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  • Writer's pictureGREY & GREY


Today the Court Decided 2 cases. There was also one decision by the Court of Appeals.

In the Matter of Searchfield, an appeal was taken to a Board Decision that ruled that claimant’s application for workers compensation benefits was timely filed and awarded benefits.

In October 2005, claimant was injured at his workplace while lifting a hot water heater. The initial diagnosis by the emergency room physician was “myofascial strain of legs [and] hips.” Later physician reports, however, focused on claimant’s complaints of groin, lower back and leg pain. In July 2006, a Workers Compensation Law Judge (hereinafter WCLJ) established a work-related injury to claimant’s lower back, found prima facie medical evidence of groin strain and awarded workers compensation benefits. Subsequently, an MRI of claimant’s sacrum revealed signs of, among other things, “a possible paralabral or synovial cyst”. Claimant was referred to an orthopedic surgeon, Michael Wiese, who, in a January 2009 report, opined that claimant had, among other things, a right hip labral tear and requested authorization for surgery. According to Wiese, claimant was originally misdiagnosed and he had, in fact, sustained injuries to his right hip as a result of the October 2005 accident. Claimant sought to amend his claim to include the injuries to his right hip. Following the submission of competing medical proof, a WCLJ found that the claim was time-barred pursuant to Workers Compensation Law § 28 and, in any event, the condition was not causally related to the subject accident. Upon review, the Workers Compensation Board reversed the WCLJ and issued a decision and an amended decision holding that claimant’s right hip condition is properly included in the claim as a work-related injury, which was not time-barred.

The Court was unpersuaded by the employer’s contention that the Board should have dismissed as untimely the claim for a causally-related right hip condition. Pursuant to Workers Compensation Law § 28, a claim that is not filed within two years of the date of the accident is time-barred. He Court noted, “[w]hether a claim has been filed in a timely manner presents a factual issue for the Board to resolve, and such determination, if supported by substantial evidence in the record as a whole, will not be disturbed” (Matter of Schley v North State Supply, 309 AD2d 1092, 1093 [2003]). While the employer maintains that the amendment to the claim is time-barred, we disagree. Not only do the early medical reports reflect initial concerns relating to claimant’s hips, there was competent medical proof supporting the Board’s finding that claimant’s ongoing pain “as the result of a labral tear in the right hip, a condition which is often misdiagnosed as a low back injury.” Thus, the Board did not, as argued by the employer, conclude that the hip condition was consequential in relation to the original diagnosis of low back injury (see e.g. Matter of Jones v Cowper Co., 80 AD2d 685, 685 [1981]). Instead, the Board amended the original claim to reflect the correct diagnosis of a directly-related hip condition. Since claimant could not have filed a claim for causally-related hip injuries until this condition was properly identified and diagnosed in the latter months of 2007, we are persuaded that this matter is not time-barred.

The Court then turned to the employer’s final contention that the Board erroneously found that the right hip condition is causally related to the October 2005 accident, the Court was Unpersuaded by this argument. “The Board is empowered to determine the factual issue of whether a causal relationship exists based upon the record, and its determination will not be disturbed when supported by substantial evidence” (Matter of Virtuoso v Glen Campbell Chevrolet, Inc., 66 AD3d 1141, 1142 [2009] [citations omitted]). Here, the Board specifically credited the testimony of claimant’s physicians as to causation. While the independent medical expert disagreed, the Board noted that this expert also acknowledged that it was possible for hip problems to be misdiagnosed in situations where they originally manifest in low back complaints. Given that “the resolution of conflicting medical opinions is within the province of the Board, particularly where the conflict concerns the issue of causation” (Matter of Ciafone v Consolidated Edison of N.Y., 54 AD3d 1135, 1136 [2008]), the Court found substantial evidence supporting the Board’s ruling as to causation.

In the Matter of McLeod an appeal was filed to the finding which ruled that claimant’s injury did not arise out of and in the course of her employment and denied her claim for workers compensation benefits. Claimant was en route to her job as a special servant agent at the Westchester Airport when she was injured in an automobile accident on Airport Access Road, a county road. Thereafter, claimant sought workers compensation benefits for her injury. Following a hearing, a Workers Compensation Law Judge ruled that claimant was traveling to work at the time of the accident and, therefore, her injuries arose out of and in the course of her employment. Upon review, the Workers Compensation Board reversed. Claimant appealed.

The Court noted, accidents that occur on a public street away from the place of employment and outside working hours generally are not considered to arise out of and in the course of employment (see Matter of Littles v New York State Dept. of Corrections, 61 AD3d 1266, 1267 [2009]; Matter of Harris v New York State Off. of Gen. Servs., 13 AD3d 796, 796 [2004]). However, where, as here, the accident occurred near the claimant’s place of employment, there develops a gray area where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation (Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 144 [1976] [internal quotation marks and citation omitted]). In order for a compensable incident and risk of employment to exist, “there must be (1) a special hazard at the particular off-premises point and (2) a close association of the access route with the premises, so far as going and coming are concerned” (Matter of Fiero v New York City Dept. of Hous. Preserv. & Dev., 34 AD3d 911, 912 [2006] [internal quotation marks and citations omitted])

The Court stated there was no indication that there was a special hazard at the point where the accident occurred. Although claimant used Airport Access Road to reach the employee parking lot, the record establishes that the road is a county road used by the general public to get to and from the airport and is not controlled by the employer. The accident, which occurred when another driver attempted to turn into a parking lot, is not related to any incident or risk of claimant’s employment, but rather was a risk shared by the general public (see Matter of Littles v New York State Dept. of Corrections, 61 AD3d at 1268). Under these circumstances, the Court found substantial evidence supports the Board’s finding that claimant did not sustain an injury arising out of and in the course of her employment.

Today the Court of Appeals found that the employer should not have been given an opportunity to produce medical testimony in defense of the claim when a late C-7 was found in the matter. The decision can be read at:

Congratulations to Mr. Gluck on his hard fought victory




Grey & Grey, LLP

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