Maria Auqui,, et al., Respondents,v.Seven Thirty One Limited Partnership, et al., Appellants.BriefN.Y.January 8, 2013To be argued by Annette G. flasapidis (30 minutes) APL-2011-00309 U. 11i IF MARIA AUQUI, as Guardian of the Property of JOSE VERDUGO, and MARIA VERDUGO, Plaintiffs-Respondents, -against- SEVEN THIRTY ONE LIMITED PARTNERSHIP, BOVIS LEND LEASE LMB, INC. and NORTH SIDE STRUCTURES, INC., Defendants-Appellants. BRIEF OF PLAINTIFFS-RESPONDENTS ON REARGUMENT LAW OFFICES OF ANTETTE G. HASAPIDIS Appellate Counsel for Plaintiffs-Respondents Post Office Box 827 South Salem, New York 10590 (914) 533-3049 SCHWARTZ GOLDSTONE & CAMPISI, LLP Trial Counselfor Plaintiffs-Respondents 90 Broad Street Suite 403 New York, New York 10004 Annette U. Hasapidis Herbert Rodriguez, Jr. Of Counsel New York County Clerk’s Index No.: 100232/04 TABLE OF CONTENTS TABLE OF CONTENTS . i TABLE OF AUTHORITIES ................................................................................iv NATURE OF THE PROCEEDING ......................................................................1 STATEMENT OF QUESTIONS PRESENTED ..................................................1 STATEMENT OF FACTS ...................................................................................... 1 A. The Worker’s Compensation Board Proceedings......................................................................................................2 B. Defendants’ Motion To Collaterally Estop Plaintiffs From Litigating "The Issue Of A Causally- Related Disability Beyond January 24, 2006." ...............................................4 C. Plaintiffs’ Order To Show Cause For Renewal AndReargument..............................................................................................4 D. The Appeal . .................................................................................... 4 E. The Appeal To This Court.............................................................. 5 ARGUMENT............................................................................................................7 POINTI.....................................................................................................................7 THE COLLATERAL ESTOPPEL DOCTRINE IS INAPPLICABLE BECAUSE THERE IS NO IDENTITY OF ISSUES. .................................................................................................................. 7 A. Disability In A Workers’ Compensation Case Is Defined As The Impairment Of Earning Capacity At A Particular Time While Damages In A Negligence Suit Are Fixed And Compensate The Plaintiff For All Time . .......................................... 9 B. The WCLJ’s Credibility Determinations Are The Only Identical Issues Of Evidentiary Fact That Are Subject To The Collateral Estoppel Doctrine . ............................................................... 22 POINT11 ................................................................................................................. 25 THE AUQUJ RULE WILL DEFEAT THE VERY PURPOSE OF THE WORKERS’ COMPENSATION SCHEME, BY FORCING WORKERS TO FOREGO COMPENSATION AND TO RESTRICT CARRIERS FROM SEEKING REIMBURSEMENT FROM THIRD-PARTY TORTFEASORS. ................................................................................................. 25 POINT III ............................................. 30 THE A UQUI RULING ABROGATES TORT LAW AND HAS THE UNINTENDED CONSEQUENCE OF REDISTRIBUTING LOSSES FROM THE TORTFEASOR TO THE INJURED WORKER AND THE EMPLOYER’S CARRIER.............................................................................................................30 A. The Doctrine Does Not Apply To The Ultimate Fact Issue In This Case, Whether An Injured Worker Suffers From A Further Causally Related Disability . ................................................... 30 B. The Court Should Determine Whether An Issue Has Preclusive Effect Based Upon A Review Of The Issue Presented, And The Context Of The Proceeding..............................................35 POINT IV................. 40 THE COLLATERAL ESTOPPEL DOCTRINE IS INAPPLICABLE BECAUSE THERE IS NO FINALITY TO A RULING THAT PLAINTIFF SUFFERS FROM NO FURTHER CAUSALLY RELATED DISABILITY. THE WCB AND WCLJs HAVE CONTINUING JURISDICTION TO RE-OPEN CASES AND MODIFY AWARDS WHEN A WORKER’S ABILITY TO RETURN TO WORK CHANGES IN LIGHT OF THE CLAIMANT’S MEDICAL CONDITION W.C.L.l23 .......................................................................................................... 40 11 POINT V ...........45 THE COLLATERAL ESTOPPEL DOCTRINE IS INAPPLICABLE BECAUSE PLAINTIFFS WERE DENIED A FULL AND FAIR OPPORTUNITY TO LITIGATE PLAINTIFF’S INABILITY TO WORK IN LIGHT OF HIS SEVERE BRAIN INJURY WHEN THE WCLJ DENIED THEIR PHYSICIANS’ REQUESTS FOR NEUROPSYCHIATRIC TESTING TO PROVE PLAINTIFF’S PERMANENT NEUROPSYCHIATRIC INJURIES............................................................................................................. 45 POINTVI................................................................................................................51 THE A UQUI RULING, AS APPLIED IN CASAS v. CON EDISON, ILLUSTRATES THAT THE WCB DETERMINATION OF NO FURTHER CAUSALLY RELATED DISABILITY SHOULD NOT BE SUBJECT TO THE COLLATERAL ESTOPPEL DOCTRINE . ................................................. 51 POINTVII ..............................................................................................................57 DEFENDANTS’ ARGUMENTS UNDERMINE SOUND PUBLIC POLICY AND ARE LEGALLY FLAWED..........................................57 POINT VIII ........................61 DEFENDANTS’ REQUEST FOR REARGUMENT IS MOOT IF THIS COURT ADOPTS PLAINTIFF’S POSITION ON REARGUMENT. PLAINTIFF DOES NOT DISPUTE DEFENDANTS’ POSITION IN THE EVENT THAT THIS COURT DECLINES TO REVISIT OR DISTURB ITS EARLIER DETERMINATION . .......................................................................... 61 CONCLUSION.......................................................................................................62 CERTIFICATE OF COMPLIANCE ..................................................................63 ill TABLE OF AUTHORITIES Cases Am. Home Assur. Co. v. Intl. Ins. Co., 90 N.Y.2d 433 (1997) .............................................................................................. 59 Auqui v. Seven Thirty One Ltd. Partnership, 20 N.Y.3d 1035 (2013), rearg. granted, 21 N.Y.3d 998 (2013), and rearg. granted, 21 N.Y.3d 995 (2013) ...................................................... passim Auqui v. Seven Thirty One Ltd. P’ship, 83 A.D.3d 407 (2011) ................................................................................................ 5 Balcerak v. County ofNassau, 94 N.Y.2d 253 (1999) ................................................................................. 15, 16,17 Barnett v. Lies, 265 A.D.2d 865 (0 Dep’t 1999) ...................................................................... 34, 35 Batchu v. 5817 Food Corp., 56 A.D.3d 402 (2d Dep’t 2008) ............................................................................... 19 Bissell v. Town ofAmherst, 18 N.Y.3d 697 (2012) .............................................................................................. 13 Breiterman v. Kern, 226 A.D.2d 181(1st Dep’t 1996) ............................................................................. 19 Broida v. Bancroft, 103 A.D.2d 88 (2d Dep’t 1984) ............................................................................... 51 Burns v. Varriale, 9 N.Y.3d 207 (2007) ................................................................................................ 12 Carolan v. R. Hoe & Co., 225 A.D. 393 (3d Dep’t 1929) ................................................................................. 42 Casas v. Consol. Edison Co. of New York, Inc., 105 A.D.3d 471 (lstDep’t), Iv to appeal dismissed, 21 N.Y.3d 999 (2013) ........................................................................................................ passim Cunningham v. State of New York, 60 N.Y.2d 248 (1983).............................................................................................. 48 Empire State Shipping Serv., Ltd. v. Hanover Ins. Co., 89A.D.3d431 (1stDep’t2011) .............................................................................. 45 EmpL: Lucky Wok Chinese Rest, 2003 WL 22068225 (NY Work Comp Bd 2003) .................................................... 46 iv EmpL: Euro Brokers, 2013 WL 204983 (January 10, 2013) ...................................................................... 27 EmpL: Strong Mem. Hosp., 2013 WL 4040249 (NY Work Comp Bd July 3l, 2013) ........................................ 41 Engel v. Calgon Corp., 114 A.D.2d 108 (3d Dep’t 1986) ................................................................ 34, 38, 39 Fekry v. New York City Transit Authority, 75 A.D.3d 616 (2d Dep’t 2010) ............................................................................... 23 Friedman v. State, 24 N.Y.2d 528 (1969) .............................................................................................. 59 Hinchey v. Sellers, 7 N.Y.2d 287 (1959) ................................................................................................ 57 Howard S. v. Lillian S., 62 A.D.3d 187 (2009), affd 14 N.Y.3d 431 (2010)................................................. 45 Kaufman v. Lilly & Co., 65 N.Y.2d 449 (1985) ................................................................................................ 7 Kolz v. Rand, 298 A.D.2d 982, 983 (4th Dep’t 2002).................................................................... 19 Lechar Realty LLC, 2005 WL 1996385 (Workers’ Comp. Bd. August 11, 2005) .................................. 27 Marhoffer v. Marhoffer, 220 N.Y. 543 (1917) ........................................................................................ passim Matter ofDavis v. Woolworth Co., 24 A.D.2d 817 (3d Dept 1965)................................................................................ 19 Matter of Halyalkar v. Board of Regents, 72 N.Y.2d 261 (1988)................................................................................................ 7 Matter of LaCroix v. Syracuse Exec Air Serv, Inc., 8 N.Y.3d 348 (2007) ......................................................................................... 10,21 Matter of Laing v. Maryhaven Center of Hope, 39 A.D.3d 1125 (3d Dep’t 2007).............................................................................. 19 Matter of Landgrebe v. County of Westchester, 57N.Y.2d 1(1980) .................................................................................................. 11 Matter ofRamroop v. Flexo-Craft Print Inc., - 11 N.Y.3d 160 (2008) .............................................................................................. 11 VA Merriman v. Cokeley, 152 Wash.App. 115, 215 P.3d 241 (Wash.App. Div. 2009), rev’d other grounds, 168 Wash.2d 627, 230 P.3d 162 (Wash. 2010)............................... 33 New York Central R. Co. v. White, 243 U.S. 188 (1917)................................................................................................... 9 People ex rel. Cuomo v. Greenberg, 21 N.Y.3d 439 (2013) ............................................................................................. 40 Raucci v. City School Dist. of City of Mechanicville, 203 A.D.2d 714 (3d Dep’t 1994) ............................................................................ 19 Rubeis v. Aqua Club Inc., 3 N.Y.3d 408 (2004) ................................................................................................ 10 Rubenstein v. Pechter Baking Co., 224 A.D. 324 (3d Dep’t), affd sub nom., 249 N.Y. 433 (1928)............................... 11 Russo v. New York City Dept. of Correction, 9 A.D.3d 528 (3d Dep’t 2004).................................................................................. 25 Ryciak v. E. Precision Resistor, 12 N.Y.2d 29 (1962) ............................................ 21 Smith v. Romle Cable Corp., 27 A.D.2d 972 (3d Dep’t 1967)......................... 11, 17 Southern Pac. R. Co. v. United States, 168 U.S. 1(1897) ..................................................................................................... 58 Staats burg Water Co. v. Staatsburg Fire. Dist., 72N.Y.2d 147 (1988) .............................................................................................. 48 State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009) ...................................................................... 33 Sweeting v. Am. Knife Co., 226 NY 199, 203 (1919), affd sub nom New York Cent R. Co. v. Bianc, 250 U.S. 596 (1919) ..................................................................................... 15 Totterman v. Jay Co. Notions & Novelties, Inc., 27A.D.2d 971 (3dDep’t 1967) ............................................................................... 12 United States v. Felder, 548 A2d 57, 66 (D.C. 1988) .................................................................................... United States v. Moser, 266 U.S. 236 (1924) ................................................................................................. 