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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 156 AD3d 1064
Regular Panel Decision
Dec 14, 2017

Claim of Pontillo v. Consolidated Edison of New York, Inc.

Claimant Robert Pontillo established a claim for pulmonary fibrosis and lung cancer due to asbestos exposure while working for Consolidated Edison of New York, Inc. After voluntarily retiring, claimant sought wage replacement benefits, asserting he had reattached to the labor market. The Workers' Compensation Board affirmed an award of benefits, prompting Consolidated Edison and its claims administrator to appeal. The Appellate Division found that the Board failed to address the employer's argument regarding the claimant's burden to prove a causal link between his disability and his inability to find work. Consequently, the court reversed the Board's decision and remitted the matter for further proceedings consistent with its decision.

Workers' CompensationAsbestos ExposurePulmonary DiseaseOccupational DiseaseWage BenefitsLabor Market ReattachmentVoluntary RetirementEarning CapacityCausationBoard Decision
References
4
Case No. MISSING
Regular Panel Decision

Claim of Choto v. Consolidated Lumber Transport, Inc.

The claimant, an owner-operator of a truck and trailer, suffered multiple injuries in April 2006 after falling from a loaded flatbed trailer. He subsequently filed a workers' compensation claim, listing Consolidated Lumber Transportation, Inc. as his employer. Both a Workers' Compensation Law Judge and the Workers' Compensation Board determined that an employee-employer relationship existed. On appeal, the court found insufficient substantial evidence to support the Board's finding, noting that the claimant owned and maintained his equipment, paid his own expenses and insurance, was issued an IRS 1099 form, and had flexibility in choosing loads. The court reversed the Board's decision and remitted the matter for further proceedings consistent with its ruling.

Employee ClassificationIndependent Contractor StatusWorkers' Compensation AppealControl Test FactorsFederal Motor Carrier Safety RegulationsSubstantial Evidence ReviewRemittal OrderTruck Driver InjuryLeased EquipmentSelf-Employment
References
13
Case No. MISSING
Regular Panel Decision

Claim of Smith v. Consolidated Edison Co. of New York, Inc.

The claimant, exposed to dust post-9/11 while employed by Consolidated Edison, was diagnosed with reactive airway disease, leading to a workers' compensation claim established in 2004. After retiring in 2007, a Workers' Compensation Law Judge initially denied reduced earnings benefits due to voluntary withdrawal from the labor market. However, after the claimant began part-time work in September 2007, the WCLJ reversed course, granting reduced earnings, a decision affirmed by the Workers' Compensation Board. On appeal, the higher court reversed, finding the claimant failed to demonstrate that the reduced earnings were attributable to the disability, rather than voluntary retirement or other non-disability factors, and had not informed prospective employers of any disability. The Board's decision was deemed not supported by substantial evidence, leading to a reversal and remittal.

Workers' CompensationReduced EarningsVoluntary Withdrawal from Labor MarketPermanent Partial DisabilityAppellate ReviewBurden of ProofSubstantial EvidenceEarning Capacity9/11 Dust ExposureReactive Airway Disease
References
8
Case No. 528566
Regular Panel Decision
May 26, 2022

In the Matter of the Claim of Christine Kelly (Kelly, Kevin (dec'd)

Claimant Christine Kelly filed a claim for death benefits after her husband's death, alleging it was causally-related to his established asbestos-related occupational disease. Liability for the original disability claim had been transferred to the Special Fund for Reopened Cases in 2011. The employer argued the Special Fund should be liable for the death benefits claim. However, the Workers' Compensation Board and the Appellate Division, Third Judicial Department, affirmed that the death benefits claim was a new and distinct claim, accruing at the time of death in 2016. Therefore, its transfer to the Special Fund was precluded by Workers' Compensation Law § 25-a (1-a), as the Special Fund closed to new applications effective January 1, 2014, a ruling supported by Matter of Verneau v Consolidated Edison Co. of N.Y., Inc. The decision of the Workers' Compensation Board, ruling that liability did not shift to the Special Fund for Reopened Cases, was affirmed.

Workers' Compensation Law § 25-aSpecial Fund for Reopened CasesDeath Benefits ClaimOccupational DiseaseAsbestosisCausally Related DeathLiability TransferStatutory Cut-off DateAppellate DivisionThird Judicial Department
References
2
Case No. MISSING
Regular Panel Decision

Black v. Consolidated Freightways Corp. of Delaware

This negligence action involves plaintiff James Black, a forklift operator, who sustained injuries after falling through a hole in a trailer owned by Consolidated Freightways Corporation of Delaware and leased to Freeman Decorating Company. Consolidated moved for summary judgment, arguing it lacked actual or constructive knowledge of the defect. The court first addressed Black's argument for vicarious liability under New York Vehicle and Traffic Law § 388, which was rejected because the claim against Freeman was barred by the Workers' Compensation Law, thus leaving nothing to impute. The court then examined Black's direct negligence claims against Consolidated, including constructive notice of the hole, negligent inspection, and inadequate lighting in the trailer. The court found Black's evidence insufficient to establish constructive notice, dismissed the negligent inspection claim due to lack of substantiation, and rejected the inadequate lighting claim as not being a substantial cause of the injuries given the forklift's headlights. Consequently, Consolidated's motion for summary judgment was granted.

Negligence actionSummary judgmentTrailer defectHole in floorWorkers' Compensation LawVehicle and Traffic Law § 388Constructive noticeNegligent inspectionInadequate lightingVicarious liability
References
23
Case No. claim No. 1, claim No. 2
Regular Panel Decision

Colley v. Endicott Johnson Corp.

