Hamberger & Weiss LLP

June Appellate Division Decisions of Note

Issue: Burden of Proof for Causal Relationship

In Hartigan v. Albany County Sheriff’s Dep’t, the Court reminded the Board that “possibly” does not mean the same thing as “causally related.” The Court reversed the Board’s establishment of this heart attack claim, noting that the cardiologist's non-committal comment on causal relationship that “stress can be [an] aggravating factor in the presence of risk factors” was far short of the standard required for causal relationship, namely, “medical opinion evidence regarding the probability of a causal relationship supported by a rational basis.” The treating cardiologist’s mere statement of possibility here wasn’t enough to meet the standard.

In Pinkhasov v. Auto One Insurance, the Court reversed the Board’s award of temporary total disability benefits to a claimant after a lumbar fusion surgery. The surgery took place years after the case closed on SLU awards. The Board authorized the surgery by “Order of the Chair” rendering that direction non-appealable but the carrier objected to lost time awards following the surgery, noting that it had medical records and an IME describing other medical conditions that could have precipitated the need for the claimant’s lumbar fusion surgery, most importantly a fall at home that occurred one day prior to the surgery. Given the absence of competent evidence of causal relationship, the Court reversed the award of temporary total disability benefits to the claimant subsequent to the surgery.

Issue: Penalty for Fraud

In Martinez v. Kingston City School District, the Court affirmed the Board’s finding of WCL Section 114-a fraud but rescinded the Board’s disqualification of the claimant’s future indemnity benefits pending an explanation from the Board as to why that penalty was warranted. The Court remitted the case to the Board with a direction to provide that explanation.

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