UNEMPLOYMENT INSURANCE (INABILITY TO MEET THE REQUIREMENTS OF AN EMPLOYMENT AGREEMENT IS NOT GOOD CAUSE FOR LEAVING EMPLOYMENT)/EMPLOYMENT AGREEMENT (UNEMPLOYMENT INSURANCE, INABILITY TO MEET THE REQUIREMENTS OF AN EMPLOYMENT AGREEMENT IS NOT GOOD CAUSE FOR LEAVING EMPLOYMENT)

 

UNEMPLOYMENT INSURANCE.

 

INABILITY TO MEET THE REQUIREMENTS OF AN EMPLOYMENT AGREEMENT IS NOT GOOD CAUSE FOR LEAVING EMPLOYMENT.

 

The Third Department determined claimant could not use his inability to meet the requirements of his employment agreement as good cause for leaving his employment. Claimant agreed to provide his own vehicle for work. After an accident he no longer had access to a vehicle. The loss of his vehicle was deemed not to constitute good cause:

 

The Board determined that the employment agreement, wherein claimant agreed to provide his own vehicle, was not controlling. On the record before us, we disagree with the Board's conclusion that claimant left his employment with good cause. Although claimant's testimony constituted substantial evidence regarding the circumstances surrounding the loss of the use of the vehicle, it was error to find that this constituted substantial evidence that his separation from his employment was for good cause. We note that claimant admitted that he shared responsibility for the accident with the other driver and that he had entered into a written employment agreement whereby he agreed to provide his own vehicle and keep it in good operational condition. Further, and importantly, he also agreed that if the vehicle became disabled, he would replace it expeditiously. It is well established that "once the terms of employment have been agreed upon, such terms cannot thereafter be invoked as valid grounds for quitting" ... . Inasmuch as claimant was aware of the terms of his employment and accepted same, we conclude that he could not later invoke his inability to meet the requirements of his employment, regardless of the circumstances or fault surrounding the loss of the use of his vehicle, as good cause for leaving his employment ... . Matter of Brown (Express Delivery LLC--Commissioner of Labor), 2017 NY Slip Op 00359, 3rd Dept 1-19-17

 

 

 

 

 

 

 

UNEMPLOYMENT INSURANCE (COMPUTER DESKTOP ENGINEER NOT AN EMPLOYEE OF JOB PLACEMENT SERVICE)

 

UNEMPLOYMENT INSURANCE.

 

COMPUTER DESKTOP ENGINEER NOT AN EMPLOYEE OF JOB PLACEMENT SERVICE.

 

The Third Department determined claimant, a computer desktop engineer, was not an employee of Logic, an information-technology job-placement service:

 

Even assuming, without deciding, that claimant's IT position was a professional one, as the Board concluded, we similarly find that the record lacks substantial evidence that Logic exercised "overall control . . . over important aspects of the services performed other than results or means" ... . The unrefuted testimony of claimant and Logic's principal is that, aside from recruiting claimant and paying him, Logic had little knowledge of the services that he provided to OSP or his job duties, had no control over his assignments or work performance and did not evaluate or supervise his work. Matter of Desravines (Logic Corp.--Commissioner of Labor), 2017 NY Slip Op 00361, 3rd Dept 1-19-17

 

 

 

 

 

 

 

UNEMPLOYMENT INSURANCE (BIOMETRIC SCREENER WAS AN EMPLOYEE OF HEALTH AND WELLNESS COMPANY)/BIOMETRIC SCREENER (UNEMPLOYMENT INSURANCE, BIOMETRIC SCREENER WAS AN EMPLOYEE OF HEALTH AND WELLNESS COMPANY

 

UNEMPLOYMENT INSURANCE.

 

BIOMETRIC SCREENER WAS AN EMPLOYEE OF HEALTH AND WELLNESS COMPANY.

