Labor Law Pointers

 

Volume VII, No. 3

Wednesday, January 3, 2018

 

A Monthly Electronic Newsletter Addressing

New York State Labor Law

Decisions and Trends

 

 

 

From the Editor:

 

 

Do you have a situation, we love situations. 

 

It is with joyous hearts that we announce that the newest member of Hurwitz & Fine’s Labor Law team, Ashmita Roka, will be sworn in next Wednesday as an attorney and member of the New York State bar.  She will immediately head to court on Thursday morning to handle her first pretrial court appearance. While some of us have been practicing law for more years than we care to recall, one thing we all remember is being sworn in and making that first appearance in court. On behalf of the entire labor law team we welcome Ashmita to the family.

 

In this edition you will find a Court of Appeals case analyzed by Mike Perley, a guest columnist, regarding the calculation of workers compensation liens as they affect settlements of personal injury actions.  It is critical to understand this area of the law when seeking to negotiate the settlement of any case in which workers compensation benefits have been paid, and that means almost every labor law case.

 

There were not a lot of decisions this December but there are some which are quite interesting. We have a case where a plaintiff upon reporting to work fell off a permanent loading dock and that was deemed to be a labor law violation, albeit with two dissents.

 

As always I encourage everyone to subscribe to our two sister publications, Coverage Pointers and Premises Pointers, edited by Dan Kohane and Jodi Briandi respectively. Drop either of them or me a line and we will see that you’re added to the distribution list. Both are excellent publications which provide valuable insight into their respective topics.  Click on the hyperlink name of the newsletter and it will take you to their most recent editions, or on the editor’s name to send them an email.  By the way as a reminder to our new subscribers, clicking on the case names will take you to the actual official decision, on any statute or regulation takes you to the text of the statute or reg and clicking on any of our names opens an email to us.  

 

As we start a new year I want to remind everyone that we are available to provide training with regard to any topic labor law or risk transfer related, either in person or via webinar. While we prefer providing these seminars in person because of the opportunity for interaction between the presenters and those in attendance we recognize the reality that a great many claims professionals work remotely and thus it is becoming increasingly difficult to find a time when they are all in the same location. Feel free to reach out to us on any topic you wish as we are always anxious to not only provide training but also relish the opportunity for face-to-face meetings with our subscribers.

 

As always we have a few photographs for your enjoyment and to illustrate various issues in the labor law. In the first photograph, taken just seconds before the plaintiff fell causing himself injury, the plaintiff had been hired to install a new skylight and was doing that at the time of his fall. What you can’t see in this photograph is the scaffold pushed up against the wall which was of sufficient height to allow the plaintiff to install the skylight as long as he didn’t put the side rails on. Plaintiff had been told to use that scaffold but to leave the side rails off so that it would fit. The question, therefore, when he falls is it a labor law case.

 

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The answer to the question above is not as simple as it may seem. The sole proximate cause defense based on the plaintiff’s failure to use an available safety device which he was instructed to use will hinge on whether not that safety device he was instructed to use was in fact appropriate. The fact that he was told to use it without safety rails is of course the issue. Assuming that the plaintiff finds an expert who says that the use of the scaffold without the safety rails on it would not have been an appropriate safety device and that the defendant retains an expert who will opine that the scaffold even without the safety rails on it is an appropriate safety device the court is left to make a decision. The outcome, I believe, will be that the court will find a question of fact. Recently the courts have held that when experts for opposing sides differ as to whether or not a safety device is appropriate that that does create a question of fact. What the courts have also held recently is that when experts on opposite sides opine differently as to whether not a safety device is necessary and the plaintiff was injured that does not create a question of fact and is resulting in a decision favoring the plaintiff.

 

This next photograph shows a plaintiff tying rebar together, wearing a safety harness and tied in on both sides with a lanyard which he appears to be using as a sling all while being assisted in maintaining his position with the careful positioning of a 2 x 4 by his coworker. When the coworker hears the coffee truck pull in and immediately turns and runs to get his coffee the plaintiff slides out of the sling and falls to the ground because his lanyard is longer than the distance between where it is attached and the ground. Does this plaintiff have a valid Labor Law claim.

