Maria Auqui,, et al., Respondents,v.Seven Thirty One Limited Partnership, et al., Appellants.BriefN.Y.January 8, 2013To be Argued by: RICHARD J. MONTES (Time Requested: 15 Minutes) APL-2011-00309 New York County Clerkâs Index No. 100232/04 Court of Appeals of the State of New York ïżïșï» ïż MARIA AUQUI, as Guardian of the Property of JOSE VERDUGO, and MARIA VERDUGO, Plaintiffs-Respondents, â against â SEVEN THIRTY ONE LIMITED PARTNERSHIP, BOVIS LEND LEASE LMB, INC. and NORTH SIDE STRUCTURES, INC., Defendants-Appellants. REPLY BRIEF FOR DEFENDANTS-APPELLANTS ON REARGUMENT Of Counsel: MATTHEW W. NAPARTY RICHARD J. MONTES MAURO LILLING NAPARTY LLP 130 Crossways Park Drive, Suite 100 Woodbury, New York 11797 Tel.: (516) 487-5800 Fax: (516) 487-5811 Appellate Counsel to: FABIANI COHEN & HALL, LLP Attorneys for Defendants-Appellants Date Completed: October 24, 2013 i TABLE OF CONTENTS PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I THIS COURT CORRECTLY HELD THAT THE WCBâs DECISION SHOULD BE GIVEN PRECLUSIVE EFFECT AS TO THE DURATION OF THE PLAINTIFFâS DISABILITY, RELEVANT TO LOST EARNINGS AND COMPENSATION FOR MEDICAL EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Duration Of Disability Is A Question Of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Collateral Estoppel Applies To Evidentiary Facts And Ultimate Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Issue Before The WCLJ And WCB Was Not Limited To Whether Plaintiff Could Return To Work At That Moment . . . . . . . . . . . . . 11 The Plaintiffsâ Proposed Bright-Line Rule Is Inconsistent With This Courtâs Precedent And Disregards The Realities Of The Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 The Plaintiffs Had A Full And Fair Opportunity To Litigate The Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 POINT II THE HYPOTHETICAL âPOLICYâ CONCERNS RAISED BY THE PLAINTIFFS ARE BASED ON INCORRECT ASSUMPTIONS AND WITHOUT FOUNDATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 The WCBâs Determination Was Final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 This Courtâs Decision Will Not Force Injured Workers To Forgo Their Workersâ Compensation Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 The Defendants Are Not Proposing A Bright-Line Rule That All Duration Of Disability Determinations Must Be Given Collateral Estoppel Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 TABLE OF AUTHORITIES Cases Acevedo v. Consol. Edison Co. of New York, Inc., 189 A.D.2d 497 (1 Dept. 1993). ............................................................ 13st Ashe v. Swenson, 397 U.S. 436 (1970)................................................................................ 7, 8 Aides At Home, Inc. v. State, Workersâ Comp. Bd., 76 A.D.3d 727 (3 Dept. 2010). ................................................................ 6rd Am. Home Assur. Co. v. Intâl Ins. Co., 90 N.Y.2d 433 (1997)................................................................................. 8 Auqui v. Seven Thirty One Ltd. Pâship, 20 N.Y.3d 1035 (2013)....................................................................... 4, 5, 6 Barnett v. Ives, 265 A.D.2d 865 (4 Dept. 1999). ............................................................ 29th Buechel v. Bain, 97 N.Y.2d 295 (2001)............................................................................... 15 Burns v. Varriale, 9 N.Y.3d 207 (2007). ................................................................................ 13 Camperlengo v. Barell, 78 N.Y.2d 674 (1991)............................................................................... 24 Casas v. Consol. Edison Co. of N.Y., Inc., 105 A.D.3d 471 (1 Dept. 2013). ...................................................... 21-22st Castro v. Tishman Speyer Properties, 303 A.D.2d 790 (3 Dept. 2003). .............................................................. 6rd Clemens v. Apple, 65 N.Y.2d 746 (1985)............................................................................... 24 ii DâArata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659 (1990). ....................................................................... 15, 17 Engel v. Calgon Corp., 114 A.D.2d 108 (3 Dept. 1986),rd 69 N.Y.2d 753 (1987)................................................................................. 9 Evans v. Monaghan, 306 N.Y. 312 (1954). ............................................................................ 5, 24 Harrington v. L.C. Whitford Co. Inc., 302 A.D.2d 645 (3 Dept. 2003). .............................................................. 6rd Hinds v. Western Union Tel. Co., 33 A.D.2d 583 (3 Dept. 1969). ................................................................ 6rd Liss v. Trans. Auto Sys., Inc., 68 N.Y.2d 15 (1986). ............................................................................ 5, 23 Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449 (1985)............................................................................... 25 Kigin v. State Workersâ Comp. Board, 109 A.D.3d 299 (3 Dept. 2013). ............................................................ 12rd Mahl v. Citibank, 234 A.D.2d 348 (2 Dept. 1996)............................................................. 17nd Mastrodonato v. Pfaudler Co., 307 N.Y. 592 (1954). ................................................................................ 11 McGrath v. Gold, 36 N.Y.2d 406 (1975)............................................................................. 7, 8 OâConnor v. Midiria, 55 N.Y.2d 538 (1982)........................................................................... 5, 23 Patterson v. Empire Blue Cross & Blue Shield, 23 A.D.3d 870 (3 Dept. 2005). ................................................................ 6rd People v. Acevado, 69 N.Y.2d 478 (1987)................................................................................. 7 iii People v. Bachert, 69 N.Y.2d 593 (1987). .............................................................................. 20 People v. DâAlessandro, 13 N.Y.3d 216 (2009). ....................................................................... 20, 21 Ryan v. New York Telephone Co., 62 N.Y.2d 494 (1984). ................................................................................ 8 Sillitti v. Liberty Travel, Inc., 83 A.D.3d 1169 (3 Dept. 2011)............................................................... 6rd Spyhalsky v. Cross Const., 294 A.D.2d 23 (3 Dept. 2002). ................................................ 