Category Archives: New York

Employer Ordered to Pay for Gastric Bypass Surgery

Following a growing national trend, on January 10, 2010 the Appeals Court upheld the New York Workers’ Compensation Board Order requiring an employer to provide treatment for a ‘lifestyle disease’ allegedly related to the claimant’s employment.

Salvatore Laezzo slipped-and-fell, sustaining compensable knee and low back injury, while working for the New York State Thruway Authority in 2002. Medical treatment was provided by his employer. Laezzo’s doctor testified that “his morbid obesity has contributed to his knee and back problems and was a broader threat to his survival.” The doctor recommended gastric bypass surgery.

The employer challenged that recommendation, arguing that there was no causal link between the surgery and the claimant’s injuries.

New York’s Workers’ Compensation Law requires an employer to pay for claimant’s medical care “for such period as the nature of the injury or the process of recovery may require.” (WCL Sect. 13a). This means that treatment must be provided so long as it is directed at returning the claimant to gainful employment. Not all medical treatment relates to disabilities that ‘arises out of and in the course of employment’ – and those disabilities that do not arise from the employment (such as those from the natural aging process) are not compensable.

The Workers’ Compensation Board and the Appellate Division both agreed that the gastric bypass surgery should be paid for by the employer. The Appellate Court stated that “there is evidence in the record that the claimant has gained a substantial amount of weight since 2002 due to his sedentary lifestyle imposed by the compensable injuries.” The Court ruled that “substantial evidence exists for the Board’s determination that claimant’s weight gain was caused by his compensable injuries and that gastric bypass surgery would assist in his recovery.”

In reaching this decision, the Court considered the claimant’s pre-accident state. In this case, the claimant had massive weight gain after the incident at work. The Appellate Court signaled that if the claimant had been obese before the work-injury, they may not have ordered the bypass surgery to correct the condition. However, whether or not a carrier would be liable to treat obesity in a claimant who is obese before the workplace accident is no settled.

In reaching the conclusion that the claimant should be provided gastric bypass surgery, the Appellate Panel cited another case, Stephen Spyhalsky v. Cross Construction (decided april 29, 2002) in which the WCB ruled that the compensation carrier was “liable for certain medical procedures if deemed necessary to impregnate claimant’s wife.” In Spyhalsky, the claimant sustained nerve damage during surgery to repair a compensable back injury which prevented him from naturally impregnating his wife. In that case, the compensation carrier was ordered to provide artificial insemination services to the claimant’s wife. In Spyhalsky, the Court specifically rejected the argument of the employer that the claimant may not have had the ability to naturally father before the workplace accident. In other words, in Spyhalsky, there was no “look back” to before the incident to identify the claimant’s health status at that time.

Case: Salvatore Laezzo v. New York State Thruway Authority, Decided March 11, 2010 (App. Div). Link.

New York Independent Contractor Case

To be considered an independent contractor, and thus not an employee, an individual must meet and maintain all ten of the following conditions:

1. Obtain a Federal Employer Identification Number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on work or service performed the previous calendar year;
2. Maintain a separate business establishment from the hiring business;
3. Perform work that is different than the primary work of the hiring business and perform work for other businesses;
4. Operate under a specific contract, and is responsible for satisfactory performance of work and is subject to profit or loss in performing the specific work under such contract, and be in a position to succeed or fail if the business’s expenses exceed income.
5. Obtain a liability insurance policy (and if appropriate, workers’ compensation and disability benefits insurance policies) under its own legal business name and federal employer identification number;
6. Have recurring business liabilities and obligations;
7. If it has business cards or advertises, the materials must publicize itself, not another entity;
8. Provide all equipment and materials necessary to fulfill the contract;
9. Control the time and manner in which the work is to be done; and
10. The individual works under his/her own operating permit, contract or authority.

In the new case, the claimant was a cleaner who worked in a number of buildings owned by the employer. The claimant was paid a fixed a mount per week by check. According to the claimant, he worked for the alleged employer exclusively. Most telling, the claimant was told “where to work as well as what to do.” According to testimony, “[we] instructed and supervised the claimant, [and] would ordinarily contact him if he was required to do specific cleaning work.”

The Board found that the claimant was an employee and not an independent contractor. The Appellate Court agreed, stating “relevant considerations include the right to control the work, the method of payment, the right to discharge and the relative nature of the work; however, no single factor is dispositive.” Id, citing Matter of Park v. Lee, 862 N.Y.S2d 199 (2008).

Employee gets WC Benefits – But “Employer” isn’t the employer?