 

 

Recalling that under the law a person cannot be considered a safety device for the purposes of Labor Law section 240(1).  The fact that plaintiff’s coworker removed that comfortable looking 2x4 which appears to have caused plaintiff to fall has no effect on the application of the law. The plaintiff was a person so employed who was engaged clearly in construction, who fell from a height and received a gravity related injury because he did not have an appropriate safety device which prevented him from striking the ground establishes a prima facie case of a violation of Labor Law section 240(1).  The defense has no opportunity to establish a sole proximate cause defense here unless it can be demonstrated that the plaintiff had also been provided with a safety device which would have been appropriate and was available to him such as a scaffold or man-lift which had been instructed to use for this task.

 

We wish you all a happy and healthy 2018, we hope you enjoy this edition and, as always, feel free to reach out to us with any questions you may have at any time. We really do enjoy analyzing these often complicated and challenging fact patterns.

 

David

 

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David R. Adams
Hurwitz & Fine, P.C.

424 Main Street

Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916

Fax:  716.855.0874

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Labor Law Pointers is published the first Wednesday of each month.  If you know of others who may wish to subscribe to this free publication, please feel free to forward it.  If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.

 

Flynn v Turner Constr. Co.

December 5, 2017

Appellate Division, First Department

 

Plaintiff was exposed to toxic air at a construction site sufficient to cause respiratory illness. Turner, the general contractor, subcontracted with defendant/third-party defendant LVI for asbestos abatement, lead abatement, and concrete demolition. The trial court denied LVI’s summary judgment motion to dismiss the Labor Law § 200 and common-law negligence claims and all third-party and cross-claims against it. The trial court also granted defendants/third-party plaintiffs’ motion for conditional summary judgment on their contractual indemnity claims.

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The First Department affirmed, finding that LVI failed to establish prima facie that plaintiff was not exposed to toxins at sufficient levels to cause his claimed respiratory illness. The record contains ample evidence of plaintiff's exposure to toxins at the construction site, and LVI's expert did not opine that those toxins were not capable of causing plaintiff's respiratory illness. Nor did LVI establish prima facie that it was not responsible for the release into the air of toxins that allegedly caused plaintiff's respiratory illness. LVI was responsible for asbestos abatement, lead abatement, and concrete demolition on the job site. The record shows that there was demolition going on throughout the building generating dust clouds thick enough to be visible in progress photographs and that there were widespread complaints about the air quality, including the presence of silica dust, which occurs naturally during concrete demolition.

 

Indemnity Issues in Labor Law (SEP)

 

Per the contract, LVI agreed to provide contractual indemnity to Turner and MSG Holdings for any los that was not the result of negligence of Turner, MSG Holdings or any of their other subcontractors.  Here, as there was not yet a determination on negligence, the Court ruled that Turner/MSG Holdings were entitled a condition order of indemnity

 

Gutierrez v 451 Lexington Realty LLC

December 5, 2017

Appellate Division, First Department

 

Plaintiff allegedly was injured when a reel of electrical wire weighing 500 to 1,000 pounds fell and struck his foot. Workers rolled the reel up wooden planks for loading onto a van when it fell. The trial court denied plaintiff’s summary judgment motion on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously reversed the trial court and awarded plaintiff summary judgment as he proved he was injured from the falling reel due to the absence of an adequate safety device, relying on Runner. The Court rejected defendants’ sole proximate cause and recalcitrant worker defenses because even if a forklift was available and plaintiff was aware of it, defendants did not offer evidence showing that plaintiff was actually instructed to use it. 

 

The Court also rejected defendants’ contention that Labor Law § 240(1) was inapplicable because the loading of the reel did not fall within the scope of construction work as although it was not actual construction work, and occurred in the loading area of the construction site, it was still part of the overall construction project.