12, 13, 15rd St. Pierre v. City of Syracuse, 53 A.D.2d 44 (4 Dept. 1976).................................................................. 12th Staatsburg Water Co. v. Staatsburg Fire. Dist., 72 N.Y.2d 147 (1988)............................................................................... 15 Sweeney v. New York State Staten Island Development Ctr., 194 A.D.2d 929 (3 Dept. 1993). .............................................................. 6rd Walker v. TNT Red Star Express, 25 A.D.3d 945 (3 Dept. 2006). ................................................................ 6rd Werner v. State of New York, 53 N.Y.2d 346 (1981)........................................................................... 5, 21 Statutes WCL§ 15(1). ......................................................................................................... 13 WCL§ 15(2). ......................................................................................................... 13 WCL§ 25(3)(b)..................................................................................................... 23 WCL§ 123. ..................................................................................................... 21, 22 iv Other Authorities NYJUR Workers § 356........................................................................................ 11 Restatement (Second) of Judgments § 27 . ......................................................... 8 Workersâ Compensation Board, New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity, (2012). ........ 10 Workersâ Compensation Board, 1996 Medical Impairment Guidelines, p. 42, available at http://www.wcb.ny.gov/content/main/hcpp/mdguide.pdf (last accessed October 23, 2013). ........................................................................ 19-20 v COURT OF APPEALS OF THE STATE OF NEW YORK ---------------------------------------------------------------------X MARIA AUQUI, as Guardian of the Property of JOSE VERDUGO, and MARIA VERDUGO, Plaintiffs-Respondents, New York County -against- Index No.: 100232/04 SEVEN THIRTY ONE LIMITED PARTNERSHIP, BOVIS LEND LEASE LMB, INC., and NORTH SIDE STRUCTURES, INC., Defendants-Appellants. ---------------------------------------------------------------------X REPLY BRIEF ON BEHALF OF DEFENDANTS-APPELLANTS SEVEN THIRTY ONE LIMITED PARTNERSHIP, BOVIS LEND LEASE LMB, INC., AND NORTH SIDE STRUCTURES, INC. PRELIMINARY STATEMENT The plaintiffsâ brief on reargument is very different from the brief they previously submitted to this Court. That brief focused on three main points: (1) proximate cause being a mixed question of law and fact; (2) there being no identicality of issues because proximate cause in a personal injury action is a different concept than âfurther causally related disabilityâ in a Workersâ Compensation context; and (3) the guardianship order raising a question of fact as to whether there was an identity of issues and whether the injuries were proximately caused by the accident. None of those arguments appear in the plaintiffsâ current brief on reargument. Instead, all new arguments are raised regarding (1) the alleged lack of finality; (2) the definition of âdisability;â (3) whether all that was determined in the Workersâ Compensation proceedings was whether Jose Verdugo was able to return to work at that moment; and (4) whether disability is an ultimate fact. These new arguments, apart from being beyond the proper scope of reargument, are without merit. Once again, at the heart of the plaintiffsâ appeal is their contention that the Workersâ Compensation Law Judge (WCLJ) and Workers Compensation Board (WCB) just got it wrong regarding the duration of Mr. Verdugoâs injuries. The collateral estoppel doctrine, rules of preservation and the rules on reargument, however, were specifically created to avoid giving parties multiple opportunities to relitigate issues or raise new issues that were not previously presented. Those doctrines were intended to prevent the very perpetuation of litigation that has occurred in this case. There must be an end, and where procedures are available to challenge prior determinations they must and should be followed. Ultimately, this case should present the straightforward application of the following principles upon which all parties agree. Specifically, all parties agree that collateral estoppel applies to factual determinations. All parties agree that factual determinations made by quasi-judicial bodies are entitled to collateral estoppel effect. All parties agree that the WCB is a 2 quasi-judicial body and their factual determinations can be given collateral estoppel effect. Finally, all parties agree that, in this case, the WCLJ and WCB made credibility determinations with respect to the plaintiffsâ medical experts. Thus, the issue is what facts were necessarily determined and whether those facts preclude a claim for lost earnings and future medical expenses in this action. In this regard, the plaintiffsâ experts claimed that Mr. Verdugo was permanently totally disabled. The WCLJ and WCB, however, rejected that testimony, finding that the plaintiffâs neck and back were normal; that the plaintiff had normal range of motion, no weakness, no atrophy or spasms; and that the MRI and CAT scans were normal (R. 135). The WCLJ further found that the plaintiffâs cane was a mere âpropâ (R. 135). The WCLJ also found the testimony of the plaintiffâs neuropsychologist, Dr. Kuhn, that the plaintiff continued to suffer from a traumatic brain injury and post-traumatic stress disorder was not credible (R. 135). Based on these credibility determinations, the WCLJ found that the plaintiffs failed to establish that Mr. Verdugo was still disabled and terminated his benefits (R. 135). Thus, when looking at the nature of the proceedings, the testimony proffered and the WCB and WCLJâs stated bases for their determinations, the 3 record reveals that they made factual determinations that Mr. Verdugo no longer has the injuries he claimed, that he could return to work and that he no longer needed medical treatment. Those factual determinations are identical to the facts that underlie Mr. Verdugoâs claim for future lost earnings and future medical expenses in this action. Given, therefore, the stated collateral estoppel principles â upon which all the parties agree â this Court properly held in its February 14, 2013 Decision and Order that the WCBâs decision should be given preclusive effect as to the duration