Four new workers’ compensation cases dropped last week from the 3rd Dept., and the most significant is a bad decision on a Professional Employer Organization (PEO) case.
Dulay v. Oriska Insurance Company.
This case involved a Covid death where the claimant’s dependents filed for death benefits, and the claimant’s estate filed for benefits for the duration of the disease until the claimant’s death. The Court never got to the merits of the claims. The Board issued two orders: one for lifetime benefits and one for the death benefits. The carrier never filed a Board Panel appeal on the lifetime benefits order, and the 3rd Dept. held that Order could not be appealed. Although the carrier checked off that they were appealing the death benefits order on the RB-89 appeal form, their legal brief only challenged the lifetime benefits. Therefore, the 3rd Dept. held the Board correctly rejected the appeal of the death benefit because the carrier did not submit any support contesting that the death was caused by Covid-19. Practice Tip: If there are more than one WCB claim numbers traveling together, make sure to refer to them all on the cover sheet or risk waiving the appeal.
Clement v. Colwell Brothers
This case involved an established hearing loss case from 1989. In 2022, the claimant returned to request additional medical care and diagnostic testing. The claim, now with the Special Funds, challenged the causally related need for additional treatment. Without getting into the details of the testing or medical treatment, the Appellate Division simply concluded that there was sufficient medical evidence to support a finding that the additional testing was causally related and medically necessary as part of the continuing treatment and care for the claimant’s binaural hearing loss condition.
Kowalski v. Aquest Corporation.
In another hearing loss matter, the 3rd Dept. found the Board was justified in disallowing an occupational disease for the last employer of record, because the last employer was able to prove that the claimant was not exposed to loud noises on the job.
Rodriguez v. Sky Materials Corp.
Not a great case for the PEO defense. The 3rd Dept today dropped this decision finding that the PEO covered an uninsured employer for non-listed employee. The Court focused on the PEO contract phrase, that the PEO “assume[d] responsibility for, among other things, ‘secur[ing] and provid[ing] required workers’ compensation coverage for its worksite employees either in its own name or in its client’s name.’” The Court further held that there was “no reason to believe that the client employee list had been incorporated into the [PEO’s] policy.”
It is troubling that the Court referred to a “lack of any specifically named employees who are excluded from coverage,” because how can the policy exclude people by name if the names were never provided to them?
Practice Tip: The most important clause to rely on in PEO contracts is the section where it defines that only leased employees are covered; that the employer must submit names of employees; that only the names of those employees submitted are covered; and any other names, if not submitted will not be covered. If you can get this into the record, you can distinguish this Rodriguez case.
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