           

PRACTICE POINT:  This case is about as on point with Runner as it can get, right down to the spool of wire.  It also offers us, again, an excellent opportunity to review the elements necessary for a sole proximate cause defense. Element number one requires that there be an appropriate safety device. Element number two requires that the appropriate safety device be available to the plaintiff. Element number three requires that the plaintiff be instructed to utilize that appropriate safety device or that he acknowledged his understanding that it was to be used. Element number four requires that the plaintiff misuse or not use the available and appropriate safety device. Element number five requires that the plaintiff’s misuse or failure to use the available and appropriate safety device before no good reason. Here, the defense failed to prove that the plaintiff had been instructed to use the forklift or that he understood that he was expected to use it.

 

 

Torres v Love Lane Mews, LLC

December 5, 2017

Appellate Division, First Department

 

Plaintiff allegedly was struck by falling bricks while working near one of four connected buildings on a construction site. The trial court denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim and defendants' motion to dismiss that claim.

 

The trial court also granted Red Hook and Love Lane motion to dismiss the § 241(6) claim predicated on a violation of Industrial Code (12 NYCRR) § 23-3.3(g), and granted defendant Red Hook’s motion to dismiss the § 200 and common-law negligence claim. The trial court further granted Love Lane's motion for summary judgment on its contractual indemnity claim against third-party defendant Galaxy, and denied Galaxy's cross-motion to dismiss that claim.

 

Labor Law § 240(1) (DRA) 

 

The First Department upheld the trial court’s denial of plaintiff’s and defendants’ motions as there are issues of fact whether the bricks fell accidently or were deliberately dropped by demolition workers. If intentionally dropped, then the bricks did not constitute falling objects under Labor Law § 240(1); comparing Solano v City of New York, 77 AD3d 571 (1st Dept 2010) with Hill v Acies Group, LLC, 122 AD3d 428 (1st Dept 2014).

 

PRACTICE POINT:  as in all falling object cases, falling object needs to be something which was in the process of being hoisted or should have been secured. By its very nature and object which is being intentionally dropped is not an object which should have, or for that matter could have been secured. Obviously, there is no way to secure an object which you intend to throw to the ground.  That does not, of course, eliminate what would appear to be a very good negligence action against whoever threw down a brick struck a worker.

 

Labor Law § 241(6) (MAS)

 

The First Department affirmed dismissal under Industrial Code (12 NYCRR) regulation § 23-3.3(g) based on plaintiff’s testimony that his accident occurred outside rather than “within [a] building” as required under this regulation.

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The First Department reversed, holding that the motion court erred in granting Red Hook's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against it, as there are issues of fact as to whether Red Hook had the authority to control the injury-producing work.

 

Indemnity Issues in Labor Law (SEP)

 

As Love Lane’s only remaining exposure was Labor Law 240(1), it followed that it was entitled to indemnification.  However, pursuant to the language of the contract, it was only entitled to indemnity for that percentage of fault attributable to Galaxy.  In reaching its conclusion, the Court noted that Galaxy’s argument that it was free of negligence was belied by the fact that plaintiff was instructed on how and where to do his job by a Galaxy foreman.

 

 

Rodriguez v Columbia Pictures Indus., Inc.

December 7, 2017

Appellate Division, First Department

 

Plaintiff was injured while working on the set of a movie for defendant’s production company.  The trial court denied defendant's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The First Department unanimously reversed because defendant demonstrated prima facie that it was plaintiff's "special employer" such that it was immune from suit and plaintiff’s exclusive remedy was pursuant Workers' Compensation Law § 11.

 

 

Berisha v 209-219 Sullivan St. L.L.C.

December 12, 2017

Appellate Division, First Department

 

Plaintiff allegedly was injured when the mobile scaffold he was standing on wobbled, causing him to fall. It was undisputed that the scaffold had no railings. The trial court denied plaintiff’s motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously revered, finding plaintiff was entitled to summary judgment because the scaffold had no railings to prevent the fall and there is no evidence that defendants provided an adequate safety device that plaintiff refused to use. The Court further noted that the statute does not impose an obligation that plaintiff affirmatively request an adequate safety device, citing Vergara v SS  133 W. 21 LLC, 21 AD3d 279 (1st Dept 2005).