of the plaintiffâs disability, relevant to lost earnings and compensation for medical expenses (Auqui v. Seven Thirty One Ltd. Partnership, 20 N.Y.3d 1035, 1037 [2013]). It is respectfully submitted, therefore, that this Court should adhere to its February 14, 2013 Decision and Order with one factual correction that is now conceded by the plaintiffs. The plaintiffs concede, in Point VIII of their brief, that if this Court adheres to its February 14, 2013 Decision and Order, the defendants are entitled to the relief they have requested on reargument. The WCB did not order a continuation of benefits for post-traumatic stress disorder. Thus, this Court should modify its decision to correct that portion which stated, âthat plaintiff required no further 4 medical treatment thereafter, other than for post-traumatic stress disorderâ (id. at 1036 [emphasis added]). POINT I THIS COURT CORRECTLY HELD THAT THE WCBâs DECISION SHOULD BE GIVEN PRECLUSIVE EFFECT AS TO THE DURATION O F T H E P L A I N T I F F â S D I S A B I L I T Y , RELEVANT TO LOST EARNINGS AND COMPENSATION FOR MEDICAL EXPENSES. Duration Of Disability Is A Question Of Fact As previously stated, the parties agree that factual determinations made by quasi-judicial bodies are entitled to collateral estoppel effect in subsequent proceedings (see Matter of Evans v. Monaghan, 306 N.Y. 312, 323-324 [1954]). The parties also agree that collateral estoppel applies to factual determinations made by the WCB (see Liss v. Trans. Auto Sys., Inc., 68 N.Y.2d 15 [1986]; OâConnor v. Midiria, 55 N.Y.2d 538 [1982]; Werner v. State of New York, 53 N.Y.2d 346 [1981]). As this Court correctly identified, therefore, the issue before the Court on this appeal is whether the WCB decided a necessary issue of fact about the duration of Mr. Verdugoâs disability (Auqui, 20 N.Y.3d at 1036). The plaintiffs, however, do not directly address the numerous cases cited by the defendants where the courts have held that duration of disability 5 is an issue of fact. As the courts have held, â[t]he degree and duration of claimantâs disability [are] [] factual issue[s] for the Board to resolve and the resolution of any conflict between the medical opinions presented is similarly within the Boardâs provinceâ (see Sillitti v. Liberty Travel, Inc., 83 A.D.3d 1169, 1171 [3 Dept. 2011], citing Workersâ Compensation Law §§rd 15, 20; Walker v. TNT Red Star Express, 25 A.D.3d 945, 946 [3 Dept.rd 2006]; Patterson v. Empire Blue Cross & Blue Shield, 23 A.D.3d 870 [3rd Dept. 2005]; Castro v. Tishman Speyer Properties, 303 A.D.2d 790, 791 [3rd Dept. 2003]; Harrington v. L.C. Whitford Co. Inc., 302 A.D.2d 645, 647 [3rd Dept. 2003]; Sweeney v. New York State Staten Island Development Center, 194 A.D.2d 929, 930 [3 Dept. 1993]; Hinds v. Western Union Telegraphrd Co., 33 A.D.2d 583 [3 Dept. 1969]). Since the duration of disability is ard factual issue, in each of the above cases the courts applied a substantial evidence standard of review (see Harrington, 302 A.D.2d at 645). By contrast, if duration were a legal issue then the reviewing courts would have assessed whether the determination was an error of law, was arbitrary and capricious or an abuse of discretion (see Aides At Home, Inc. v. State, Workers' Compensation Bd., 76 A.D.3d 727 [3 Dept. 2010]). Thus, forrd decades the courts have consistently treated determinations regarding the duration of a disability as a factual question. 6 Collateral Estoppel Applies To Evidentiary Facts And Ultimate Facts Instead of addressing the foregoing cases, the plaintiffs argue that duration of disability is an âultimate factâ and collateral estoppel does not apply to ultimate facts. In doing so, however, the plaintiffs fail to address this Courtâs decisions which have held that collateral estoppel applies to both evidentiary and ultimate facts. In People v. Acevado (69 N.Y.2d 478, 487 [1987] [emphasis added]), this Court held in no uncertain terms that âcollateral estoppel, in principle, can bar relitigation of evidentiary, as well as ultimate, facts.â In fact, in Acevado the issue was not whether collateral estoppel can apply to ultimate facts. That was already accepted as a given. The issue was whether it can also be applied to evidentiary facts. The plaintiffs make no attempt to address Acevado in their brief. Morever, the history of the collateral estoppel doctrine shows that it has consistently been applied to ultimate facts, i.e. facts essential to the judgment (see McGrath v. Gold, 36 N.Y.2d 406, 411 [1975], citing Ashe v. Swenson, 397 U.S. 436, 443 [1970]). Again, the plaintiffs have not addressed any of these cases in their brief. Thus, the plaintiffsâ attempt to draw a distinction between evidentiary facts and ultimate facts for collateral estoppel purposes is one that does not exist in the law. 7 The plaintiffsâ attempt to characterize the WCLJ and WCB decisions as mixed questions of fact and law is also misguided. As previously stated,1 the courts have already held that duration of disability is a question of fact. As an issue of fact, whether it be characterized as an ultimate fact or an evidentiary fact, it is entitled to collateral estoppel effect in a subsequent The plaintiffs argue that the defendants cite only to federal cases to support the1 argument that collateral estoppel can apply to mixed questions of fact and law as well. The plaintiffs, however, do not address this Courtâs holding in McGrath (36 N.Y.2d at 411), in which it stated, â[a]s indicated in Ashe, an ultimate fact adjudged or determined in the previous litigation must be accepted by the same parties in subsequent litigation and collateral estoppel does not apply to an unmixed question of lawâ (citations omitted). First, by adopting Ashe (397 U.S. at 443), this Court adopted the federal approach. Second, by stating that collateral estoppel does not apply to unmixed questions of law, this Court thereby implied that mixed questions of fact and law could be given collateral estoppel effect. This Court then repeated that position in American Home Assurance Co. v. International Insurance Co. (90 N.Y.2d 433, 440 n. 1 [1997]. In American Home, this Court stated that while pure questions of law could not be given collateral estoppel effect, collateral estoppel is âtheoreticallyâ available for mixed questions of fact and law. The plaintiffs also fail to address this Courtâs holding in Ryan v. New York Telephone Co. (62 N.Y.2d 494 [1984]), one of the seminal cases on collateral estoppel and quasi-judicial proceedings. In Ryan, this Court stated that âthe determination of an issue of fact or law raised in subsequent action by reference to a previous judgment on a different cause of action in which the same issue was necessarily raised and decided is entitled to collateral estoppel effectâ (id. at 500 [emphasis added]). That holding is consistent with the Restatement (Second) of Judgments § 27 which also speaks of issues of âfact or law.