58 Wilkosz v. Symington Gould Corp., 14 A.D.2d 408 (3d Dep’t 1961), aff’d, 14 N.Y.2d 739 (1964)......................... 11,14 VI Winfield v. New York Central & Hudson River R. Co., 216 N.Y. 284 (1915), revdsub nom., 244U.S. 147 (1917) ...................................... 9 Wunderlich v. Hampton Design and Const. Group, Inc., 5 A.D.3d 158 (1st Dep’t 2004)................................................................................. 45 Zamora v. New York Neurologic Assoc., 19N.Y.3d 186 (2012) .............................................................................................. 10 Statutes Workers’ Compensation Law § 13 ........................................................................... 21 Workers’ Compensation Law §29 ................................................................... passim Workers’ Compensation Law §32 ........................................................................... 41 Workers’ Compensation Law §37. .......................................................................... 21 Workers’ Compensation Law §123 .................................................................. 40, 54 Treatises Black’s Law Dictionary 500 (5th ed. 1979) ............................................................. 22 2 A. Larson, The Law of Workmen’s Compensation §58.11 (1987) ....................................................................................................................... 11 2 A. Larson, The Law of Workmen’s Compensation §86.02 at 86-5 (Rel. 92-5/04) ........................................................................................ 14 N.Y. P.J.I. 2:90 (2013)............................................................................................. 13 N.Y. P.J.I. 2:290 (2013)........................................................................................... 19 Robert E. Grey, The Use of Medical Impairment, Functional Loss, and Vocational Factors to Determine Loss of Wage Earning Capacity Under the 2012 Guidelines for Permanent Impairment, 63 Syracuse L Rev 353, 359 (2013)...................................................................................................... 18, 19 vii NATURE OF THE PROCEEDING Plaintiffs-Respondents Maria Auqui, as Guardian of the Property of Jose Verdugo and Maria Verdugo, individually, respectfully submit this Brief in support of their request for reargument of this Court’s Order, dated February 14, 2013, and in opposition to Defendants’ request for relief on reargument. STATEMENT OF QUESTIONS PRESENTED In the interest of brevity, Plaintiffs rely upon Question One in their Original Brief. STATEMENT OF FACTS Plaintiffs incorporate the Statement of Facts set forth in the Plaintiff- Respondent’s Brief previously filed in this Court and cites only the operative facts below: On December 24, 2003, Plaintiff Jose Verdugo was walking down the street while working as a deliveryman for Mendy’s Restaurant. At that time, a 4x8 foot piece of plywood fell from more than 50 stories from a construction site at 731 Lexington Avenue, striking the windows of 770 Lexington, then hitting Plaintiff on the head. Plaintiff was rendered unconscious and has no memory of the accident (82, 464). As a result of this accident, Plaintiff suffered a shearing injury to the brain (350, 370, 434). Plaintiff was subsequently adjudicated an incompetent by Order of the Surrogate’s Court, dated October 13, 2009 (431). A. The Worker’s Compensation Board Proceedings. Plaintiff received benefits from the Workers’ Compensation Board ("WCB") for injuries to the head, neck, and back, post-traumatic stress disorder, and depression (129). In December 2005, Mendy’s Restaurant’s workers’ compensation carrier sought to discontinue benefits, contending that Plaintiff was no longer disabled from working (113, 132). The employer relied solely on the testimony of an orthopedist, Dr. Zaretsky, who opined that Plaintiff no longer suffered from a "disability" in the neck or cervical and lumbar spines that prevented him from working (141-43). Plaintiffs neurologist, Dr. Jean D. Francois, and his psychiatrist, Dr. Daniel Kuhn, testified that Plaintiff was totally disabled, and that neuropsychiatric testing and treatment were needed to identify the nature of Plaintiff’s neurological deficit, as this was beyond their expertise (156, 159-60, 177-78; 182, 187) The WCLJ never authorized neuropsychiatric testing to develop the medical record and identify the cause of Plaintiffs symptoms (159-60). The medical guidelines in effect at the time of Plaintiffs WCB hearing did not provide for the treatment or testing of this kind. Instead, by Reserved Decision dated June 30, 2006, the WCLJ adopted the employer’s orthopedist’s testimony as more credible than Plaintiff’s neurologist’s testimony and rejected Dr. Kuhn’s testimony. The WCLJ then discontinued benefits (135). The date of termination -- January 24, 2 2006 - is the day after the WCB proceeding was held on the carrier’s application to discontinue Plaintiff’s benefits (134). Plaintiffs’ request for Board Panel review was largely denied. The Board reinstated Plaintiffs post-traumatic stress disorder injury but denied the claim for compensation for psychiatric injuries and injuries to the head, neck, and back: The Board Panel initially finds that the claimant’s attorney is correct that the only issue before the WCLJ was further causally related disability subsequent to January 24, 2006, and that the case had already been established for post-traumatic stress disorder. Therefore, the Reserved Decision requires modification to rescind the denial of the claim for post-traumatic stress disorder. * * * Accordingly, the WCLJ Reserved Decision filed on June 30, 2006 is MODIFIED only to rescind the denial of the claim for post-traumatic stress disorder; and is otherwise affirmed (130) (emphasis added). Plaintiff later moved to re-open based upon the same neurological complaints, which was denied. Plaintiffs neuropsychological testing and related medical opinion, although not authorized by the then-existing WCB guidelines or ordered by the WCLJ, was introduced into this litigation as evidence of Plaintiffs injuries. Plaintiff has moved to re-open his case, which is pending before the WCB. B. Defendants’ Motion To Collaterally Estop Plaintiffs From Litigating "The Issue Of A Causally-Related Disability Beyond January 24, 2006." Defendants relied on the WCB determination as a basis for requesting that Plaintiffs be precluded from submitting evidence of medical expenses and lost earnings beyond January 24, 2006 (108-09). Plaintiffs opposed on the grounds that (1) the doctrine does not apply to mixed questions of law and fact; (2) the issues were not identical; (3) Plaintiff lacked a full and fair opportunity to litigate his claims before the WCLJ; and (4) the doctrine does not apply to that non-final determination (332-39). The Supreme Court granted Defendants’ motion reasoning, inter alia, that there was an identity of issues between the WCB proceeding and this action and that Plaintiffs had a full and fair opportunity to be heard (31-52). Plaintiff appealed from this determination (27). C. Plaintiffs’ Order To Show Cause For Renewal And Reargument. Plaintiffs sought reargument based on the court’s misapprehension of the law concerning the application of the collateral estoppel doctrine (58-70). The Supreme Court denied reargument and granted renewal (17), but adhered to its original determination. D. The Appeal. On appeal to the First Department, a three-judge majority held that the WCB ruling was an ultimate fact determination not entitled to collateral estoppel effect: in The determination that workers’ compensation coverage would terminate as of a certain date for plaintiffs injuries (including head, neck and back injuries, and depression and post-traumatic stress disorder, which are not disputed, and which were caused when plaintiff was struck in the head by a falling sheet of plywood in the course of his employment) is not, nor could it be, a definitive determination as to whether plaintiffs documented and continuing injuries were proximately caused by defendants’ actions. While factual issues necessarily decided in an administrative proceeding may have collateral estoppel effect, it is well settled that "an administrative agency’s final conclusion, characterized as an ultimate fact or mixed question of law and fact, is not entitled to preclusive effect" (Akgul v. Prime Time Transp., Inc., 293 A.D.2d 631, 633 (2002); see Tounkara v. Fernicola, 63 A.D.3d 648 (2009) (no identity of issues between proceeding before workers’ compensation board, which involved determination of whether party was plaintiffs employer for purposes of workers’ compensation coverage, and third-party action, which involved determination of whether party was plaintiffs employer for purposes of indemnification provision). The agency’s determination on ultimate facts, as opposed to mere evidentiary facts, is imbued with policy considerations as well as the agency’s expertise. Therefore, the Workers’ Compensation Board’s determination is not entitled to preclusive effect because it involved the ultimate issues of disability and proximate cause, which were committed to the Board’s discretion. Auqui v. Seven Thirty One Ltd P’sh4’, 83 A.D.3d 407, 409, 920 N.Y.S.2d 79, 80 (2011) (citations omitted). A two-judge dissent disagreed and, sua sponte, raised and resolved a new issue, to wit: that the duration of Plaintiff’s disability was an issue of fact (496-98). E. The Appeal To This Court. On appeal, this Court reversed the First Department’s ruling on the ground that the determination whether Plaintiff suffered from a further causally related disability was a finding of evidentiary fact and thus Plaintiff should have been 5 estopped from litigating claims of lost earnings and, as a result, medical expenses in his personal injury action. This Court reasoned: The determination of the WCB should be given preclusive effect as to the duration of plaintiffs disability, relevant to lost earnings and compensation for medical expenses. The issue of continuing benefits before the administrative agency necessarily turned upon whether Jose Verdugo had an ongoing disability after a certain date, which is a question of fact, as distinguished from a legal conclusion and a conclusion of mixed law and fact. We also find that plaintiffs had a full and fair opportunity to litigate the issue of ongoing disability in the 2006 Workers’ Compensation proceedings. Plaintiff was represented by counsel, submitted medical reports, presented expert testimony, and cross-examined the defendants’ experts regarding the issue of whether or not there was an ongoing disability. Auqui v. Seven Thirty One Ltd. Partnership, 20 N.Y.3d 1035, 1037-38 (2013) rearg. granted, 21 N.Y.3d 998 (2013) and rearg granted, 21 N.Y.3d 995 (2013). This Court then granted the parties’ competing motions for reargument and motions by amicus in support of reargument for Plaintiff. ARGUMENT POINT I THE COLLATERAL ESTOPPEL DOCTRINE IS INAPPLICABLE BECAUSE THERE IS NO IDENTITY OF ISSUES. Respectfully, there is no identity of issues between a "further causally related disability" determination in a Workers’ Compensation proceeding and "the duration of plaintiffs disability, relevant to lost earnings and compensation for medical expenses" in a personal injury action, even assuming that these are treated as issues of evidentiary fact. Auqui, supra, at 1037. An identity of issues is proven if the issue was "actually litigated or was "placed in issue and actually determined" in the prior proceeding. Matter of Halyalkar v. Board of Regents, 72 N.Y.2d 261, 268 (1988); Kaufman v. Lilly & Co., 65 N.Y.2d 449, 456-57 (1985). Plaintiffs proved the lack of identity of issues here, because this Court has recognized the difference between a disability in the Workers’ Compensation context and the injuries or damages in a negligence action. The only identity of issues is between the WCLJ’s credibility determinations, which are the sole evidentiary issues of fact. For example, an accountant falls in the workplace, which is undergoing construction, injuring his back. The accountant is able to work while he receives medical treatment for his injuries. His physician opines that he is presently able to work but, sometime in the next five years, will require a discectomy. Knowing 7 that he can seek to re-open his case at any time, and consistent with his condition and physician’s opinion, the accountant puts on no evidence in support of further claims for benefits. The WCLJ rules that he is no longer suffering an ongoing causally related disability because he is capable of working at the present time. Under the continuing jurisdiction of the Workers’ Compensation Board, W.C.L. § 123, the accountant can apply to re-open his case when he requires the surgery and apply for lost earnings and medical expenses, which request will be granted. Simultaneously, the accountant has filed a personal injury action for present and future lost earnings and medical care against the contractor who created the condition that caused his fall. The action has not yet proceeded to trial. He intends to produce the same physician to testify about his injuries and future need for treatment. Under Auqui, however, Defendants contend that the accountant must be precluded from seeking claims for medical expenses and lost earnings since his Workers’ Compensation case was terminated. Under Auqui, they are correct, but this result is patently incorrect as the accountant will, in the future, incur further damages and the WCLJ’s ruling was never, and should never be, construed to mean that the accountant was no longer injured. Hence, this appeal. A. Disability In A Workers’ Compensation Case Is Defined As The Impairment Of Earning Capacity At A Particular Time While Damages In A Negligence Suit Are Fixed And Compensate The Plaintiff For All Time. This Court’s ruling in Auqui effectively equates disability in the Workers’ Compensation setting with personal injuries in a tort action. The term disability under the Workers’ Compensation Law has no corollary in negligence actions. Notably, the term "duration of disability" is not defined in the Workers’ Compensation Law and attendant regulations.’ This Court expressly held, in Winfield v. New York Central & Hudson River R. Co., 216 N.Y. 284, 289 (1915), revd. sub nom. New York Cent. R. Co. v. Winfield, 244 U.S. 147 (1917), that Workers’ Compensation awards are distinctly different from personal injury awards: The compensation awarded the employee is not such as is recoverable under the rules of damages applicable in actions founded upon negligence. It is based on loss of earning power and compensation for medical, surgical, or other attendance or treatment or funeral expenses. The United States Supreme Court’s analysis of the compensation framework, in New York Central R. Co. v. White, 243 U.S. 188, 193 (1917), is the same: 1 The Practice Commentaries to Section 15 of the Workers’ Compensation Law shed some light on this term, and state that "The duration of the disability is either temporary or permanent." Minkowitz, Prac. Comment., W.C.L. § 125. 9 Compensation under the act is not regulated by the measure of damages applied in negligence suits, but, in addition to providing surgical, or other like treatment, it is based solely on loss of earning power, being graduated according to the average weekly wages of the injured employee and the character and duration of the disability, whether partial or total, temporary or permanent. . . (emphasis added). Indeed, "[A]II compensation awards [set by Section 15 of the W.C.L.] are intended to provide a ’limited and certain, not full but uncertain’ remedy regardless of the fault of the employer." Matter ofLaCro ix v. Syracuse Exec Air Serv., Inc., 8 N.Y.3d 348, 353 (2007),; Rubeis v. Aqua Club Inc., 3 N.Y.3d 408, 417-18 (2004) ("The Workers’ Compensation Law deals with employment benefits, and the term ’disability’ generally refers to inability to work"); Marhoffer v. Marhoffer, 220 N.Y. 543 (1917) ("The word ’disability’ in the law as we read it, therefore, means ’impairment of earning capacity,’ and not ’loss of a member"); see Zamora v. New York Neurologic Assoc., 19 N.Y.3d 186, 193 (2012), (Chief Judge Lippman, dissenting) ("Workers’ compensation benefits are intended to do what the name implies: compensate workers for losses in wage earning capacity incurred due to work-related injuries"). Even the Guidelines relied upon by Defendants illustrate that the term disability is not a factual finding. Those Guidelines state, first, that an impairment is a "purely medical determination made by a medical professional" and that a disability is distinct from an impairment. Hence, a disability is not a purely medical determination that a worker can return to work. 10 For this reason, Workers’ Compensation "awards" represent a loss of the ability to work. Rubenstein v. Pechter Baking Co., 224 A.D. 324, 325 (3d Dep’t) affd sub nom., 249 N.Y. 433 (1928); Matter of Ramroop v. Flexo-Craft Print Inc., 11 N.Y.3d 160 (2008) (loss of use awards compensate for loss of earning power and like all compensation awards are intended to provide a limited but certain, not full but uncertain remedy, regardless of employer’s fault); Matter of Landgrebe v. County of Westchester, 57 N.Y.2d 1(1980) (schedule award is "independent of the time an employee actually loses from work") Indeed, schedule awards under the New York Workers’ Compensation Law are intended to compensate for loss of presumed or actual earning power without presenting proof of lost earnings. See, e.g., Marhoffer v. Marhoffer, 220 N.Y. 543, 546-47 (1917); Wilkosz v. Symington Gould Corp., 14 A.D.2d 408, 410 (1961), affd, 14 N.Y.2d 739 (1964); see also 2 A. Larson, The Law of Workers’ Compensation §58.11, at 10-323 (1987) (theory underlying schedule benefits is the same as that underlying compensation law "that benefits relate to loss of earning capacity and not to physical injury as such"); Smith v. Romle Cable Corp., 27 A.D.2d 972 (3d Dep’t 1967) ("a schedule award may be made without any proof of a present loss of earnings"). Instead, the injured worker must return periodically to the WCB to demonstrate a continued loss of earning capacity, as occurred in this case. Any 11 determination made along the continuum is not fixed and final, but subject to change. Disability is thus a fluid concept based on the recognition that a worker’s health status and ability to work is not fixed. For instance, this Court recognized the difference between Workers’ Compensation benefits and a personal injury award in Burns v. Varriale, 9 N.Y.3d 207, 217 (2007), explaining: the Board’s determination that claimant has a permanent partial disability did not entitle him to weekly compensation benefits at a specific rate over his life or over a set period. Claimant has an ongoing obligation to demonstrate his continued attachment to the labor market and how much he actually earns. However, as these variables cannot be reliably predicted, the rate and duration of benefits awarded by the Board may change from one period to the next. Thus, at the time a permanently partially disabled claimant recovers damages in a third-party action, the value of future compensation benefits is speculative. In Totterman v. Jay Co. Notions & Novelties, Inc., 27 A.D.2d 971 (3d Dep’t 1967), the Third Department held that although the worker had been injured when dye had been splashed on her legs, there was no evidence that this injury prevented her from returning to work. Consequently, the case was remitted for a hearing to determine the impact on the worker’s ability to earn a living: It is established that the claimant suffered ’a causally related occupational contact dermatitis due to the splashing of dye on her legs’. The appellants do not question the propriety of an award for total disability for the period of time the claimant was hospitalized for this condition. The appellants contend that there is no evidence in the record to show that the condition of the claimant prevented her from returning to work. * * * 12 The appellants correctly note, however, that there has been no evidence as to the extent and degree of disability and that the board’s finding of 66 2/3% Causally related disability has no basis in the record. It appears that the claimant suffers a continuing medical disability and that she is unable to return to her former work because of this disability. Section 15(5-a) of the Workmen’s Compensation Law provides that the board may fix such wage earning capacity as shall be reasonable. In the present case the board has affirmed the referee’s finding that the claimant had a one-third earning capacity, but there is nothing in the record to indicate what such capacity is in fact and the board gave no basis for such determination. Accordingly, the matter must be remitted for such further proceedings as the board may deem necessary and for specific findings as to the earning capacity. By comparison, a personal injury plaintiff could never secure a lost earnings award without proof of lost earnings, past and future. See N.Y. P.J.I. 2:90 (2013). That plaintiff must present evidence to the trier of fact as to his earning capacity both past and for the remainder of his life expectancy based on his work history and health in order to secure a single fixed and final award. Damages in the form of lost earnings are, unlike a disability, unchanging, based on the recognition that the tortfeasor must be called to account once to make the injured party whole for all time. Indeed, this was a focal point of this Court’s reasoning in Bissell v. Town ofAniherst, 18 N.Y.3d 697, 702 (2012), where Judge Pigott explained: In a third-party action, the injured employee will have only one opportunity to obtain a recovery for future medical expenses, and the jury assessing the medical evidence will have the chance to make but one award for such expenses, if any. By contrast, in the workers’ compensation context it is possible to wait and see what happens, and to require the carrier to pay its share of litigation costs when that share can 13 be accurately calculated—i.e., when the actual medical expenses that the carrier has been relieved from paying are known. Moreover, whether the claimant is entitled to medical treatment pursuant to the Workers’ Compensation Law is a determination that must be made by the Workers’ Compensation Board, and such determination is not dependent upon the jury’s verdict in the third-party action. Furthermore, the amount of compensation paid to an injured worker, within the Workers’ Compensation scheme, is determined not by the severity of the injury and lost earnings, as it would be in a negligence suit, but by its impact on the employee’s wage-earning capacity. For this reason, the Court in Wilkosz v. Symington Gould Corp., 14 A.D.2d 408, 409-10 (3d Dep’t 1961), aff’d, 14 N.Y.2d 739 (1964), expressly rejected the notion that Workers’ Compensation benefits are at all analogous to damages in a negligence suit. That court reasoned that: A majority of the full board has differentiated between schedule awards and disability awards, saying: "Schedule loss awards are different than other types of awards. They are not based on claimant’s loss of earnings. They are more in the nature of damages paid for the loss of or loss of use of a member or a portion thereof. They are paid irrespective of claimant’s loss of earnings." We find no legal justification in this State for such a theory. Nowhere in the Workmen’s Compensation Law is there any provision for "damages ". See also, Larson, supra, §86.02 at 86-5 (Rel. 92-5/04) (schedule benefits "are not to be interpreted as an erratic deviation from the underlying principle of compensation law - that benefits relate to loss of earning capacity and to physical injury as such. The basic theory remains the same; the only difference is that the 14 effect on earning capacity is a conclusively presumed one, instead of a specifically proved one based on the individual’s actual wage-loss experience"). 2 This Court has previously recognized that the Workers’ Compensation scheme is so dramatically different from other disability compensation schemes that this Court declined to find an identity of issues. In Balcerak v. County of Nassau, 94 N.Y.2d 253, 258-61 (1999), this Court held that an identity of issues was lacking between a Workers’ Compensation Board determination and a municipality’s determination to grant disability benefits to a police officer injured in the line of duty, pursuant to General Municipal Law §207—c. First, this Court cited to the use of different terms in the two compensation schemes as a basis for declining to find an identity of issues: • . * the Legislature, which could have utilized the same phrase to describe the requisite showing for entitlement to benefits under both statutes, instead chose to enact two different phrasings. The operational phrases, moreover, are not necessarily "interchangeable," though this interpretative tool is not alone determinative. On plain reading, the statutes not only start off expressed differently, but the legislative history and operational features also follow paths of differential interpretation and application. 2 Indeed, this Court has highlighted this definition in discussing the exception to this rule. In particular, the WCB may make an award for serious facial or head disfigurement, even though such disfigurement does not diminish or impair the earning capacity of the claimant. See Sweeting v. Am. Knife Co., 226 NY 199, 203 (1919), af/d sub nom. New York Cent R. Co. v. Bianc, 250 U.S. 596 (1919) (concurring op.). This allowance, which has no relation to disability, is an anomaly. Marhoffer v. Marhoffer, 220 N. Y. 543 (1917). 