Maria Auqui,, et al., Respondents,v.Seven Thirty One Limited Partnership, et al., Appellants.BriefN.Y.Jan 8, 2013To Be Submitted By: MICHEAL K. GRUBER New York County Clerk’s Index No. 100232/04 Court of Appeals STATE OF NEW YORK 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 FOR AMICUS CURIAE WORKERS’ INJURY LAW & ADVOCACY GROUP MICHEAL K. GRUBER, ESQ. Of Counsel WORKERS’ INJURY LAW & ADVOCACY GROUP Care of PASTERNACK, TILKER, ZIEGLER, WALSH, STANTON & ROMANO LLP 111 Livingston Street, Ground Floor Brooklyn, New York 11201 Telephone: (718) 222-9800 Facsimile: (718) 222-0179 October 4, 2013 TABLE OF CONTENTS TABLE OF AUTHORITIES CERTIFICATION PURSUANT TO RULE 500.I(£) I INTEREST OF AMICUS CURIAE I PRELIMINARY STATEMENT 2 ARGUMrnNT 4 I. The "realities of litigation" in a Workers 4 Compensation proceeding should preclude the application of collateral estoppel. II. Workers Compensation Board determinations 10 regarding disability are mixed questions of law and fact which should not be given preclusive effect in subsequent proceedings. III. Applying collateral estoppel to disability 15 determinations of the Workers Compensation Board has far-reaching consequences for the rights of injured workers. CONCLUSION 25 TABLE OF AUTHORITIES Brugman v. City of New York 102 AD2d 413, 477 NYS2d 636 (1 st Dept. 1984) Commissioners of State Ins. Fund v. Low 3 NY2d 590, 170 NYS2d 795 (1958) Schwartz v. Public Administrator of County of Bronx 24 NY2d 65, 298 NYS2d 955 (1969) Hinchey v. Sellers 7 NY2d 287, 197 NYS2d 129 (1959) Gilberg v. Barbieri 53 NY2d 285, 441 NYS2d 49 (1981) People v. Plevy 52 NY2d 58, 436 NYS2d 224 (1980) Engel v. Calgon Corp. 114 AD2d 198,498 NYS2d 877 (3 rd Dept. 1986) B.R. DeWitt, Inc. v. Hall 19 NY2d 141,278 NYS2d 596 (1967) Casas v. Consolidated Edison Co. of New York Inc., 105 AD3d 471,963 NYS2d 88 (1 st Dept. 2013) STATUTES: Workers Compensation Law §13-a(7) Workers Compensation Law §37(1) Workers Compensation Law §15(3)(w) Workers Compensation Law § 123 Page 2 2 3,4,5,17 3, 10 4, 5, 18,23 5 10-11, 14 18 21 8 11 15 19,22 ADMINISTRATIVE DECISIONS: Matter of Nelson Systems Co. Inc. WCB # 00401727 SECONDARY AUTHORITY: Restatement of Judgments, Second, §29 "Issue Preclusion in Subsequent Litigation with Others" New York Medical Treatment Guidelines (2013) http://www.wcb.ny.gov/contentlmainlhcpp/ MedicalTreatmentGuidelines/20 13 TreatGuide.j sp Medical Guidelines of the New York State Workers Compensation Board (1996) http://www. wcb.ny .gov/contentlmainlhcpp/mdguide.pdf New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012) 20 5-6 9 , 8, 14 12-13 12, 13 CERTIFICATION PURSUANT TO RULE 500.1(0 Workers' Injury Law & Advocacy Group ("WILG") certifies that it is a nonprofit organization incorporated under Section 501 (c)(6) of the Internal Revenue Code (26 USC §501(c)(6)) and that it has no parents, subsidiaries or affiliates. INTEREST OF AMICUS CURIAE Workers' Injury Law & Advocacy Group ("WILG") is a national non- profit membership organization dedicated to representing the interests of millions of workers and their families who, each year, suffer the consequences of workplace injuries and illnesses. The group acts principally to assist attorneys and non-profit groups in advocating the rights of injured workers through education, communication, research, and information gathering. Founded in 1995, WILG has grown into an organization of over 1000 members representing every state in the nation. It works principally to assist attorneys and other non-profit groups in advocating the rights of injured workers through education, communication, research and information gathering. As an important national voice for workers, WILG is committed to improving the quality of legal representation to those employees who are 1 injured on the job through superior legal education as well as through judicial and legislative activism. The issue before this Court has far-reaching consequences, not only for New York but also potentially for injured workers throughout the United States. As an organization dedicated to protecting the rights of injured workers, WILG respectfully submits this Brief in support of Plaintiff- Respondent's Brief on Reargument. PRELIMINARY STATEMENT "It is well settled that the doctrines of res judicata and collateral estoppel generally are applicable to the determinations of administrative agencies rendered pursuant to their adjudicatory functions" Brugman v. City of New York, 102 AD2d 413,477 NYS2d 636 (1 st Dept. 1984). These doctrines exist to ensure that "questions once tried out should not be relitigated between the same parties or their privies" Commissioners of State Ins. Fund v. Low, 3 NY2d 590, 170 NYS2d 795 (1958). In order for the doctrine of collateral estoppel to be invoked, there must be an "identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to 2 contest the decision now said to be controlling" Schwartz v. Public Administrator of County of Bronx, 24 NY2d 65,298 NYS2d 955 (1969). The Courts have also recognized that there is a fundamental difference between determinations regarding issues of evidentiary