December 2019 New York Workers’ Compensation Law Reporter Highlights

Evidence that petitioner was not in service during accident nixes benefits

Case name: Verille v. Gardner, 119 NYWCLR 193 (N.Y. App. Div. 2019)

Summary: The Appellate Division confirmed that the petitioner was not entitled to accidental or performance of duty disability retirement benefits. Decision made under Retirement and Social Security Law Sections 363 or 363-c and General Municipal Law Section 207-c are separate systems with different coverage. A decision on one does not guarantee the other

Laborer established claim despite dispute regarding time of injury

Case name: Artimus Constructions, 119 NYWCLR 195 (N.Y. W.C.B. Full Board 2019)

Summary: The Full Board ruled that the question of when the claimant injured thei neck, back and both knees did not affect coverage. The claimant sought medical help treatment soon after the injury and there was insufficient evidence by the carrier to contradict the claimant.

Refusal to perform offered job doesn’t block benefits

Case name: Senior Comfort Solutions, LLC, 119 NYWCLR 196 (N.Y. W.C.B., Panel 2019)

Summary: A Board panel modified the WCLJ’s establishment to include aggrevation of preexisting carpal tunnel and confirmed that the claimant showed attachment to the job market. The claimant repeatedly refused the employer’s light-duty position as it did not fall within the claimants workplace restrictions and required repetitive motions with the affected hand.

Failure to include certificate of medical marijuana program nixes variance request

Case name: Absolute Concreter, 119 NYWCLR 198 (N.Y. W.C.B. Panel 2019)

Summary: A Board Panel denied the claimant’s medical marijuana variance request due to failure to attach a copy of the certificate for a Medical Marijuana Program.

Carrier’s surveillance video doesn’t demonstrate § 114-a violation

Case name: New York State Thruway Authority, 119 NYWCLR 200 (N.Y. W.C.B. Panel 2019)

Summary: The carrier submitted surveillance material it obtained several years after obtaining it. Because, the carrier did not submit this material in timely matter, the board inferred that they did not believe the activities performed by the claimant violated his medical restrictions. The Board affirmed the WCLJ’s ruling that the claimant did not violate WCL Section 114-a.

Volunteer firefighter’s injury in firehouse gym doesn’t fall in line of duty

Case name: Woodbury, Village of, 119 NYWCLR 204 (N.Y. W.C.B., Panel 2019)

Summary: The Board ruled that a volunteer firefighter, who rolled and injured his right ankle at the firehouse gym, was not entitled to benefits under the Volunteer Firefighter Benefits Law. The claimant was not participating in a supervised group fitness class or session and therefore using the facility for his personal fitness.

New York Workers’ Compensation Law Reporter, December 12, 2019