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 Index No. 100232/04 QCourt of ~ppeals of tbt ~tate of jietu ~ork MARIA AU QUI, as Guardian of the Property of JOSE VERDUGO, and MARIA VERDUGO, Plaintiffs-Respondents, -against- SEVEN THIRTY ONE LIMITED PARTNERSHIP, BOVIS LEND LEASE LMB, INC. and NORTH SIDE STRUCTURES, INC., Defendants-Appellants. BRIEF OF AMICUS CURIAE MAKE THE ROAD NEW YORK IN SUPPORT OF PLAINTIFFS-APPELLANTS ON REARGUMENT MAKE THE ROAD NEW YORK 92-10 Roosevelt A venue Jackson Heights, New York 11372 Telephone: (718) 565-8500 Facsimile: (718) 565-0646 Counsel for Movant Make the Road New York: Magdalena Barbosa Date Completed: October 10, 2013 TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES .................................................................................... .ii PRELIMINARY STATEMENT ............................................................................... ! RELEVANTFACTS ................................................................................................. 2 ARGUMENT ............................................................................................................. 3 THIS COURT'S PRIOR HOLDING NEGATES THE VERY PURPOSE OF THE WORKERS COMPENSATION LAW BY DECREASING THE LIKELIHOOD THAT INJURED WORKERS WILL PURSUE VALID CLAIMS .................................................... 3 DETERMINATIONS OF THE WCB ADDRESSING THE DURATION OF AN INJURED WORKERS DISABILITY SHOULD NOT HAVE PRECLUSIVE EFFECT BECAUSE THEY LACK FINALITY ........................................................................................ 5 CONCLUSION .......................................................................................................... 8 i TABLE OF AUmORITIES Cases Brugman v. City of New York, 102 A.D.2d 413 (1st Dep't 1984) ............................. 5 Casas v Consol. Edison Co. of New York, Inc., 105 A.D.3d 471 (1st Dep't), lv. to appeal dismissed, 21 N.Y.3d 999 (2013) .......................................... 6, 7 Johannesen v. New York City Dept. of Housing Preservation and Development, 84 N.Y.2d 129 (1994) ..................................................................................... 3 Matter of Post v. Burger & Gohlkel. 216 N.Y. 544 (1916) ........................................ 3 Ott v. Barash, 109 A.D.2d 254 (2d Dep't 1985) ....................................................... 5 Statutes Workers' Compensation Law§ 32 ............................................................................ 6 Workers' Compensation Law§ 123 .......................................................................... 6 11 PRELIMINARY STATEMENT Make the Road New York uses a range of strategies - from litigation to legislative advocacy and community organizing - to address the issues and concerns of immigrant communities throughout New York State. Two of the most central issues to these communities are access to health care and economic stability. Workers Compensation, introduced in response to the Triangle Shirtwaist Factor fire in 1911, is intended to ensure that workers injured on the job maintain some income and receive the medical treatment they need. As such, any changes to the workers compensation law, or how it is applied, have a significant impact on immigrant workers, who tend work in the some of the most dangerous industries and often suffer workplace injuries, and could all too easily undermine a critical safety net for these workers and their families. Make the Road New York is deeply concerned that this Court's pnor decision in the Auqui case could have a significant negative impact on workers throughout the state who rely upon the protections of the workers' compensation system. And while we are heartened by this Court's decision to take a second look at the Auqui ruling, with this brief we seek to emphasize the importance of setting aside this Court's prior decision and affirming the First Department's ruling that denied application of the collateral estoppel doctrine to determinations of the 1 Workers Compensation Board (WCB) as to the duration of an injured worker's disability. RELEVANT FACTS On December 24, 2003, a sheet of plywood struck plaintiff Jose Verdugo while attending to his tasks as a food service deliveryman, causing injuries to plaintiffs head, neck, and back. Plaintiff also suffered post-traumatic stress disorder and depression. The plywood originated by a building under construction owned by defendant Seven Thirty One Limited Partnership. Plaintiff began receiving workers compensation payments from defendant employer's insurance carrier for his injuries. In 2004, while receiving workers compensation payments, plaintiff also brought a third party personal injury action in Supreme Court, New York County for compensation to pay for his medical expenses resulting from said injury. In December of 2005, the insurance carrier for plaintiff's employer moved to terminate disability benefits. Despite medical expert testimony submitted by plaintiff showing that he was still disabled, the administrative law judge ("AU") terminated plaintiffs benefits on January 24, 2006. On February 1, 2007, the WCB affirmed the decision of the AU. Defendants then moved in Supreme Court to preclude plaintiff from litigating the duration of his work-related injury in the third party action, which was granted by 2 the Supreme Court. The Appellate Division, First Department reversed the lower court's decision, but this Court upheld the decision of the Supreme Court in applying the doctrine of collateral estoppel in the third party claim. Subsequently, this Court granted plaintiffs-appellants' motion for re-argument. ARGUMENT THIS COURT'S PRIOR HOLDING NEGATES THE VERY PURPOSE OF THE WORKERS COMPENSATION LAW BY DECREASING THE LIKELIHOOD THAT INJURED WORKERS WILL PURSUE VALID CLAIMS "The Workers' Compensation Law ("WCL") was enacted for socioeconomic remediation purposes 'as a means of protecting work[ers] and their dependents from want in case of injury on the job. " Johannesen v. New York City Dept. of Housing Preservation and Development, 84 N.Y.2d 129, 134 (1994) (quoting Matter of Post v. Burger & Gohlkel. 