In re Circuit Electric, Inc., 020320 NYWC, G1785990
| Case Date | February 03, 2020 |
| Court | New York |
1. whether the carrier's application for administrative review should have been considered;
2. whether claimant's accident occurred in the course of his employment; and
3. whether claimant violated Workers' Compensation Law (WCL) § 114-a(1).The Workers' Compensation Law Judge (WCLJ) found that the claimant was in the course of his employment when the accident occurred, established the claim, and found that the claimant did not violate WCL § 114-a(1). The Board Panel majority considered the carrier's application for administrative review and disallowed the claim, finding the accident did not arise out of and in the course of claimant's employment. Because the claim was disallowed, the majority did not address the issue of whether claimant violated WCL § 114-a(1). The dissenting Board Panel member would deny the carrier's application for review because it failed to sufficiently explain why the attached brief exceeded eight pages in length. The claimant filed an application for Mandatory Full Board Review on October 18, 2018, arguing that his accident arose out of and in the course of his employment and requests that the WCLJ decision be affirmed. Claimant contends that he was an outside employee entitled to portal-to-portal coverage. Claimant further argues that he was in the course of his employment because the employer continued to exercise control over him during his lunch break. Claimant contends that the issue of WCL § 114-a(1) was not timely raised and developed and it would be premature to find that claimant violated WCL § 114-a(1). Finally, claimant argues that the carrier's application for review should have been denied because the carrier failed to adequately explain why its brief could not have been limited to eight pages. The carrier filed a rebuttal on November 15, 2018, arguing that the decision of the Board Panel majority should be adopted by the Full Board. Upon review, the Full Board votes to adopt the following findings and conclusions. FACTS On July 21, 2017, claimant filed a C-3 (Employee Claim), alleging that he was in a work-related motor vehicle accident at 12:30 pm on July 7, 2017. Claimant alleged that he injured his head (concussion/head pain), upper, mid and lower back, neck, left shoulder, left elbow and left wrist as a result of the accident. The carrier controverted the claim, arguing that the accident was not compensable because it occurred on claimant's lunch hour. On November 13, 2017, claimant was examined by the carrier's consulting physician, Dr. D'Ambrosio, who found that claimant had causally related injuries to his neck, back, left shoulder, left elbow, left wrist and left knee. Attached to Dr. D'Ambrosio's report was a two-page Patient Information Sheet in which claimant answered "No" to the question: "Have you ever been injured in a previous incident?" Claimant and an employer witness testified at a hearing on November 16, 2017. Claimant testified that on July 7, 2017, he had finished a job in Coram, New York, and was going to get a drink while driving to his next job when he was involved in a motor vehicle accident. Claimant explained that although both jobs were on the same property, you had "to drive around the property, get off, go around and go back into the back of the property" (Hearing Transcript, 11/16/17, p. 4). A friend took him to Good Samaritan Hospital after the accident. On cross-examination, claimant testified that his job title was junior mechanic. His work schedule was 7:30 am to 4:30 pm, Monday through...
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