Injuries that ‘arise out of and in the course of’ employment are compensable – unless they are the result of some intervening cause. How about injuries that arise when an employee is undertaking something ‘outside their regular duties but which still benefits the employer – like taking a class (self-education) or writing a newsletter (cough, cough)? Are injuries that occur during such activities compensable?
In Murphy v. Mt. Sinai Hospital, 829 N.Y.S. 2d 728 (App. Div. 2007) a nurse practitioner sustained multiple injuries in a traffic accident while attending a ‘continuing eduction’ conference. Attendance at the conference was a ‘mandatory’ requirement of his position. The claimant had been encouraged to go to the conference by his supervisor. The claimant testified that his supervisor had handed him the brochure advertising the conference.
The employer denied that the injuries were a direct result of the employment – and that attendance at the conference did not ‘directly’ benefit the employer.
The WCB found that “an act outside of an employee’s regular duties which is undertaken in good faith to advance the employer’s interests is generally within the course of employment.” Therefore, any injuries arising from the act (in this case, a motor vehicle accident) were compensable.
In so ruling, the WCB looked at the factual circumstances surrounding the educational conference. The WCB was impressed by the following: (1) The employer paid remuneration for two “conference days”; (2) the employer ‘encouraged’ the employee to attend the conference; and (3) attendance was a ‘mandatory’ requirement for the position.
Death benefits are payable to the ‘spouse and minor children’ and other beneficiaries ‘allowed by law’ on behalf of a worked killed at his employment. What about members of a civil union? In a recent decision, the WCB denied death benefits to the surviving “member” of a civil union ceremony which had taken place in Vermont. A divided appellate Panel agreed, and ruled that the ‘surviving meber’ of the civil union ceremony was not entitled to benefits.
The decision of the WCB strictly construed that workers’ comp law – the ‘surviing spouse’ langauge. According to the facts of the case, John Langdon and his partner, Neal Spicehandler participated ina ‘civl union ceremony’ in Vermont in 2000. According to the Vermont ‘specil statute’ authorizing the ceremony, the participants in the ‘union ceremony’ are not legal “spouses.” Fo that reason, the New York court refused to grant death benefits to Spicehandler.
This is a significant departure from New Jersey law, which specifically includes members of a ‘domestic partnership’ recognized under New Jersey law (since 2007) – and provides the same benefits to parties in a civil union as to married spouses.
Case: Langan v. State Farm Fire & Cas., 2007 N.Y. App. Div. LEXIS 13242 (N.Y. App. Div. Dec. 27, 2007).
New York Claimant Sharon Hammes received workers’ compensation benefits for a permanent partial disability. The employer alleged that she had ‘fraudulently misrepresented’ her injuries and ability to work, and a hearing was held where the employer presented the testimony of its investigator. In addition, the employer presented videotape.
The employer was able to establish, through the investigator’s testimony and the videotape evidence, that the claimant worked at a coffee shop serving customers and regularly made candy which was sold at a candy store.
While engaging in these activities, the claimant completed questionnaires stating that she was ‘totally’ unable to work, and stated that “she had not engaged in work activity for any employer.” In fact, the claimant completed 11 separate questionnaires during this period of work, in each claiming that she had no employment.
The WCB ruled that the claimant was a fraud and disqualified her for further benefits. The Board also ordered the claimant to repay the benefits she had already received (pursuant to Workers’ Compensation Law Section 114-a).
On appeal, the Appellate Court found that the claimant had misrepresented her working ability to obtain benefits. The Appellate panel relied on the findings of the WCB that the claimant was not credible, and her statements that when caught working she was “just helping out a friend” were not believable. Further, they discounted her excuse that “she didn’t think part-time work” counted as work, and that she “didn’t think she had to report part-time work” in answering the questions.
Practice Tip: Good follow-up here by the carrier – in reviewing the responses of the claimant and assigning an investigator.
Case: Hammes v. Sunrise Psychiatric Clinic, ___N.Y.S.2d ___ (N.Y. App. Div. 3rd Dep’t, Decided October 29, 2009).
New York workers who die on the job are entitled to a presumption that the death was “work-related” where the death is unwitnessed or unexplained (Workers’ Compensation Law, §21). This section of the statute is meant to encourage employer vigilance regarding employees in dangerous circumstances and encourage proper supervision.