 

PRACTICE POINT:  I think that anyone who has ever read a single 240(1) labor law case knows that where a plaintiff falls off the scaffold that does not have side rails on it and wobbled causing him to fall will understand that this was an obvious violation of labor law 240(1) from the get-go.

 

 

Fitzgerald v Marriott Intl., Inc.

December 12, 2017

Appellate Division, First Department

 

Plaintiff, a steamfitter, allegedly injured his knee when he slipped and fell on a piece of mud-covered insulation while walking down a wooden ramp. At the time of the accident, plaintiff was monitoring the heating fans and pipe at night, ensuring there were no problems with the work his company had performed earlier that day.

 

The trial court granted defendant’s motion for summary judgment dismissing the Labor Law § 241(6) claim, and denied plaintiff’s cross-motion for partial summary judgment on that claim.

 

Labor Law § 241(6) (MAS)

 

The First Department unanimously affirmed the trial court’s decision that 1.7(d) does not apply as plaintiff did not slip on a “slippery condition” or “foreign substance”. However, the Court reversed as to 1.7(e) because the ramp constitutes a “passageway” under 1.7(e)(1), and a “working area” under 1.7(e)(2). The insulation also constitutes “debris” under 1.7(e) and that plaintiff slipped rather than tripped does not render 1.7(e) inapplicable. As such, plaintiff’s cross-motion for partial summary judgment under Labor Law § 241(6) was granted based on 1.7(e).

 

Hoyos v NY-1095 Ave. of the Ams., LLC

December 14, 2017

Appellate Division, First Department

 

Plaintiff, a painter, whose employer was hired by defendant Structure Tone in connection with a renovation project, allegedly was injured when he slipped or fell off an elevated loading dock. The accident occurred as plaintiff stood in line with other workers, waiting to sign a security log and obtain a pass to enter into the building. The loading dock, which was four feet off the ground, had no guardrails, chain, or other indication where its platform ended and ledge began.

 

The trial court denied defendant NY-1095’s motion for summary judgment dismissing plaintiff's Labor Law §§ 240(1), 200 and common-law negligence claims, and granted plaintiff's cross- motion for partial summary judgment on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

The First Department affirmed the trial court’s finding that plaintiff’s claim was covered under the statute and awarded him summary judgment. The majority held that while plaintiff had not reached the exact location of his work that day, i.e. the particular floor, his painting assignment related to a construction/renovation project with the building and thus he was engaged in an enumerated activity under § 240(1). The analysis does not change simply because plaintiff was in the process of entering the building since the statute does not use or define the term “construction site” or otherwise expressly limit its protections in that way,

 

Justice Tom’s dissent disagrees with the majority, and would decline to expand Labor Law § 240(1) to include an injured worker who was not at the work site and not engaged in any enumerated activity under the statute at the time of his injuries, and a fall from a height which the Court of Appeals has deemed not to constitute a significant elevation differential to warrant application of the statute. Although plaintiff may have a valid negligence claim, “the fact that he fell does not equate to a sustainable § 240 claim” as “the loading dock here was not a part of the construction site”. Justice Richter joined in this dissent.

 

PRACTICE POINT:  This case begs the questions of what qualifies as the construction site for purposes of the statute; is limited to the location where the work is actually taking place or does it start from the moment a worker steps foot onto the property or as here, a loading dock?  Clearly the majority has ruled that the moment the plaintiff steps foot onto the worksite that any gravity related injury would qualify him for the expansive protection of labor Law section 240(1).  Here, to my mind the question revolves more around what it is the plaintiff fell from and what he was doing at the time of his injury. Here the plaintiff fell from a permanent loading dock. Case law has been quite clear that if plaintiff falls on permanent steps as opposed to temporary steps that it is not a violation of labor law 240(1).  In other words, to apply that to this case had the plaintiff been walking up the permanent steps from ground level to the loading dock at the time he fell it would not have been a labor law case. It defies logic therefore that the fact that he fell from the edge of a loading dock, which he reached by walking up a set of permanent steps undoubtedly, is sufficient to create liability under the labor law. Given that there were two separate dissents here we can only hope that this case goes the distance and we get a clarification from the Court of Appeals. Time will tell.

