Mind the Gap: New York Third Department Takes on Four Workers’ Compensation Claims

Four new workers’ compensation decisions dropped today from the New York Third Department.

Buscemi v. Prime Care Coordination

The claimant alleged migraine headaches from working at a computer in a warehouse. The Law Judge held that the petitioner did not produce sufficient evidence to prove the headaches were caused by a work condition. The claimant tried to introduce new evidence after the case was already disallowed from his neurologist to clarify her prior testimony and more convincingly state that work-related stressors were the cause. The Third Department held that the Board was correct in not admitting the new evidence because there was no accompanying affidavit as to why it could not have been submitted earlier, and, in any event, it was not a material change in the evidence previously submitted.

Greek v. Dansville Central School District

Here, a school bus driver with a preexisting heart condition had a medical event believed to be a heart attack while driving an empty bus. He crashed into another parked bus. He was found unresponsive in cardiac arrest. As a result of the crash, he had lung, kidney, and rib injuries. The claimant died five days later. A workers’ compensation claim was filed by his estate, and the kidney, rib, and lung injuries were determined to be compensable because they were a direct result of driving the bus.

The carrier attempted to argue that because the claimant could not appear for the trial, his claim should be disallowed, citing 12 NYCRR 300.38 [g] [16]. The Third Department held that the regulation cited by the carrier does not require automatic disallowance. 12 NYCRR 300.38 [g] [16] says that if a claimant fails to appear or is otherwise not prepared to proceed [at a prehearing conference], the case shall be marked as no further action. The carrier did not raise this objection until after the issue of compensability was decided.

The Third Department noted that the Board has the authority to resolve any controversies and make awards in any claim where an injured employee dies before his or her workers’ compensation claim can be adjudicated. The Third Department also recognized that where there was insufficient evidence in the record based on a claimant’s unavailability to testify, a claim may very well be disallowed because the carrier would not have the opportunity to cross-examine the claimant. But here, there was video surveillance of the event and no dispute that the incident happened on the job.

Regarding the death benefits, the Board credited the medical examiner’s assessment that the death was caused by both the heart attack (non-work) and the blunt force trauma (work-related), and since there was testimony that the additional stress from the blunt force trauma contributed to the claimant’s already frail heart, it could not be said that the trauma played no role. Therefore, the Board was within its discretion to find that the death was also compensable.

Brown v. NYCTA

The claimant was working as a subway station cleaner when he saw a woman’s foot get mangled by a train. He filed a claim for PTSD. The Law Judge initially established the claim, but it was reversed by the Board Panel. The Third Department agreed with the Board Panel’s factual determination that the claimant did not experience stress greater than that experienced by any other cleaner on duty in a subway station and held that the determination was supported by substantial evidence. This probably says more about the view of the New York City transit system than anything else.

Rendon v. Cosan Construction Corp.

Here, a laborer alleged that he fell in a gap between two buildings. The carrier suggested that a fall could not have occurred because the gap between the buildings was measured to be 8½ inches wide at one point and a hard hat like the one the claimant wore was “typically” the same width. The claim was nonetheless established, and afterward the carrier tried to introduce photos of the gap. The Board would not consider the photos, and the Appellate Division affirmed because there was no plausible reason that the carrier could not have submitted the photos before the trial concluded.