 

The Third Department determined claimant, a biometric screener, was an employee of Summit, a company which provides health screenings and flu immunizations at clients' workplaces:

 

The record reflects that Summit posted job openings for biometric screeners on its website, interviewed applicants and screened their experience and license credentials. Summit scheduled the clinics with its clients and the clients determined what services were needed. Summit then posted the clinic dates, and screeners could sign up to work at the clinics based upon their availability. If the screeners could not report to work after signing up for a clinic, they notified Summit, which would then find a replacement. Screeners were paid an hourly rate by Summit and were reimbursed for certain travel and other expenses. Summit provided equipment and supplies for the clinics and claimant was required to abide by a dress code and wear a Summit identification badge. In sum, we conclude that the facts in this case are materially indistinguishable from two prior cases in which we concluded that Summit was the employer of its certified medical assistants ... . Matter of Williams (Summit Health, Inc.--Commissioner of Labor), 2017 NY Slip Op 00363, 3rd Dept 1-19-17

 

 

 

 

 

 

WORKERS' COMPENSATION LAW (FAILURE TO TIMELY SERVE ONE OF CLAIMANT'S EMPLOYERS WAS A VALID BASIS FOR DENIAL OF THE CLAIM)

 

WORKERS' COMPENSATION LAW.

 

FAILURE TO TIMELY SERVE ONE OF CLAIMANT'S EMPLOYERS WAS A VALID BASIS FOR DENIAL OF THE CLAIM.

 

The Third Department determined claimant's failure to serve one of his prior employers with the application for benefits was a proper basis for denial of his claim:

 

Pursuant to the regulations in effect at the time of the underlying proceedings, 12 NYCRR former 300.13 (a) provided that "[a]n application to the [B]oard to review a decision of a [WCLJ] . . . shall be filed with the [B]oard within 30 days after notice of filing of the decision of the [WCLJ] together with proof of service upon all other parties in interest ... . Although the Board "may in its discretion suspend or modify the application of these rules" (12 NYCRR 300.30), "the discretion to suspend its own rules does not apply to situations where a party of interest does not receive notice" ... . Here, the record evidence demonstrates that claimant's application for Board review was defective inasmuch as only one of his prior employers and the State Insurance Fund were served, notwithstanding the fact that, as claimant contends, the prior employer served its rebuttal on the parties in interest, thereby affording those parties with notice of the administrative appeal. Accordingly, the Board's denial of claimant's application for review was not an abuse of its discretion, and we decline to disturb that determination ... . Matter of Harrell v Blue Diamond Sheet Metal, 2017 NY Slip Op 00356, 3rd Dept 1-19-17

 

 

 

 

 

 

 

WORKERS' COMPENSATION LAW (CARRIER'S APPLICATION TO REOPEN CLAIM WAS MADE WITHOUT REASONABLE GROUNDS, PENALTY PROPERLY IMPOSED)

 

WORKERS' COMPENSATION LAW.

 

CARRIER'S APPLICATION TO REOPEN CLAIM WAS MADE WITHOUT REASONABLE GROUNDS, PENALTY PROPERLY IMPOSED.

 

The Third Department determined the Workers' Compensation Board found that the carrier's application to reopen a claim was properly denied and a penalty was properly imposed:

 

The Board rationally concluded that proof that claimant failed to respond to the carrier's request for job search information is insufficient to support a reopening of the claim ... . The Board further concluded that, although a rejection of offers of employment, job search assistance or rehabilitative vocational services could be sufficient to reopen the claim, the letter written by the rehabilitation counselor did not constitute such an offer. Rather, the Board relied on language in a professional disclosure form that accompanied the letter, informing claimant that, following a vocational rehabilitation assessment of claimant, a vocational plan "may" be developed that "may include" counseling, job training and assistance returning to work. In light of the lack of any specific offers of employment, job training or assistance in returning to work in the rehabilitation counselor's correspondence, the Board did not abuse its discretion by concluding that claimant's rejection of the counselor's services did not warrant a reopening of the claim ... .