15 This Court also relied on the different goals of the two systems, which are far more similar than tort law is to the Workers’ Compensation system. On the one hand, "General Municipal Law §207—c benefits were meant to . . . compensate specified municipal employees for injuries incurred in the performance of special work related to the nature of heightened risks and duties." On the other hand, "The Workers’ Compensation Law. . . is the State’s most general and comprehensive social program, enacted to provide all injured employees with some scheduled compensation and medical expenses, regardless of fault for ordinary and unqualified employment duties." This Court then reasoned that, based on based on the legislative policy and procedural distinctions between the proceedings to determine the amount of compensation to an injured worker, and despite the apparent similarity between the issues, there was no such identity of issues: This Court is therefore persuaded that no specific statutory language or history has been presented or found that would lead to the conclusion that the eligibility determinations for these distinct types of statutory benefits should not stand and be resolved essentially on their own merits. Rather, all the available authority, analysis and procedure point to the conclusion that no identity of issue inheres in determinations regarding these two types of benefits. Even the manner and forum of resolution are significantly distinct. The plain wording and the legislative history of General Municipal Law §207—c notably authorize a municipality itself, not any other independent entity like the Workers’ Compensation Board, to make the determination whether the injury or illness is related to work IR performance in the line of duty. That is an important distinction with a real legal significance that is entitled to respect and some effect. In sum, the issue involving the entitlement to benefits in the General Municipal Law setting is not necessarily the same one decided in a Workers’ Compensation determination. The latter forum features a more lenient and more inclusive standard of covered activity than is intended to be covered and compensated in a General Municipal Law § 207—c benefits universe. The burdens, procedures and prescribed benefits are also significantly distinct between the two statutory formulas. Thus, the General Municipal Law § 207—c application should not be automatically predetermined by the very different Workers’ Compensation Law procedure, analysis and outcome. This Court’s determination today also avoids the undesirable and impractical ramification of engendering races to distinct forums for a General Municipal Law § 207—c claim and a Workers’ Compensation determination. This analysis of distinctions is applicable here. As the Balcerak Court held, "the two statutory systems do not necessarily examine and determine the same issue, in the same way, and under the same protocols, procedures and conditions." (citations omitted). If two determinations of work-related injuries are not considered identical based on the underlying policy, procedures, and terminology, then there is no basis for concluding that a Workers’ Compensation determination of no further causally related disability has a parallel in tort law. Similarly, in Smith v. Romle Cable Corp., 27 A.D.2d 972 (3d Dep’t 1967), the Third Department distinguished between lost earnings and impairment of earning capacity, further highlighting the difference between the two measures of damages: 17 The appellant first argues that there is no connection between the accident of September 18, 1963 and the schedule loss of 7 1/2% Of the claimant’s left ann. Dr. Gifford testified that, considering the facts of the accident, the defects which he found equivalent to a loss of 7 1/2% Of the use of the left arm were caused by the accident.....The fact that the appellant offered conflicting medical testimony is not controlling. We find that there was sufficient evidence to sustain the board’s finding of a 7 1/2% Loss of use of the arm and that such loss was causally related to the accident of September 18, 1963. The appellant further argues that the record establishes that the claimant has suffered no loss of earnings and therefore, not entitled to a schedule loss. Suffice it is to say that a schedule award may be made without any proof of a present loss of earnings. (Cf. Matter of Slawinski v. J H Williams & Co., 273 App.Div. 826, affd. 298 N.Y. 546.) ’Disability’, as used in the context of a schedule award, means ’impairment of earning capacity’ as distinguished from ’loss of earnings’. (See Marhoffer v. Marhoffer, 220 N.Y. 543). In keeping with this Court’s precedent, scholars have noted that, unlike negligence suits which evaluate lost earnings based on medical impairment and loss of earning capacity, Workers’ Compensation benefits are dependent on the impact of the injury on the worker’s occupation. Those authors provided the following illustration of the point: For example, a construction worker and an accountant who suffer identical back injuries may have identical medical impairments that result in identical functional losses. When the nature of their respective occupations and educational levels are taken into consideration, however, it becomes clear that the construction worker has a greater "disability" than the accountant because the injury results in a far greater reduction of the construction worker’s earning capacity. Robert E. Grey, The Use of Medical Impairment, Functional Loss, and Vocational Factors to Determine Loss of Wage Earning Capacity Under the 2012 Guidelines for Permanent Impairment, 63 Syracuse L Rev 353, 359 (2013). igi Unlike a negligence action, a worker can be denied benefits and considered to suffer from no further causally related disability if he or she can work in another capacity. See, e.g., Matter of Laing v. Maryhaven Center of Hope, 39 A.D.3d 1125 (3d Dep’t 2007); Matter of Davis v. Woolworth Co., 24 A.D.2d 817, 817 (3d Dep’t 1965) ("To be entitled to compensation for a claim of partial disability there must be an association between the partial disability and the wage loss or diminution, as distinguished from voluntary withdrawal from the labor market because of factors not associated with the disability"). In personal injury actions, by comparison, juries are asked to quantify lost earnings, the value of the injury, in addition to past and future medical expenses for all time even if the plaintiff has returned to work. Moreover, jury verdict sheets and the caselaw do not, as Defendants claim, use the terms "extent and duration" of an injury. 3 See N.Y.P.J.I. §2:290 (jury instructions concerning lost earnings). Similarly, during oral argument of this appeal, Judge Pigott hypothesized that a data entry worker who loses his leg in a work-related accident may be able to In fact, Defendants’ cited cases do not use these terms, only Defendants do. Defendants’ Brief at 19, citing Batchu v. 5817 Food Corp., 56 A.D.3d 402 (2d Dep’t 2008) (damages are "reasonable compensation"); Kolz v. Rand, 298 A.D.2d 982, 983 (4th Dep’t 2002) ("the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury"); Breiterman v. Kern, 226 A.D.2d 181, 182 (1st Dep’t 1996) ("the jury’s damages award to constitute reasonable compensation, considering the nature and duration of plaintiffs discomfort caused by defendant’s malpractice’); Raucci v. City School Dist. of City of Mechanicville, 203 A.D.2d 714, 715 (3d Dep’t 1994) (awarding $25,000 for past pain and suffering, and nothing for future pain and suffering or economic loss). 19 return to work within a short period of time and therefore be found to have no further causally related disability. Justice Piggott is correct that there are numerous and varying scenarios whereby a claimant who is adjudicated to have no further causally related disability will not have been made whole under the Workers’ Compensation scheme. By way of example, a surgeon who injures his hand and cannot perform surgery any longer, but can teach at the same salary, may be denied compensation benefits because he can return to work at the particular time in which he has been evaluated. But that does not mean that he should be denied a lost earnings claim in a personal injury action. In the latter proceeding, the lost earnings are designed and intended to compensate him for all time. All prevailing precedent shows that a disability determination in the Worker’s Compensation setting is not identical to any issue in a negligence action. Rather, a further causally related disability ruling is intended to compensate for an impairment of wage-earning capacity at a particular time, based on the presumption that a disability’s impact on wages changes over time. In doing so, the WCB’s analysis focuses on the ability to return to work at a particular time, not for all time. In a negligence suit, the personal injury litigant has only one opportunity to prove that his damages were caused by another and his damages are intended to compensate him for lost earnings and medical expenses, based on the presumption that such losses will make him whole for all time. 20 In the face of this Court’s ample precedent that WCB disability determinations pertain to the loss of earning capacity and the worker’s ability to return to work as of a particular time, Defendants ask this Court to rule that this ruling is the same as proving causation in a negligence action to support a lost earnings and medical expense award. 4 Defendants provide no support for their definition of disability; they simply equate the legal term, "disability", with the factual term, "the duration of his disability or whether Plaintiff still had the injuries he claimed," 5 Defendants cite no support for this statement, and this Court’s precedent, supra, squarely disproves their analysis. In this case, the WCLJ simply concluded that Plaintiff, at that point in time, did not suffer from a loss of earning ’ Defendants’ Brief at 35. Nor is there any credence to Defendants’ apparent argument that, when a WCLJ concludes that a worker may return to work, the Workers’ Compensation system has made him whole, such that he should not be permitted to continue to pursue claims of lost earnings and medical expenses in a companion personal injury action. As this Court has repeatedly recognized, Workers’ Compensation benefits only provide a "limited and certain, not full but uncertain’ remedy." Matter of LaCroix v, Syracuse Exec Air Serv., Inc., 8 N.Y.3d 348, 353 (2007). Defendants’ Brief at 2, 7, 8, 17. Defendants also invoke Section 13 of the W.CL. in an attempt to define disability, but that provision refers to the employer’s obligation with respect to the provision of medical treatment, and not the definition of disability. Defendants’ Brief at 18-19. As well, they resort to the cases interpreting disability in the context of occupational diseases, which are governed by Section 37 of the W.C.L. Ryciak v. E. Precision Resistor, 12 N.Y.2d 29 (1962) (defining period of disability from an occupational disease from the date of first medical treatment). However, in the context of occupational disease, the term disability means "the state of being disabled from earning full wages at the work at which the employee was last employed." Workers’ Compensation Law §37. Thus, Defendants’ authority does not define the term "disability" in any manner similar to the term injury in the context of a personal injury action. 21 power as to warrant a continuation of benefits; he did not determine that Plaintiff was no longer injured for all time. In sum, this Court’s precedent amply demonstrates the absence of an identity of issues between a further causally related disability ruling in a Worker’s Compensation case and an award for lost earnings and medical expenses as a result of a tortfeasor’s negligence. There is no legal basis for equating the two determinations. The definition of disability derives from the policy of limiting an employer’s obligation to the payment of earning and medical costs until the worker can work in some capacity - not make him whole as in a negligence case. The determination is never one in which the WCLJ determines a further causally related disability as a question of whether a worker is no longer injured (or, on Workers’ Compensation parlance, no longer "impaired"). B. The WCLJ’s Credibility Determinations Are The Only Identical Issues Of Evidentiary Fact That Are Subject To The Collateral Estoppel Doctrine. "Evidentiary facts" have been defined as "facts which furnish evidence of existence of some other fact." Black’s Law Dictionary 500 (5th ed. 1979). Evidentiary factual determinations are the only type of fact issue that should be subject to preclusion because they are static and unchanging and are not dependent upon public policy or legal principles for their resolution. For instance, a WCB determination that a worker was a passenger in a vehicle or was engaged in a 22 work-related activity at the time of an accident cannot be re-litigated because they cannot change, once resolved on conflicting evidence. The parties agree that credibility determinations are quintessentially factual determinations.’ In this case, the doctrine can only apply to evidentiary determinations of fact. At best then, those evidentiary facts were the WCLJ’s conclusion that Dr. Kuhn was not credible and that the employer’s orthopedist, Dr. Zaretsky, was "more credible" than Plaintiff’s neurologist, Dr. Francois.’ Those facts alone could be subject to preclusion at a trial of this action (although Plaintiff submits that these findings were incorrect as these physicians both requested additional testing to identify the nature of Plaintiff’s brain injury, which were denied).’ However, the ultimate issue - of further causally related disability - is not subject to preclusion because it is an ultimate fact and not an evidentiary fact issue. 