â Thus, this Courtâs prior precedent certainly raises a question as whether mixed questions of fact and law are given preclusive effect or should be given preclusive effect. As stated in the Appellantsâ Brief on reargument that is a discussion worth having since this Courtâs decision states that mixed questions of fact and law should be given collateral estoppel effect. To be clear, however, resolving that question is not critical or essential to reaching the issues in this case. Here, the record plainly establishes that the WCLJ and WCB made a factual determination regarding the duration of the plaintiffâs disability, that factual determination is identical to the issue of lost earnings and future medical expenses in this case and the plaintiff had a full and fair opportunity to litigate these issues. 8 proceeding. Furthermore, the legal determination made by the WCLJ and WCB in this case was to discontinue benefits. That legal determination did not involve a question of law, as that was the only conclusion the WCLJ and WCB could reach based on its factual findings. Indeed, there is no evidence that the WCLJ or WCB resorted to any statute, rule, regulation or guideline in rendering its decision to discontinue benefits. Thus, the workersâ compensation proceedings in this case only presented a pure issue of fact. Moreover, even if duration of disability could be characterized as a mixed question of law and fact, as the plaintiffs concede the evidentiary facts upon which that conclusion is reached can be given collateral estoppel effect (see Matter of Engel v. Calgon Corp., 114 A.D.2d 108 [3 Dept. 1986], affâdrd 69 N.Y.2d 753 [1987]). Here, the WCLJ made a number of factual findings, including: (1) the plaintiff had no weakness, atrophy or spasms (R. 135); (2) the plaintiffâs MRIs were normal (R. 135); (3) the plaintiffâs cane was a mere âpropâ (R. 135); (4) the testimony of the plaintiffâs neuropsychologist, Dr. Kuhn, that the plaintiff had post-traumatic stress disorder causing a fear of construction sites was contradicted by the plaintiffâs visits to Dr. Kuhnâs office which was in a high construction area (R. 135); and (5) the plaintiff no longer had the injuries he claimed, could return to work and no longer needed medical treatment (R. 135). Moreover, the WCB recognized that it 9 was reviewing factual determinations made by the WCLJ (R. 130 [âThe determination of causally related disability is within the province of the WCLJ as the trier of fact. It is the WCLJâs function to resolve conflicting medical opinions; he or she is free to reject or accept any part based on its credibilityâ]). Thus, in this case whether the issue resolved for collateral estoppel purposes is considered duration of disability, injury or impairment, which is âa purely medical determination made by a medical professional, and is defined as any anatomic or functional abnormality or loss,â the result is the same (see Workersâ Compensation Board, New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity, p. 8 [2012]), the result is the same. To terminate benefits, the WCLJ and WCB had to find based on the credibility of the witnesses that Mr. Verdugo no longer had the injuries he claimed, that he could go back to work and that he longer needed medical treatment. These are the precise issues to be litigated in this personal injury action with respect to claims for lost earnings and future medical expenses and, therefore, the plaintiff should be barred from relitigating them in this proceeding. 10 The Issue Before The WCLJ And WCB Was Not Limited To Whether Plaintiff Could Return To Work At That Moment In response to the defendantsâ argument that the issues in the Workersâ Compensation proceedings are identical to the issues in these proceedings, the plaintiffs also argue that the only issue determined by the WCB was whether Mr. Verdugo could return to work at that time. That is simply incorrect. Here, the WCB found not only that the plaintiff was no longer disabled, but that he also had no further need for medical treatment (R. 130). Both of those factual findings go to the heart of the plaintiffsâ claim in this case for lost earnings and future medical expenses. Thus, contrary to the plaintiffsâ contention, the WCBâs decision extended beyond just his ability to return to work at that particular moment in time. Furthermore, the plaintiffs incorrectly argue that the Workersâ Compensation Law provides for a very narrow definition of âdisabilityâ that is limited to just the ability to return to work at that moment. âThe Workersâ Compensation Law does not contain a basic, general, or overall definition of âdisability,â which is a word of varied contentâ (see NYJUR Workers § 356). In Mastrodonato v. Pfaudler Co. (307 N.Y. 592, 597-598 (1954), this Court held that âgenerallyâ disability is reflected in a diminution of wage-earning ability. However, such is not the case 11 exclusively; it is not the case where disability is reflected in medical care required -- as in our present case -- for what is now more than a seven-year period. Where an employee is physically impaired as a result of an accident, it is not amiss to refer to such impairment as a disability. Our conclusion is that the term âdisabilityâ in the statute here involved refers to medical as well as financial impairment. Similarly in St. Pierre v. City of Syracuse (53 A.D.2d 44, 47 [4 Dept.th 1976]), the Court held that âwhile disability is generally reflected in a diminution of wage earning ability, such is not the sole factor considered. Rather, âdisabilityâ under that statute refers to medical as well as financial impairment.