November 2021 New York Workers’ Compensation Law Reporter Highlights
November 2021 New York Workers’
Compensation Law Reporter Highlights
Ex parte communications with claimant’s counsel bars opinions of examiner, treater
Case Name: Goutermount v. Country of Oswego, 121 NYWCLR 109 (N.Y. App. Div, 2021).
Ruling: Upon review, the Appellate Division affirmed the Board’s decision disallowing the claimant’s claim for workers’ compensation death benefits.
What it means: Where an independent medical examiner and a treating doctor had ex parte communications with the claimant’s counsel regarding review of medical records and discussions regarding the completion of forms, the Board may give no weight to the doctors’ medical opinions
Claimant’s bookmaking activity warrants permanent disqualification under WCL 114-a
Case Name: Komreich v. Elmont Glass Co. Inc., 121 NYWCLR 110 (N.Y. App Div. 2021).
Ruling: The Appellate Division affirmed the Board’s decision permanently disqualifying the claimant from future wage replacement benefits based on his violation of WCL section 114-a.
What it means: Where a claimant, who has denied performing any work on activity reports submitted to the carrier, pleads guilty to promoting unlawful gambling activity by engaging in bookmaking, the claimant has violated WCL Section 114-a and may be subjected to a permanent disqualification of future wage replacement benefits.
No evidence of attachment to labor market dooms further benefits
Case Name: DeWald v. Fiorella’s Landscaping NYWCLR 111 (N.Y. App. Div, 2021).
Ruling: In affirming, the Appellate Divison held that substantial evidence supported the Board’s determination that the claimant failed to demonstrate an attachment to the labor market and was not entitled to further workers’ compensation benefits.
What it means: Where the claimant submits no proof that he was attached to the labor market before he became totally disabled, and he does not seek a n additional opportunity to do so, the claimant had failed to demonstrate an entitlement to further benefits
State trooper’s WCL at checkpoint falls under WCL article 8-A
Case Name: Bodisch v. New York State Police, 121 NYWCLR 117 (N.Y. App. Div, 2021).
Ruling: Upon review, the Appellate Division reversed the Board’s ruling that the claimant was not participating in the World Trade Center rescue, recovery, and cleanup operations
What it means: A claimant who worked at a vehicle checkpoint, assisting vehicles entering ground zero at the World Trade Center, constitutes a participant in the rescue, recovery and cleanup operations at the World Trade Center pursuant to WCL article 8-A.
Surveillance video reveals claimant exaggerated symptoms during medical exam
Case Name: Quaranta v. Special Teams INC., 121 NYWCLR 120 (N.Y. App. Div, 2021).
Ruling: Upon review, the Appellate Division affirmed the Board’s ruling that the claimant violated WCL Section 114-a and was disqualified from future wage replacement benefits.
What it means: Where the claimant demonstrated a marked antalgic gain and use of a cane during an independent medical examination, but later in the day, the claimant is observed not using a cane, walking unassisted with a golf club in his hand, and climbing stairs unassisted, the evidence demonstrates that the claimant feigned the extend of disability or exaggerated symptoms during the examination and constitutes a violation of WCL Section 114-a.