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Employer Withheld News Of Hepatitis C

Dismissal of Worker's Tort Claim for Hep. C Infection Overturned:

A New York appellate court ruled that a trial judge erred in dismissing a worker's claim for civil damages based on his having contracted Hepatitis C and ordered that the matter be directed to the Workers' Compensation Board to determine whether the action should be barred by exclusivity.

Case: Gullo v. Bellhaven Center for Geriatric & Rehabilitative Care, No. 2012-11228, 02/26/2014, published.

Facts: Lenny Gullo worked for the Bellhaven Center for Geriatric and Rehabilitative Care, which does business as the Bellhaven Nursing Center.

After about a year on the job, in 2005, Gullo underwent a routine employee blood test. Gullo tested positive for the Hepatitis C antibody, but he was not informed of the test result until 2009.

Procedural History: Gullo, with his wife and daughter, sued Bellhaven, seeking tort damages for injuries he allegedly suffered caused by the delay in diagnosing his condition.

Bellhaven moved for the dismissal of his complaint, asserting that workers' compensation was Gullo's only remedy.

Suffolk County Supreme Court Justice Thomas F. Whelan agreed and granted Bellhaven's motion.

Analysis: The Appellate Division's 2nd Department explained that under New York law, the Workers' Compensation Board has primary jurisdiction over the issue of the availability of workers' compensation coverage, and if a plaintiff fails to litigate that issue before the Board, a court should not express an opinion as to the availability of compensation, but remit the matter to the Board.

In this case, the court said it could not tell from the record if Gullo had filed a comp claim, but it was undisputed that there has been no determination by the Board as to whether Gullo is entitled to Workers' Compensation benefits for his injuries.

Accordingly, the court said the Supreme Court justice should have referred the case to the Board for a determination as to whether the plaintiffs have a valid cause of action for damages, or whether Gullo is limited to benefits under the Workers' Compensation Law, and not decided the issue himself.

Disposition: Reversed and remitted.

To read the decision, click here.

Source: WorkCompCentral

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