Maria Auqui,, et al., Respondents,v.Seven Thirty One Limited Partnership, et al., Appellants.BriefN.Y.January 8, 2013APL-2011-00309 New York County Clerk's Office Index No. 100232/04 Court of Appeals of the State of New York MARIA AUQUI, as Guardian of the Property of JOSE VERDUGO, and MARIA VERDUGO Plaintiffs-Appellants against SEVEN THIRTY ONE LIMITED PARTNERSHIP, BOVIS LEND LEASING LMB, INC., and NORTH SIDE STRUCTURES, INC. Defendants-Respondents BRIEF OF AMICUS CURIAE THE CENTER FOR POPULAR DEMOCRACY IN SUPPORT OF PLAINTIFFS-APPELLANTS THE CENTER FOR POPULAR DEMOCRACY Andrew Friedman, Esq 802 Kent A venue Brooklyn, NY 11205 Telephone: (347) 915-0432 Date Completed: October 10, 2013 TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... ! RELEVANT FACTS ................................................................................................. 2 ARGUMENT ............................................................................................................. 3 THE ALJ' S DETERMINATION OF PLAINTIFF'S DISABILITY IS A MIXED QUESTION OF LAW AND FACT IMBUED WITH POLICY CONSIDERATIONS AND AS SUCH SHOULD NOT BE GRANTED PRECLUSIVE EFFECT IN PLAINTIFF'S THIRD PARTY ACTION ............................................................................................... 3 ALLOWING WCB DETERMINATIONS ON DISABILITY TO HAVE PRECLUSIVE EFFECT WILL DISPROPORTIONATELY IMPACT NEW YORK'S LOW-INCOME AND IMMIGRANT WORKFORCE ................................... 7 CONCLUSION ........................................................................................................ ! 0 i TABLE OF AUTHORITIES Crosby v. State, Workers' Compensation Bd., 57 N.Y.2d 305, 313 (1982) .......... 8 Engel v. Calgon Corp., 114 AD2d 108 (3d Dept 1986) ............................. 3,4 Hinchey v. Sellers, 7 N.Y.2d 287 (1959) .................................................. 3 Hunter v. New York, Ontario & Western R.R. Co., 116 N.Y. 615 (1889) ............ 7 Matter of Albano v. Kirby, 36 N.Y.2d 526 (1975) ....................................... ? Shanahan v. Monarch Engineering Co., 219 N.Y. 469, 477 (1916) .................. 8 Workers' Compensation Bd., N.Y. State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012) .................. .4, 5 N.Y. State Workers Compensation Bd., Medical Guidelines (1996) ........... .4, 5, 6 ii PRELIMINARY STATEMENT The Center for Popular Democracy ("CPD") submits this brief in support of plaintiffs-appellants Maria Auqui, as Guardian of the property of Jose Verdugo, and Maria Verdugo. Plaintiffs-appellants' appeal addresses the granting of preclusive effect to a decision of the Workers Compensation Board ("WCB") as it related to the duration of Jose Verdugo's disability. It is The CPD's position that this Court's Decision and Order dated February 14, 2013, which held that "[t]he 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," resulted from a misapplication of the law. Through an analysis of the Workers Compensation Law and guidelines published by commissions on workers compensation, it is clear that the determination of the Administrative Law Judge and the WCB only pertained to the narrow issue of plaintiffs ability to work, not his overall health. Such a determination concerning plaintiffs ability to work is a mixed question of law and fact, necessarily imbued with policy considerations and the expertise of the agency, and as should not be granted preclusive effect. 1 RELEVANT FACTS This Court succinctly stated the facts of this case in the Decision and Order dated February 14, 2013: Plaintiff, a food service deliveryman, was injured on December 24, 2003 when a sheet of plywood fell from a building under construction owned by defendant Seven Thirty One Limited Partnership. Plaintiff was compensated for treatment of his head, neck, and back injuries, as well as post-traumatic stress disorder and depression. While receiving Workers' Compensation (WC) benefits, plaintiff commenced this personal injury action in Supreme Court in 2004. The following year, in December 2005, while this action was pending, the insurance carrier for plaintiffs employer moved the Workers' Compensation Board (WCB) to discontinue plaintiffs benefits on the grounds that he was no longer disabled as a result of the accident. In January 2006, in a WC proceeding, an Administrative Law Judge (ALJ) reviewed the evidence and expert testimony submitted by the plaintiff and the insurance carrier. The ALJ found that Jose Verdugo no longer suffered any disability as of January 24, 2006 and terminated his benefits. Plaintiff appealed, but on February 1, 2007, a full panel of the WCB affirmed the finding that plaintiffs disability ended on 2 January 24, 2006, and that plaintiff required no further medical treatment thereafter, other than for post-traumatic stress disorder. In April, 2009, the defendants in the instant personal injury action moved to preclude plaintiffs from relitigating the duration of his work-related injury on the grounds that the issue was already fully litigated and decided in the we administrative proceeding. This Court, in its Decision and Order