Plaintiff was a carpenter hired through his union to work at a school construction project. He sustained injuries when a six-foot-long metal object he was holding overhead electrical wires. He was provided worker’s compensation benefits, indicating that the defendant subcontractor was his employer. However, his wages for the project, as well as W-2 information came from another construction firm.
He then filed a negligence action against multiple defendants, including the subcontractor from whom he recovered workers’ compensation benefits. The defendant subcontractor filed a motion for summary judgment, contending the action was barred by the exclusive remedy provisions of the workers’ compensation law. The motion was denied. The appellate court affirmed, finding that the subcontractor’s evidence, including the deposition testimony of its president, revealed that there were issues of fact as to the actual identity of the carpenter’s employer. The administrative finding that the injured carpenter was entitled to recover compensation benefits from the subcontractor was not conclusive proof that he was employed by them.

WCB now allows emailing of forms

Are you taking advantage of the ability to email in documents related to claims?
The WCB allows certain forms to be attached to emails and sent to
Please note that a separate email is required for each claimant. You must put the case number (the WCB case number) in the ‘subject line’ of the email. Forms that cannot be emailed include those forms that require a verification of original signature.

NY's Max Rate Change is Fast Approaching – Ready?!

The 2007 Workers’ Compensation Reform Legislation (passed March 17, 2007) raised the maximum compensation benefit indemnity rate paid to claimants for the first time since 1992. The rate had been $400 per week since July 1, 1992. The rate was raised to $500 per week for accidents occurring after July 1, 2007. On July 2008 the rate was raised again to $550 and increased to $600 per week in 2009.
As of July 1, 2010 the maximum rate will be adjusted again and will be pegged to the State Average Weekly Wage. as of July 1, 2010 the rate will be two-thirds of the NY State Average Weekly Wage (“SAWW”). The rate will then follow the SAWW.
New Jersey has long pegged the state ‘maximum’ temporary and total disability rates to the SAWW. This method has resulted in an ever-increasing maximum total disability compensation rate. The 2010 “maximum” rate in New Jersey is $794 per week. Despite the recession, and falling ‘real’ wages, the NJ SAWW keeps rising. How is that?
The answer is that the New Jersey Department of Labor simply “makes up” a SAWW based on a secret formula. The SAWW number derived has absolutely nothing to do with reality – and differs (significantly) from the SAWW computed by the Federal Bureau of Labor Statistics. Other NJ SAWW figures, using Federal unemployment claims as a basis for determining actual weekly wages, would yield an even lower figure for NJ SAWW.
So far, no word from NY as to how the NY SAWW is going to computed. If NJ is any example, we can expect that the resulting SAWW figures will not reflect the actual SAWW. The figure has not been announced yet. We will keep you up-to-date with this important information.

Benefit Disqualification: in Practice

New York Workers’ Compensation Law Section 114-a prohibits the making of false statements to obtain workers’ comepnsation benefits. In practice, this means statements made inside a court room and statements made to doctors in examining rooms. In the real world, two recent cases show exactly how an employer can demonstrate employee fraud.

1. Video.

In a recent case, a New York Appellate Court affirmed a disqualification from benefits where video surveillance of the claimant showed him going to and leaving a medical examiner’s office with a leg brace and a cane AND A WALKER. While that portion video (a cane and a walker!?! How could he even do that with only hands!?!) showed a severely disabled accident victim, later scenes, in which the claimant is able to move his leg freely, and without a brace, a cane or a walker, showed that he actually had no impairment in his daily activities.

The WCB ruled that the claimant had violated WCL Sect. 114-a and was disqualified from comp benefits. The appellate panel, on review, affirmed that disqualification.

Case: Retz v. Surpass Chem. Co., 834 N.Y.S.2d 389 (2007).

2. Statements – outside of court.

Video can be persuasive, but even better than video is the claimant’s own words. In another recent case, an employe neglected to reveal a prior, very significant injury that resulted in neck and back injuries when filling out forms to obtain workers’ comp benefits. The claimant repeated answered “No” on multiple daily activities questionnaires that asked “Did you have any injuries, illnesses, or limitations before this workers’ comp injury?”

The claimant, who had suffered severe cervical and lumbar injuries just prior to his workers’ comp claim, failed to disclose those injuries. The claimant argued that the questions were ambiguous and that he wasn’t sure exactly what he was being asked. The WCB determined that the claimant knew he was providing false information in connection with his workers’ comp claim and disqualified the claimant from further benefits.

Case: Husak v. New York City Transit Authority, 836 N.Y.S. 2d 319 (2007).