â Indeed, Workersâ Compensation Law § 13 requires an employer to bear the cost of medical care and treatment âfor such period as the nature of the injury or the process of recovery may requireâ (Kigin v. State Workersâ Compensation Board, 109 A.D.3d 299 [3 Dept. 2013]; Spyhalsky v. Crossrd Const., 294 A.D.2d 23 [3 Dept. 2002]). â[V]iewing . . . the purpose ofrd Workersâ Compensation Law § 13(a), it is clear that medical treatment must be provided âto render [him] whole, as nearly as could beâ or, in the words of the statute, as âthe process of recovery may requireââ (Spyhalsky, 294 A.D.2d at 26 [internal citations omitted] [emphasis added]). Thus, in order to recover medical costs under section 13 for a work-related accidental injury or occupational disease, there is no requirement that an employee establish 12 that he or she lost wages as a result of the injury or disease (see Acevedo v. Consolidated Edison Co. of New York, Inc., 189 A.D.2d 497, 502 [1 Dept.st 1993]). In addition, such awards can be made for life upon a finding of permanent total disability. Pursuant to Workers Compensation Law § 15(1) or (2) a finding of permanent total disability may be based upon medical and/or evidence that a claimant is entirely disabled from all forms of work that could theoretically exist. Benefits for total disability run for the duration of the claimantâs life (see Burns v. Varriale, 9 N.Y.3d 207 [2007]). 2 The plaintiffsâ contention, therefore, that the WCLJ is only focused on whether the plaintiff can return to work at that time, without regard to anything else is incorrect. The WCLJ must look at whether the plaintiff can return to work as well as whether the plaintiff needs medical treatment to restore him to his prior function. That is exactly what occurred here. In December 2005, the Workersâ Compensation carrier sought to discontinue all Notably, had the WCLJ merely found that the plaintiff was able to return to work2 in some capacity, but still had an injury, the appropriate determination would be that the plaintiff is permanently partially disabled which would have required a continuing award of medical benefits despite the termination or reduction of wage indemnity payments. Here, however, the WCLJ found no further disability and awarded no medical benefits. The denial of both shows that the WCLJ found that the plaintiff did not have a continuing injury. 13 benefits, contending that the plaintiff was no longer disabled (R. 113, 132). The hearing involved a conflict of medical opinions as to whether Mr. Verdugo still had the injuries he alleged. The plaintiffsâ experts opined that Mr. Verdugo was permanently totally disabled, in other words unable to return to work in any capacity and required medical care for life. The WCLJ and WCB rejected that opinion as not credible. As such they concluded that the plaintiff âhad no further disability after January 24, 2006 and no further need for treatmentâ (R. 130). Now the plaintiffs want to relitigate those same issues in this proceeding. The collateral estoppel doctrine, however, was created to prevent this very situation. 3 The Plaintiffsâ Proposed Bright-Line Rule Is Inconsistent With This Courtâs Precedent And Disregards The Realities Of The Litigation The plaintiffs argue that this Court should adopt a bright-line rule that disability is always an issue of ultimate fact to which collateral estoppel cannot apply (see Plaintiffs-Respondentsâ Brief on Reargument, p. 30). They The plaintiffsâ emphasis on potential differences in the amount of compensation3 available in Workersâ Compensation proceedings and personal injury actions is misguided. The issue here is not the amount of damages, but the period over which damages can be awarded. Duration of disability relates to whether injuries are temporary or permanent. Here, the plaintiffs argued that Mr. Verdugo had a permanent disability. The WCLJ and WCB rejected that testimony and discontinued his benefits. The differences in remedies only goes to whether the claimant had an incentive to litigate the issues. Given the substantial right and benefits afforded by Workersâ Compensation, it cannot be credibly argued that the claimants do not have an incentive to litigate. 14 also argue that an issue should be âclassified as an ultimate issue based on the issue presented, not on the manner in which the issue is resolvedâ (id. at p. 36). These rules, however, disregard this Courtâs jurisprudence. This Court has stated that collateral estoppel is not to be mechanically applied and no rigid rules are possible (see DâArata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664 [1990]; Staatsburg Water Co. v. Staatsburg Fire. Dist., 72 N.Y.2d 147, 153 [1988]). Rather, application of the collateral estoppel doctrine requires a case-by-case analysis of the facts and realities of a particular litigation (see Buechel v. Bain, 97 N.Y.2d 295, 303-304 [2001]). A bright-line rule that looks only at how the issue was stated and not at what was actually decided ignores the âfacts and realities of a particular litigation.â Furthermore, the plaintiffs speculate that in this case the WCLJ might have rejected their physicianâs testimony and opinion that the plaintiff was totally disabled from food delivery work given the low-level skill involved in performing such work. Such speculation, however, ignores the reality that what the WCLJ essentially found was that the plaintiff was feigning an injury. The WCLJ found that Mr. Verdugoâs cane was a âmere propâ because, even according to his own neurologist, he did not have a continuing injury or the need for a cane. The WCLJ also rejected Mr. Verdugoâs claim 15 that he was afraid of construction sites since his psychologistâs office was in a heavy construction area. Thus, the reality is that the WCLJ and WCB found that the plaintiff did not have the injuries alleged. Since he did not have the injuries alleged, he did not have a permanent injury. Since he did not have the injuries alleged, he could, as a matter of fact, return to work. Since he did not have the injuries alleged, as a matter of fact, he did not need future medical treatment. Those facts are the very facts that the plaintiff will have to prove in this action to establish a claim for lost earnings and future medical expenses. He should not have the opportunity to relitigate those issues in this proceeding. In fact, in a case where the plaintiff has appealed to the WCB; opposed a collateral estoppel motion; moved to reargue the collateral estoppel motion; attempted to circumvent the WCBâs determination by commencing a separate guardianship proceeding; moved to reopen the Workersâ Compensation proceeding; appealed to the First Department; and now seeks reargument in this Court asserting different arguments than raised throughout these proceedings, the plaintiffs are well beyond