fact, which are given preclusive effect, and determinations regarding ultimate fact, which are not. Hinchey v. Sellers, 7 NY2d 287, 197 NYS2d 129 (1959). In the instant case, this Court ruled in it's February 14,2013 Decision & Order that plaintiff was estopped from relitigating the issue of ongoing disability in his personal injury action following a determination of the Workers Compensation Board ("WCB" or "the Board") that he had no further causally related disability subsequent to January 24,2006. The Court found that plaintiff had a "full and fair opportunity to litigate the issue of ongoing disability in the 2006 WC proceeding", and that the claimant's ongoing disability after 2006 was a question of law as opposed to a mixed question of law and fact. Subsequent to the Court's decision, the plaintiff filed a Motion for Reargument. WILG, along with several other entities, was granted permission to appear and file a brief as amicus curiae in support of the Plaintffs Motion. By Order dated June 27, 2013 this Court granted reargument. 3 It is respectfully submitted that the Court in making it's original decision did not fully consider the considerations which may indicate the inappropriateness of imposing collateral estoppel. It is also submitted that the determination of disability in this matter by the Workers Compensation Board was an ultimate determination of law and fact which should not have been given preclusive effect in the claimants personal injury action. ARGUMENT Ie THE "REALITIES OF LITIGATION" IN A WORKERS COMPENSATION PROCEEDING SHOULD PRECLUDE THE APPLICATION OF COLLATERAL ESTOPPEL This Court has long recognized that "collateral estoppel is a flexible doctrine which can never be rigidly or mechanically applied". Gilberg v. Barbieri, 53 NY2d 285,441 NYS2d 49 (1981). One of the necessary elements for the invocation of collateral estoppel is that the party against whom the doctrine is invoked must have had a "full and fair" opportunity to litigate the issue in the prior action. Schwartz, supra at 71. In the instant decision, the Court determined that since the plaintiff was "represented by counsel, submitted medical reports, presented expert testimony and cross- examined the defendants experts", he had a full and fair opportunity to litigate the issue of ongoing disability in the workers compensation forum. 4 The factors cited by the Court are however, in essence, a recitation of the due process rights afforded claimants in a workers compensation claim. This Court has previously unambiguously held that a determination as to whether a party has had a full and fair opportunity to litigate a prior determination "cannot be resolved by a finding that the party against whom the determination is asserted was accorded due process in the prior proceeding" Gilberg, supra at 292, see also People v. Plevy, 52 NY2d 58, 436 NYS2d 224 (1980). Instead, when determining whether a party has had a full and fair opportunity to litigate a prior determination "requires an exploration of the various elements which make up the realities of litigation. A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of his claim, the forum of prior litigation, the use of initiative, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in applicable law, and foreseeability of future litigation" Schwartz, supra at 72. These factors are also set forth in the Restatement of Judgments, Second, §29, Issue Preclusion in Subsequent Litigation with Others. Several are relevant to the instant case, and, by the plain language in it's decision, none were considered by the Court in rendering it's decision in this matter. 5 When determining whether issue preclusion is applicable, it is appropriate for the Court to consider whether "the forum in the second action affords the party against whom preclusion is asserted procedural opportunities in the presentation and determination of the issue that were not available in the first action and could likely result in the issue being differently determined" Restatement, Second, of Judgments, §29(2). There can be no question that procedural opportunities exist in a personal injury action which do not exist in a workers compensation claim. Workers compensation claims are not governed by the Rules of Evidence, meaning that evidence which may not be admissible in a state court action may be considered by a Workers Compensation Administrative Law Judge. The rules and procedures of the Workers Compensation Board also significantly limit the medical evidence that may be available to an injured worker to present at a workers compensation proceeding in which disability is being determined. Workers compensation claimants are typically treated by physicians who specialize in treating work-related injuries and who are authorized by the Workers Compensation Board to treat compensation claimants. If a physician isn't "coded" by the Workers Compensation Board, a workers compensation insurance carrier may refuse to pay bills for their treatment of an injured worker. Many physicians, especially those in 6 specialized areas of medicine, do not seek authorization