dated February 14, 2013 held that the WCB's ruling was entitled to collateral estoppel effect, precluding Mr. Verdugo's claim for lost earnings and compensation for medical expenses. On June 27, 2013, this Court granted plaintiffs-appellants' motion for re-argument. ARGUMENT THE ALJ' S DETERMINATION OF PLAINTIFF'S DISABILITY IS A MIXED QUESTION OF LAW AND FACT IMBUED WITH POLICY CONSIDERATIONS AND AS SUCH SHOULD NOT BE GRANTED PRECLUSIVE EFFECT IN PLAINTIFF'S THIRD PARTY ACTION As this Court stated in its prior decision in this case, it is well settled that mixed questions of law and fact, otherwise known as ultimate facts, are not entitled to preclusive effect. Hinchey v. Sellers, 7 N.Y.2d 287, 293 (1959); Engel v. 3 Calgon Corp., 114 A.D.2d 108, 110 (3d Dep't 1986), aff'd 69 N.Y.2d 753 (1987). The significance of such ultimate facts, and the reason why they are not granted preclusive effect, is that they are "imbued with policy considerations as well as the expertise of the agency," which need not apply and are not necessarily relevant in another forum. Engel114 A.D.2d at 110. The key question in this appeal is whether the determination of the ALJ, affirmed by the WCB, that Jose Verdugo suffered "no further causally related disability" is a mixed question of law and fact, imbued with policy consideration - and so not the appropriate subject of collateral estoppel - or a finding of fact that would have preclusive effect. To reach a firm conclusion on this question, it is necessary to examine how the ALJ and WCB reached their determinations on this question. The defendant's position was that the question before the ALJ, "was he (Verdugo) disabled, period." (Oral Argument Transcript 27, '][4). That position takes an overly simplistic view of the nature of a workers compensation proceeding, and one that is contradicted by the guidelines under which ALJ s operate. The ALJ' s Decision dated June 30, 2006, stated, "[b ]ased upon the entire record which may be considered, I fmd no further causally related disability since June 24, 2006. (R. at 135). As defined by the Workers Compensation Guidelines, a disability is "a legal determination that reflects the impact of a workplace injury 4 on the claimant's ability to work." WORKERS' COMPENSATION BD., N.Y. STATE GUIDELINES FOR DETERMINING PERMANENT IMPAIRMENT AND LOSS OF WAGE EARNING CAPACITY 8-11 (2012) [hereinafter "Workers Compensation Guidelines"]. 1 Furthermore, the Workers Compensation Guidelines and Medical Guidelines published in 1996 point out that the term disability is distinctly different from an impairment. /d.; N.Y. STATE WORKERS COMPENSATION BD., MEDICAL GUIDELINES (1996) [hereinafter "Medical Guidelines"]. Permanent impairment is "a purely medical condition and is defined as any anatomic or functional abnormality or loss remaining after maximal medical rehabilitation has been achieved and which the claimant's health provider considers stable or nonprogressive at the time evaluation is made." Medical Guidelines at 3. These guidelines should guide how this Court views the specific terminology used by the ALJ in making a determination. If the ALJ had used the legally significant term "impairment" in their Decision of June 24, 2006, which describes a worker's "anatomical or functional abnormality or loss", that 1 The Workers Compensation Guidelines originated from the Workers Compensation Reform Task Force, and its Advisory Committee within the State Insurance Department, which were established in 2008. STATE INS. DEP'T, REPORT TO THE GOVERNOR FROM THE SUPERINTENDENT OF INSURANCE SUMMARIZING WORKERS' COMPENSATION DATA AND RECOMMENDING IMPROVEMENTS IN DATA COLLECTION AND DEVELOPMENT OF A RESEARCH STRUCTURE FOR PUBLIC POLICY 3 (2008). The Task Force was created by legislation signed into law on March 13, 2007 by Governor Spitzer called the Workers' Compensation Reform Act. !d.; Ch. 6 (N.Y. 2007). The Workers Compensation Board published its guidelines, which were based on the recommendations of the task force, in the fall of 2010. Workers Compensation Guidelines, at 7. 5 determination would have been purely factual in nature and appropriately the subject of collateral estoppel. Instead, by using the term "disability", the ALJ contextually and legally opined on "claimant's ability to work" based on the injury Verdugo suffered. Workers Compensation Guidelines, at 8. Implicit in this determination by the ALJ is the application of the ALJ' s expertise in determining the skills and abilities needed for services rendered as a food service delivery man and how these would be affected by Verdugo's injury. Because the ALJ is characterizing Verdugo's health within the context of his ability to work, such a determination is necessarily imbued with the type of policy considerations and agency expertise, that is the hallmark of a mixed question of law and fact not granted collateral estoppel effect. The decision of the Workers Compensation Board Panel ("WCB") also applies the term "disability" instead of the term "impairment" (R. at 129-30). Again, if the WCB focused on whether Verdugo was still impaired, their