seeking a second bite of the apple and the litigation on this issue should come to an end. The Plaintiffs Had A Full And Fair Opportunity To Litigate The Issue The party opposing the application of the collateral estoppel doctrine bears the burden of establishing that it did not have a full and fair 16 opportunity to litigate the issue in the prior proceeding (see DâArata, 76 N.Y.2d at 664). Where the opposing party fails in this burden, he is collaterally estopped from relitigating the issue, and the prior decision becomes binding in the second proceeding (see Mahl v. Citibank, 234 A.D.2d 348 [2 Dept. 1996]). Here, the plaintiffs claim that they were deprived ofnd a full and fair opportunity to litigate these issues because the WCLJ allegedly rejected their request for neuropsychological testing and the 1996 Medical Guidelines precluded such testing. Both claims are without merit. Contrary to the plaintiffsâ contention, the Record does not contain any evidence of a request for neuropsychological testing that was denied. The only reference in the workersâ compensation proceedings to neuropsychological testing is as follows from Dr. Kuhnâs testimony (R. 187 [emphasis added]): Q How is the claimant doing, Doctor? Is he staying the same, getting worse, getting better? A I described it already. I said there was some improvement in some parameter, but he is still totally disabled. If you want to have a general assessment I would like to say that such injuries I would r e c o m m e n d t h e j u d g e t o a u t h o r i z e neuropsychological [sic] in Spanish. That would give an objective assessment of his deficits. Q We need such a battery to assess what his deficits are? 17 A We know his deficits, but it seems to me we have a severe disability here and the patient needs further care and no psychological evaluation is warranted. In actuality, therefore, Dr. Kuhn testified that if there was a need for a general assessment he would normally recommend neuropsychological testing in Spanish, but since here we know Mr. Verdugoâs deficits âno psychological evaluation is warrantedâ (R. 187). Thus, far from being an affirmative request for neuropsychological testing, Dr. Kuhn is actually saying they did not need it here. Dr. Francois, the plaintiffâs treating neurologist, also did not request neuropsychological testing. He merely stated that the plaintiff was already under the care of a neuropsychologist. Furthermore, looking beyond the transcript, it is evident the plaintiffs never requested the WCLJ or WCB order such testing or that they tried to submit Dr. Bonafinaâs testing to the WCLJ or WCB. In fact, if the plaintiffs had made such a request then surely they would have raised it in their request for appeal to the WCB. They made no mention, however, of this alleged request to have neuropsychological testing in their request for appeal to the WCB (R. 239-241). Surely they also would have tried to submit Dr. Bonafinaâs testing to the WCB, since it was available at that time. No evidence, however, has been offered that they attempted to submit her testing to the WCB, but were denied. Furthermore, if the plaintiffs had made a 18 request or believed that the court should have ordered testing based on a statement made by their expert, then that is a legal issue they could have raised on an Article 78 appeal. They did not, however, bring such an appeal. The argument, therefore, that the plaintiffs have all along claimed they were deprived of the chance to submit such testing is not supported by anything in the record. Furthermore, contrary to the plaintiffsâ contention, it is not the defendantsâ burden to prove that the plaintiffs had a full and fair opportunity to litigate the issue. That burden lies with the plaintiffs. It is the plaintiffsâ burden to establish that they were denied a full and fair opportunity to litigate the issue. Their failure to submit any actual evidence they were deprived of that chance because of a specific ruling by the WCLJ or WCB constitutes a failure to meet that burden The plaintiffs have also failed to prove that the 1996 Medical Guidelines precluded the plaintiff from requesting such testing. Rather the Guidelines state that for cases involving post-traumatic stress disorder, âsuch cases always have neuro-psychiatric and psychological evaluations and opinions in the file. There are also court hearing testimonies of psychiatrists and psychologists on recordâ (Workersâ Compensation Board, 1996 Medical 19 Impairment Guidelines, p. 42, available at http://www.wcb.ny.gov/content/ main/hcpp/mdguide.pdf [last accessed October 23, 2013]). The Guidelines also state that neurological and neurosurgical reports are âimportantâ in cases of head trauma (see id. at 35). A CT scan of the brain and MRI are âimportantâ to evaluate structural brain changes (id.). Thus, far from prohibiting neuropsychological testing, the Guidelines state the importance of such testing. The plaintiffs, therefore, have failed to meet their burden of proving that they were deprived of a full and fair opportunity to litigate these issues. POINT II THE HYPOTHETICAL âPOLICYâ CONCERNS RAISED BY THE PLAINTIFFS ARE BASED ON INCORRECT ASSUMPTIONS AND WITHOUT FOUNDATION. The WCBâs Determination Was Final As an initial matter, the plaintiffs claim that their finality argument is properly before this Court because it was raised below. The plaintiffs forget, however, that this matter is now before this Court on reargument. On reargument, the moving party cannot raise new issues that it did not previously raise to this Court (see People v. DâAlessandro, 13 N.Y.3d 216, 219 [2009], quoting People v. Bachert, 69 N.Y.2d 593, 597 [1987]). Indeed, 20 the very essence of a motion to reargue is the claim that the court overlooked or misapprehended an issue of law. A court cannot misapprehend or overlook an issue that was never raised (see DâAlessandro, 13 N.Y.3d at 219). A review of the plaintiffsâ initial brief to this Court shows that WCL § 123 was never cited. They also did not raise a lack of finality in any of their points and did not raise the issue during oral argument. Since the plaintiffs did not previously raise the finality argument with this Court, it is beyond the proper scope of review on reargument. Moreover, their lack of finality argument is without merit. This Court has already addressed the interplay between WCL § 123 and collateral estoppel in Werner (53 N.Y.2d at 352). In Werner, this Court held that until