier claimed to have never received the notice of indexing. The address on the Notice of Indexing was the address the carrier has on file with the Board. And there was never an argument that the address was wrong. The carrier also appealed the Board’s decision to deny a request for an adjournment due to the pendency of the appeal on the late of notice of controversy.  The 3^rd Dept. held against the carrier on both issues. The carrier is deemed to have received notice if its address is correctly on the notice. And there is no right to an adjournment, extension, or stay pending appeal, without an order saying that exists. Here, as a practice tip: if there is a question whether there was receipt of a Board document, it is important to check the NYS Insurance Company database. And unless the Judge specifically rules that there is an adjournment or extension of proceedings, you must go through with it or risk being precluded.

Foster v. Monadnock Construction: In a case of no good deed goes unpunished, the Board found that the carrier’s reporting of a claim to the WCB establishes that a “claim… is filed” is sufficient for statute of limitations purposes (WCL Sec. 28). Here, the claimant failed to file a claim form within 2 years of his accident, but because the carrier reported it to the Board, that satisfied the “filing” element of a claim. It does not matter that the filing was not done by the claimant. This decision may make insurance companies pause and really consider whether an accident is reportable. For minor injuries, which are those which require two or fewer treatments by a person rendering first aid and lost time is less than one day beyond the accident date, accidents are not required to be reported to the WCB. Rather a C-2F form can be maintained by the employer.