to treat workers compensation claimants due to the onerous paperwork requirements of the Workers Compensation Board and the inadequate reimbursement provided by the Workers Compensation fee schedule for their services. These providers generally do not submit reports on an injured workers disability to the Workers Compensation Board and thus their testimony cannot be scheduled on the issue of an injured workers degree of continuing disability. It is conceivable, even likely, that a worker injured on the job who has a personal injury lawsuit will be treated by specialists who are not coded by the Workers Compensation Board. In situations such as this, the physicians opinion on the claimant's disability will not be considered by the Workers Compensation Administrative Law Judge. The reports and opinions of these specialists and physicians may, however, be introduced as evidence in the injured workers personal injury action. Workers compensation rules and regulations also limit a plaintiff s access to medical care in his workers compensation claim. In the majority of workers compensation injuries, a claimant's medical care is limited to that afforded to him in the Workers Compensation Board's Medical Treatment 7 Guidelines 1• These Treatment Guidelines are unique to the Workers Compensation Board, and severely restrict an injured workers access to medical care. Under the Board's Medical Treatment Guidelines an injured worker may only receive such medical care as determined by those Guidelines. Determinations as to necessary medical care are not made by the claimants treating physicians but rather by formula. The practical application of the Treatment Guidelines has been to limit the amount of treatment for an injured worker and to limit availability of diagnostic tests an injured workers medical provider may deem necessary. Concerning the availability of diagnostic tests, it should also be noted that recent changes in the Workers Compensation Law allow a workers compensation insurance carrier to choose where an injured worker may have diagnostic tests performed. WCL §13-a(7), see also12 NYCRR §325-7. Even should the restrictive Treatment Guidelines allow for a diagnostic procedure, in a workers compensation claim an injured worker must still rely upon a network and physician chosen by his adversary for the performance of a test which may be critical to the determination of disability in his claim 1 The Medical Treatment Guidelines may be found here: http://www. web.ny .gov/eontentimainihepplMedieaITreatmentGuidelines/20 13 TreatGuid e.Jsp. 8 without regard for the qualifications or expertise of the carrier's chosen provider. These limitations are unique to a workers compensation proceeding. In a personal injury matter, an injured worker would have no such restrictions on the availability of medical care and diagnostic testing. It is likely therefore that additional evidence relevant to the determination of the extent and duration of a plaintiff s disability will be available in a state court action which is not available in a workers compensation proceeding. Given the multitude of procedural opportunities available to a plaintiff in a personal injury action, including both the availability and admissibility of relevant medical evidence, which are not available in a compensation proceeding, it is inequitable to apply the doctrine of collateral estoppel from a disability determination made by the Workers Compensation Board to a personal injury lawsuit. In considering whether to apply the doctrine of issue preclusion in litigation with a party not privy to the initial litigation, it is also appropriate for a Court to consider whether "the determination relied on as preclusive was itself inconsistent with another determination of the same issue" Restatement of Judgments, Second, §29( 4). Many injured workers who have workers compensation claims and personal injury lawsuits also have filed 9 for Social Security Disability benefits. A favorable determination in a Social Security Disability claim is necessarily a finding that the injured worker is unable to return to gainful employment. Such determinations are made pursuant to the guidelines unique to the Social Security Administration. It is possible for a person to be found totally disabled by Social Security and yet be found to not have any disability by the Workers Compensation Board. While we do not argue here that Social Security decisions be binding in a workers compensation proceeding or in a personal injury lawsuit, the potential for inconsistent determinations as to an injured workers extent and duration of disability is yet another consideration which argues against applying the doctrine of collateral estoppel to a disability determination of the Workers Compensation Board. II. WORKERS COMPENSATION BOARD DETERMINATIONS REGARDING DISABILITY ARE MIXED QUESTIONS OF LAW AND FACT WHICH SHOULD NOT BE GIVEN PRECLUSIVE EFFECT IN SUBSEQUENT PROCEEDINGS. It is well-settled that findings by an administrative agency of pure or evidentiary facts are, prima facie, given preclusive effect in subsequent