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September 9, Appeal by: There are now only the following eight cases which have been argued before the Appellate Court for which we await decisions. No new cases have been posted for November. No new workers comp related cases have been added by the Court of Appeals and no new motions addressed by the Court. The only case still active at the Court's motion calendar is Auqui v. Seven Thirty One Limited noted in the summary further down this. Transcripts for the cases heard this session are noted above: Cameron v Crooked Lake House Motion for leave to appeal by the carrier on the issue of causally related loss of earning capacity denied. Morin v Town of Lake Luzerne: Rolleri v Mastic Beach Ambulance: AS part of his compensation the lived at a residence also located on the horse farm that included utilities, and he was provided with a truck and a gas card. The claimant and employer argued that claimant was covered by the workers come policy and there was no evidence he was working for JGB personally. Also both JGB and the insurance broker testified that the carrier was informed that the office clerk had been replaced by a maintenance worker. The Court agreed with the Board there was substantial evidence to support the conclusion that the claimant was an employee of BRE and, absent a policy exclusion, the claimant was covered by the policy. Prevailing party represented by: Skivington of counsel for Joseph G. Bucci and represented by: Self-Insured Trusts The Court of Appeals, on October 23, , accepted a motion to allow additional time for presentation of papers on this case. A link to the original page decision, annotated by this website, is noted below. Although he was not out-of-pocket for the costs at issue, he filed a claim against the WC carrier. Perhaps it was the Medicare provisions that allows a Medicare beneficiary may recover from his workers' compensation carrier twice the amount that Medicare paid on his behalf if, among other things, the carrier qualifies as a "primary plan. The Court , in a lengthy opinion disagreed on both points, thus making it possible for Medicare to seek reimbursement directly from the claimant for his failure to see pre-authorization from the WC carrier. The Board found compensibility and classified Hroncich as permanently partially disabled as of June , with asbestosis and asbestos-related pleural disease resulting from his employment with Con Ed. Conceding that the law regarding apportionment in this context was "unsettled," Con Ed nonetheless urged that a reduced award was "warranted" by the minimal and speculative contribution of work-related pulmonary diseases to Hroncich's demise. This position was affirmed in this case February 19, by the Appellate Court, Third Department which ruled that "inasmuch as the record concededly contains substantial evidence supporting the Board's determination that decedent's occupational illness contributed to his death, claimant is entitled to death benefits without apportionment. Pigott writes that the Court of Appeals has yet to consider whether the Appellate Courts' interpretation of the statute is correct and, if so, how far it should be taken, i. This leads to two problems. Here, there is no dispute the work-related injury may have hastened the decedent's death, but that's all. The statute doesn't provide for an award in such a case. No apportionment should mean just that - as to both the cause and, as the WCB argues here, the award of benefits. The Legislature didn't write the statute that way; why should the courts rewrite it? The statement in this case regarding the responsibility of the State Legislature rather than the courts to make law is reaffirmed rather bluntly in the Matter of People v Herne a non-WC case issued by the Franklin Country Court October 15, link here: Whether any change in the law is called for remains within the sound discretion of the Legislature. But the record showed that all prior attempts to serve notice upon two parties had been returned as undeliverable. And, for the other two parties, the counsel for the parties was served, there is no assertion that these parties did not receive notice of the application, and one even filed a rebuttal. Therefore, the Court agreed with Silver that the Board erred in determining that the application was not served upon all parties of interest. See the June Summary of this case for more details. The reason for the rejection was not noted in the Third Dept. The Court made a major distinction: Finding that the defense was not waived, the Workers' Compensation Board dismissed the claim as time-barred. Claimant contends that the employer waived the defense of timeliness because it initially accepted the claim without raising the issue. Specifically, when the Special Fund for Reopened Cases Fund sought to have a hearing to determine if there were advance payments by the employer to the claimant. The Law Judge, affirmed by a Board panel, denied that request. In the interim, critical legal issues have been articulated and resolved in Action No. Further, it is prejudicial to the front-running plaintiffs to necessarily place completed discovery aside, to be re-visited and re-evaluated. But, heaven help the lawyer who is one day late in a filing at the Board. In an opinion that could well be used in discussing future earnings capability of someone who may return to their home country or even an American considering a move outside the U. Nor can we say, in the instant case, that the trial court erred in refusing to permit cross-examination of plaintiff about his immigration status and prior desire to return to Ecuador. Any argument, by defendant, that plaintiff was subject to deportation to Ecuador or had expressed an interest, prior to the accident, in someday returning to Ecuador, in an effort to suggest that plaintiff would incur lower medical expenses in Ecuador than in the United States, would also have been inappropriate. Decisions on this page go back to January To search other years, click on the date: The Following 16 cases await the Court's ruling. Motion for leave to appeal denied. This case was ernver heard before the 3rd Department. It is interesting to note that the first motion to be heard before the 3rd Department, October 9, , was accepted with the caveat that it explain why that motion was filed late. The next five motions to the 3rd were denied, including one denying permission to go to the Court of Appeals which itself, on three occasions, denied a motion to hear the case, December 17, being the last.
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