6 Defendants’ Brief at 13-14, 16-17. ’ Plaintiffs maintain that the WCLJ lacked a basis for finding Dr. Francois less credible than Dr. Zaretsky because Dr. Zaretsky’s testimony as an orthopedist could never have impeached or rebutted Dr. Francois’ testimony about Plaintiffs neuorological deficits. The comparison was akin to apples and oranges and it was error to make a credibility determination on this basis. 8 See Point V, infra. However, the issue, whether the jury’s role in the personal injury action of assessing the witness’s credibility can be usurped by such a ruling is not before the Court. See Fe/cry v. New York City Transit Authority, 75 A.D.3d 616 (2d Dep’t 2010) ("It is for the trier of fact to make determinations as to the credibility of the witnesses, and great deference is accorded to the factfinders, who had the opportunity to see and hear the witnesses"). Whether such a ruling is even admissible to preclude Dr. Kuhn’s testimony is also an issue that is not before the Court. 23 In sum, the determination of a further causally related disability is not identical to any issue in the negligence context, and is never presumed to mean that the worker is capable of returning to work without any possibility of ever incurring a further loss of earnings or disability from working. 24 POINT II THE AUQUI RULE WILL DEFEAT THE VERY PURPOSE OF THE WORKERS’ COMPENSATION SCHEME, BY FORCING WORKERS TO FOREGO COMPENSATION AND TO RESTRICT CARRIERS FROM SEEKING REIMBURSEMENT FROM THIRD-PARTY TORTFEASORS. Importantly, under Auqui, the employer’s carrier will be restricted from securing reimbursement for continuing treatment from a tortfeasor, like Defendants here, if Plaintiff’s Workers’ Compensation case is subsequently re-opened. There is also the very real possibility that the carrier will seek to place a lien on the Plaintiff’s pain and suffering award even though the Plaintiff will be unable to seek recovery for that measure of damages. Russo v. New York City Dept of Correction, 9 A,D.3d 528 (3d Dep’t 2004) ("The employer’s workers’ compensation carrier or the self-insured employer is entitled to a lien against any recovery for the amount of compensation benefits and medical expenses already disbursed") citing W.C.L. §29(1). Thus, the net result here is that what was the tortfeasor’s financial obligation becomes the Plaintiff’s and/or the employer’s financial obligation. These unintended consequences are a further basis for Plaintiff’s request for reargument. If the Auqui ruling is permitted to stand, the Workers’ Compensation scheme will be severely impaired. There is no dispute that Workers’ Compensation does not provide a full measure of compensation for the value of an injury, as 25 negligence suits do. Marhoffer v. Marhoffer, 220 N.Y. 543 (1917) (schedule award does not represent damages for loss of member, but to compensate loss of earning power). Furthermore, the Auqui ruling will inter-relate Workers’ Compensation and negligence suits to the detriment of an injured worker (an irony given that the system was created in order to separate these actions). Workers will feel compelled to withdraw or settle their claims to avoid the impact of an adverse determination in a personal injury suit. Juries will also be confused when they are advised to award a plaintiff past and future pain and suffering, but to limit lost earnings and medical expense awards to a specific timeframes dictated by the outcome of Workers’ Compensation proceedings. Consequently, when a carrier seeks to terminate a worker’s benefits, a Workers’ Compensation attorney will now advise the worker to withdraw his request for benefits, and seek public assistance, because a final determination will preclude the third-party personal injury lawsuit that would make him whole for all time. Without these benefits, workers will seek public assistance as a form of income replacement. Public assistance will replace Workers’ Compensation; New York State will instead be supporting those who should have received benefits from worker’s compensation insurance carriers. Workers will seek out treatment at hospitals and by doctors, physical therapists and other healthcare providers for 26 their work-related injuries, and when the workers cannot pay for this treatment, healthcare providers will have no choice but to cover them or seek reimbursement from a public program. Those who are unable to forego their benefits will be disproportionately harmed because they will not recognize the relationship between Worker’s Compensation and personal injury lawsuits. These consequences are precisely the same ones cited by the Balcerak Court as a reason for declining to invoke the collateral estoppel doctrine: "This Court’s determination today also avoids the undesirable and impractical ramification of engendering races to distinct forums for a General Municipal Law §207—c claim and a Workers’ Compensation determination." In this case, however, the Auqui ruling will not engender races to the courthouse, but a race from the Workers’ Compensation Board proceedings. Defendants’ cited case, Lechar Realty LLC, 2005 WL 1996385 (Workers’ Comp. Bd. August 11, 2005), supports this conclusion. There, the Board terminated benefits based upon the physician’s testimony that "his examination of the claimant on 8/14/02 demonstrated no objective medical evidence of causally related cognitive or psychiatric impairment and that the claimant was capable of returning to work without restrictions." See EmpL: Euro Brokers, 2013 WL 204983 (January 10, 2013) ("claimant’s established PTSD did not prevent him from continuing to work as a bond trader earning in excess of his average weekly 27 wage, and that his reduced earnings from 2007 forward are not causally related to his disability"). A finding that the claimant has absolutely no ongoing disability after a certain date is characteristically based upon application of the Board’s particular rules, standards and practices, such as the type of testing that is authorized. The Board adheres to unique promulgated medical/impairment guidelines. See Workers’ Compensation Board Medical Guidelines (June 1996 ed.); see also New York State Guidelines for Determining Permanent Impair- ment and Loss of Wage Earning Capacity (2012 ed), http ://www.wcb.nygov/content/main/hcpp/Jmpajrmentgujde1ines/1mpGuideovej çjp. Because such findings are made with reference to the Board’s particular legal rules, promulgated standards, and common practices, they are arguably ultimate facts which do not possess an "identity of issue," namely, the decision to be made in state court. The Workers’ Compensation laws were enacted to ensure that an injured worker receives benefits swiftly and that they remain in place until he or she is capable of returning to the work force, whether or not those workers continue to suffer the sequellae of their injuries. The system was created to remove these claims from personal injury claims, but the Auqui ruling makes them interdependent in a manner never intended by the Legislature. Indeed, the ruling 28 effectively nullifies the very reason for the creation of the Workers’ Compensation system. If that were the case, the Legislature would never have created this system of laws. KI POINT III THE AUQUI RULING ABROGATES TORT LAW AND HAS THE UNINTENDED CONSEQUENCE OF REDISTRIBUTING LOSSES FROM THE TORTFEASOR TO THE INJURED WORKER AND THE EMPLOYER’S CARRIER. Respectfully, the Auqui ruling frustrates the Workers’ Compensation scheme on myriad levels. By equating the WCLJ’s ultimate ruling - that Plaintiff suffered no further causally related disability - with the lack of a causal nexus between Defendants’ negligence and Plaintiff’s lost earnings and medical expense claims, the WCB’s administrative review will be co-extensive with that of the Supreme Court in all negligence actions. This is inconsistent with the purpose of the Workers’ Compensation Law, which was created to provide a separate and expeditious mechanism for resolving employer-employee claims, not to litigate negligence actions. A. The Doctrine Does Not Apply To The Ultimate Fact Issue In This Case, Whether An Injured Worker Suffers From A Further Causally Related Disability. Plaintiffs ask that the Court establish a bright-line rule, that the collateral estoppel doctrine cannot apply to Workers’ Compensation determinations of no further causally related disability. That ruling is an ultimate fact determination, or non-final conclusion as to whether a worker’s injuries have caused him to incur an impairment of earnings as of a particular time. This is an entirely different issue than that decided in a personal injury action, brought pursuant to Section 29 of the Workers’ Compensation Law, where the ultimate determination is a final conclusion as to whether a plaintiff’s injuries, proximately caused by a tortfeasor, have resulted in lost earnings and to fix them for all time. Defendants mischaracterize the arguments on the appeal by contending that Plaintiffs seek a rule barring the use of the doctrine in all Workers’ Compensation determinations. 9 In this case, the WCB made no evidentiary fact determination that Plaintiff was no longer injured, only that his witnesses were not credible. The ultimate determination -- that his work-related injuries did not prevent him from working at all, nor require medical care at that point in time -- is one that is based on a consideration of the policy underlying the Workers’ Compensation Law. The final conclusion of the WCB, which Defendants agree was based on evidentiary issues of fact, is thus an ultimate fact to which the doctrine cannot apply. For this reason, Plaintiffs submit that, as the Balcerak Court reasoned, Plaintiffs personal injury lawsuit "should not be automatically predetermined by the very different Workers’ Compensation Law procedure, analysis and outcome." Defendants disagree, and contend that cases in which the WCB resolved the "degree and duration of disability" resolved evidentiary fact issues. The basis for Defendants’ contention is that the Third Department decisions reviewing these Defendants’ Brief at 12. 31 cases have termed the duration and degree of disability a "factual issue" for the WCB. This is an end-oriented argument, as one cannot simply assume that the WCB resolved the issues as evidentiary fact issues, when no such distinction is made in those decisions.’ ° In cases where the tribunal is not asked to determine whether the collateral estoppel doctrine applies, such as those cited by Defendants, there is no reason to expect that a court will differentiate between evidentiary or ultimate fact issues because such a differentiation is not relevant to the issues before the tribunal. Certainly, Defendants’ reliance on decisions that do not involve a collateral estoppel analysis provides no guidance to this Court as to whether a fact issue is an ultimate or evidentiary one. Further, the precedent of this Court supports the conclusion that the ultimate determination of a further causally related disability should not be subject to the collateral estoppel doctrine. This Workers’ Compensation ruling is, of necessity, made in consideration of the purpose and goal of the statutory scheme - to replace earnings and provide medical care until the worker can return to work. The WCB always makes a determination about a causally related disability in the context of its rules, regulations, precedent, and guidelines, and so there is never a need for the WCLJ or WCB to set forth these bases in their decisions. These are the parameters to Defendants’ Brief at 13-17. 