litigation whereas findings of ultimate fact are not. Hinchey, supra, Engel v. Calgon Corp., 114AD2d 108,498 NYS2d 877 (3rd Dept. 1986). "This is so because the Legislature normally vests great discretion in an agency to rule 10 on such an issue based upon what considerations the agency believes are most appropriate. Thus agency decisions on such ultimate facts are imbued with policy considerations as well as the expertise of the agency" id. at 110. A determination of disability by the Workers Compensation Board is necessarily a determination of an ultimate fact. In several places in their Brief on Reargument, the Appellants state that the only issue decided by the Workers Compensation Law Judge and the Board was "whether plaintiff still had the injuries he claimed,,2. The Appellants go on to state that "the WCLJ and the WCB did not need to resort to any statutes, rules, regulations, or guidelines to resolve the battle of the experts on ongoing disability,,3. These two statements demonstrate a fundamental misunderstanding of the Workers Compensation Law. The tenn "disability" is only defined in one place in the Workers Compensation Law. WCL §37(1) defines disability as "the state of being disabled from earning full wages at the work at which the employee was last employed". This emphasizes the fact that disability, as used by the Workers Compensation Board, is couched in terms of an injured workers ability to return to work rather than disability in a purely medical sense. A determination as to disability has absolutely nothing to do with whether an injured worker "still has the ir~juries he claimed" but rather, by 2 Brief for Defendants-Appellants on Reargument pg 16, See also pg. 35. 3 ld. at pg 17, 36. 11 definition, whether the claimed injuries result in an inability to return to work. Furthermore, contrary to the statements in the Appellants Brief: all disability determinations of the Workers Compensation Board, both by the Judge at the initial trial level and by the Board upon appeal, are made using Medical Guidelines promulgated by the Board for determining medical impairment or disability4. Like the Board's Medical Treatment Guidelines, the Board's medical disability guidelines are unique to the Workers Compensation Board. The 1996 Guidelines themselves implicitly recognize that determinations as to disability are inherently questions of both law and fact. The "Introduction" to the 1996 Medical Guidelines used to determine disability under the Workers Compensation Law outlines the "Role of the Workers Compensation Law Judge" Medical Guidelines of the NYS Workers Compensation Board (1996), pg. 3. This role is to "make all determinations on issues such as disability and degree" id. The Guidelines go on to state that "[i]n making such/actual and legal determinations, the Workers' Compensation Law Judge takes into account a variety of non- 4 Currently, two sets of Guidelines remain in use by the Board. The "Medical Guidelines" promulgated in 1996 (found here: http://www.wcb.ny.gov/contentlmainlhcpp/mdguide.pdf) still govern some aspects of claims pending before the Board. The 1996 Medical Guidelines were replaced in 2012 by the Board's "New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity" (found here: http://www.wcb.ny .gov/contentimainlhcpp/ImpairmentGuidelines/20 12ImpairmentGuide .pdf). 12 medical factors such as age, education, language skills, etc. which may impact on a claimant's ability to wor/(' id. (emphasis added). In the very Guidelines used to determine disability, the Workers Compensation Board itself explicitly admits that such determinations are "factual and legal" and that these disability determinations are dependent in part on non-medical factors which may impact an injured workers ability to return to employment. Interestingly, a portion of the New York State Guidelines for Determining Pennanent Impairment and Loss of Wage Earning Capacity cited by the Appellants serves to undermine the very position it was meant to support. The Appellants Brief on Reargument cites to pg. 8 of the above G 'd l' l' h h G 'd l' d fi ". . "" U1 e mes, correct y statmg t at t .. e U1 e lnes e. :me lmpaIrment as a purely medical determination made by a medical professional, and is defined as any anatomic or functional abnormality or 10ss,,5. However, immediately preceding that definition of impainnent, the Guidelines state "[ a] distinction is made between disability and impairment,,6. If impairment is "a purely medical determination made by a medical professional" and there is a distinction between "disability" and "impairment", then disability necessarily is not "a purely medical determination made by a medical 5 Brief for Defendants-Appellants, supra at 35. 6 NYS Guidelines for Determining Permanent Impairment, supra at pg. 8. 