November 2020 New York Workers’ Compensation Law Reporter Highlights

Case name: Johnson v. Borg Warner Inc., 120 NYWCLR 145 (N.Y. App. Div. 2020).

Ruling: Upon review, the Appellate Division reversed the Board’s decision awarding benefits to the claimant, who alleged he sustained a work-related knee injury.

What it means: Medical testimony expressing that it was “highly possible” that the claimant’s knee injury was causally related to work falls short of the reasonable probability that is required to establish a causal relationship between the claimant’s employment and his injury.

Case name: New York City Housing Authority, 120 NYWCLR 148 (N.Y. W.C.B., Panel 2020)

Ruling: A Board panel affirmed the WCLJ’s establishment

What it means: A doctor’s testimony that the claimant’s extensive work on a keyboard caused her overuse syndrome of the hands, bilateral tenosynovitis and bilateral carpal tunnel syndrome, and the doctor’s explanation that the claimant’s tendonitis would not be present nor would the claimant’s symptoms worsen with activity had the condition been caused by her preexisting diabetes, sufficiently support the establishment of a claim for an occupational disease due to repetitive stress.

Case name: Safelite Group Inc., 120 NYWCLR 147 (N.Y. W.C.B., Panel 2020)

Ruling: In affirming, a Board panel held that the WCJ properly reduced the claimant’s awards to the tentative moderate rate for failure to appear for scheduled independent medical examinations.

What it means: Where the claimant has a valid excuse for not attending a scheduled independent medical examination, the claimant’s failure to appear for the scheduled IME will not be excused if he has not properly cancelled the scheduled appointment in accordance with the IME-5 notice.

Case name: New York City Transit Authority, 120 NYWCLR 152 (N.Y. W.C.B, Panel 2020)

Ruling: In affirming, a Board panel held that the claimant’s ankle injury, sustained while standing up from a chair at work in the employer’s break room, arose out of and in the course of employment.

What it means: A bus driver who has finished his on-the-clock break in the employer’s break room, is going to get his bus, stands up from the chair, and steps on this foot, causing the ankle to pop, has sustained an injury arising out of and in the course of his employment.

Case name: Toprock Interiors Inc., 120 NYWCLR 176 9N.Y. W,C,B., Full Board 2020)

Ruling: Upon mandatory review, the Full Board held the claimant, who was injured while working as a carpenter and is now limited to sedentary work, remained attached to the labor market.

What it means: Where the claimant credibly testifies that he applied for jobs he might be able to perform in a job field he was familiar, and he intended to discuss his restrictions if offered an interview, the claimant has not limited his job search to positions clearly outside his physical restrictions.

Case name: Prosegur Services Group Inc., 120 NYWCLR 180 (N.Y. W.C.B., Panel 2020)

Ruling: A Board panel held that the claimant, an airport security guard, sustained compensable injuries when she slipped and fell on ice while exiting a taxi that dropped her off at the airport.

What it means: Where a claimant exits a vehicle at an airport terminal entrance that is open to the public, so she can enter her workplace just inside the entrance, she is in a gray area — a place where the risks of street travel merge with the risks attendant with employment. Ice on the ground in this gray area presents a special hazard, as it is located at an off-premises point where there is a close association of the access route with the premises.