32 in every case, but they are not restated in every decision. For this reason, analysis of the issue of causally related disability must be viewed as an ultimate fact determination. Likely for this reason, Justice Piggott opined, in this case, that the WCLJ’s determination of no ftrrther causally related disability was an ultimate fact not subject to the doctrine: we have defined a mixed question as one in which both a question of fact and a question of law are found, "the truth and existence of the facts and circumstances bearing on the issue being a question of fact, and the determination of whether the facts and circumstances found to exist and to be true constitute (a particular legal concept) being a question of law." People v. Oden, 36 N.Y.2d 382, 384 (1975). The same analysis applies here. The WCB had to reach a conclusion based on both questions of fact, such as whether Verdugo had a particular injury to the brain or body, and a question of law, namely whether the facts amounted to a disability preventing Verdugo from returning to his work. The conclusion that Verdugo was not disabled, i.e., was able to work again, is a mixed question requiring a legal determination based on the facts. Auqui, supra, at 1039-40. This definition is in accord with those courts that have defined the term. See State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009) ("Mixed questions of law and fact are generally defined as those that have a factual component, but that cannot be resolved without applying the controlling legal standard to the historical facts"); Merriman v. Cokeley, 152 Wash.App. 115, 215 P.3d 241 Wash.App. Div. (2009), rev’d other grounds, 168 Wash.2d 627, 230 P.3d 162 (Wash. 2010) ("Whether a line is well-defined and physically designated upon the ground is a mixed question 33 of fact and law: The location of survey stakes, fences, improvements, etc., is clearly a question of fact; but we determine the legal effect—whether any of those items create a line that is ’certain, well defined, and in some fashion physically designated upon the ground’—as a matter of law"). The presumption, that an ultimate fact determination is based on the statutory scheme and thus not subject to preclusion, was also highlighted in Engel v. Calgon Corp., 114 A.D.2d 108 (3d Dep’t 1986). There, the court held that a ruling by the Unemployment Insurance Appeals Board -- that the applicant was an employee -- was not entitled to preclusive effect in the Humans Rights Division action, even though identical phrases were used. The dispositive issue was the different considerations of the tribunal that was resolving the issue presented. In those circumstances, such ultimate fact determinations "are imbued with policy considerations as well as the expertise of the agency." Consequently, the Third Department held that "the evidentiary facts upon which the decision of the Board was based may well be entitled to collateral estoppel effect" but not the ultimate issue of whether the applicant was an employee. Defendants, nevertheless, ask this Court to adopt an entirely different bright- line rule, that all determinations of further causally related disability must be given collateral estoppel effect. Defendants rely on Barnett v. Ives, 265 A.D.2d 865 (4th Dep’t 1999), as precedent for such a rule. Their reliance is misplaced for several 34 reasons. 11 First, Barnett was a no-fault arbitration proceeding in which the issues were identical - whether the plaintiff had recovered from the injuries sustained in a motor vehicle accident. In Workers’ Compensation proceedings, the issue is whether the injuries prevent the injured worker from working in any capacity, and is not identical to the value of the injuries and the lost earnings that are compensated in a personal injury action. Second, the Barnett plaintiff elected to proceed to arbitration, whereas Plaintiffs here were compelled to litigate in the restricted confines of the Workers’ Compensation Law and regulations, in which medical evidence requires pre-approval, which deprived them of the full and fair opportunity to prove Plaintiffs neuropsychiatric injuries. Collateral estoppel is therefore appropriate in a case like Barnett, supra, but not in a case where Plaintiff had no choice but to submit to the WCLJ’s jurisdiction where his evidence was limited, to his detriment, B. The Court Should Determine Whether An Issue Has Preclusive Effect Based Upon A Review Of The Issue Presented, And The Context Of The Proceeding. It is necessary to revisit the Auqui ruling to give guidance to courts and litigants alike as to the method for determining whether an issue presents one of evidentiary or ultimate fact. Plaintiffs submit that the better approach, which ’ Defendants’ Brief at 20. 35 ensures consistency and minimizes litigation, is one where the issue is classified as an ultimate fact based on the issue presented, not on the manner in which the issue is resolved. In this fashion, litigants will be assured, for instance, that a further causally related disability ruling is classified as an ultimate fact issue in all actions and should not be dependent upon the manner in which it was resolved, and detailed, in a decision. Plaintiffs submit that a bright line rule establishing that the issue of no further causally related disability is an ultimate fact in every case, is proper. Such a rule affords the parties reasonable expectations about the outcome of motion practice under the collateral estoppel doctrine. The issue of further causally related disability in this case is not, and never should be, a question of evidentiary fact, as such a conclusion is based entirely on what the WCLJ chose to include in his or her decision and gives no consideration to the context in which the decision was made nor the public policy concerns imbued in their decisions. For instance, the WCLJ might have rejected the physicians’ testimony and opinion that Plaintiff was totally disabled from food delivery work as lacking credibility given the low-level skill involved in performing such work. If, however, Plaintiff had been a physicist, the physicians’ testimony might have been construed as credible. ELI By contrast, this Court’s methodology, defining the issue based upon the stated underpinnings of the WCLJ’s determination, without due regard for the context of the proceeding, is fraught with difficulties. 12 First, this methodology requires judges to presume that, as in this case, the WCLJ will set forth each and every basis for his or her decision, rather than simply conveying what the WCLJ deems are the principal dispositive grounds. The purpose of the collateral estoppel doctrine is, in part, to conserve resources and ensure consistent results in proceedings that arise from the same or similar events. That goal is not achieved when parties are unaware whether a judge’s written decision will provide a basis sufficient to demonstrate that a resolved issue is one of evidentiary fact or an ultimate fact. Nor should courts of original instance be called upon, as they will be if this rule remains the law of this State, to set forth all of the reasons - evidentiary, legal, and policy - that support a determination. Such a rule will only further burden our system. In short, the issue cannot be defined based on the stated reasons in a decision and without regard to the context of the proceeding and underlying policy considerations. One cannot presume that the 12 Defendants have adopted this approach on reargument, concluding that, because the WCLJ made a determination of evidentiary fact - "the duration of his disability or whether Plaintiff still had the injuries he claimed," then "the WCLJ and WCB did not need to resort to any statutes, rules, regulations or guidelines" to resolve the ultimate fact determination. Defendants’ Brief at 17. However, as explained here, this approach requires courts and litigants to presume that the WCLJ’s analysis was so limited, and to ignore that the WCLJ’s role was to determine whether Plaintiff suffered a loss of earning power at that particular point in time. 37 arbiter of the issue provided a full recitation of all supporting policy, factual, and legal reasons; in these days of overburdened courts this is hardly the norm. Under Auqul, whether a determination of no further causally related disability is subject to the collateral estoppel doctrine, or not, will change in each case and will be entirely dependent on whether the already overburdened WCLJs will include all grounds and policy reasons for its determination. Second, this methodology fails to accord any consideration to the context of the proceedings. When a WCLJ makes a ruling on a claim, that determination, of necessity, is imbued with policy considerations. Engel, supra. In this case, for example, the issue was whether Plaintiff could return to his work, namely as a restaurant delivery person. Given the low-level skill level involved, the WCLJ’s determination could have been based in part on this fact. Indeed, if Plaintiff was capable of attending his physicians’ appointments, then the WCLJ might have concluded that he could return to his job delivering food.’ 3 If, however, Plaintiff was a surgeon, the WCLJ’s considerations, and ultimate determination, would have been markedly different. Third, if an issue is defined by the stated reasons of a determination, rather than an analysis of the issue in the context of the proceeding and relevant 13 Ironically, the Court Evaluator’s report in the Guardianship proceeding shows that, in fact, he required supervision because he has a "propensity to wander" (461). cia legislative history and/or precedent, litigation over whether an issue is subject to the collateral estoppel doctrine will be extensive, as parties attempt to parse and divine the stated, and unstated, reasons underlying a decision. Relying on precedent, holding that the collateral estoppel doctrine must be applied on a case-by-case basis with consideration given to the realities of litigation, Defendants ask this Court to direct courts to decide whether the issue is one of evidentiary fact or ultimate fact on a case-by-case basis when that is not the import of these rulings. This Court’s flexible approach is intended to apply once the threshold determination is made. See Engel. To ensure predictability in litigation and to reduce motion practice, this Court’s Auqui ruling should convey that whether an issue is one of evidentiary or ultimate fact must be based on an analysis of that issue itself In the first instance, such an approval guards against extensive motion practice and second guessing a ruling. POINT IV THE COLLATERAL ESTOPPEL DOCTRINE IS INAPPLICABLE BECAUSE THERE IS NO FINALITY TO A RULING THAT PLAINTIFF SUFFERS FROM NO FURTHER CAUSALLY RELATED DISABILITY. THE WCB AND WCLJs HAVE CONTINUING JURISDICTION TO RE-OPEN CASES AND MODIFY AWARDS WHEN A WORKER’S ABILITY TO RETURN TO WORK CHANGES IN LIGHT OF THE CLAIMANT’S MEDICAL CONDITION W.C.L. §123. The conclusion, that a WCB determination of no further causally related disability is final, conflicts with the legislative determination that the WCB has continuing jurisdiction. W.C.L. §123. Preliminarily, Defendant’s claim that Plaintiff and the amici are barred from pursuing a claim of lack of finality is without merit. Plaintiff properly preserved this contention for review by this Court before the motion court when they argued that the "Workers’ Compensation claim as to ’ongoing causally--related disability’ precludes the application of collateral estoppel as the determination would lack finality . . ." (332; see also 339). By raising the argument before the trial court, Plaintiffs preserved the claim for review. People ex rel. Cuomo v. Greenberg, 21 N.Y.3d 439 (2013) ("While the sufficiency of the claim for equitable relief was not a major focus of any party’s attention below, the Attorney General did specifically dispute, in Supreme Court, Greenberg’s and Smith’s assertion that that claim was barred by the SEC settlement. It is irrelevant to the preservation issue whether the argument was made in the Appellate Division"). (citations omitted) (emphasis added). On the merits, there is no finality to an adjudication of no further causally related disability as a matter of statute. The Auqui ruling presumes that a WCB determination of no further causally related disability is final, when Section 123 of the Workers’ Compensation Law provides that further causally related disability rulings are not final. The Legislature expressly granted the WCB continuing jurisdiction over all claims, including the authority to reopen them many years later, upon the presentation of prima fade proof, and even to modify or vacate prior findings. EmpL: Strong Mem. Hosp., 2013 WL 4040249 (NY Work Comp Bd July 31, 2013) (re-opening a case closed by settlement agreement, because "the Board Panel finds, upon review of the record and based upon a preponderance of the evidence, that the claimant has submitted prima facie medical evidence of a right shoulder injury and that, in the interest of justice pursuant to WCL § 123, the case should be returned to the trial calendar for further development of the record on the claim for such injury"). The Board can adjudicate a worker permanently and totally disabled, even after a finding of no further continuing disability. See Casas v. Consol. Edison Co. of New York, Inc., supra. In fact, unless the worker and employer enter into a settlement under W.C.L. §32, the issue of a claimant’s 41 ongoing disability may always be revisited within the Workers’ Compensation scheme. Thus, if permitted to stand, the Auqui ruling will vitiate the jurisdiction of the WCLJ and WCB. To be sure, the lack of finality here derives from the Legislature’s recognition that a claimant’s ability to work may change due to changes in an injured worker’s medical condition; thereby rendering the doctrine inapplicable to Workers’ Compensation determinations of no farther causally related disability. See Carolan v. R. Hoe & Co., 225 A.D. 393, 395-96 (3d Dep’t 1929) (schedule award is not a final adjudication between parties because Industrial Board has "continuing jurisdiction in every case and may make such change with respect to former findings or orders as in its opinion may be just and may at any time review an award and make an award ending, diminishing or increasing the compensation"). Defendants admit that Plaintiff’s case may be re-opened and a different conclusion reached, and so concede a lack of finality." Incongruously, Defendants suggest that the doctrine can be applied and that personal injury plaintiffs can simply return to court if their cases are re-opened. This concession is fatal as the collateral estoppel doctrine cannot apply to a non-final determination, and the fact Defendants’ Brief at 4].. 