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The First Department affirmed the trial court’s decision to deny NY-1095’s motion to dismiss these claims because it did not meet its burden of showing that the loading dock complied with all applicable codes, and was not inherently dangerous, as the affidavit of its architect was unsigned and unsworn.

 

Lester v JD Carlisle Dev. Corp.

December 28, 2017

Appellate Division, First Department

 

Plaintiff allegedly was injured when he slipped to his knees on the sloped roof of a parking garage where he was installing panels for a video screen and his arm came into contact with the sharp edge of exposed flashing installed as part of the video screen. The trial court granted defendants' and fourth-party defendant's summary judgment motions to dismiss the Labor Law § 241(6) claim based on Industrial Code (12 NYCRR) regulations §§ 23-1.7(e) and 23-1.24.

 

Labor Law § 241(6) (MAS)

 

The First Department unanimously modified the trial court’s decision by denying defendant’s motion based on 1.7(e)(2) and upon searching the record granted plaintiff’s motion for partial summary judgment under that regulation. Although the Court found 1.7(e)(1) inapplicable to the roof plaintiff was working on, it held 1.7(e)(2) applies to “areas where persons work or pass”. 

 

Here, there was proof the loose granules on the roof surface that caused plaintiff to slip was not integral to the structure or the work but were an accumulation of debris from which 1.7(e)(2) requires work areas to be kept free. Accordingly, plaintiff was entitled to summary judgment.

 

Pita v Roosevelt Union Free Sch. Dist.

December 20, 2017

Appellate Division, Second Department

 

Plaintiff used an extension ladder to access the roof of a building to work in a mechanical room on the roof. While in the mechanical room, plaintiff and his coworker realized they needed to use a ladder to reach piping. They left the mechanical room to retrieve an extension ladder located on a level of the roof that was about three feet higher than the level of the mechanical room.

 

Plaintiff and his coworker climbed to this higher level of the roof without using any equipment. While attempting to descend to the lower level of the roof, plaintiff’s right foot slipped on the lip of the upper level, and he fell onto the lower level. The trial court denied defendants’ motion for summary judgment dismissing the complaint, and denied plaintiff’s cross-motion for summary judgment on the Labor Law §§ 200 and 240(1) claims.

 

Labor Law § 240(1) (DRA) 

 

The Second Department reversed, finding that defendants established prima facie that Labor Law § 240(1) does not apply because the three-foot- height differential between the two levels of the roof did not present the sort of elevation-related risk protected by the statute, citing Toefer v Long Is. R.R., 4 NY3d 399 (2005); Biscup v E.W. Howell, Co., Inc., 131 AD3d 996 (2d Dept 2015); Parker v 205-209 E. 57th St. Assoc., LLC, 100 AD3d 607 (2d Dept 2012).

 

PRACTICE POINT:  One of the mysteries of New York State labor law is that periodically a court will apply logic to the situation and arrive at perfectly reasonable outcome. Here, the plaintiff chose to climb up and then down three-foot wall between two levels of roof. It is perfectly logical that there is no safety device which would assist one in stepping up 3 feet or down 3 feet from one level to the next.  Given this outcome is logical, why then will so many of us be surprised by this outcome.

           

Labor Law § 241(6) (MAS)

 

Plaintiff relied on regulation 1.7(f), which directs that stairways, ramps, runways, ladders, or other safe means of access shall be provided “as the means of access to working levels above or below ground”. The Second Department held defendants made a showing 1.7(f) is inapplicable to the facts as plaintiff was not performing work on the upper level of the roof but rather was walking across it to return to the mechanical room. The Court noted plaintiff abandoned his reliance on any other regulations by failing to address those provisions in his opposition papers.

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The Second Department reversed with respect to Labor Law § 200 and common-law negligence, as the defendants established, prima facie, that they did not create or have actual or constructive notice of a dangerous condition, and that they did not have the authority to supervise or control the plaintiff's work. In opposition, the plaintiff failed to raise a triable issue of fact.

