Hamberger & Weiss LLP


Appellate Division Cases of Note

Grover v. State Insurance Fund

On 10/4/18, the Appellate Division decided Grover v. State Insurance Fund, affirming a Board Panel finding that a claimant injured in the public section of a parking garage did not experience an injury arising out of and in the course of employment even when the employer paid for claimant’s parking and encouraged its employees to park in a designated section of the garage set aside for them. The majority in this split decision relied on the fact that the injury occurred in a public section of the garage rather than the location designated for the employer’s personnel to park, such that all members of the public shared the same risk of potential injury in the location of claimant’s accident.
Two dissenting judges disagreed and would have reversed the Board Panel’s decision, stating they believed these facts established a compensable claim as a matter of law under the Court’s prior decision in Thatcher v. Crouse-Irving Memorial Hospital, 253 A.D.2d 990 (3d Dep’t 1998), leaving no discretion for the Board to find otherwise. Because two judges dissented in this decision, the claimant has an automatic right to appeal to New York State’s highest Appellate Court, the New York Court of Appeals. The claimant’s attorney has indicated he will likely perfect an appeal to the Court of Appeals. Assuming the claimant does so, a decision can be expected sometime next year on this case.

For questions about this decision, please contact our partner, Joseph DeCoursey, who litigated the case and wrote the appeals for the carrier.
Haven v. F & F Custom Construction Inc.

On 10/11/18, the Appellate Division decided Haven v. F & F Custom Construction Inc.  This decision reaffirms the Court’s holding in Parody v. Old Dominion Freight Line, 157 A.D. 3d 1118 (2018), which we reported on in January 2018.  Parody held that the Board may apply the medical evidence in the record to the schedule loss of use guidelines to determine its own schedule loss of use assessment even if that assessment differs from the schedule loss of use opinions given by the doctors in the record. This is now the second decision in which the Court has applied this rule, confirming that Parody was not an anomaly. These decisions can be used by our clients to their benefit in those cases where a claimant’s physician gives a clearly erroneous SLU opinion under the Board’s Impairment Guidelines. For example, if a physician opines an SLU higher than that contemplated by the tables in the Impairment Guidelines, the carrier could simply argue for the correct SLU finding under the Impairment Guidelines, using the physician’s own range of motion findings instead of obtaining an IME. These decisions allow the WCLJ to find a SLU supported by the record instead of being stuck with the ultimate SLU opined by the physician.

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