Employer's failure to serve a copy of its application for a review of a decision by the Workers' Compensation Board on claimant's new legal representative may result in the Board declining to review the decision

Claimant, a fire department lieutenant, filed a claim for workers' compensation benefits alleging that she experienced long-term health issues after contracting COVID-19 at work. The self-insured employer and its claims administrator [collectively Employer] filed a first report of injury-denial [Form FROI-04] on February 10, 2021 controverting the claim.

After hearings, a Workers' Compensation Law Judge [WCLJ] issued a decision filed July 7, 2021, which, among other things, established the claim for contraction of COVID-19 at work, set claimant's average weekly wage, authorized medical treatment and continued the case. The Workers' Compensation Board [Board] sent a copy of the WCLJ's decision to claimant and her then-current legal representative.

On that same day, July 7, 2021, the Board received a signed Form OC-400, Notice of Substitution and Appearance, indicating that Claimant had retained a new legal representative, which form indicated that a copy of the change notice was sent to the Employer. The Board sent a letter to Claimant confirming the substitution of counsel on July 13, 2021. A copy of the Board's July 13, 2021, letter to Claimant was sent to Claimant's prior representative and the Employer.

On August 5, 2021, Employer filed a Form RB-89 applying for Board review of the WCLJ's findings and determination and served the form on Claimant's prior counsel but not her then current counsel. Claimant objected, contending Employer's application was defective as it was not served on her current legal representative. Exercising its discretion, the Board denied Employer's application for review of the WCLJ's decision.* The Employer appealed.

The Appellate Division sustained the Board's denial of the Employer's application seeking a review of the WCLJ' findings and decision, finding that Claimant properly designated her new attorney as her legal representative and the Board confirmed Claimant's action in a letter sent to the Employer.

Citing 12 NYCRR 300.13 [a] [4]; [b] [2] [iv] [d]; [b] [4] [i], the Appellate Division opined the Board "did not abuse its discretion in denying the [Employer's] application for review" in view of the Employer's failure to serve or provide proof of service upon Claimant's current counsel.

* The Appellate Division observed "The fact that claimant's counsel served a timely rebuttal does not compel a different result" citing Matter of Harrell v Blue Diamond Sheet Metal, 146 AD3d 1189.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Application for Accidental Disability Retirement benefits rejected as the injury suffered was not the result of an accident within the meaning of the Retirement and Social Security Law

A police officer [Petitioner] filed an application for Accidental Disability Retirement [ADR] benefits based on an injury Petitioner suffered in the course of his responding to an emergency. Petitioner testified that he and another police officer responded to the incident and he attempted to "kick in the interior door" of a bedroom in which a "suicidal woman" had reportedly locked herself.

The Retirement System determined that the incident giving rise to Petitioner's injuries "did not constitute an accident within the meaning of Retirement and Social Security Law §363." A Hearing Officer [HO] affirmed the Retirement System's denial of the Petitioner's application for ADR. 

In response to Petitioner's appeal of the HO's decision, the Retirement System's Executive Deputy Comptroller sustained the HO's findings and determination. Petitioner then initiated a CPLR Article 78 challenging the rejection of his application for ADR.

Observing that "It was petitioner's burden to 'demonstrat[e] that his disability arose out of an accident as defined by the Retirement and Social Security Law, and [the Retirement System's] determination in that regard will be upheld if supported by substantial evidence'", the Appellate Division dismissed Petitioner's appeal of the Retirement System's denial of his application for ADR.

The Appellate Division noted that Petitioner "explained that he had previously executed similar maneuvers and acknowledged that he was [so] acting 'in the course of [his] duties'". The other responding officer similarly testified that Petitioner's actions were within the duties of a police officer and that he had observed Petitioner kick down doors in the past. Further, the record before the Appellate Division included a written description of Petitioner's job duties, that indicated police officers were required to "perform rescue operations" and "be able to force entrance through barriers."

As there was no evidence of any observed defect in the door at issue and no evidence was submitted to support Petitioner's speculation that the door may have blocked, the Appellate Division sustained the Retirement System's determination. The court found that substantial evidence supported the Retirement System's determination that Petitioner's injuries "occurred in the performance of his ordinary employment duties as a police officer and there was no precipitating event that was not a risk of the work performed."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Employer's motion for summary judgment dismissing plaintiff's claim of negligent retention and supervision of a "school volunteer" granted

The Appellant Division held Supreme Court correctly dismissed plaintiff's allegations of negligent supervision and retention of a school volunteer by the New York City Department of Education [DOE] as there was no evidence that DOE "had any knowledge that the school volunteer, whom plaintiff alleged injured her, had a propensity to engage in the injury-causing conduct".

The Appellate Division also noted that there was no nexus between the volunteer's activities at the school and his alleged assault upon the plaintiff.

Click HERE to access the Appellate Division's ruling posted on the Internet.