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Benefits and Burdens of the Workers Compensation Bar (NY)

December 12, 2019

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<p style="text-align: justify;">The Worker’s Compensation bar can be a blessing or a curse.  On the one hand, it prevents an employer from direct personal injury suits from employees, however, this can be contracted around.  On the other hand, once the Worker’s Compensation Board has made a finding that the plaintiff is an employee of a party, that party is collaterally estopped from arguing to the contrary in a personal injury action.</p>
<p style="text-align: justify;">In <em><a href="">Bello v. City of New York (2019 NY Slip Op 08646)</a><a href=""></a>,</em> the bar worked to the benefit of defendants.  Plaintiff, Eric Rosen, allegedly sustained injuries in a motor vehicle accident while working as a volunteer auxiliary police officer for the NYPD.  On the date of the accident, an NYPD sergeant submitted a claim on behalf of Rosen to the NYPD’s worker’s compensation carrier, which was subsequently approved.  Rosen objected to his classification as an NYPD employee, however, he received the worker’s compensation benefits.  Rosen subsequently commenced a personal injury action against the City of New York and defendants moved for summary judgment based on the exclusivity provisions of the Worker’s Compensation Law.  Summary judgment was granted and plaintiff appealed.</p>
<p style="text-align: justify;">The Second Department affirmed in a decision stating that “The issue of whether a plaintiff was acting as an employee of a defendant at the time of the injury is question of fact to be resolved by the Board.”  Once that finding is made, it is up to the employee or employer to petition the Board for reconsideration and it cannot be re-litigated in the courts.</p>
<p style="text-align: justify;">As a practice point, it is always key to thoroughly investigate the Worker’s Compensation Board’s findings when formulating defenses.</p>
<p style="text-align: justify;">Thanks to Mehreen Hayat for her contribution to this post.  please email <a href="">Brian Gibbons</a> with any questions.</p>

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