The case involves an appeal from a Workers' Compensation Board decision concerning two claims. The claimant suffered a back injury in 1985, and that claim was closed in 1986. In 2004, while working in Ohio for MCS Carriers, the claimant sustained another back injury. The Workers' Compensation Law Judge ruled that the 1985 claim was barred from reopening by Workers’ Compensation Law § 123 and that New York lacked subject matter jurisdiction over the 2004 claim. The Workers' Compensation Board affirmed these rulings, leading to this appeal. The appellate court affirmed the Board's decision, confirming the applicability of § 123 to the 1985 claim due to lapsed statutory limits and concluding that insufficient significant contacts existed to confer New York jurisdiction over the 2004 out-of-state injury.

Workers' CompensationJurisdictionStatute of LimitationsReopening ClaimOut-of-state InjurySignificant ContactsAppellate ReviewBack InjuryTruck DriverNew York Law
References
6
Case No. 2019 NY Slip Op 00112 [168 AD3d 717]
Regular Panel Decision
Jan 09, 2019

Moscati v. Consolidated Edison Co. of N.Y., Inc.

The Appellate Division, Second Department, reviewed a personal injury case involving Michael Moscati, an excavator operator injured on a Consolidated Edison work site. Moscati's excavator slid into a creek while removing timber, leading to claims of common-law negligence and violations of Labor Law §§ 200 and 241 (6), citing various Industrial Code provisions. The Supreme Court initially granted Consolidated Edison's motion for summary judgment, dismissing these claims. However, the Appellate Division reversed this decision, concluding that Consolidated Edison failed to establish a prima facie case for summary judgment. Specifically, Con Ed did not demonstrate a lack of notice regarding dangerous premises conditions or an absence of authority to supervise the work.

Construction accidentLabor Law 200Labor Law 241(6)Industrial Code violationsExcavator accidentSummary judgmentPrima facie caseDangerous premises conditionSupervision and controlAppellate Division
References
30
Case No. MISSING
Regular Panel Decision

Briggs v. Consolidated Rail Corp.

Plaintiffs, retired railroad workers, sued Consolidated Rail Corporation (Conrail) under the Federal Employers’ Liability Act (FELA) for sensorineural hearing loss and other personal injuries sustained due to long-term noise and vibration exposure during employment. Defendant moved for summary judgment, arguing the hearing loss claims were time-barred and other claims lacked evidentiary support. The Supreme Court initially granted summary judgment, dismissing the hearing loss claims as barred by the three-year Statute of Limitations. However, the court improperly dismissed claims for aggravation of injuries within the limitations period, injuries from negligent assignment, and certain other health problems for Briggs and Dineen. The appellate court modified the order, reinstating plaintiffs' claims for aggravation of hearing loss and injuries from negligent assignment, and for other unrelated injuries for Briggs and Dineen, while affirming the dismissal of time-barred hearing loss claims and specific health claims for Briggs and Vipari.

Federal Employers’ Liability Act (FELA)Statute of LimitationsSensorineural Hearing LossRailroad WorkersOccupational ExposureSummary JudgmentContinuing Tort DoctrineNegligent AssignmentAggravation of InjuriesAppellate Review
References
15
Case No. MISSING
Regular Panel Decision

Claim of Wiltshire v.Consolidated Edison Co.

Claimant, a junior accountant, sustained a work-related back injury. He filed a discrimination complaint against Consolidated Edison Company of New York, Inc. under Workers’ Compensation Law § 120, alleging retaliation for his compensation claim. A hearing officer and the Workers’ Compensation Board found unlawful discrimination, ordering reinstatement with back pay and a fine. The employer appealed. The appellate court affirmed the Board’s decisions, concluding that there was substantial evidence to support the finding that Consolidated Edison terminated the claimant in retaliation for his pursuit of a compensation claim, consistent with the Board's authority to resolve factual disputes.

DiscriminationRetaliationWorkers' Compensation LawWrongful TerminationBack InjurySubstantial EvidenceAppellate ReviewEmployer LiabilityReinstatementBack Pay
References
1
Case No. Nos. 64 & 65
Regular Panel Decision
Nov 23, 2021

In the Matter of Verneau v Consolidated Edison; In the Matter of Rexford v Gould Erectors

This opinion from the New York Court of Appeals addresses two consolidated cases concerning the transfer of liability for death benefits claims to the Special Fund for Reopened Cases under Workers’ Compensation Law (WCL) § 25-a (1-a). The core issue was whether this statute forecloses the transfer of liability for death benefits claims submitted on or after January 1, 2014, even if the worker's original disability claim liability had been transferred to the Special Fund before this cut-off date. The Court, interpreting the plain statutory language and relying on precedent that death benefits claims are "separate and distinct legal proceedings" from disability claims, concluded that liability for death benefits claims accruing after the deadline cannot be transferred to the Special Fund. Consequently, the Court reversed the Appellate Division's orders, reinstating the Workers' Compensation Board's decisions which had found the Special Fund not liable for these death benefits claims.

Workers' Compensation Law § 25-a (1-a)Special Fund for Reopened CasesDeath Benefits ClaimsDisability Benefits ClaimsStatutory InterpretationAccrual DateSeparate Legal ProceedingsInsurance Carrier LiabilityLegislative IntentNew York Court of Appeals
References
18
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