 

As to the penalty imposed, the Board may impose a penalty against a party who institutes or continues a proceeding in respect of a claim without reasonable ground (see Workers' Compensation Law § 114-a [3] [i]), and the Board's imposition of a penalty under this statute will not be disturbed if supported by substantial evidence ... . The Board imposed the penalty based upon its finding that the counselor's letter did not constitute an offer of employment or vocational services and, therefore, the carrier had "filed a request to reopen without the proper supporting documentation." While the Board's determination — that the rejection of the counselor's services by claimant did not warrant a reopening of the claim — was not an abuse of discretion, we cannot say that substantial evidence supports the Board's conclusion that, by relying on proof that the Board ultimately rejected, the carrier initiated the request to reopen the claim without reasonable grounds ... . Matter of Andrews v Combined Life Ins., 2017 NY Slip Op 00360, 3rd Dept 1-19-17

 

 

 

 

 

 

 

WORKERS' COMPENSATION LAW (CARRIER'S REQUEST FOR AN ADJOURNMENT OF AN EXPEDITED PERMANENCY HEARING PROPERLY DENIED, REQUEST WAS NOT BASED UPON AN EMERGENCY)/EXPEDITED HEARING (WORKERS' COMPENSATION LAW, CARRIER'S REQUEST FOR AN ADJOURNMENT OF AN EXPEDITED PERMANENCY HEARING PROPERLY DENIED, REQUEST WAS NOT BASED UPON AN EMERGENCY)

 

WORKERS' COMPENSATION LAW.

 

CARRIER'S REQUEST FOR AN ADJOURNMENT OF AN EXPEDITED PERMANENCY HEARING PROPERLY DENIED, REQUEST WAS NOT BASED UPON AN EMERGENCY.

 

The Third Department determined the carrier's request for an adjournment of an expedited hearing for the production of video surveillance of the claimant was properly denied:

 

Pursuant to Workers' Compensation Law § 25 (3) (d), the Board ordered that claimant's hearing be transferred to the expedited calendar, and the parties were notified of this well in advance of the scheduled ... hearing at which the issue of permanency was to be resolved. With regard to expedited hearings, the rules of the Board provide that "[a]djournments . . . shall only be granted in accordance with [12 NYCRR 300.38]" (12 NYCRR 300.34 [f] [1]), which specifies that "[a]djournments for . . . a hearing in a controverted claim shall only be granted in an emergency" (12 NYCRR 300.38 [j] [1]). An "emergency" is defined as "a serious event that occurs preventing the timely completion of some action ordered or directed," and includes "death in the family, serious illness, significant prior professional or business commitment, and inclement weather that prevents travel. It does not include any event that can be prevented or mitigated by the timely taking of reasonable action" (12 NYCRR 300.38 [j] [5] [emphasis added]).

 

Here, the hearing notice clearly advised the parties that an adjournment would not be granted except in the case of an emergency. As the full Board concluded and the record reflects, the carrier's request for an adjournment to produce and share the video following claimant's testimony was not premised upon any claimed emergency but, rather, was a consequence of the carrier's choice not to bring the video to the hearing based upon the belief that they "weren't going to be watching [it] today." Matter of Maffei v Russin Lbr. Corp., 2017 NY Slip Op 00362, 3rd Dept 1-19-17

 

 

 

 

 

 

 

WORKERS' COMPENSATION LAW (MEDICAL REPORT WAS SUFFICIENT TO REOPEN A CLOSED CLAIM WITHIN SEVEN YEARS, CLAIM SHOULD NOT HAVE BEEN TRANSFERRED TO THE SPECIAL FUND)/SPECIAL FUND (WORKERS' COMPENSATION LAW, MEDICAL REPORT WAS SUFFICIENT TO REOPEN A CLOSED CLAIM WITHIN SEVEN YEARS, CLAIM SHOULD NOT HAVE BEEN TRANSFERRED TO THE SPECIAL FUND)

 

WORKERS' COMPENSATION LAW.