216 N.Y. 544, 553 (1916). This central policy objective of the WCL has stood the test of time; it is as important in 2013 as it was in 1916. This Court's prior ruling in Auqui, for the frrst time in almost a century of litigation under the WCL, applied the doctrine of collateral estoppel to decisions of the WCB on duration of disability, risks seriously weakening this critical protection for injured workers. Fewer injured workers will pursue workers compensation claims to avoid the risk of being precluded from obtaining full and 3 fair justice in a third party action. They will thus lose their benefits and will be forced to rely on emergency room care and public assistance. First, the Court's current holding in Auqui will make the workers compensation process more adversarial by giving insurance carriers nothing to lose by contesting an individual's workers compensation claim. Even if the insurance carrier has little or no evidence to support the denial of benefits, an injured worker would be far less likely to appeal that denial if the result could end their third-party action because of the collateral estoppel doctrine adopted in Auqui. For the majority of workers who have little knowledge of the law and may be afraid to consult attorneys for fear of repercussions from employers, having their workers compensation claim fiercely contested is a daunting roadblock. Second, low-income families, particularly those of immigrant workers who disproportionately hold jobs that pay minimum wage or low wage with little benefits, frequently live paycheck to paycheck at or near poverty level. As more workers compensation claims are contested, with insurance carriers taking full advantage of the Auqui ruling, more workers compensation claims will be delayed. For these most vulnerable injured workers, each day that passes without workers compensation benefits is a crushing financial blow that harms both the worker and their family. 4 Finally, Auqui forces low-income and immigrant workers into the unenviable position of bringing a workers compensation claim with the possibility of being estopped from pursuing a third party claim, or alternatively to forgo the workers compensation claim and pursue the third party action which may take years before reaching resolution. The former choice potentially excludes low income and immigrant workers from seeking justice through the court system. The latter requires workers to dip into what little savings they may have in order to pay for medical expenses, or else rely on emergency room care and Medicaid, while the third-party action remains pending- perhaps for years- on a court's docket. DETERMINATIONS OF THE WCB ADDRESSING THE DURATION OF AN INJURED WORKERS DISABILITY SHOULD NOT HAVE PRECLUSIVE EFFECT BECAUSE THEY LACK FINALITY Given the policy implications of the Auqui ruling, it is worth re-visiting the questions as to whether the application of collateral estoppel in these circumstances is appropriate. No party questions the general rule that collateral estoppel may be applied "to determinations of administrative agencies rendered pursuant to their adjudicatory functions." Brugman v. City of New York, 102 A.D.2d 413, 415 (1st Dep't 1984). However, "a general prerequisite to invocation of ... collateral estoppel is the existence of a final judgment." Ott v. Barash, 109 A.D.2d 254, 262 (2d Dep't 1985) (emphasis added). This rule is critically important if collateral 5 estoppel is to be applied fairly; it is unreasonable to permanently bar a party from seeking justice through the courts on the basis of an administrative determination that could be changed or amended at any time. In the case of WCB determinations of disability, there can be no final judgment sufficient to warrant granting such a determination preclusive effect. The legislature expressly granted the WCB continuing jurisdiction under Workers Compensation Law§ 123. As a result, claims can be re-opened years later and, if adequate proof is presented a WCB determination can be reversed. In fact, unless a final settlement is reached, under Workers Compensation Law § 32, between an injured worker and their employer, the injured worker's ongoing disability can always be subject to review by the WCB. As such, applying collateral estoppel to a decision of the WCB in this case is deeply unjust. Verdugo could be barred from seeking justice through this third-party action by the application of collateral estoppel, only to have the WCB re-open his case years later and reverse the very decision that led to that estoppel. Verdugo would have no recourse to re-address these issues in court and would be denied his right to seek justice through the civil justice system. Such an outcome is far from merely hypothetical. In Casas the First Department, on the strength of the Auqui decision found a WCB determination as to the plaintiffs lack of disability was entitled to preclusive effect. Casas v Consol. 6 Edison Co. of New York, Inc., 105 A.D.3d 471 (1st Dep't), lv. to appeal dismissed, 21 N.Y.3d 999 (2013). Shortly after that ruling Casas' case was re-opened by the WCB, which reversed their initial determination and found the plaintiff permanently totally disabled, awarding benefits dating back to the original, negative determination. The outcome of the Casas case demonstrates both the lack of finality that should preclude the application of collateral estoppel to WCB determinations of disability, and demonstrates why a final judgment is necessary before granting estoppel effect. Courts should not be ruling on dispositive issues based on WCB determinations that may ultimately prove illusory. 7 CONCLUSION For the foregoing reasons we respectfully urge this Court to reverse its Decision and Order dated February 14, 2013, and affirm the Decision and Order of the Appellate Division, First Department, dated April 5, 2011. Dated: Queens County, New York October 10, 2013 Respectfully submitted, Make the Road New York 8 Ma alena Barbosa, Esq. Attorney for Movant Make the Road New York 92-10 Roosevelt A venue Jackson Heights, New York 11372 Telephone: (718) 565-8500 Facsimile: (718) 565-0646