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Court Decided 3 Cases Dealing With Workers Compensation 3-5-15

The first was another case involving the self-insured trusts

NYS v. Builders Self Insured Trusts.

In Matter of O’Brien , the carrier appealed a finding that the employer was not entitled to reimbursement for wages paid. While claimant was a correction officer for the selfInsured employer, he sustained several work-related injuries to his shoulders. During periods that claimant missed time from work as a result of these injuries, the employer paid him “the full amount of his regular salary or wages” pursuant to General Municipal Law § 207-c (1). A Workers’ Compensation Law Judge found that claimant had a temporary total disability for several periods of time when he was not working, and awarded benefits for those periods. For two of those time periods (from March 2008 to June 2008 and from November 2008 to April 2009), the employer did not file a request for reimbursement until after the awards of compensation for those periods had been made. The Workers’ Compensation Law Judge later awarded claimant a schedule loss of use for each of his shoulders and found that the employer was precluded from seeking reimbursement for the two time periods for which it had not timely filed claims for reimbursement. Upon the application for review by the employer and its third-party administrator (hereinafter collectively referred to as the employer), the Workers’ Compensation Board affirmed. The employer appealed.

The Court disagreed with the employer’s contention that the Board departed from prior precedent without explanation. The Board did not need to explain the different holding in its decision in Employer: City of Schenectady (2009 WL 2598388, 2009 NY Wrk Comp LEXIS 12631 ), because a plain reading of that decision reveals that it is factually distinguishable from the present matter. There, the Board noted that the employer had made a timely reimbursement request for the relevant time periods.

Here, the Board correctly determined that the employer was required to file timely requests for reimbursement, but did not do so. Workers’ Compensation Law § 25 (4) (a) provides that “f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, shall be entitled to be reimbursed out of an unpaid instalment or instalments of compensation due, provided claim for reimbursement is filed before award of compensation is made.” If this statute alone is applied here, the employer is precluded from recovering the full wages paid to claimant pursuant to General Municipal Law § 207-c because the employer did not file requests for reimbursement prior to the initial awards of compensation benefits for the relevant time periods (see Matter of Karl v New Venture Gear, 41 AD3d 1024, 1025 <2007>, lv dismissed 9 NY3d 1000 <2007>; Matter of Groth v Daimler Chrysler Corp., 41 AD3d 1021, 1022 <2007>, lv dismissed and denied 9 NY3d 1000 <2007>).

The employer contends that Workers’ Compensation Law § 30 applies instead. That statute provides that “any salary or wages paid to . . . under and pursuant to shall be credited against any award of compensation . . . under this chapter” (Workers’ Compensation Law § 30 <3>). To analyze these provisions, “the text of a statute is the best evidence of legislative intent and, where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” (Matter of Retired Pub. Empls. Assn., Inc. v Cuomo, 123 AD3d 92, 94-95 <2014> ; see Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 91 <2001>). Because these two provisions are related statutes in the Workers’ Compensation Law, they “must be construed together unless a contrary legislative intent is expressed, and courts must harmonize the related provisions in a way that renders them compatible” (Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d at 91; see Matter of M.B., 6 NY3d 437, 447 <2006>). Workers’ Compensation Law §§ 25 and 30 both provide a right to reimbursement out of future benefits, with section 30 being more specific regarding the statutory basis for the wage replacement payments sought to be reimbursed. Workers’ Compensation Law § 25 (4) (a) additionally provides that the employer will waive that right if it fails to timely submit a claim for reimbursement. “If by any fair construction, a reasonable field of operation can be found for statutes, that construction should be adopted” (People v Newman, 32 NY2d 379, 390 <1973>, cert denied 414 US 1163 <1974> ; accord Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d 186, 195 <1988>; Matter of County of St. Lawrence v Shah, 95 AD3d 1548, 1552 <2012>). A reasonable construction of these two statutes is to read them together and conclude that the right of reimbursement granted by both statutes will be waived if the employer fails to submit a timely request for reimbursement. Inasmuch as this is the reading adopted by the Board, its decision should not be disturbed.

Matter of Schwonger, the claimant Appeal from an amended decision of the Workers’ Compensation Board, filed March 28, 2013, which ruled that an employer-employee relationship existed between claimant and NYU School of Medicine.

Claimant obtained his doctorate in 1998, after which he performed laboratory research at NYU School of Medicine (hereinafter NYU) as a postdoctoral fellow. From June 2000 to June 2001, his salary was funded by a federal grant known as the Ruth L. Kischtein National Research Service Award, which is administered through the National Institutes of Health (hereinafter NIH) (see 42 USC §§ 282 <11>; 288). In October 2000, claimant was allegedly exposed to piggyback herpes virus while working and became ill.

As a result of the exposure, claimant commenced an action in Supreme Court against NYU and related entities. The defendants in that case moved for summary judgment, arguing that claimant was NYU’s employee at the time of the accident and that his exclusive remedy was workers’ compensation benefits (see Workers’ Compensation Law § 29). Supreme Court found that the existence of an employer-employee relationship was a question of fact for the Workers’ Compensation Board to resolve and, among other things, stayed all proceedings in the civil action and directed the parties to obtain a ruling on that issue from the Board. The Board ultimately determined, in an amended decision, that claimant was an employee of NYU.

Claimant now appeals.