 

MEDICAL REPORT WAS SUFFICIENT TO REOPEN A CLOSED CLAIM WITHIN SEVEN YEARS, CLAIM SHOULD NOT HAVE BEEN TRANSFERRED TO THE SPECIAL FUND.

 

The Third Department determined claimant's prior claim had been truly closed in 2005 and 2009 medical report was sufficient to reopen the claim. Since the claim was reopened within seven years of the injury, the claim was not transferred to the Special Fund:

 

Workers' Compensation Law § 25-a provides that "liability for a claim shifts to the Special Fund where a workers' compensation case that was fully closed is reopened more than seven years after the underlying injury occurred and more than three years after the last payment of compensation" ... . "A medical report may be deemed an application to reopen if the report gives the Board sufficient notice of a change in a claimant's condition, as opposed to simply indicating continued disability and treatment" ... . Such medical report "should not be given a strained interpretation, but should only be interpreted as a basis to reopen if that was clearly the doctor's intention," and the "mere mention of permanency in a medical report, absent an opinion regarding the degree of permanency, is insufficient to act as a request to reopen a case" ... . "Such a decision of the Board will not be disturbed when supported by substantial evidence" ... . ...

 

... [T]he record reflects that claimant continued to receive authorized treatment for lower-back pain with his attending chiropractor, and, following a reexamination of claimant on August 11, 2009, claimant's chiropractor reported for the first time that claimant exhibited a 25% permanent partial disability. Subsequent examinations revealed no material change in claimant's condition, and the chiropractor continued to report that claimant had a 25% permanent partial disability. Inasmuch as the August 2009 medical report raised the issue of permanency and the degree of claimant's disability, we find that substantial evidence supports the Board's determination that the August 2009 medical report constituted an application to reopen and that, as such, this case was reopened within seven years of claimant's May 2005 injury ... . Matter of Williams v General Elec., 2017 NY Slip Op 00364, 3rd Dept 1-19-17

 

 

 

 

 

 

 

WORKERS' COMPENSATION LAW (INSUFFICIENT PROOF OF CAUSAL CONNECTION BETWEEN JOB-RELATED STRESS AND STROKE)/STROKE (WORKERS' COMPENSATION LAW, INSUFFICIENT PROOF OF CAUSAL CONNECTION BETWEEN JOB-RELATED STRESS AND STROKE)

 

WORKERS' COMPENSATION LAW.

 

INSUFFICIENT PROOF OF CAUSAL CONNECTION BETWEEN JOB-RELATED STRESS AND STROKE.

 

The Third Department determined the evidence was insufficient to support a causal connection between job-related stress and a stroke:

 

As the party seeking benefits, claimant bore the burden of establishing — by competent medical evidence — a causal connection between his employment and the claimed disability ... . In this regard, "[w]hile the Board cannot rely upon expert opinion evidence that amounts to nothing more than pure speculation, the Workers' Compensation Law does not require that medical opinions be expressed with absolute or reasonable medical certainty" ... . Rather, "[a]ll that is required is that it be reasonably apparent that the expert meant to signify a probability as to the cause and that his or her opinion be supported by a rational basis" ... . * * * Given claimant's multiple and independent risk factors for a stroke, as well as his physician's equivocal testimony as to the role that stress "may" or "could" have played in contributing to claimant's disability, the Board was free to characterize — and ultimately reject — the medical evidence offered by claimant as speculative ... . Matter of Qualls v Bronx Dist. Attorney's Off., 2017 NY Slip Op 00365, 3rd Dept 1-19-17

 

 

 

 

 

 

 

 

WORKERS' COMPENSATION LAW (ALTHOUGH CLAIMANT WAS INJURED IN FLORIDA, NEW YORK HAD SUBJECT MATTER JURISDICTION)/JURISDICTION, SUBJECT MATTER (WORKERS' COMPENSATION LAW, ALTHOUGH CLAIMANT WAS INJURED IN FLORIDA, NEW YORK HAD SUBJECT MATTER JURISDICTION)

 

WORKERS' COMPENSATION LAW.

