Five Fresh New York Third Dept. Workers’ Comp Rulings, and a Cherry on Top

Five new workers’ compensation decisions dropped from the 3^rd Dept today, and this update also provides the scoop on a decision from last week.

Troiano v. NYCHA. Here, the 3^rd Dept. reversed the Board, which precluded the claimant’s expert opinion of 42.5% schedule loss use of the right wrist. The Board uncharacteristically allowed the employer to lodge a late objection to the claimant’s report on the basis that the claimant failed to comply with Sec. 137. WCL Sec. 137 sets the notice and procedures for Independent Medical Examiners (IMEs), which the Board agreed the Scheduled Loss of Use (SLU) opinion was, and not just a treating physician report. Even though the Board has discretion to rule on issues that were not raised timely, the 3^rd Dept. held that was an error here. The employer did object within 75 days of the filing of the report, and did not object to the report at the first hearing after that report was filed. The 3^rd Dept. found that the Board abused its discretion and reversed. If you see a Sec. 137 issue, raise it immediately.

McGann v. Suffolk County Water Authority. The Board was reversed again by the 3^rd Dept. The Board Panel found that because the claimant was playing pickleball after he retired, his claim of occupational bilateral carpal tunnel was not supported by complete medical evidence. Both the claimant and the carrier’s experts found causal relationship between the claimant’s work and the injury. But the initial opinions did not include the pickleball activity. The 3^rd Dept. reversed because the carrier’s expert submitted an addendum after the experts became aware of the claimant’s pickleball, yet still found causal relationship.

Quinzo v. Millenium Services LLC. The Board found that the claimant, a non-English speaking manual laborer with a first-grade education, established he was attached to the labor market because he submitted 185 light duty job applications and registered for a semester of adult learning. It is not clear from the decision what the basis was for the carrier to appeal the decision, but it may have been based on whether or not the claimant actually submitted the applications given his lack of computer skills, but he testified that his daughter helped him, which satisfied the court.

Pandolfi v. Plainedge Union Free School District. This should have been common sense. The Board denied the claimant’s attorney’s fees because the attorney withdrew from the case without a new attorney taking over. The Board determined that the attorney fee was waived by virtue of the withdrawal, but the 3^rd Dept. reversed. The 3^rd Dept. rightfully found that the Board should determine any fee awards for a prior attorney who is not substituted for “in an amount commensurate with the services rendered and the amount of compensation awarded, having due regard for the financial state of the claimant.” Here, the record indicated that the claimant would send letters to the Board expressing her grievances with her counsel’s handling of the claim and after four years of representing the claimant, counsel filed an application to be relieved. Despite the constant complaints, the claimant opposed the application. Ultimately the Board allowed counsel to be relieved, but concluded that counsel was not entitled to counsel fees because of an interpretation of WCL 24(3) that precludes fees where an attorney is relieved without subsequent representation. The 3^rd Dept. found no language in the statute that would prevent an attorney fee in this situation. Here, a client took services for four years, complained about the representation, refused to consent to a withdrawal, then opposed paying a fee. This was not a situation the statute intended to protect a claimant from unfair fees.

Rorapaugh v. New Penn Motor Express. This is fourth out the five cases today that the Board reversed, at least in part. Here the issues were: 1) whether the claimant needed the consent to settle a third-party case, and 2) whether the Board had the right to determine equitable apportionment of legal expenses towards the lien when there is no consent. First, the 3^rd Dept. found that the only time the carrier’s consent is not required to settle a third-party case is when the third-party recovery exceeds the highest amount of benefits the claimant could ever receive under workers’ comp. This was a death case, where the third-party action settled for $9 million and the claimant’s decedent received $5.9 million, which is beyond the most the claimant could ever receive in workers’ comp. However, the 3^rd Dept. held the Board could not apportion litigation expenses to the carrier where the claimant failed to get consent, and did not get an order apportioning the expenses by the court where the third-party case was filed. Here, that court was the NDNY and claimant’s third-party counsel did not seek an order, and the federal district court further found that it lacked jurisdiction to hear the issue once the dismissal was filed.

We also have a decision from last week that offers an important lesson.

Qureshi v. Rite Aid Corporation: Want to collect workers’ comp? Don’t say you cannot work and then run an ice cream business, take international trips, and spend time at amusement parks. In February 2017, the claimant had a work accident, received benefits, and returned to work. In March 2017, he left work again, and filed a claim for depressive disorder, claiming he could no longer work in any capacity because he was a victim of workplace harassment and discrimination. The Board ultimately established a claim for the psychological injuries. More recently, the claimant testified that he never returned to work. Social media and the claimant’s tax returns told a different story. According to tax returns from 2017-2020, the claimant reported income from multiple businesses he owned, including an ice cream business with his brother. His social media showed him promoting the ice cream operation. The claimant denied that he was actively participating in any business. The Board did not find that credible. The claimant tried to say that his wife actually ran all his businesses, even though she was not identified as being involved in any tax or business record. Further, social media posts showed the claimant participating in various physical activities, including theme park visits and a trip to Pakistan. The 3rd Dept. affirmed the Board’s decision, finding material misrepresentation and violation of Sec. 14-a. The 3rd Dept. agreed this rose to both mandatory and discretionary penalties because of the serious nature of misrepresentations. The claimant forfeited all wage loss and permanency benefits.

Lesson: Ask the Law Judge for direction to produce tax returns.