13 professional". The Workers Compensation Board itself therefore explicitly recognizes that questions of "disability", when used in a Workers Compensation sense, go beyond purely medical determinations. A determination of the extent and duration of an injured workers disability by the Workers Compensation Board is inextricably intertwined with the policy of the Board to return injured workers to employmene. These determinations as to disability are "imbued with policy considerations as well as the expertise of the agency" Engel, supra. and are therefore legal conclusions based upon facts. As such, disability determinations of the Workers Compensation Board are determinations of ultimate fact, they are determinations of a mixed question of law and fact, which should not be given preclusive effect in subsequent proceedings. 7 That returning an injured worker to employment is an overarching policy goal of the Workers Compensation Board is demonstrated not only by the language in the Disability Guidelines, but also in the language of the Medical Treatment Guidelines referenced earlier. These Guidelines contain "General Guideline Principles". In §A.l "Medical Care" of these General Guideline Principles it is stated that "[m]edical care required as a result of a work-related injury should be focused on restoring functional ability required to meet the patient's daily and work activities and return to work, while striving to restore the patient's health to its pre-injury status in so far as possible". The Board's Medical Treatment Guidelines therefore put a greater emphasis on returning an injured worker to work than they do on restoring the injured workers health. 14 In. APPLYING COLLATERAL ESTOPPEL TO DISABILITY DETERMINATIONS OF THE WORKERS COMPENSATION BOARD HAS FAR-REACHING CONSEQUENCES FOR THE RIGHTS OF INJURED WORKERS. This Courts original decision giving preclusive effect to disability determinations of the Workers Compensation Board would have serious and far-reaching consequences which we do not believe the Court intended. The most unfortunate practical reality of the Court's ruling would be that injured workers who have third party lawsuits will choose not to litigate their claims fully before the Workers Compensation Board for fear that an adverse determination will preclude them from a full recovery in their concurrent personal injury lawsuit. Workers compensation is the exclusive remedy for workers injured on the job seeking wage replacement and medical benefits. The wage replacement benefits available to an injured worker under the workers compensation system are limited in both amount and duration. The Workers Compensation Law has always had a maximum allowable weekly benefit, and for injuries occurring after March 13, 2007, there is also a limitation on the duration of benefits for the vast majority of claims8• In many personal injury lawsuits, recovery may be had based upon how an 8 The duration of benefits for a permanently disabled worker changes based upon the percentage of "Loss of Wage Earning Capacity", see WCL §15(3)(w). 15 injury affects a plaintiff s earning capacity not for a limited period of time, as in workers compensation, but rather for lost earnings over the course of his entire life. It is easily foreseeable for an injured worker who also has a personal injury lawsuit forgoing workers compensation entirely, as the scope of damages recoverable in a third party action will almost certainly exceed those available under workers compensation. The very purpose of the Workers Compensation Board is to provide a swift adjudication of an injured workers right to benefits, and workers compensation is often the only source of income for a worker injured on the job who remains unable to work. If an injured worker eschews the compensation system due to the fear that it will adversely effect his personal injury lawsuit, then this Courts decision would completely subvert the basic principles of the workers compensation system. It is likely that such injured workers would have their medical bills, which rightly should be paid for by the workers compensation insurance carrier, paid through their private insurance or Medicare. Those workers who lack substantial savings might also tum to public assistance for monetary aid. The Courts decision would not only have a chilling effect on an injured workers access to the legal system, but will also likely and unnecessarily increase the burden on other private businesses and on governmental agencies. 16 We also believe that this Courts original ruling would have the exact opposite effect than is intended by an application of the doctrine of collateral estoppel. The purpose of collateral estoppel is to reduce litigation by not allowing a party to relitigate issues already decided in a prior action. Schwartz, supra. This Courts decision would only serve to substantially increase litigation at the Workers Compensation Board. There are several points in many workers compensation claim where an insurance company has a report from it's medical consultant finding an injured worker to have no further causally related disability. Oftentimes in these cases based upon the circumstances of the claim, the compensation carrier will compromise their report and benefits will continue to the injured worker without the need for medical litigation on the issue of continuing disability. Where a workers