Whether a claim for workers' compensation benefits has been filed in a timely manner presents a factual issue for the Board to resolve

Claimant, a safety and security officer for the employer, filed an accident report alleging that, while on patrol in June 2013, he was bitten by two ticks. Almost six years later, claimant filed a claim for workers' compensation benefits seeking to recover for injuries allegedly sustained as the result of unknown tick bacteria entering his bloodstream.

The Workers' Compensation Board reversed, finding that the underlying claim was untimely and, in any event, that there was insufficient medical evidence to establish that claimant suffered from Lyme disease in the first instance or that such disease was causally related to his employment. The claimant appealed the Board's determination.

The Appellate Division affirmed the Board's decision, explaining that "Consistent with the provisions of Workers' Compensation Law §28, "a claim for workers' compensation benefits is untimely unless it is filed within two years of the date of the accident" at issue (Matter of Bennett v Roman Catholic Diocese of Rockville Ctr., 134 AD3d 1361, 1361 [2015]; see Matter of Jones v Servisair LLC, 180 AD3d 1313, 1314 [2020]). "Whether a claim has been filed in a timely manner presents a factual issue for the Board to resolve, and such determination, if supported by substantial evidence in the record as a whole, will not be disturbed" (Matter of Kasic v Bethlehem Steel Corp., 94 AD3d 1349.

The full text of the Appellate Division's decision is posted on the Internet at: https://www.nycourts.gov/reporter/3dseries/2021/2021_04404.htm

 

 

Whether a claim for workers' compensation benefits has been filed in a timely manner presents a factual issue for the Board to resolve

Claimant, a safety and security officer for the employer, filed an accident report alleging that, while on patrol in June 2013, he was bitten by two ticks. Almost six years later, claimant filed a claim for workers' compensation benefits seeking to recover for injuries allegedly sustained as the result of unknown tick bacteria entering his bloodstream.

The Workers' Compensation Board reversed, finding that the underlying claim was untimely and, in any event, that there was insufficient medical evidence to establish that claimant suffered from Lyme disease in the first instance or that such disease was causally related to his employment. The claimant appealed the Board's determination.

The Appellate Division affirmed the Board's decision, explaining that "Consistent with the provisions of Workers' Compensation Law §28, "a claim for workers' compensation benefits is untimely unless it is filed within two years of the date of the accident" at issue (Matter of Bennett v Roman Catholic Diocese of Rockville Ctr., 134 AD3d 1361, 1361 [2015]; see Matter of Jones v Servisair LLC, 180 AD3d 1313, 1314 [2020]). "Whether a claim has been filed in a timely manner presents a factual issue for the Board to resolve, and such determination, if supported by substantial evidence in the record as a whole, will not be disturbed" (Matter of Kasic v Bethlehem Steel Corp., 94 AD3d 1349.

The full text of the Appellate Division's decision is posted on the Internet at: https://www.nycourts.gov/reporter/3dseries/2021/2021_04404.htm

 

 

Internet items posted pro bono

Wild Thoughts by Julia Randall. A three-part series on wilderness ethics and management offers a comprehensive review of wilderness as a legal concept, an ecological condition and as a cultural phenomenon. Click on the following links to access Part I, What is Wilderness; Part II, For Whom Does Wilderness Exist?; and Part III, Wilderness and a Livable World. Ms. Randall's StoryMap can be found on the Adirondack Council’s website at: https://storymaps.arcgis.com/stories/39efc4883ac348a09fbd03a0f2c6c78f

Combating on the job misbehavior: An “app” (the #NotMe app) employers can make available to their personnel permitting the easy and timely submission of complaints of alleged supervisor or co-worker misconduct to personnel officers, human resource teams, compliance officers or designated individuals. Click on https://www.not-me.com/organizations for information concerning this program.

Concerning the viral evolution of COVID-19: Science Magazine e-Letter had posted NYPPL's Science Consultant Robert Michaels' item concerning "Viral evolution may herald new pandemic phase.” Click here to read Dr. Michaels' comments.

