November 2019 New York Workers’ Compensation Law Reporter Highlights

Claimant’s misrepresentations, surveillance video point to permanent disqualification of benefits

Case name: Sportsman Alamo, 119 NYWCLR 174 (N.Y. W.C.B. Full Board 2019)

Summary: The Full Board ruled that the claimant was permanently disqualified from receiving wage loss benefits. Despite the claimant’s multiple reports to their treating doctor of severe pain and disability, video surveillance shows the claimant performing activities that would be impossible if they were indeed disabled.

Supervisor’s threatening behavior supports establishment of mental claim

Case name: NYC Transit Authority, 119 NYWCLR 175 (N.Y. W.C.B. Full Board 2019)

Summary: The Full Board ruled that the a supervisor who threat, berate, harassed and cursed an employee for contacting their union, clearly establishes a claim for major depression. The supervisor’s actions constitutes a stress-induced situation greater than that which other similarly situated workers experience in the normal work environment.

Carrier must reimburse claimant for medication prescribed by unauthorized doctor

Case name: West Central Environmental, 119 NYWCLR 178 (N.Y. W.C.B., Panel 2019)

Summary: A Board panel confirmed the WCLJ’s finding that the carrier did not have to pay for bills from unauthorized providers, but must pay for casually related medications prescribed by these providers.

Claimant successfully established presumption of compensability for decedent’s death

Case name: NYC Transit Authority, 119 NYWCLR 179 (N.Y. W.C.B. Panel 2019)

Summary: The Board panel held that the claimant was not required to produce prima facie medical evidence and that WCL Section 21 applied. The decedent died on duty and while on the employer’s premises and therefore no further evidence was required.

Board must consider variance request for prospective treatment

Case name: Kluge v. Tonawanda, Town of, 119 NYWCLR 182 (N.Y. App. Div. 2019)

Summary: The Appellate Division ruled that the Board properly denied the claimant’s variance request for medical marijuana after the care had already been treated. The past treatment should not stop the Board from addressing future variance requests for medical marijuana treatment.

WCA doesn’t cover claimant’s accident in company van

Case name: Scalzo Utilities, 119 NYWCLR 184 (N.Y. W.C.B., Full Board 2019)

Summary: After review, the Full Board found that the claimant, who was involved in an accident and sustained injuries in a company van on his way to work, does not qualify for benefits. Becasuet he claimant is required to report to the employer at the beginning and ed of the day, the company van is for his convenience and does not qualify.

Claimant’s lunchtime injury while picketing falls outside course of employment

Case name: New York and Presbyterian Hospital, 119 NYWCLR 185 (N.Y. W.C.B. Full Board 2019)

Summary: The Full Board denied benefits for an employee who sustained an injury while picketing at a union demonstration in front of the employer’s premises on her lunch break. The claimant’s participation was voluntary and falls outside the course of her employment.

Claimant established 80% LWEC, but fails to prove attachment to work force

Case name: Dowling College, 119 NYWCLR 191 (N.Y. W.C.B. Full Board 2019)

Summary: The Full Board ruled that the claimant who sustained multiple injuries when he fell at work, had an 80 percent loss of wage earning capacity and a 20 percent wage earning capacity. The claimant failed to demonstrate market labor attachment by applying for jobs that were not within his capacity and therefore the search was inadequate.

New York Workers’ Compensation Law Reporter, November 14 & 28, 2019