Claim of O'Shea v. Initial Cleaning Service

Aug 3, 2006
Versions:32 A.D.3d 592
819 N.Y.S.2d 364
Blackstone

In the Matter of the Claim of THOMAS O‘SHEA, Appellant, v INITIAL CLEANING SERVICE et al., Respondents. WORKERS’ COMPENSATION BOARD, Respondent. [819 NYS2d 364]—

Rose, J. Appeal from a decision of the Workers’ Compensation Board, filed December 24, 2004, which ruled that claimant was not entitled to an award of workers’ compensation benefits for reduced earnings.

When this case was previously before us, we reversed the Workers’ Compensation Board‘s denial of benefits to claimant on the ground that substantial evidence did not support the Board‘s determination that claimant had voluntarily withdrawn from the labor market (10 AD3d 772 [2004]). Upon remittal, the Board reconsidered the matter аnd, once again, denied benefits. This time, however, the Board made findings on the issue of causation for claimant‘s loss of earnings, concluding that he failed to establish that his permanent partial disability was a cause of his subsequent inability to obtain employment. Claimant now appeals and we affirm.

In its prior determination, the Board noted that claimant had been terminated for being absent from work without giving the employer prior notice, but did not find that his subsequent withdrawal from the labor market was caused solely by his discharge for misconduct. ‍​​‌​​​‌‌‌‌‌‌‌‌​​​‌​‌​​‌‌‌​​​​​​​‌​‌​‌‌‌​‌‌​‌‌​‌‌‍Rather, the Board held that claimant voluntarily withdrew upon his termination because he had ceased working without medical advice to do so at a time when he was capable of performing some type of work. We found that conclusion to be unsupported by the record (id. at 773). In its determination on remittal, the Board found that claimant was discharged for misconduct unrelated to his occupational disease based upon the hearing testimony of coworker David Doughtry, who stated that claimant had been fired for missing work without giving prior notification.* As the Board noted, this discharge defeated the inference that his subsequent loss of wages was attributable to his permanent partial disability and imposed on him “the burden of establishing by substantial evidence that the limitations on his employment due to his [occupational diseasе] were a cause of his subsequent inability to obtain employment” (Matter of Katsaris v Lockheed Martin Fed. Sys., 281 AD2d 744, 745 [2001], quoting Matter of Dudlo v Polytherm Plastics, 125 AD2d 792, 793 [1986]). Claimant failed to satisfy this burden, inasmuch as he conceded that he would have continued working but for his termination and he presented no

additional evidence that he had become fully disabled or had unsuccessfully sought employment within his limitations (see Matter of Gross v BJ‘s Wholesale Club, 29 AD3d 1051, 1052 [2006]; Matter of Turetzky-Santaniello v Vassar Bros. Hosp., 302 AD2d 706, 707 [2003]). Accordingly, we will not disturb the Board‘s decision.

Claimant‘s remaining contentions, to thе extent not specifically ‍​​‌​​​‌‌‌‌‌‌‌‌​​​‌​‌​​‌‌‌​​​​​​​‌​‌​‌‌‌​‌‌​‌‌​‌‌‍addressed, have been examined and found to be unavailing.

Mercure, J.P., Crew III, Mugglin and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

ROSE, J.