Sexual Harassment is a form of unlawful discrimination: New York State's Internet guidelines addressing employer obligations to combat sexual harassment in the workplace is at: https://www.ny.gov/programs/combating-sexual-harassment-workplace

The Steel Bar is the epic story of the rise and fall and rebirth of the Pittsburgh lawyer, from the earliest days of the Pittsburgh bar to the modern era, against the backdrop of American history." More at https://publicpersonnellaw.blogspot.com/2020/02/the-steel-bar-pittsburgh-lawyers-and_28.html

Contaminants of Emergent Concern was discussed by Dr. Robert A. Michaels [bam@ramtrac.com] at the New York State Bar Association, Energy and Environmental Law Section on January 31, 2020. Dr. Michaels' remarks are posted for viewing/downloading at no charge at the following URL: https://www.researchgate.net/publication/339055672_Legacy_Contaminants_of_Emergent_Concern. Other articles addressing environmental issues by Dr. Michaels are posted on on the Internet at: https://publicpersonnellaw.blogspot.com/2020/01/articles-by-dr-robert-michaels-nypers.html

A CyberCemetery: The University of North Texas Libraries and the U.S. Government Printing Office, as part of the Federal Depository Library Program, created a partnership to provide permanent public access to the Internet sites and publications of defunct U.S.government agencies and commissions. Named the "CyberCemetery" by early users of the site, information about the collection is posted on the Internet at: https://library.unt.edu/digital-projects-unit/web-archiving/; the latest additions to the collection are posted at: https://digital.library.unt.edu/explore/collections/GDCC/#latest

 

Reviewing a determination of the State Comptroller denying petitioner's application for accidental disability retirement benefits

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for accidental disability retirement benefits.

In September 2015, petitioner — a police detective — filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of injuries to, among other things, his right hip and back that, in turn, were sustained while pursuing a fleeing suspect in October 2014. The New York State and Local Police and Fire Retirement System denied petitioner's application upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363.

Petitioner acknowledged that, as a police officer, he had a duty to respond to an accident or a crime that he witnessed — even if he was "on [his] own personal time" — and the record reflects that, after the suspect fled the scene of the initial collision, petitioner immediately reported the event to his employer, sought assistance and gave chase. Petitioner acknowledged that "[p]ursuing and subduing a fleeing suspect is an ordinary employment duty of a police officer" (Matter of Quartucio v DiNapoli, 110 AD3d 1336, 1337 [2013] [internal quotation marks and citations omitted]), and he agreed that such pursuits could entail "chasing [suspects] across all different types of terrain, uneven ground, jumping fences" and the like (see Matter of Sweeney v New York State Comptroller, 86 AD3d 893, 893-894 [2011]; Matter of Neidecker v DiNapoli, 82 AD3d 1483, 1484 [2011]).

Additionally, the particular hazard encountered by petitioner, i.e., the elevation change lying beyond the third fence, "could have been reasonably anticipated" (Matter of Stancarone v DiNapoli, 161 AD3d 144, 148-150 [2018]; see Matter of Scofield v DiNapoli, 125 AD3d 1086, 1087 [2015]), notwithstanding petitioner's testimony that vegetation partially obscured his view of the terrain.

Hence, even setting aside the inconsistencies between petitioner's testimony and the description of the incident as set forth in the relevant incident reports, which presented credibility issues for the Hearing Officer and respondent to resolve (see Matter of Verille v Gardner, 177 AD3d 1068, 1070 [2019]; Matter of Angelino v New York State Comptroller, 176 AD3d at 1379; see also Matter of Harris v New York State & Local Retirement Sys., 191 AD3d at 1086), substantial evidence supports respondent's finding that this incident was not an accident within the meaning of Retirement and Social Security Law § 363.

The full text of the Appellate Division's decision is posted on the Internet at: https://www.nycourts.gov/reporter/3dseries/2021/2021_04409.htm

 

The Freedom of Information Law's application to evidence collected in a criminal action

To the extent that petitioner's contentions on appeal relate to the cotton swabs stored in evidence box number seven, we reject petitioner's contentions. In order to meet his burden on his motion, respondent was required to provide documentary evidence that "utterly refute[d] [petitioner's] factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 127 AD3d 865, 866-867 [2d Dept 2015]). 

Here, in support of his motion, respondent established that Executive Law § 838-a deals with sexual offense evidence kits, whereas the only cotton swabs in evidence box number seven had been used to collect a "grease-like substance [found] on the washer/dryer" in the home of the victims, and thus no sexual offense evidence existed in petitioner's criminal case. 

Because respondent was "under no obligation to furnish [materials that he did] not possess" (Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648, 649 [3d Dept 2000]; see generally Matter of Council of City of N.Y. v Bloomberg, 6 NY3d 380, 388 [2006]), the evidence submitted by respondent "utterly refute[d] [petitioner's] factual allegations" with respect to the cotton swabs in evidence box number seven, thereby "conclusively establishing a defense as a matter of law" thereto (Goshen, 98 NY2d at 326; see generally Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63 [2012]).

The full text of the decision is posted on the Internet at: https://www.nycourts.gov/reporter/3dseries/2021/2021_04416.htm