August 2019 New York Workers’ Compensation Law Reporter Highlights

Video evidence indicates claimant made false representations in violation of § 114-a

Case name: Swiech v. Lackawanna, City of, 119 NYWCLR 112 (N.Y. App. Div. 2019)

Summary: The Appellate Division supported the Board's ruling that the claimant was in violation of WCL Section 114-a and was therefore disqualified from receiving future wage replacement benefits. Video surveillance shows the claimant performing tasks with ease that contradict the statements made in medical examinations. The claimant reported severe functional limitations due to a workplace injury. Falsefying and exaggerating injuries is in direct violation with WCL section 114-a.

Claimant's failure to attach to labor market halts benefits

Case name: Suffolk, County of/Dept. of Public Works, 119NYWCLR 115 (N.Y. W.C.B., Full Board 2019)

Summary: The Full Board ruled that claimant's awards be suspended after receiving benefits for years due to a temporary partial disability. Medical reports state that claimant was capable of sedentary employment. Awards suspended until the claimant shows sufficient effort in larbor market attachment.

Treating doctor provides convincing testimony establishing claim for lung cancer

Case name: SMG Food and Beverage LLC, 119 NYWCLR 114 (N.Y. W.C.B., Full Board)

Summary: The Full Board supported the WCLJ's decision stating that a security guard developed small cell carcinoma as a result of being exposed to asbestos at his workplace. The claimant's treating doctor conclusively testified that the cancer was caused in part by being exposed to asbestos at his place of employment. The client had a history of smoking which, in combination of being exposed to asbestos increased his risk of developing lung cancer. Due to the validity of the treating doctors testimony, the claimant will receive benefits.

College student aide scores benefits for injury while walking to class

Case name: Monroe Community College, 119 NYWCLR 119 (N.Y. W.C.B., Full Board 2019)

Summary: The Full Board ruled that a student and part-time student aide of Monroe Community College will receive benefits as a result of a slip and fall on campus. The claimant was walking to class on her workday to perform her job when she fell on a wet floor.

Claimant can't compensably connect contradiction of Bartonella bacteria to workplace

Case name: Petesic v. fox 5 new york,, 119 NYWCLR 122 (N.Y. App. Div. 2019)

Summary: The Appellate Division affirmed the Board's decision denying benefits to a Claimant who claimed she contracted Bartonella bacteria as a result of dead rodents in her workplace. The claimant did not disclose that she had been traveling in the last year. Therefore, the connection to the place and employment and the Bartonella bacteria was insufficient and questionable.

Delay in filing hearing loss claim proves costly for worker

Case name: Chojnowski v. Par Environmental Corp, 119 NYWCLR 126 (N.Y. App. Div. 2019)

Summary: The Appellate Division confirmed the Board's ruling that an asbestos handler's claim for hearing loss due to working a loud environment was denied. The claimant suffered hearing loss in September 2005 and therefore was barred by WCL Section 28, which states the claim must be filed within 2 years of knowledge of an occupational injury.

Carrier fails to prove claimant exaggerated extent of his injuries

Case name: Rosario v. Consolidated Edison Co. of N.Y. Inc., NYWCLR 124 (N.Y. App. Div. 2019)

Summary: The Appellate Division supported the Board's decision that claimant did not violate WCL Section 114-a by exaggerating injuries. The carrier did not sufficiently prove by video surveillance that the claimnt's hand injury was being exaggerated beyond capability.

Beauty shop owner fails to connect heart attack to rude customers

Case name: Issayou v. Issayou Inc., 119 NYWCLR 130 (N.Y. App. Div. 2019)

Summary: The Appellate Division supported the Board's ruling stating that the claimant's myocardial infarction was not due to the interaction with rude and difficult customers. The salon owner's stress from demanding clients is not greater than other similary situated workers and therefore the heart attack was not a result of her employment.

New York Workers' Compensation Law Reporter, August 15, 2019

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