司法 ```internal The user wants a clean, semantic HTML conversion of a specific legal opinion from the provided scans. Looking at the scans: - Page 592 starts with the end оf a family law case (visitation rights for “Shayna“). - Below that on page 592 is the start of a new case caption: “In the Matter of the Claim of THOMAS O‘SHEA, Appellant, v INITIAL CLEANING SERVICE et al., Respondents. WORKERS’ COMPENSATION BOARD, Respondent. [819 NYS2d 364]“. - Page 593 contains the full text of the opinion for Thomas O‘Shea. - Page 594 finishes the Thomas O‘Shea opinion and starts a new case “Dontie S. Mitchell, Apрellant, v STATE OF NEW YORK“. According to the instructions for Multi-Opinion Documents: “convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” So I will convert “Matter of O‘Shea v Initial Cleaning Serv.“. Metadata for “Mаtter of O‘Shea“: - Case name: In the Matter of the Claim of THOMAS O‘SHEA, Appellant, v INITIAL CLEANING SERVICE et al., Respondents. WORKERS’ COMPENSATION BOARD, Respondent. - Short name: O‘Shea v. Initial Cleaning Service - Docket: None explicitly in the snippet, but reporter cite is [819 NYS2d 364]. - Court: New York Supreme Court, Appellate Division, Third Department (Inferred from context of AD3d citations, but I will check the headеrs/OCR. The OCR for the previous case mentions “Family Court” and “AD3d“. The page headers say “592“, “593“, “594“. This is the Appellate Division, Third Department (Peters, Spain, Lahtinen, Kane, Mercure, Crew III, Mugglin, Rose are judges there). I‘ll use the short cite if available or leave it. Actually, the instruction says “Omit elements without data“. - Date: December 24, 2004 (date filed by Board), though the aрpeal decision date is usually listed in the reporter. The OCR doesn‘t explicitly state the date of this decision, just the date of the order being appealed. I‘ll omit if not clear, or look for the citation year. The cases cited go up to 2006 (29 AD3d 1051 [2006]). Wait, the document likely dates from 2006. Since the specific date is missing from the scan, I‘ll omit the date attribute or use the year from the cite if I can confirm. Actually, let‘s stick to what‘s in the text. - Citation: 819 NYS2d 364. - Judge: Rose, J. Pagination: - First case name is on 592. - Opinion starts on 593. - Opinion ends on 594. Laws to wrap: - Labor Law (N.Y. Lab. Law) Cases to wrap: - People v Cruwys (previous case, skip) - Matter of Dana XX. (previous case, skip) - Matter of William XX. (previous case, skip) - Matter of O‘Shea (the case itself mentions 10 AD3d 772 [2004]) - Matter of Katsaris v Lockheed Martin Fed. Sys., 281 AD2d 744, 745 [2001] - Matter of Dudlo v Polytherm Plastics, 125 AD2d 792, 793 [1986] - Matter of McDuffie [Menorah Home & Hosp. for Aged & Infirm—Commissioner of Labor], 257 AD2d 824, 824-825 [1999] - Matter of Gross v BJ’s Wholesale Club, 29 AD3d 1051, 1052 [2006] - Matter of Turetzky-Santaniello v Vassar Bros. Hosp., 302 AD2d 706, 707 [2003] Reflow: - “tele phone” -> “telephone” (page 592, first case - ignore) - “re spondent” -> “respondent” (page 592, first case - ignore) - “is sues” -> “issues” (page 592, first case - ignore) - “un derlying” -> “underlying” (page 592, first case - ignore) - “Wil liam” -> “William” (page 592, first case - ignore) - “Com pensation” -> “Compensation” (page 592, O‘Shea caption) - “Claim ant” -> “Claimant” (page 593) - “dis charge” -> “discharge” (page 593) - “notification.*” -> Footnotе mark. - “unavail ing” -> “unavailing” (page 594) Let‘s begin. Case 1 (Shayna) is partial at top of 592. Skip. Case 2 (O‘Shea) starts at bottom of 592. This is the main one. Case 3 (Mitchell) starts at bottom of 594. Skip. Wait, looking at the OCR for O‘Shea, the text starts on 593 with “Rose, J.“. The caption is on 592. Pagination: Caption... Rose, J. ... ... affirmed, without costs. Wait, looking at scan 2 (page 593): Top of page is 593. First word: Rose, J. Scan 1 (page 592): End of previous case. Then: “In the Matter of the Claim of THOMAS O‘SHEA, Appellant, v INITIAL CLEANING SERVICE et al., Respondents. WORKERS’ COMPENSATION BOARD, Respondent. [819 NYS2d 364]—” Okay, I will include that caption part on page 592 after the ps marker. Wait, the prompt says: “Skip partial content from a previous case that appears at the beginning of the document.” The Shayna сase is partial at the beginning. The O‘Shea case starts with caption at bottom of 592 and full opinion on 593-594. This is the main case. Footnotes: * Keough was granted... (This is for the Shayna case, skip). * Contrary to claimant’s contention... (This is for the O‘Shea case, include). One detail: The OCR for page 593 has some garbled text “unsupported by (id. 773). the record at In its“. Checking the screenshot: “... unsupported by the record (id. at 773). In its ...” I must follow the screenshot for the text, not the messy OCR. Also check: “imposed ’ the burden...” OCR has quotes separated. Screenshot: “imposed on him ‘the burden...‘” Actually: “imposed on him ‘the burden of establishing...” And at the end: “...employment’ (Matter of Katsaris...” I should use straight quotes as per instructions. Wait, checking screenshot for page 593: “...and imposed on him ‘the burden of establishing by substantial evidence that the limitations on his employment due to his [occupational disease] were a cause of his subsequent inability to obtain employment’ (Matter of Katsaris...” The OCR is “imposed ’ the burden...“. I‘ll fix that. Wait, “7 NYCRR 301.6” is in the Mitchell case (Case 3), which I‘m skipping. Let‘s do O‘Shea. Onе thing: The prompt asks for Case Information in details. Case Name: In the Matter of the Claim of THOMAS O‘SHEA, Appellant, v INITIAL CLEANING SERVICE et al., Respondents. WORKERS’ COMPENSATION BOARD, Respondent. Short name: O‘Shea v. Initial Cleaning Service (following Bluebook: first party v first opposing party, Matter of is often dropped in short name or abbreviated, but instructions say “first party v. first opposing party“, so O‘Shеa v. Initial Cleaning Service). Docket: Omit (not found). Court: Omit (Not explicitly stated in the scan, though it‘s AD3d). Date: Omit (The Board filing date is Dec 24, 2004, but that‘s not the court‘s decision date). Citation: 819 NYS2d 364. Judge: Rose, J. Actually, usually “In re” or “Matter of” cases are “O‘Shea v. Initial Cleaning Serv.” in short form. Final check on word rejoining: “Com pensation” (592 OCR) -> “Compensation” “Claim ant” (593 OCR) -> “Claimant” “dis chаrge” (593 OCR) -> “discharge” “unavail ing” (594 OCR) -> “unavailing” Let‘s start the HTML. ```html