 

Indemnity Issues in Labor Law (SEP)

 

By establishing that they did not direct, control or supervise plaintiff’s work, defendants also established themselves free of any negligence exposure.  Where, as here, a party (or parties) are free of negligence, they cannot be liable under common law indemnity/contribution theories.

 

Dereveneaux v Hyundai Motor Am.

December 20, 2017

Appellate Division, Second Department

 

Plaintiff, a carpenter, was employed by the Javits Center and constructing a display for an automobile show for defendant. Plaintiff alleges that he went to get some materials from where he was working, took ten steps, and slipped and fell on accumulated sawdust. He testified there was a lot of sawdust on the floor, which is normally swept up. He said the last time he saw the floor being swept was at approximately 4½ hours earlier.

 

Defendant’s employee did not supervise or oversee the construction, and neither did any other of defendant's employees, as it is their policy and practice to not take on a supervisory role during the construction of exhibits. The trial court granted the motion of TSS for summary judgment motion dismissing the amended complaint, and granted defendants Hyundai, TSF, and Innocean’s motions for summary judgment dismissing the amended complaint against them. 

 

Labor Law § 240(1) (DRA) 

 

The Second Department unanimously held TSS established prima facie entitlement to dismissal of the amended complaint because plaintiff was their special employee and thus was barred from seeking to recover damages for personal injuries against it by the Workers’ Comp. Law § 11.

 

PRACTICE POINT:   Let’s start at the beginning of this.  Workers’ Comp. Law § 11 establishes that in employee’s exclusive remedy against his or her employer is Worker’s Compensation.  A worker may well have a general employer, that would be the entity for which he is on paper and employee and a special employer, that being an entity legally deemed to be his employer. A special employee is one who is transferred for a limited time of whatever duration to the service of another. The factors to be considered by the court are the right to control the employee’s work, the method of payment, the furnishing of equipment and the right to discharge the employee. In addition a significant factor is who controls and directs the manner, details the ultimate result of the employee’s work.  The receipt of workers compensation benefits from the general employer not only establishes Worker’s Compensation as the exclusive remedy for the general employer but also for the special employer. It is important, especially where the injured plaintiff may be a temporary or leased employee to evaluate the special employee status and seek to utilize the exclusive remedy defense.

 

Labor Law § 241(6) (MAS)

 

The Second Department held that TSF and Innoecan made a prima showing of entitlement to summary judgment dismissing this claim by establishing that the Industrial Code provisions relied upon by plaintiff were inapplicable to the facts of this case.

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The Second Department affirmed, finding that TSF and Innocean made a prima facie showing of entitlement to summary judgment dismissing the Labor Law § 200 cause of action insofar as asserted against them by establishing that they did not have authority or control over the work site or the work being performed when the plaintiff allegedly was injured. In opposition, the plaintiff's conclusory allegations with no evidentiary support failed to raise a triable issue of fact.

 

An added bonus section from Mike Perley on a topic near and dear to all our hearts, the Workers compensation lien.  I recall when the difficult part of settling the case was negotiating with the plaintiff’s attorney to reach a number acceptable to all. Now, in many cases it seems that getting to that point merely starts the difficulty of the settlement with compliments and the many issues involving CMS set-asides.  Mike has provided us with a summary and analysis of the recent court of appeals decision addressing the workers compensation lien.

 

Joseph A. Terranova, Jr. v. Lehr Construction Co.

(Court of Appeals, December 19, 2017

 

Joseph Terranova was injured in the course of his employment and collected Workers’ Compensation benefits in the amount of $21,495.99.  Terranova made a claim against the general contractor, which he resolved for an undisclosed amount of money.  At the time of the settlement, it appears that the Workers’ Compensation lien was adjusted for Terranova’s attorney’s fees and disbursements (“cost of litigation”).  What remained unresolved at the time of the settlement was Terranova’s claim for a scheduled loss of use, which was in litigation at the Workers’ Compensation Board.  After the settlement, Terranova was awarded a 10% scheduled loss of use of his right leg and awarded 28.8 weeks of benefits resulting in an additional award of $9,960.00.  Although it is not clear in the opinion, it appears that the Workers’ Compensation Board retained the entire amount of the award pursuant to the Workers Compensation §29 set-off it received as a result of the settlement.  Terranova argued that he was entitled to be repaid the cost of litigation for that set-off. The Workers’ Compensation Board, along with the Appellate Division disagreed.  The Court of Appeals, however, reversed.

