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Comp Decision Affects PI Claim

Comp Decision Affects PI Claim

 State: NY


Attorney: Decision Barring Part of PI Suit Has Big Consequences


A high court decision that a workers' compensation ruling barred a significant part of a deliveryman's personal injury suit could change how attorneys handle work injury cases with multiple parties, according to the plaintiff's attorney on the case.


The New York Court of Appeals decided that Jose Verdugo could not continue pursuing part of his personal injury suit against a property owner because the Workers' Compensation Board had already addressed the same issues in a 2006 decision.


A majority of the high court concluded that the longstanding doctrine of collateral estoppel, which bars the relitigation of issues that have already been adjudicated, applied to the case. The court determined that Verdugo could not litigate issues such as wage loss, ability to work, and medical expenses in his personal injury suit against a property owner, because those same issues had already been explored in the workers' compensation proceeding against Verdugo's employer. The case title is  Auqui v. Seven Thirty One LP, No. 18, 2/14/13, published.


Annette Hasapidis, the attorney who represented Verdugo, said the decision will have significant  public policy implications.


"For the first time, workers will have to consult a personal injury attorney before they decide whether to seek benefits in the workers' compensation scheme, or sometimes even perhaps withdraw a claim for (workers' compensation) benefits, in order to pursue claims for injuries against a tortfeasor in a proceeding where they are not limited by workers' compensation regulations," she said.


Workers' compensation statutes and regulations limit parties' medical experts, which caused problems in Verdugo's personal injury case.


"Only physicians can appear, and only certain testing is authorized, and that can hamper a worker's ability to prove his case," Hasapidis said. "In my case, the two physicians who testified for Mr. Verdugo, had testified that although they were neurologists, Mr. Verdugo was suffering from a neurological deficit that they could not identify without further testing and examination from a neuropsychologist."


Verdugo had asked the Workers' Compensation Board to order testing from a Spanish-speaking neuropsychologist.


"Rather than grant that testing request, they terminated his benefits," she said. "In a personal injury action, a plaintiff would not be so limited, and would be able to present such evidence. There are severe implications for a personal injury plaintiff who also has a workers' compensation claim. You may actually see people declining to pursue workers' compensation benefits."

Hasapidis pointed out that opting to file a civil suit for a work injury frustrates the general intent of the workers' compensation scheme, which was created to reduce civil litigation for work-related injuries. In cases where workers still choose to file workers' compensation claims, Hasapidis believes that claimants' attorneys will now have to take greater care to depose medical experts about whether the injured worker has fully recuperated from all aspects of their physical injury.


"Workers' compensation attorneys will probably have to work very hard to ensure that testimony that is elicited during those proceedings relates to whether or not the injury prevents somebody from working, but not whether or not the person is still suffering from the injury," she said. "It remains to be seen whether or not eliciting such medical testimony from the witnesses will enable an injured worker to bypass the very harsh result in the Auqui case."


Hasapidis acknowledged that the factual circumstances of Verdugo's case is relatively common in the state of New York, as construction workers regularly sue property owners and other contractors who are not their employer for work-related injuries.


Verdugo, a food service deliveryman, was injured on Dec. 24, 2003, when a sheet of plywood fell from a building owned by Seven Thirty One LP. He began receiving workers' compensation benefits and subsequently filed a personal injury suit against Seven Thirty One in 2004.


The Workers' Compensation Board discontinued Verdugo's benefits after concluding that he was no longer disabled as of Jan. 24, 2006, and later affirmed its own ruling in February 2007. Citing the board's decision, Seven Thirty One argued that collateral estoppel barred several of the key issues of Verdugo's personal injury suit. The Court of Appeals effectively granted Seven Thirty One's motion in Thursday's decision.


"The determination of the WCB should be given preclusive effect as to the duration of plaintiff's disability, relevant to lost earnings and compensation for medical expenses," the majority wrote.


"The issue of continuing benefits before the administrative agency necessarily turned upon whether Jose Verdugo had an ongoing disability after a certain date, which is a question of fact, as distinguished from a legal conclusion and a conclusion of mixed law and fact. We also find that plaintiffs had a full and fair opportunity to litigate the issue of ongoing disability in the 2006 WC proceedings. Plaintiff was represented by counsel, submitted medical reports, presented expert testimony and cross-examined the defendants' experts regarding the issue of whether or not there was an ongoing disability."


Court of Appeals Judge Eugene Pigott wrote the lone dissent, arguing that Verdugo should be able to litigate all of the issues about his ability to work, lost earnings and medical expenses.

Pigott's dissent showed why the workers' compensation claim and personal injury suit examined  different issues, Hasapidis said. She noted that workers' compensation proceedings tend to focus on whether an injured worker is capable of returning to work, whereas personal injury suits tend to focus on the larger issue of all of the consequences of the injury, and whether the worker has fully recovered from it.


Richard Montes, the property owner's attorney on the case, did not return a request for comment.


To read the decision, click here.


Source: WorkCompCentral

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