compensation claimant has a personal injury action, the potential application of collateral estoppel provides the compensation carrier with multiple reasons to litigate the claim instead of compromise. If the compensation carrier goes to trial, it knows that the injured worker may, as noted above, be hesitant to litigate his claim for fear of jeopardizing his personal injury lawsuit. The insurance carrier also knows that there is no significant detriment to their litigating the claim to it's conclusion. If the Board rules the claimant to have no further causally related disability, they have 17 conclusively determined this issue for the purposes of any personal injury action. Ifhowever, the Board rules that an injured worker remains disabled, there is no such reciprocal preclusive effect in the personal injury claim9• Far from being barred from relitigating the issue, the workers compensation insurance carrier may litigate an injured workers ongoing degree of disability several times over the life of a compensation claim. As this Court noted in Gilberg, an improper application of the doctrine of collateral estoppel can frustrate the very purpose of the doctrine to "reduce contention and dispute. Instead of more litigation later, there will be more litigation now" Gilberg, supra at 294 (quoting Rosenberg, Collateral Estoppel in New York, 44 St. John's L Rev 165, 177). The Workers Compensation Board's continuing jurisdiction over claims under WCL § 123 also argues against the application of collateral estoppel to disability determinations. Even after an initial finding of no further causally related disability by the Board, this section allows a party to relitigate the issue of degree of disability if a change in medical condition can be proven. In their Brief on Reargument, Appellants incorrectly state that a workers compensation claim may be re-opened only within seven 9 At one point, the law on collateral estoppel required mutuality of parties, but the mutuality doctrine was declared "a dead letter" in B.R. DeWitt, Inc. v. Hall, 19 NY2d 141,278 NYS2d (Ct. App. 1967). 18 years of the date of accident and that therefore no further request to re-open Mr. Verdugo's compensation claim may be made.1O Where a work related injury has been established,Workers Compensation Law §123 allows an injured worker to make an application to re-open a claim for an award of compensation benefits at any time within 18 years of the date of accident or within eight years of the date of last payment of compensation. 11 In fact, Mr. Verdugo's workers compensation claim has already been re-opened and further hearings have been held at the Workers Compensation Board. The claim is currently again on appeal before the Board. If this Court's initial decision is reinstated, situations will arise where the Board :finds an injured worker to have no further causally related disability and the defendant in a third party claim seeks to preclude the plaintiff from litigating that issue in his personal injury lawsuit. The Workers Compensation Board may then re-open the compensation claim based upon a change in medical condition. If the Board does not re-open the claim prior to the state court ruling on the collateral estoppel issue, then the plaintiff cannot revive that portion of their personal injury action even if the Workers Compensation Board subsequently finds the claimant to have an ongoing and permanent causally related disability. 10 Defendants-Appellants Brief, supra at 40-41. 11 WCL §123. 19 The confusion caused by this scenario should not be discounted as speculative since, within four months of this COutts original Decision and Order, it has already occurred. In Matter of Nelson Systems Co. Inc., WCB #00401727, the claimant Luis Casas suffered a work-related injury on August 6, 2003. He filed a Workers Compensation claim against his employer and also commenced a personal injury lawsuit against Consolidated Edison. The compensation claim was established and eventually litigated on the issue of further causally related disability. On March 24,2009 the presiding Workers Compensation Law Judge entered a finding of no further causally related disability subsequent to September 5,2008. This decision was affirmed on appeal by a Workers Compensation Board Memorandum of Board Panel Decision filed August 9, 2009. The Workers Compensation claim was re- opened and on August 31, 2011 a hearing was held on the issue of change in medical condition. At a hearing held November 1, 2011 back surgery was authorized on a causally related basis and benefits for causally related lost time were awarded to the claimant. Despite the authorization of surgery and further compensation awards being made by the Workers Compensation Board reaching back to November 2011, in a decision dated April 9, 2013 the Appellate Division held in the claimants personal injury lawsuit that 20 "[t]he Workers' Compensation Board (WCB) panel decision dated August 28,2009, which affinned a WCB judge's decision finding that plaintiff had no accident-related disability subsequent to September 5, 2008, is entitled to preclusive effect". Casas v. Consolidated Edison Co. of New York, Inc., 105AD3rd 471,963 NYS2d 88 (1 st Dept. 2013). The claimant was subsequently classified as permanently and totally disabled by the Workers Compensation Board in a decision fi.led August 8, 2013. 