decision would have been a purely factual determination for which collateral estoppel could apply. As a final note on this issue, Defendants claim that consideration of the guidelines discussed above is inappropriate, as these guidelines were not cited in proceedings before the lower courts and as such related arguments are unpreserved for judicial review. First, although this Court is generally without power to 6 consider matters not included in the record on appeal, there is an exception for considering reliable documents, the existence and accuracy of which are not in dispute, under the doctrine of judicial notice. See generally Matter of Albano v. Kirby, 36 N.Y.2d 526, 532-533 (1975), citing Hunter v. New York, Ontario & Western R.R. Co., 116 N.Y. 615, 621 (1889). Second, Defendants themselves cited to the guideline in their prior brief, thereby waiving any objection. ALLOWING WCB DETERMINATIONS ON DISABILITY TO HAVE PRECLUSIVE EFFECT WILL DISPROPORTIONATELY IMP ACT NEW YORK'S LOW-INCOME AND IMMIGRANT WORKFORCE The CPD stands committed to economic justice and the principal of fairness for workers, particularly low-income and immigrant workers who are the most vulnerable to inequitable law and policies. Unfortunately, this Court's misapprehension of the law in Auqui will have particularly severe consequences for these members of the workforce that, one must assume, the Court of Appeals never intended. Given this Court's unique role in addressing matters of law as they apply to public policy, we believe that these concerns should properly be considered as part of the Court's decision-making process. The Workers' Compensation Law ("WCL") was enacted in the aftermath of the Triangle Shirtwaist Factory fire, a disaster that led to the deaths of 146 mostly 7 immigrant workers. The WCL's purpose was to ensure "the provision of a swift and sure source of benefits to injured employees or the dependents of deceased employees." Crosby v. State, Workers' Compensation Bd., 57 N.Y.2d 305, 313 (1982). Prior to the enactment of the WCL, if a worker injured in the course of their employment wished to be compensated for their injuries they would have to accept the risks and delays associated with litigating a claim against their employer. The WCL was enacted to eliminate those risk and delays. Shanahan v. Monarch Engineering Co., 219 N.Y. 469, 477 (1916). Sadly, this Court's ruling in Auqui will severely undermine the Workers' Compensation system. Often, when a worker is seriously injured in the workplace they will have the option of bringing a third-party personal injury action to recover damages in excess of the strictly limited benefits available under the WCL, as occurred in the Auqui case. However, by allowing determinations of the WCB to have preclusive effect in a personal injury claim, this Court effectively placed the ability of an injured worker to receive full and just compensation into the hands of the administrative bureaucracy of the WCB. The Worker's Compensation system uses administrative proceedings to make limited determinations about an individual's ability to work. Workers' Compensation Law Judges are not bound by common law or statutory rules of evidence or by technical or formal rules of procedure; they have wide discretion to 8 exclude evidence and decide which experts will be heard; and they can accept hearsay. Given these facts, a seriously injured worker who has a chance to recover through a third-party action would be well advised to consider withdrawing from the Workers' Compensation system (or not entering the system to begin with), and rely for their recovery on the court system with its due process rights, check and balances. By pushing workers out of the Workers Compensation system, the Auqui returns us to the early days of the 20th century. Withdrawing from the Workers' Compensation system requires foregoing the almost immediately available benefits including replacement of lost income and coverage of medical costs. Immigrant workers, who are more likely to be uninsured with few financial resources, are less likely to be able to shoulder this burden than other members of the workforce. Instead they will rely on taxpayer funded benefits and emergency room care. Unable to receive most government benefits, including Medicaid, undocumented migrants will be even more at risk. Instead, these injured workers will be subject to the risks and delays attendant to bringing a personal injury claim in the court system for their entire recovery- exactly the situation the enactors of the Workers' Compensation Law sought to avoid. 9 CONCLUSION For the foregoing reasons, we respectfully request that this Court enter an Order reversing this Court's Decision and Order dated February 14, 2013, and affrnning the Decision and Order of the Appellate Division, First Department, dated April5, 2011, together with such other relief as the Court deems just and proper. Dated: Brooklyn, New York: October 10, 2013 Respectfully submitted, Center for Popular Democracy ~ BY: cindmuLh~ 10 Andrew Friedman, Esq. 802 Kent Avenue Brooklyn, NY 11205 Telephone: (347) 915-0432