the WCB exercises its powers under Workersâ Compensation Law § 123, âits decision is final and conclusiveâ (id. at 352, n.2 [emphasis added]). The plaintiffs do not address Werner, which is controlling and establishes that the WCBâs decision is final for the purposes of the doctrine of collateral estoppel. With respect to finality, the plaintiffs also refer to Casas v. Consolidated Edison Co. of N.Y., Inc. (105 A.D.3d 471 [1 Dept. 2013]). st Their description of Casas, however, is incorrect. On June 23, 2013, this 21 Court denied the Casas plaintiff leave to appeal because the Appellate Divisionâs order was ânonfinalâ (21 N.Y.3d 999 [2013]). Since the case is nonfinal, the plaintiffs have not been left without the potential ability for a remedy. In fact, on September 27, 2013, Luis Casas moved to renew. That motion was returnable October 22, 2013 and is currently pending in Supreme Court. Plaintiffsâ counsel is certainly aware that motion has been made, since they are the same counsel as in the Casas case. It is unclear though why they did not mention in their brief that they had filed a motion to renew in the lower court, but instead chose to argue, âThe 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 WCBâs 2008 determination of no further casually related disability has eviscerated Mr. Casas' lost earnings and medical expense claims in the negligence suitâ (Plaintiffs-Respondentsâ Brief on Reargument, p. 54). They cannot assert that their claim has been eviscerated when they have a motion pending seeking to renew.4 The plaintiffsâ recitation of the procedural history in Casas is also unclear. To4 briefly clarify, the WCBâs decision to reopen occurred after the lower court ruled on the defendantsâ collateral estoppel motion. It was, therefore, not a part of the record on appeal to the Appellate Division and the issue has yet to be litigated. 22 In any event, the Casas case does not change this Courtâs prior holding in Werner that WCB decisions are final until the WCB exercises its power to reopen the claim and modifies its decision. This Courtâs Decision Will Not Force Injured Workers To Forgo Their Workersâ Compensation Benefits The plaintiffs argue that as a result of this Courtâs decision, injured workers will be forced to forgo pursuing a Workersâ Compensation claim in order to preserve their personal injury claim. This argument, however, makes a number of incorrect assumptions. First, it assumes that this Courtâs decision announced something new. For decades, however, it is has been the law in this State that factual determinations made by quasi-judicial bodies are entitled to collateral estoppel effect in subsequent proceedings (see Matter of Evans, 306 N.Y. at 323-324). Moreover, in Liss (68 N.Y.2d at 21), this Court held that collateral estoppel was applicable to Workersâ Compensation decisions stating that âany party to the hearing who had the required notice and opportunity to be heard (Workersâ Compensation Law § 25[3][b]) will be precluded from relitigating issues necessarily decided by the administrative Judgeâ (id.; see OâConnor, 55 N.Y.2d at 541 [settled principles of res judicata apply to administrative determinations when the agency is acting, 23 as does the Workersâ Compensation Board, in a quasi-judicial capacity]). This Court, therefore, did not pronounce new law; its ruling is consistent with the way the law has been for decades. As such, the plaintiffs should have âanticipatedâ that the WCBâs determination could be used as collateral estoppel âbecause under long-settled principles of collateral estoppel, the determination of administrative agencies are entitled to preclusive effectâ (Matter of Camperlengo v. Barell, 78 N.Y.2d 674, 680 [1991]; see Clemens v. Apple, 65 N.Y.2d 746, 749 [1985]). Second, by suggesting that plaintiffs will have to forgo Workersâ Compensation, their arguments presume, without any evidence in support, that the deck is stacked against injured workers in Workersâ Compensation proceedings. That allegation is disputed by Amici, Real Estate Board of New York, et. al., who frequently appear in workersâ compensation proceedings. In their brief, they state that âThe workersâ compensation system is already weighted heavily in favor of the injured workerâ (Brief for Amici Curiae, Real Estate Board of New York, et. al., p. 9). Third, the plaintiffsâ argument presents a false choice. There are numerous other alternatives to the extreme position plaintiffsâ counsel and the amici now seem to believe they should advise their clients to pursue. 24 The most straightforward and sensible solution is to present a strong and credible case to the Workersâ Compensation Board and pursue all available remedies. In all of their policy discussions, the plaintiffs seem to forget that in this case the plaintiff failed in that most basic duty. The plaintiffs simply failed to make a credible case. It is this failure that is at the heart of the decisions at issue. The purpose of the doctrine of collateral estoppel is to prevent a party from having a second bite at the apple after having had a full and fair opportunity to litigate an issue (see Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455 [1985]). That rule is especially applicable to Workersâ Compensation proceedings where an injured worker that is denied benefits can appeal to the WCB; commence an Article 78 proceeding; appeal an adverse decision on the Article 78 proceeding; move to reopen the case in the WCB; seek review of the denial of an application to reopen; and oppose a motion for collateral estoppel in the trial court based on the surrounding facts and circumstances, including that there is new evidence that was not previously available. Given all of these available avenues of redress for a potentially incorrect decision, to allow the plaintiff to completely start anew in the trial court and give the plaintiff yet another chance to prove that which 25 has been repeatedly rejected by other quasi-judicial and judicial bodies would undermine the very purpose of the collateral estoppel doctrine. Fourth, the plaintiffsâ argument presumes that every plaintiff has a valid claim and is essentially guaranteed a tort recovery. They fail to acknowledge, even the possibility, that perhaps the injured worker does not have a viable claim and has no right to future damages in a personal injury action. In fact, if a plaintiff is unsuccessful in all of the venues discussed above, then the only proper presumption