42 that a plaintiff can seek to re-open his Workers’ Compensation claim proves that the "final" determination cannot be final if it can be superseded. Determinations of no further causally related disability are, as a matter of law, non-final. Equally important, but overlooked, is the consequence of the Auqui rule that no further causally related disability determinations will have on workers’ compensation insurers. If preclusive effect is given to a Workers’ Compensation ruling that is subsequently re-opened and benefits are reinstated, the employer’s carrier may be barred from placing a lien against the proceeds from a personal injury action for the portion of further expenses incurred upon the re-opening of a claim. Alternatively, the Plaintiff’s pain and suffering award will be depleted by the employer’s lien, pursuant to Section 29 of the Workers’ Compensation Law, even though the Plaintiff’s personal injury award will not include a recovery for those future lost earnings and medical expenses that remain precluded under Auqui. In Cams for example, the plaintiff is still precluded from pursuing claims for future lost earnings and medical expenses and/or the carrier’s lien will be limited to the expenses paid before the 2008 termination of benefits. In Casas, the carrier may seek reimbursement under Section 29 for its payment of M–. Casas’ benefits and expenses from the year 2008 and continuing even though Mr. Casas’ claim for future lost earnings and medical expenses has been barred. Thus, even though the equitable result would be that Mr. Casas should not be required to satisfy a lien for damages that he has been precluded from seeking, the Auqui ruling requires that he do so. He, in effect, becomes the tortfeasor’s indemnitor for its damages. This outcome conflicts with the legislative intent of Section 29 of the Workers’ Compensation Law which entitles the employer’s carrier to exercise a lien over any portion of an injured workers’ recovery from a tortfeasor in a third party action. W.C.L. §29 ("if an employee who is eligible for workers’ compensation benefits is injured "by the negligence or wrong of another not in the same employ, such injured employee ... [may] pursue his remedy against such other subject to the provisions of this chapter"). In sum, applying the Auqui ruling to require plaintiffs to move to renew Orders of preclusion on the grounds that the WCB has subsequently modified an earlier disability ruling actually undermines the dual purpose of the collateral estoppel doctrine which is to avoid inconsistent results and to promote efficiency in litigation. Here, Defendants admit that the same fate which has befallen Mr. Casas might befall Mr. Verdugo. For this reason, they cannot credibly claim that the WCB ruling is a final determination for collateral estoppel purposes. POINT V THE COLLATERAL ESTOPPEL DOCTRINE IS INAPPLICABLE BECAUSE PLAINTIFFS WERE DENIED A FULL AND FAIR OPPORTUNITY TO LITIGATE PLAINTIFF’S INABILITY TO WORK IN LIGHT OF HIS SEVERE BRAIN INJURY WHEN THE WCLJ DENIED THEIR PHYSICIANS’ REQUESTS FOR NEUROPSYCHIATRIC TESTING TO PROVE PLAINTIFF’S PERMANENT NEUROPSYCHIATRIC INJURIES. Plaintiff, as a claimant, lacked a full and fair opportunity to prove the severity of this brain injury through neuropsychiatric testing in the compulsory WCB proceeding when the WCLJ rejected Plaintiffs physicians’ request for that testing, and instead terminated Plaintiffs benefits. 15 "Administrative determinations can be given preclusive effect under the doctrine of collateral estoppel, provided that the procedures used in the administrative tribunal are substantially similar to those used in a court of law." Wunderlich v. Hampton Design and Const. Group, Inc., 5 A.D.3d 158 (1st Dep’t 2004). That is not the case at bar. 15 Defendants incorrectly argue that this claim is unpreserved notwithstanding that Plaintiffs have consistently and repeatedly pursued this claim - that they were denied neuropsychiatric testing, which testing would have (and did) identify Plaintiffs neurological deficit. According to Defendants, Plaintiffs’ reference to the 2006 WCB guidelines, to further buttress their contention, is a new claim. Defendants’ Brief at 25-26. Defendants are incorrect. The Record demonstrates that the argument has been made on the trial and Appellate Division levels and the fact that reference was made to the guidelines on the appeal to this Court does not create a new issue. Empire State Shipping Serv., Ltd v. Hanover Ins, Co., 89 A.D.3d 431, 432 (1st Dep’t 2011) ("We reject defendant’s argument that plaintiffs failed to preserve their contentions. While they may not have been framed in quite the same manner, plaintiffs’ arguments can fairly be construed as having been made before Supreme Court and are therefore preserved"), citing Howard S. v. Lillian S., 62 A.D.3d 187,190 (2009), affd 14 N.Y.3d 431 (2010). 45 Plaintiff properly requested authorization for further testing. There is no dispute that Plaintiff’s physicians both requested neuropsychiatric testing be performed, and that these requests were tacitly denied. 16 Defendant’s contention -- that Plaintiff was required to do more -- is belied by Defendant’s cited caselaw. In EmpL: Lucky Wok Chinese Rest, 2003 WL 22068225 (NY Work Comp Bd. 2003), a testifying physician’s verbal request for testing was sufficient to prompt a WCLJ to authorize additional testing: Dr. Simon conceded that he had not examined the claimant’s head and could not render an opinion on the claimant’s neurological disability. The WCLJ concluded that, based on the reports and testimony of Dr. Simon, the claimant exhibits no further causally related disability to the back and neck and authorized a neuropsychological evaluation to determine if the claimant suffers any causally related disability involving his head injury. The case was closed with the cited authorization and a directive for the UEF to pay all outstanding unpaid causally related medical bills. Defendants’ citing authority thus demonstrates that Plaintiffs properly requested the testing. Further, the denial of that request renders the collateral estoppel doctrine inapplicable because Plaintiff would, and did, have the opportunity to present this evidence in the negligence action. 16 Defendants gloss over this pivotal fact when they state that the WCLJ rejected Plaintiff’s physician’s testimony as insufficient to explain why Plaintiff used a cane. The WCLJ plainly ignored the same physician’s testimony that he could not better diagnose Plaintiff because Plaintiff required neuropsychiatric testing and treatment which was beyond the scope of his expertise. 46 Indeed, this case exemplifies the distinct difference between an individual’s ability to prove his injuries in the WCB setting and a personal injury action. In this case, the WCB guidelines in effect at the time of the accident did not provide for neuropsychiatric testing, diagnosis, and treatment by a neuropsychiatrist. 17 So, when Plaintiffs’ physicians requested testing be conducted to diagnose Plaintiffs neuropsychiatric deficit, they were seeking to diagnose an injury that was not recognized by the guidelines using testing that was neither authorized nor provided for by the guidelines. Clearly, Plaintiffs ability to prove his injuries was severely limited by the WCB setting. In stark contrast, as a Plaintiff in this personal injury action, Plaintiff has not been so limited and, instead, has amassed substantial expert medical evidence, objective testing, both radiological and neuropsychiatric evidence to substantiate the nature and severity of Plaintiffs brain injury. No such restraints exist in state court proceedings, or even in no fault arbitration proceedings. The denial of Plaintiffs neuropsychiatric testing was not merely a procedural obstacle, but a substantive one which prevented the gathering and use of evidence to prove Plaintiffs work-related injuries. The very testing that had Defendants concede that the 1996 guidelines provided for psychological testing "to ascertain the type and degree of dementia" only, Defendants’ Brief at 26, citing Guidelines at Section 4(f). Moreover, the 2010, 2011, and 2012 guidelines recognize neurological injuries and call for far more extensive testing and treatment of those injuries. 47 been refused in the WCB setting was performed in the personal injury action by Dr. Bonafina-Caraccioli, a neuropsychologist, and substantiated that Plaintiff suffered brain injuries as a result of the accident. Nor did Plaintiff have a choice but to proceed first with the Workers’ Compensation proceeding which factor is relevant. In Staatsburg Water Co. v. Staatsburg Fire. Dist., 72 N.Y.2d 147, 153 (1988), this Court explained that an analysis of a full and fair opportunity depends on the realities of litigation. The fact that Plaintiff had no choice but to litigate before the Board and that the WCLJ denied the request for further testing militates against the application of the collateral estoppel doctrine. Cunningham v. State of New York, 60 N.Y.2d 248 (1983). In the face of this proof and precedent, Defendants offer three meritless points. First, they speculate that the same WCLJ who had denied the request for neuropsychiatric testing would have accepted the neuropsychiatric report, when the contrary inference is the only reasonable one on this Record. Then, Defendants criticize Plaintiff for allegedly "failing" to request additional time to submit the report, when the WCLJ had no intention of hearing further evidence, having denied the request for additional testing. Finally, Defendants ask this Court to speculate that because the substantial neuropsychiatric testing, which was performed in Spanish, was not completed until 11 days (8 business days) before the WCLJ rii rendered its decision, that the report could have nevertheless been drafted and provided to the WCLJ in that time frame. There is no basis for Defendants’ assertion that the report could have been considered, particularly in the face of Plaintiffs contention that they lacked an opportunity to present evidence about his neuropsychiatric injuries. 18 If Defendants dispute Plaintiffs’ contention, it is Defendants’ burden to prove that the report was created in that short time frame and that it would have been accepted. The inferences from this Record, however, support the opposite conclusion. In any event, whether and when this report was available for use in the negligence suit should not make a difference because the issue here is whether Plaintiff was afforded the opportunity to prove his disability claims in the WCB proceeding, which he was not afforded. Workers who are injured by a third-party should not be held to a higher standard and penalized for purportedly failing to perform testing for submission in the Workers’ Compensation setting when that very testing has been refused by the WCLJ. In sum, Plaintiff was given no choice but to seek Workers’ Compensation benefits in a compulsory proceeding and he was denied the request by two of his physicians for different and additional testing so that he could be properly 18 Defendants’ Brief at 22. 49 diagnosed. This circumstance is a quintessential example of the denial of a full and fair opportunity to litigate, mandating the denial of Defendants’ request for preclusion. 50 POINT VI THE AUQUI RULING, AS APPLIED IN CASAS V. CON EDISON, ILLUSTRATES THAT THE WCB DETERMINATION OF NO FURTHER CAUSALLY RELATED DISABILITY SHOULD NOT BE SUBJECT TO THE COLLATERAL ESTOPPEL DOCTRINE. The Auqui ruling has the unintended consequence of undercutting the very purpose and provisions of the Workers’ Compensation Law. A crystalline example of this clash is the ruling in Casas v. Consol. Edison Co. of New York, Inc., 105 A.D.3d 471 (1st Dep’t), Iv to appeal dismissed, 21 N.Y.3d 999 (2013), rendered one month after this Court entered the Auqui Order. In applying the Auqui ruling, the Appellate Division eviscerated Mr. Casas’ future claims of lost wages and medical treatment based on an adverse 2008 WCB determination of no further causally related disability, notwithstanding the fact that this 2008 Workers’ Compensation ruling was revisited and re-opened in 2011. In 2011, the WCLJ authorized continuing medical treatment for all established sites, including two spinal fusion surgeries. In August 2013, one month after the First Department, adhering to Auqui, precluded his personal injury claim as to future medical treatment and lost earnings, the WCB modified Casas’ employability classification by ruling that Mr. Casas was "permanently and totally disabled".’ 9 This Court can take judicial notice of decisions of other tribunals on this appeal. See Broida v. Bancroft, 103 A.D.2d 88 (2d Dep’t 1984) ("appellate review is limited to the record made at nisi pr/us and, absent matters which may be judicially noticed"). 