Preliminarily, because the Board’s decision relates solely to the issue of employer-employee relationship, the present appeal would ordinarily be dismissed as being from an interlocutory decision (see Matter of Ogbuagu v Ngbadi, 61 AD3d 1198, 1199 <2009>; Matter of Malkin v Love Taxi, 299 AD2d 681, 682 <2002>). The rule barring appeals from such decisions reflects “our policy to discourage piecemeal review of the main issues in a compensation claim for the purpose of preventing purely dilatory appeals, that policy should not be applied in such a manner as to preclude . . . the prompt review of threshold legal issues which may be dispositive of a claim against one or more parties” (Matter of McDowell v LaVoy, 59 AD2d 995, 995 <1977>). Claimant here did not apply for workers’ compensation benefits and, indeed, the Board was only asked to answer the question of whether the Workers’ Compensation Law applied to claimant because it served as a “jurisdictional predicate to civil action” (Liss v Trans Auto Sys., 68 NY2d 15, 21 <1986>). Inasmuch as a threshold legal issue is presented for our review under these circumstances, the Board’s decision is properly before us (see Matter of McDowell v LaVoy, 59 AD2d at 995).

Turning to the merits, we affirm. Contrary to claimant’s assertion, the Board was not preempted by federal law from exercising jurisdiction over him. The requisite congressional intent to preempt “may be discerned in three ways: (1) expressly in the language of the ederal statute; (2) implicitly, when the ederal legislation is so comprehensive in scope that it is inferable that Congress intended to fully occupy the ‘field’ of its subject matter; or (3) implicitly, when tate law actually ‘conflicts’ with ederal law” (Drattel v Toyota Motor Corp., 92 NY2d 35, 42 <1998>, quoting Guice v Charles Schwab & Co., 89 NY2d 31, 39 <1996>, cert denied 520 US 1118 <1997>; accord Matter of Amoah v Mallah Mgt., LLC, 57 AD3d 29, 31 <2008>; Matter of Cuevas v Americorps, 14 AD3d 911, 911-912 <2005>). Notably, absent clear evidence to the contrary, it is presumed that Congress did not intend to preempt state law in areas where states have traditionally exercised their police powers, such as workers’ compensation (see DeCanas v Bica, 424 US 351, 357-358 <1976>; Matter of Amoah v Mallah Mgt., LLC, 57 AD3d at 32).

Here, there is neither an explicit nor an implicit indication in any federal statute or regulation that Congress intended to preempt state workers’ compensation law. Claimant instead argues that an intent to preempt may be found in a “program announcement” circulated by NIH, which states that individuals “supported under the are not considered to be in an employee-employer relationship with the NIH or the awardee institution,” and that said institution could not apply grant funds toward its workers’ compensation expenses. Those statements are made in the context of explaining the tax liability of individuals receiving grant monies, however, and NIH makes clear that “he taxability of stipends . . . in no way alters the relationship between and institutions.” NIH further makes clear that, notwithstanding the guidance provided, it “takes no position on the status of a particular taxpayer.” Accordingly, assuming that the informally promulgated announcement could have preemptive effect (but see Fellner v Tri-Union Seafoods, LLC, 539 F3d 237, 245-246 <3d cir 2008>, cert denied 556 US 1182 <2009>), its language does not “even arguably justif the pre-emption of state” workers’ compensation law (Altria Group, Inc. v Good, 555 US 70, 90 <2008>; see Matter of Cuevas v Americorps, 14 AD3d at 912).

Claimant additionally argues that the Board’s factual determination that an employer-employee relationship existed is not supported by substantial evidence in the record (see Matter of Hasbrouck v Harloff, 122 AD3d 1014, 1014 <2014>). “In making such a determination, factors to be considered include control over the claimant’s work, method of payment, right to discharge, furnishing of equipment and relative nature of the work” (Matter of Malave v Beef & Bourbon, LLC, 114 AD3d 1006, 1007 <2014> ; see Matter of Jennings v Avanti Express, Inc., 91 AD3d 999, 999-1000 <2012>). Claimant here worked in an NYU laboratory that was overseen by an NYU professor, Jan Vilcek, and claimant used equipment provided in part by NYU. Vilcek served as claimant’s mentor and supervisor, and testified that he required claimant to work at the laboratory for a set number of hours, exercised broad control over the direction of claimant’s research, and had the authority to discipline and fire claimant. NYU was further listed as the payor on claimant’s paychecks and provided him with vacation, sick leave and health insurance. Claimant points out that his salary and benefits were funded by federal grant money, but he remained obliged to work at NYU and, in any case, the source of the monies used to pay him is not determinative (see Matter of Fisher v KJ Transp., 27 AD3d 934, 935 <2006>; see also Matter of Siepierski v New York State & Local Retirement Sys., 46 AD3d 1316, 1318 <2007>). Notwithstanding the presence of proof that could support a different result, we find that the foregoing constitutes substantial evidence to uphold the Board’s determination that claimant was an employee of NYU (see Matter of Jara v SMJ Envtl., Inc., 55 AD3d 1157, 1158 <2008>; Matter of Fisher v KJ Transp., 27 AD3d at 935; Matter of LaCelle v New York Conference of Seventh-Day Adventists, 235 AD2d 694, 694-695 <1997>, lv dismissed 89 NY2d 1085 <1997>, lv denied 96 NY2d 713 <2001>).




Grey & Grey, LLP

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