Kaminski v. Integrated Structures Corp.

207 N.Y.S.3d 717

225 A.D.3d 1077

In the Matter of the Claim of Zygmunt KAMINSKI, Respondent,

v.INTEGRATED STRUCTURES CORP. et al., Appellants.

Workers’ Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 14, 2024

Decided and Entered: March 21, 2024

O’Connell Zavelo LLC, Brooklyn (Anne O’Connell Zavelo of counsel), for appellants.

The Weinstein Law Group, PLLC, New York City (Rudolf B. Radna of counsel), for Zygmunt Kaminski, respondent.

Letitia James, Attorney General, New York City (Marjorie S. Leff of counsel), for Workers’ Compensation Board, respondent.

Before: Egan Jr., J.P., Aarons, Pritzker, McShan and Mackey, JJ.

MEMORANDUM AND ORDER

McShan, J.

Appeal from a decision of the Workers’ Compensation Board, filed November 16, 2022, which ruled, among other things, that res judicata barred relitigation of the finding that claimant was entitled to 24–hour home health care.

In April 2015, claimant, a construction worker and machinist, fell approximately 20 feet from scaffolding, which resulted in catastrophic injuries and, for several weeks, left claimant in a comatose state. Claimant’s ensuing workers’ compensation claim was established for injuries to the head, right eye/orbit, bilateral wrists, bilateral ankles, a traumatic brain injury, bilateral hearing loss, neck, back, bilateral hips, left eye, right lung, right inguinal hernia, reactive depression, dermatitis and teeth. In July 2017, a Workers’ Compensation Law Judge (hereinafter WCLJ) amended the claim to include both shoulders and knees and found claimant to be permanently totally disabled as a result of his work-related injury. In October 2017, a WCLJ authorized 24–hour home care for claimant pending an independent medical examination (hereinafter IME). Following the submission of an IME from a neuropsychiatric consultant retained by the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier), the Workers’ Compensation Board ultimately sustained the prior finding by the WCLJ in a July 2018 determination, finding that claimant had a permanent total disability and authorized 24–hour home health care for claimant because of his conditions and inability to perform activities of daily living.¹

In March 2022, the carrier filed a request for further action (form RFA-2) alleging that claimant had failed to attend multiple IMEs. Shortly thereafter, the carrier’s consulting neurologist submitted a medical report in which he addressed the question of continued 24–hour home health care and concluded that it was clinically appropriate for claimant to receive only 16 hours of home health care per day. Following a hearing, a WCLJ denied the carrier’s request to further develop the record, finding that the Board’s authorization of 24–hour home health care for claimant was a matter already litigated and conclusively resolved in the Board’s prior December 2017 decision and that no material change in claimant’s condition was demonstrated. Upon administrative review, the Board affirmed the decision of the WCLJ, concluding that the carrier was estopped from relitigating the issue of the Board’s authorization of claimant’s 24–hour home health care because the issue was already decided, and also found that the carrier failed to demonstrate that claimant’s overall condition had improved in any respect warranting a reexamination of the Board’s prior determination. The carrier appeals.

[1, 2] We affirm. "The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] [citations omitted]). "The doctrine applies only where the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the party who is being estopped had a full and fair opportunity to litigate the issue in the earlier action" (Simmons v. Trans Express, Inc., 37 N.Y.3d 107, 112, 148 N.Y.S.3d 178, 170 N.E.3d 733 [2021] [internal quotation marks and...