Fresh Analysis and Familiar Ground in the New York Third Department’s Latest Workers’ Comp Rulings

Four new workers’ compensation cases dropped yesterday from the New York 3rd Dept.

Ferra v. Paramount Global: This is the second time this case went to the Appellate Division. The facts of the claim are as follows: a claimant gets into a minor auto accident driving home from a job assignment. Not injured here. He gets out of the car to exchange insurance information, and while sitting inside his car on the shoulder, another car plows into him and this results in serious injuries. At the hospital, a toxicology screening revealed the claimant had a .18 blood alcohol level, which was over the legal limit. The first time this case was reviewed by the Appellate Division, the Court held that the employer failed to prove that the claimant’s intoxication was the sole reason for the accident. Now the employer was seeking to find the claimant in violation of 114-a for misrepresenting that he did not drink alcohol on the day of his accident. The Board found no violation and the Appellate Division affirmed the Board’s finding, because the record did not show that the claimant denied drinking alcohol.

Davis v. Gia Quinto Masonry: This is an occupational disease case involving a brick mason claiming repetitive use from going up and down ladders and carrying heavy boxes caused injuries to his bilateral wrists and bilateral knees. The Board found that the claimant established his injuries as compensable. The 3rd Dept. affirmed, but the most interesting and perhaps concerning issue with this decision is that the Law Judge fined the employer $2,500 for taking a deposition of the claimant’s physician during the pendency of the appeal. The Board issued a penalty for instituting a frivolous proceeding by taking the physician’s deposition for a third time on the issue of degree of disability where there had been no issue of lost time. The Board ultimately reduced the penalty to $500, but the 3rd Dept. affirmed it, specifically referring to the fact that there was no directive by the Law Judge to hold another deposition. The lesson here, therefore, should be that if there is a Board Panel appeal pending on the ultimate disposition of the claim and there are no other proceedings happening, either wait for the appeal to be decided or file a Request for Further Action (RFA) to request the Judge’s permission to a take more depositions.

The last two cases were the same as last week’s Figueroa v. Sing Sing Correctional Facility case:

In Ebanks v. Sing Sing Correction Facility and Martinez v. Sing Sing Correctional Facility, the 3rd Dept. upheld the Board’s decision to rely on an employer’s expert report without an IME-3 form. The Appellate Division found in these two cases, same as Figueroa, that there was substantial compliance with the IME notice rules because the employer properly filed both the notice with instructions to the expert, and the report was properly filed as well. There was no prejudice or lack of notice to the claimant.