In the Matter of the Claim of THOMAS O‘SHEA, Appellant, v INITIAL CLEANING SERVICE et al., Respondents. WORKERS’ COMPENSATION BOARD, Respondent. [819 NYS2d 364]—

Rose, J. Appeal from a decision of the Workers’ Compensation Board, filed December 24, 2004, which ruled ‍​​‌​​​‌‌‌‌‌‌‌‌​​​‌​‌​​‌‌‌​​​​​​​‌​‌​‌‌‌​‌‌​‌‌​‌‌‍that claimant was not entitled to an award of workers’ compensation benefits for reduced earnings.

When this case was previously before us, we reversed the Workers’ Compensation Board‘s denial of benefits to claimant on the ground that substantial evidence did not support the Board‘s determination that claimant had voluntarily withdrawn from the labor market (10 AD3d 772 [2004]). Upon remittal, the Board reconsidered the matter and, once again, denied benefits. This time, however, the Board made findings on the issue of causation for claimant‘s loss of earnings, concluding that he failed to establish that his permanent partial disability was a cause of his subsequent inability to obtain employment. Claimant now appeals and we affirm.

In its prior determination, the Board noted that claimant had been terminated for being absent from work without giving the employer prior notice, but did not find that his subsequent withdrawal from the labor market was caused solely by his discharge for misconduct. Rather, the Board held that claimant voluntarily withdrew upon his termination because he had ceased working without medical advice to do so at a time when he was capable of performing some type of work. We found that conclusion to be unsupported by the record (id. at 773). In its determination on remittal, the Board found that claimant was discharged for misconduct unrelated to his occupational disease based upon the hearing testimony of coworker David Doughtry, who stated that claimant had been fired for missing work without giving prior notification.* As the Board noted, this discharge defeated the inference that his subsequent loss of wages was attributable to his permanent partial disability and imposed on him “the burden of establishing by substantial evidence that the limitations on his employment due to his [occupational disease] were a cause of his subsequent inability to obtain employment” (Matter of Katsaris v Lockheed Martin Fed. Sys., 281 AD2d 744, 745 [2001], quoting Matter of Dudlo v Polytherm Plastics, 125 AD2d 792, 793 [1986]). Claimant failed to satisfy this burden, inasmuch as he conceded that he ‍​​‌​​​‌‌‌‌‌‌‌‌​​​‌​‌​​‌‌‌​​​​​​​‌​‌​‌‌‌​‌‌​‌‌​‌‌‍would have continued working but for his termination and he presented no