51 By way of background, on August 6, 2003, Luis Casas was injured while working in the basement of a Con Edison facility. Shortly thereafter, he filed for Workers’ Compensation benefits. In the year 2008, his benefits were terminated on a WCLJ’s determination that Mr. Casas suffered no further causally related disability. Con Edison, whose liability was undisputed in Mr. Casas’ negligence action, 20 moved to collaterally estop Mr. Casas from claiming future damages under the precedent of Auqui. The lower court denied Con Ed’s motion for preclusion, adhering to the opinion of the First Department in this case. In the year 2011, prior to Auqui, Mr. Casas had successfully moved to re-open his Workers’ Compensation case. In the interim, Con Ed had appealed the Supreme Court’s decision to the First Department, which heard the case one month after this Court rendered its ruling in Auqui. The First Department then held that Mr. Casas was collaterally estopped from litigating damages claims for his lost earnings and medical expenses based on the 2008 WCB determination, notwithstanding the fact that the case had been re- opened, and the claimant was receiving continuing medical and indemnity benefits. In August 2013, the WCLJ adjudicated Mr. Casas "permanently and totally disabled," essentially reversing that 2008 WBC determination, yet Mr. Casas is 20 Con Ed had failed to comply with discovery resulting in the striking of its Answer. Casas, supra. 52 precluded from seeking the full measure of damages from this third-party tortfeasor whose liability is uncontested and complete. Casas illustrates that the WCB’s ruling in 2008, like the WCB ruling in this case, was not identical to a claim for lost earnings and medical expenses in the negligence case, because the causal nexus between an accident and injuries under tort law, once determined, cannot be revisited as it can be, and was in Mr. Casas’ Workers’ Compensation action. Further, the Workers’ Compensation rulings are ultimate fact determinations concerning whether a worker has sufficiently recovered from his injuries to return to work in some capacity or, conversely, whether his condition has changed such that he can no longer do so. When "disabled" under the Workers’ Compensation scheme, the worker is only entitled to benefits in the form of indemnity payments and medical treatment at particular points of time. See Burns, supra. Proximate cause determinations as to future medical expenses and lost earnings in a negligence suit are intended to obligate a tortfeasor to make an injured party whole, by compensating that individual for the full value of his injuries for all time. That award is not dependent on the injured party’s ability to return to work at the time of the trial. Moreover, Casas illustrates the lack of finality to a Workers’ Compensation determination of no further causally related disability, which exists as a matter of 53 statute. W.C.L. §123 (affording continuing jurisdiction of WCB to re-open and modify awards for 18 years for indemnity and for worker’s lifetime for medical expenses). The consequences of applying Auqui to the Casas case are that the true final determination - of a permanent and total disability - will have no legal effect because the WCB’s 2008 determination of no further causally related disability has eviscerated Mr. Casas’ lost earnings and medical expense claims in the negligence suit. Further causally related disability determinations cannot be construed as final for collateral estoppel purposes because Section 123 of the Workers’ Compensation Law was enacted in recognition of the fact that an injured worker may be forced to undergo treatment for, or suffer a setback from a work- related injury years after he or she has actually returned to work or been deemed to be capable of working. Moreover, because the First Department precluded Mr. Casas’ lost earnings and medical expenses claims after the year 2008, Mr. Casas may be obligated to satisfy his Workers’ Compensation carrier’s lien for benefits paid after the year 2008 from his personal injury award, even though he cannot pursue those future damages claims in his personal injury suit. He will, in effect, indemnify Con Edison’s carrier. The consequences go far beyond Mr. Casas, however, and extend to the employer’s carrier who may be unable to exercise a lien or assert a credit against 54 Mr. Casas’ recovery from Con Ed for the carrier’s payment of lost earnings and medical expenses for Mr. Casas after the date benefits were originally terminated. W.C.L. §29. Mr. Casas’ lifetime benefits and expenses will be borne by the Workers’ Compensation system, not the undisputed tortfeasor, in contravention of Section 29 of the Workers’ Compensation Law. The foregoing illustrates that a Workers’ Compensation determination of no further causally related disability cannot be construed as an evidentiary finding of fact as its application is dynamic, not static as an evidentiary fact is, WCL 123, and may be revisited. Otherwise, Mr. Casas would not have been permitted to re-open his case. Further causally related disability determinations are not identical to the determination of proximate cause in a negligence action. If this were so, then an injured worker would never be permitted to re-open his case based on a need for additional treatment and its effect on his ability to work. In a negligence action, a determination by a judge or jury that a plaintiff’s injuries were not proximately caused by another can never be re-visited or re-opened. Certainly, the result in Casas could not have been intended by this Court’s ruling - requiring the carrier to pay damages that would have otherwise been properly paid by Con Ed or requiring the injured plaintiff to satisfy the lien with his pain and suffering award - because Mr. Casas’ injuries became permanently disabling years after the accident. Indeed, the Casas ruling conflicts with the very 55 purpose of Section 29 of the Workers’ Compensation Law, to permit the carrier to secure reimbursement from the recovery against the third-party tortfeasor, not the injured worker. 56 POINT VII DEFENDANTS’ ARGUMENTS UNDERMINE SOUND PUBLIC POLICY AND ARE LEGALLY FLAWED. Defendants ask this Court to not only give full effect to the WCLJ’s ultimate determination, but the facts essential thereto. 21 Defendants cite to Hinchey v. Sellers, 7 N.Y.2d 287 (1959), where this Court held that the operative facts essential to the determination under New Hampshire law, that the driver had permission to use the vehicle, were "exactly the same" as those required to prove permission under New York law. Accordingly, the doctrine applied to preclude litigation of the ultimate determination of a lack of permission under New York law. That is not what occurred here; no evidentiary determination could ever have been made in the Workers’ Compensation proceeding that Plaintiff had fully recovered from his injuries, that he would never lose a day’s pay as a result of his injuries, and that he would never require medical treatment for the rest of his life. Rather, the WCLJ’s role was to determine, based on the Workers’ Compensation scheme, whether Plaintiff could return to work in some capacity at that particular time, and nothing more. Plaintiff had, and has, every right to return to the WCB to re-open his case upon a disability from working or a need for medical care. This 21 Defendants’ Brief at 34. Those essential determinations were that Plaintiffs’ physicians were not credible in opining that Plaintiff could not return to work at that time. 57 ultimate determination was based on this compensation scheme and so cannot be analogized to tort law where the underpinnings of the ultimate determinations are to make the injured party whole in the context of one complete and final proceeding. Thus, the WCB determination was imbued with the concern about whether an injured worker has recovered from injuries in order to return to work and was not concerned with whether Plaintiff is still injured at all or the fault of the party who caused the Plaintiffs injuries. Hence, the resolution of Plaintiffs claim - that he was no longer suffering from a further causally related disability - was a mixed question of law and fact, an ultimate fact issue. Defendants’ analysis does not enlighten or inform the resolution of these issues. First, Defendants cite to federal cases involving the res judicata doctrine, not New York caselaw concerning the collateral estoppel doctrine, to support their claims that mixed questions of law and fact should not be precluded under the collateral estoppel doctrine. See Defendants’ Brief at 30, citing Southern Pac. R. Co. v. United States, 168 U.S. 1, 49 (1897) (applying resjudicata to judgment in prior cases, in which the question of title was resolved based upon certain maps to suit to quiet title based on identical maps); United States v. Moser, 266 U.S. 236, 241 (1924) (applying res judicata doctrine). Next, Defendants cite to the definition of a mixed question of law and fact, in cases addressing the proper standard of review in federal and other state courts. See Defendants’ Brief at 33- 34, and cases cited therein. 22 Moreover, Defendants misrepresent this Court’s decision in Friedman v. State, 24 N.Y.2d 528, 535 (1969), as this Court never stated that "The doctrine of res judicata is not restricted to factual determinations," the Court of Claims did, and this Court reversed that holding. This Court ruled that "claimant is not prevented by the doctrine of resjudicata from asserting the instant claim." Next Defendants cite to dicta in Am, Home Assur. Co. v. Intl. Ins. Co., 90 N.Y.2d 433, 440 (1997), but such dicta is not binding and this Court plainly said so, by noting that collateral estoppel is "at least theoretically available" on an issue involving a mixed question of law and fact. In sum, the collateral estoppel doctrine cannot apply to the WCLJ’s ultimate fact ruling because ultimate facts are not merely resolved by resorting to the evidence, but are arrived at by analyzing evidence in the context of the law and proceedings in which the evidence is presented. Those same legal principles do 22 Defendants cite only one case addressing the collateral estoppel doctrine, but the Court in United States v. Felder, 548 A2d 57, 66 (D.C. 1988), held that the doctrine "requires the concurrence in different proceedings of the three circumstances of (1) a common factual issue necessary to both adjudications, (2) a prior determination of that issue in litigation between the same parties, and (3) a showing that the determination was in favor of the party seeking to raise the estoppel bar." That test would only permit preclusive effect of the determinations that Dr. Kuhn was not credible and that Dr. Francois was less credible than Dr. Zaretsky. 59 not control in personal injury actions and so a WCB determination of no further causally related disability can have no preclusive effect in this negligence action. zo POINT VIII DEFENDANTS’ REQUEST FOR REARGUMENT IS MOOT IF THIS COURT ADOPTS PLAINTIFF’S POSITION ON REARGUMENT. PLAINTIFF DOES NOT DISPUTE DEFENDANTS’ POSITION IN THE EVENT THAT THIS COURT DECLINES TO REVISIT OR DISTURB ITS EARLIER DETERMINATION. Plaintiffs concede that, if this Court adheres to its original determination in all respects, and rules that the WCB determination was an evidentiary finding of fact, then Defendants are entitled to the relief they request on reargument. If this Court rules otherwise, and that the collateral estoppel doctrine is inapplicable, then Plaintiff submits that Defendants’ contention is moot as Plaintiff will be able to press a claim for injuries, including lost earnings and medical expenses, stemming from post-traumatic stress disorder. 61 CONCLUSION WHEREFORE, for the foregoing reasons, Plaintiffs-Respondents Maria Auqui, as Guardian of the Property of Jose Verdugo, and Maria Verdugo, individually, respectfully request that this Court enter an Order affirming the Decision and Order of the Appellate Division, First Department, dated April 5, 2011, and granting such other and further relief as this Court deems just and proper. Dated: South Salem, New York Respectfully submitted, October 9, 2013 LAW OFFICES OF ANNETTE G. HASAPIDIS /— . ( / Annette GJiasapidis, Esq. Attorney For Plaintiffs-Respondents MARIA AUQUI, As Guardian Of The Property Of JOSE VERDUGO, And MAMA VERDUGO, Individually Post Office Box 827 South Salem, New York 10590-2438 (914) 533-3049 SCHWARTZ, GOLDSTONE & CAMPISI, LLP. Herbert Rodriguez Jr., Esq. 90 Broad Street New York, New York 10004 62 CERTIFICATE OF COMPLIANCE I, Annette Hasapidis, do hereby certify, in accordance with the Rules of the lower court, that this Brief was (a) computer-generated; (b) prepared using times new roman typeface, point size 14; (c) the page margins are one inch on all sides; (d) the line spacing is double space; (e) the word count is 14,000 words. Dated: South Salem, New York October 9, 2013 63 STATE OF NEW YORK SS.: COUNTY OF WESTCHESTER Shannon M. Nasser, being duly sworn, deposes and says, that deponent is not a party to the action, is over the age of 18 and resides in Putnam County, New York, and that on October 9, 2013, she served counsel with (3 copies) of a Brief of Plaintiffs-Respondents on Reargument by enclosing a copy of the same in an Overnight package properly addressed to: Matthew W. Naparty, Esq. Mauro Lilling Naparty, LLP 130 Crossways Park Drive Suite 100 Woodbury, New York 11797 and deposited said wrapper in a depository for an overnight M. Nasser Sworn to before me on October 9, 2013 of New York Qualified Westchester County Commission expires 10/2016 02HA61 16591