 

ALTHOUGH CLAIMANT WAS INJURED IN FLORIDA, NEW YORK HAD SUBJECT MATTER JURISDICTION.

 

The Third Department determined that, although claimant was injured in Florida, significant contacts with New York established subject matter jurisdiction:

 

"For the Board to have jurisdiction over a claim arising from a work-related injury that occurred outside New York, it must determine whether there were sufficient and significant contacts between the state and the employer to support a reasonable conclusion that the employment was to some extent sited in this state" ... . To make this determination, the Board may consider various factors, including where the employee resides, where the employee was hired, the location of the employee's employment and the employer's offices, whether the employee was expected to return to New York after completing out-of-state work for the employer and the extent to which the employer conducted business in New York ... . Upon due consideration of these relevant factors, if "it appears that the claimant's employment had sufficient significant contacts with New York such that it may reasonably be concluded that the employment was located here, then subject matter jurisdiction exists" ... .  While there is no dispute that claimant sustained her injuries while working in Florida, the record also establishes that claimant has maintained her primary and permanent residence in New York since 1983. Claimant testified that, in 2006, she was interviewed and hired at her employer's residence located in New York and that her job duties included maintaining, and cooking for, that residence. Although claimant traveled with, and worked for, her employer in Florida for approximately eight months out of the year, claimant lived at her employer's residence in New York for the balance of the year for five days a week while performing her job responsibilities. In addition, claimant testified that, throughout her employment, she considered New York her home. Matter of Barnett v Callaway, 2017 NY Slip Op 00366, 3rd Dept 1-19-17

 

 

 

 

 

 

 

 

ZONING (ZONING BOARD DID NOT SET OUT A FACTUAL BASIS FOR FAILING TO FOLLOW ITS OWN PRECEDENT IN THIS VARIANCE PROCEEDING, ZONING BOARD'S GRANT OF THE VARIANCES WAS THEREFORE ARBITRARY AND CAPRICIOUS)/VARIANCES (ZONING, ZONING BOARD DID NOT SET OUT A FACTUAL BASIS FOR FAILING TO FOLLOW ITS OWN PRECEDENT IN THIS VARIANCE PROCEEDING, ZONING BOARD'S GRANT OF THE VARIANCES WAS THEREFORE ARBITRARY AND CAPRICIOUS)

 

ZONING.

 

ZONING BOARD DID NOT SET OUT A FACTUAL BASIS FOR FAILING TO FOLLOW ITS OWN PRECEDENT IN THIS VARIANCE PROCEEDING, ZONING BOARD'S GRANT OF THE VARIANCES WAS THEREFORE ARBITRARY AND CAPRICIOUS.

 

The Second Department determined the zoning board's failure explain why it departed from its own precedent rendered its grant of variances arbitrary and capricious:

 

[The] variances permitted [petitioner] to subdivide a parcel he owned into two substandard lots, and to construct a two-family residence on each lot. In February 2014, the petitioners commenced this CPLR article 78 proceeding to review the Zoning Board's determination on the ground that it was arbitrary and capricious, because the Zoning Board failed to properly distinguish the subject application from a substantially similar prior application, made as to the same parcel, which the Zoning Board had denied in 2010. The Supreme Court granted the petition and annulled the determination ... .

 

"A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious" ... . Where it is shown that a zoning board has reached contrary results on substantially similar facts, an explanation is required ... . Here, the Zoning Board's failure to set forth a factual basis as to why it was departing from its prior precedent rendered its determination arbitrary and capricious ... . Matter of Amdurer v Village of New Hempstead Zoning Bd. of Appeals, 2017 NY Slip Op 00300, 2nd Dept 1-18-17