additional evidence that he had become fully disabled or had unsuccessfully sought employment within his limitatiоns (see Matter of Gross v BJ‘s Wholesale Club, 29 AD3d 1051, 1052 [2006]; Matter of Turetzky-Santaniello v Vassar Bros. Hosp., 302 AD2d 706, 707 [2003]). Accordingly, we will not disturb the Board‘s decision.

Claimant‘s remaining contentions, to the extent not specifically addressed, have been examined and found to be unavailing.

Mercure, J.P., Crew III, Mugglin and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

ROSE, J.

``` Reviewing: - “Matter of Katsaris” cite is 281 AD2d 744. OCR says 745 pinpoint. - “Matter of Dudlo” cite is 125 AD2d 792. OCR says 793 pinpoint. - “Matter of McDuffie” cite is 257 AD2d 824. OCR says 824-825 pinpoint. - “Matter of Gross” cite is 29 AD3d 1051. OCR says 1052 pinpoint. - “Matter of Turetzky-Santaniello” cite is 302 AD2d 706. OCR says 707 pinpoint. - I‘ll make sure to wrap these. - I missed wrapping the Labor Law. Jurisdiction is NY. Cite N.Y. Lab. Law. - Fixed. - The first citation in the O‘Shea opinion is “(10 AD3d 772 [2004])“. This is the case itself in a previous stage. - I will include the case name from the caption if possible or use the cite. - The text is: “Whеn this case was previously before us, we reversed the Workers’ Compensation Board‘s denial of benefits to claimant on the ground that substantial evidence did not support the Board‘s determination that claimant had voluntarily withdrawn from the labor market (10 AD3d 772 [2004]).” - I‘ll tag this as a case: 10 AD3d 772 [2004]. (Using the name from caption for this case). - In footnote, “Matter of McDuffie [Menorah Home & Hosp. for Aged & Infirm —Commissioner of Labor], ‍​​‌​​​‌‌‌‌‌‌‌‌​​​‌​‌​​‌‌‌​​​​​​​‌​‌​‌‌‌​‌‌​‌‌​‌‌‍257 AD2d 824, 824-825 [1999]“. - The case name is “Matter of McDuffie“. I‘ll use that. - Also, in the footnote, “Labor Law” is mentioned. Wrap in Labor Law. Formatting check: - Straight quotes: ” ’ - No code fences. - Verbatim text. - Pagination markers. - Footnote placement. Double checking scan text for O‘Shea on p 593: “We fоund that conclusion to be unsupported by the record (id. at 773).” Wait, let‘s look at the scan carefully. Scan 2, middle: “We found that conclusion to be unsupported by the record (id. at 773). In its determination on remittal...” Okay. My draft has it. Final signature check: “Mercure, J.P., Crew III, Mugglin and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.” The opinion starts with “Rоse, J.“. I‘ll add the signature block for Rose, J. at the end. Actually, the signature block code should go after the concurrences/order. The order is part of the opinion text. Wait, the prompt says: “Skip signature images, preserve typed name and title.” In this format, “Rose, J.” at the start of the text serves as the author. I will put a signature block at thе end with “ROSE, J.” since he is the judge. One more check on the footnote mark: “...without giving prior notification.*” The mark is `*`. I‘ll use `n=“*“`. Wait, instructions say `n=“X“` where X is usually a number. I‘ll use `n=“*“` if that‘s what‘s in the text. Actually, instructions use numbers in examples. I‘ll use `n=“*“` because it‘s an asterisk in the source. Wait, scan 2, footnote text: “* Contrary to claimant‘s contention...” I‘ll include the asterisk in the fn content as per usual formatting of notes. One minor correction on the first paragraph: “In the Matter of the Claim of THOMAS O‘SHEA, Appellant, v INITIAL CLEANING SERVICE et al., Respondents. WORKERS’ COMPENSATION