is that they do not have a valid claim and should not be allowed to relitigate their claim in a different forum. There is also no guarantee that a plaintiff will succeed in a personal injury action or that the jury will award the plaintiff a specific amount of damages. Thus, to advise a client to forgo a statutory benefit in exchange for an uncertain recovery is risky business and certainly not in the injured workersâ best interests. Fifth, and finally, the plaintiffsâ argument that workers will forgo their benefits and overtax other government programs is without foundation. As amici the Federation of Defense and Corporate counsel demonstrated in their brief, numerous states have already held that workersâ compensation 26 determinations can be used as collateral estoppel in subsequent personal injury actions (see Brief as Amicus Curiae, Federation of Defense and Corporate Counsel, pp. 9-10). The plaintiffs have presented no evidence that those States have experienced any of the problems the plaintiffs allege will follow this Courtâs decision. Thus, their argument is without foundation. In the end, the implication of this Courtâs decision is not for an injured worker to forgo Workersâ Compensation benefits, but to have or present a better, more credible case. If the injured worker has a valid claim, then he/she should make that claim in the strongest terms to the Workersâ Compensation Board and then pursue all potential remedies in the event of an adverse determination. Here, the plaintiff failed to make a credible case, failed to succeed in having that determination overturned and should not be given yet a further opportunity to retry these issues. The Defendants Are Not Proposing A Bright-Line Rule That All Duration Of Disability Determinations Must Be Given Collateral Estoppel Effect The plaintiffsâ policy argument appears to stem from a misconception about the defendantsâ arguments and this Courtâs decision. According to the plaintiffs, the defendants ask the Court to adopt a bright-line rule that all determinations of further causally related disability must be given collateral 27 estoppel effect. The defendants, however, are not advocating for, nor have they ever advocated for a bright-line rule. As the defendants have repeatedly pointed out, such a bright-line rule would be inconsistent with this Courtâs precedent establishing that collateral estoppel is a flexible doctrine that depends on the facts and circumstances of each case. Thus, in subsequent cases, the courts would apply the same test they have always applied, which includes: (1) whether a factual determination was actually litigated and necessarily decided in the prior proceeding; (2) whether it is identical to the issues raised in the current proceedings; and (3) whether the plaintiff had a full and fair opportunity to litigate the issue. In contrast, the plaintiffs propose a bright-line rule that collateral estoppel can never apply to disability determinations. Their justification for such an argument, however, would also support a brightâline rule with respect to determinations made in other administrative or quasi-judicial proceedings, such as no-fault arbitrations. And yet, the plaintiffs do not propose a bright-line rule for those cases. Instead, they have accepted the idea that determinations in no-fault arbitrations regarding the presence or absence of an injury can be given collateral estoppel effect in a subsequent civil proceeding (see Hasapidis Affirmation in opposition to motion for leave to appear as amicus curiae, dated October 15, 2013, ¶ 17). The same 28 rationale applies in this case. In this case, the WCLJ and WCB found that Mr. Verdugo had recovered from his injuries, or said differently, no longer had the injuries he claimed. That factual finding like the finding in Barnett v. Ives (265 A.D.2d 865 [4th Dept. 1999]), that âthe plaintiff recovered from the injuries sustained in a motor vehicle accidentâ preclude a claim for future lost earnings and future medical expenses in this case. Furthermore, while the plaintiffs claim that they do not seek by their bright-line rule to bar the application of the collateral estoppel doctrine in all Workers' Compensation cases, that is the necessary implication of their arguments. It is also certainly the implication of the arguments by certain amici. If the plaintiffsâ argument is that a WCLJ and WCB decision is never final because it can perpetually be revisited, then any finding could be subject to change and collateral estoppel would not apply. Further, if their argument is that disability is a mixed question of fact and law because all agency decisions, whether stated or unstated, âare imbued with policy considerations as well as the expertise of the agencyâ (p. 34), then that could be said about every agency decision on any issue. Thus, while the plaintiffs recognize that advocating for a position to bar the use of collateral estoppel as to all Workersâ Compensation determinations would require this Court to overturn decades of precedent, they fail to take their arguments to their 29 natural and logical conclusion. Indeed, their arguments would require a wholesale exception for Workersâ Compensation cases, which is contrary to this Courtâs well-established precedent. 30 CONCLUSION For all of the reasons set forth above, and for the reasons set forth in the defendants' prior briefs to this Court, this Court should adhere to its original determination, as set forth in its Decision and Order dated February 14, 2013, precluding the plaintiffs from relitigating whether Mr. Verdugo had an ongoing disability after January 24, 2006 with one factual correction. This Court should modify its Decision and Order dated February 14, 2013 so as to delete that portion which states, "other than for post-traumatic stress disorder." Finally, it would seem that this Court should also modify that portion of its February 14, 2013 Decision and Order which states that collateral estoppel does not apply to mixed questions of fact and law, together with such other and further relief as this Court deems just and proper. Respectfully submitted, MAURO LILLING NAPARTY LLP By:~4- 130 Crossways Park Drive, Suite 100 Woodbury, New York 11797 (516) 487-5800 Appellate Counsel to: Fabiani Cohen & Hall, LLP Attorneys for Defendants-Appellants 31 Seven Thirty One Limited Partnership, Bovis Lend Lease LMB, Inc., and North Side Structures, Inc. Of Counsel MATTHEW W. NAPARTY RICHARD J. MONTES 32