12 The Casas case distinctly highlights the danger in applying the doctrine of collateral estoppel to determinations of the Workers Compensation Board. The First Department's decision shows that this Court's original Decision and Order will lead to confusion in lower courts as to how to apply the doctrine of collateral estoppel from decisions of the Workers Compensation Board. Mr. Casas has been rendered pennanently unable to work as a result of his work related injuries and yet has been precluded from litigating the issue of disability subsequent to September 2008 in his personal injury action. This type of inequitable and inconsistent outcome cannot be the result intended by this Court. 12 This decision is currently on appeal to the Workers Compensation Board, but only on the issue of whether the carrier has to make a deposit into the Board's Aggregate Trust Fund. The issue of the claimant being classified as permanently and totally disabled is not being appealed. 21 The Workers Compensation Board's continuing jurisdiction over claims may also result in this Courts original decision creating a backlog of unresolved claims at the Board. As noted above, WCL§ 123 allows a workers compensation claimant to re-open a claim and seek wage replacement benefits anytime within 18 years from the date of accident. Even should an injured worker not chose to litigate his established claim before the Workers Compensation Board on the issue of further disability for fear that an adverse ruling may be used against him in his personal injury claim, he is still free to have that compensation claim lie dormant at the Board during the pendency of his personal injury lawsuit. The claimant would then have up to 18 years from the date of his injury to re-open his compensation claim to seek retroactive wage replacement benefits. This would place an undue burden not only upon the Workers Compensation Board by artificially creating a class of unresolved yet inactive claims, but would also create an unfair burden on the workers compensation insurance carrier who would be forced for an extended period of time to carry reserves against the possibility of a future award of compensation benefits. Finally, application of collateral estoppel to workers compensation determinations regarding disability denies injured workers their right to trial by jury in their third party injury action. Workers Compensation hearings are 22 presided over by Administrative Law Judges who, as noted above, are charged with making determinations of disability based upon both medical and non-medical factors. Significantly, medical testimony in a workers compensation proceeding is not taken in front of the presiding Administrative Law Judge. All medical testimony is taken by the parties via telephone deposition outside the presence of the Judge13. Depositions in workers compensation proceedings should not be confused with those taken in personal injury actions. Depositions in personal injury lawsuits can last several hours, if not several days. A medical deposition in a workers compensation proceeding typically lasts approximately 30 minutes. The Administrative Law Judge making a determination as to an injured workers ongoing disability is doing so not after hearing medical witnesses testify, but rather only by reading the transcripts of relatively brief depositions 14. As the Judge is not present when the testimony is taken, he is unable to assess the demeanor and comport of the medical witnesses as a jury is able to do in a personal injury trial. We cannot believe that this Court intended their decision to have such a serious and chilling effect on an injured workers right to pursue remedies 13 The only exception to this rule is where a claimant is not represented by counsel. 14 Interestingly, the brief duration of the prior proceeding in Gilberg was one of the reasons this Court chose not to apply the doctrine of collateral estoppel in that case. "[T]he nonjury trial was brief, consuming but part of an afternoon, followed immediately by verdict, allocution and sentence" Gilberg, supra at294 23 under both a workers compensation claim and a personal injury action. Rather, a multitude of sound public policy considerations argue against the doctrine of collateral estoppel being applied to disability determinations of the Workers Compensation Board in subsequent personal injury actions. 24 CONCLUSION For the foregoing reasons, Workers' Injury Law & Advocacy Group respectfully requests that this Court affirm the Decision and Order of the Appellate Division, First Department, dated AprilS, 2011. Dated: October 4,2013 Brooklyn, NY Respectfully submitted, Micheal . G ber, Esq. OfCounse Workers' Injury Law & Advocacy Group Care of Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP 111 Livingston St. Ground Floor Brooklyn NY 11201 (347) 222-3106 25