 

To fully understand the reasoning of the Court of Appeals, it is appropriate to revisit the matter of Kelly v. State Insurance Fund (60 N.Y.2d 131 [1980]).  In that case, the Court of Appeals determined that, where the future benefits for the injured worker were ascertainable at the time of settlement, the cost of litigation for both the lien and the present value of the ascertainable future benefits would be apportioned to the injured worker, thereby reducing, or potentially eliminating the Workers’ Compensation lien.  In rare cases, this resulted in a “fresh money” cash payment from the Workers’ Compensation carrier to the injured worker. 

 

Fast forward to 2007, when the Court of Appeals addressed situations where the future indemnity benefits were not ascertainable at the time of the settlement.  In Burns v. Varriale (9 N.Y.3d 207 [2007]), the court determined that, in those circumstances, the cost of litigation would not be apportioned at the time of settlement, but required that the “carrier should … periodically pay its equitable share of the attorneys’ fees and costs based on actual benefits accrued.”  In passing, the Burns court noted that the “pay as you go process” would not apply where “a claimant does not receive benefits for death, total disability or scheduled loss of use.” 9 N.Y.3d at 217)  Relying on the carve out in Burns, the Workers’ Compensation Board and the Appellate Division noted that Terranova’s claim was for a scheduled loss of use.  Neither the Board not the Court appreciated the distinction that the scheduled loss of use had not been awarded at the time of the settlement.  The Court of Appeals noted that, since this award had not been determined, the amount was not ascertainable and, as a result, the “pay as you go” procedure in Burns would apply.  This clarified the Court of Appeals determination in Burns applying the “pay as you go” process to any wage continuation (indemnity) payment that was not ascertainable at the time the bodily injury lawsuit was concluded.

 

Finally, the Workers’ Compensation carrier also claimed that Terranova had waived his rights by executing a Section 29 Agreement, reciting that the “lien reimbursement reflects a reduction of the carrier’s lien pursuant to Kelly v. State Insurance Fund and all parties reserve their right to Burns v. Varriale.” The Court of Appeals, interpreted the plain language of that agreement incorporating what it characterized as the “proper” reading of Burns, to preserve Terranova’s rights.

 

 

 

 

LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)

 

 

12 NYCRR § 23-1.10 – Protection in Construction, Demolition and Excavation Operations; General Provisions; Hand Tools.

 

Regulation § 23-1.10(a), entitled Unpowered hand tools, requires edged tools shall be kept sharp and shall be maintained free from burrs and mushroomed heads. Split or loose tool handles shall not be used.

 

Boots v Bette & Cring, LLC, 124 AD3d 1119, 3 NYS3d 141 (3d Dept 2015).

 

Boots found that the second sentence of 1.10(a) sets forth a specific standard of conduct, but it did not apply where π was injured while cutting piece of plastic with utility knife as the locking mechanism that secured the retractable blade on knife was loose, causing blade to break in half & cut his wrist.

 

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York

 

Labor Law Pointers

 

Editor
David R. Adams


Associate Editor
V. Christopher Potenza


Associate Editor
Steven E. Peiper


Associate Editor
Marc A. Schulz

 

Associate Editor
Eric D. Andrew

 

Associate Editor
Howard B. Altman

Associate Editor
Brian F. Mark

 

Labor Law Team

 

            David R. Adams, Team Leader                   Steven E. Peiper

            [email protected]                               [email protected]

 

            Dan D. Kohane                                   Jennifer A. Ehman

            [email protected]                        [email protected]

 

             Marc A. Schulz                                     Eric D. Andrew

            [email protected]                      [email protected]

           

            Michael F. Perley                            Howard D. Altman

            [email protected]                   [email protected]

           

            V. Christopher Potenza                      Ashmita Roka

            [email protected]                      [email protected]

 

             Brian F. Mark                      

       [email protected]                                                           

 

 

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