In Frederick v. Lindenhurst, decided October 8, 2009, the Appellate Court reviewed a case where an employee custodian was found dead in the school’s boiler room. An autopsy was performed. According to the autopsy report, the death was attributed to arteriosclerotic heart disease. This disease is frequently referred to as ‘hardening of the arteries’ and comes from a buildup of fatty plaque on the walls of the main arteries. This disease is not ‘peculiar’ to any employment.
Both the autopsy report and the death certificate found that the decedent’s cause of death was arteriosclerotic heart disease. The employer disputed that the death was related, and the WCB agreed. The decedent’s dependent’s appealed.
The Appellate Panel found that “substantial evidence” will rebut the presumption that unwitnessed deaths are related tot he employment. In this case, the cause of death was known: arteriosclerotic heart disease. The Appellate Division stated that absent any medical evidence that would call that conclusion into question or otherwise suggest that the decedent’s work and his death were causally linked, the opinion of the WCB must stand. The Appellate Panel repeated the case law that instructs that the employer doe snot have to rebut or meet every allegation presented by the dependents in order to overcome the assumption: in other words, if the claimant alleges that the ‘heat’ of the boiler-room, plus the claimant’s work effort, ‘combined’ to cause his cardiac condition to erupt, the employer doe snot have to meet each theory separately in order to overcome the presumption of compensability, just offer a medically-sound evidence of contrary causation.
In Curtis v. Xerox, N.Y.A.D. 3rd Dep’t, ___ N.Y.S.2d ___ (decided October 8, 2009), the claimant alleged that her 33 year employment caused her to develop occupational conditions related to her use of a computer keyboard. The claimant stopped working in July 2005, and thereafter visited the employer’s ‘plant medical department’ receiving treatment. The Workers’ Compensation Law Judge (WCLJ) directed the employer to produce the records of this treatment. The employer failed to do so.
After trial, the WCLJ issued an opinion denying the claimant’s occupational claims. On appeal, the Workers’ Compensation Board ordered the employer to produce the records within two weeks, or be subject to an ‘inference’ at trial that the occupational disease was causally related to the employment.
At trial, the employer produced a lay witness to state that no medical records existed for the claimant. Once again, after trial, the WCLJ dismissed the case, stating that there was insufficient proofs to establish the occupational claims.
Once again, the trial decision was reversed by the WCB, who found that “testimony regarding the non-existence of records” was improper. The WCB found the occupational claims “causally related” to the employment.
The employer appealed.
On appeal, the Appellate Division agreed with the employer, that testimony that “there were no records” should not have been precluded. However, the Appellate Division stated that the decision of the WCB was ‘supported by substantial credible evidence’ and they affirmed the award of compensation. The Appellate judges went on to state that WCLJ ‘abused his discretion’ by allowing the employer multiple adjournments to locate the medical records/testimony requested by the Judge.
New York Claimant Rufus Browne, a railroad track employee, was bending down to pick up a rail flag when he experienced weakness on the left side of his body. He went to the hospital the next day and was diagnosed as having had a stroke. Browne filed a workers compensation claim, alleging that his stroke ‘arose out of and in the course of’ his work.
The employer denied the causal relationship of the stroke tot he work. A hearing was held (but no testimony was produced) and the Workers’ Compensation Law Judge determined there was ‘no prima facie medical evidence of causal relationship between the stroke and the employment’ and the claim was NFA’d (designated for ‘No Further Action.’)
The claimant appealed to the Workers’ Compensation Board (WCB), who affirmed the denial. The claimant appealed the WCB’s denial to the Appellate Division.
The Appellate panel found that the employer “never refuted the allegation that the onset of the claimant’s symptoms occurred while he was at work” and that therefore the claimant was entitled to the statutory presumption that the stroke arose out of the employment (WCL Sect. 27). The Appellate panel found that the WCB erred by requiring the claimant to establish his case before the employer refuted it: in essence, the panel found that the employer “must . . . .be afforded the opportunity to rebut the presumption [of compensability].”
Practice tip- in this case, the fact pattern must have been very clear to the employer and the WCLJ: the stroke didn’t happen at work, and the medical records probably bore that out. However, even where the employee fails to establish the ‘seemingly’ bare minimum proofs to establish his claim, the employer must be prepared to present the employer’s proofs – to make a record that will withstand appeal.
Case: Browne v. New York City Transit Auth., ___ N.Y.S. 2d ___ (N.Y. App. Div. 3rd Dep’t, Decided October 29, 2009).