BOARD, Respondent. [819 NYS2d 364]—” This is on page 592. The text on 593: “Rose, J. Appeal from a decision...” Looks good. Wait, in scan 1, the previous case ends with: “Peters, Spain, Lahtinen and Kane, JJ., concur. Ordered thаt the appeal is dismissed, without costs, and application to be relieved of assignment granted.” This is the Shayna case. I‘m skipping it. One thing: “819 NYS2d 364” is the cite for the O‘Shea case. Final check on the Mitchell case on p 594: “Dontie S. Mitchell, Appellant, v STATE OF NEW YORK, Respondent. [819 NYS2d 617]—” Starts at bottom of 594. I‘m skipping it as per instructions (“convert only the MAIN opinion“). Wаit, checking pagination marker placement. “Claimant failed to satisfy this burden, inasmuch as he conceded that he would have continued working but for his termination and he presented no” (end of 593). “additional evidence that he had become fully disabled...” (start of 594). I‘ll place `` at the start of 594. Regarding footnote placement: Footnote mark is after “prior notification.*” The footnote belongs after that paragraph. One more look at “id.” citations in O‘Shea: 1. `(id. at 773)` -> Refers to 10 AD3d 772. 2. `(Matter of Katsaris... quoting Matter of Dudlo...)` -> Full cites. 3. No others. One more look at the short form rule for Laws: “Labor Law” -> `N.Y. Lab. Law`. Final check on quotes: The source has: ...imposed on him ” ‘the burden... emрloyment’ ” (Matter of Katsaris... quoting Matter of Dudlo...). Actually, scan 2 shows: ...imposed on him ” ‘the burden... employment’ ” (Matter of Katsaris... quoting Matter of Dudlo...). Wait, let‘s look closer at scan 2. “...and imposed on him ‘the burden of establishing by substantial evidence that the limitations on his employment due to his [occupational disease] were a cause of his subsеquent inability to obtain employment’ (Matter of Katsaris v Lockheed Martin Fed. Sys., 281 AD2d 744, 745 [2001], quoting Matter of Dudlo v Polytherm Plastics, 125 AD2d 792, 793 [1986]).” The outer double quote is only at the beginning of “the burden“. Looking at the end: “...obtain employment’ (Matter of Katsaris...” Wait, is there a closing double quote? Looking at the start: “on him ‘the burden...” (There is an opening single quote). Actually, looking at the scan, it‘s: `imposed on him ” ‘the burden...` Wait, it‘s hard to see. It looks like a double quote then a single quote. Let me zoom in. It says: `imposed on him ” ‘the burden of establishing ... employment’ ” (Matter of Katsaris...` Wait, no, the single quote at the end is after “employment“. Then a double quote. Wait, let me look at the OCR again. OCR says: `on him ” ‘the burden... employment’ ” (Matter of Katsаris...` Wait, I see a double quote before the parenthesis in the screenshot? No, it‘s `employment’ (Matter of Katsaris`. Wait, scan 2: `...obtain employment’ (Matter of Katsaris...`. It‘s single quote. Opening: `on him ” ‘the burden...`. I will use straight quotes and follow the scan. Wait, one more check on the very start of O‘Shea. Scan 1, bottom: “In the Matter of the Claim of THOMAS O‘SHEA, Appеllant, v INITIAL CLEANING SERVICE et al., Respondents. WORKERS’ COMPENSATION BOARD, Respondent. [819 NYS2d 364]—” The hyphen/em-dash is after the cite. I‘ll include it. Final verification of Judge Rose. Scan 2 starts with “Rose, J.“. Concurrence: “Mercure, J.P., Crew III, Mugglin and Kane, JJ., concur.” I‘ll put Rose, J. in the signature block too. One last thing: “Labor Law” is wrapped in midpage-law. In NY, Labor Law is often cite-normalized to “N.Y. Lab. Law“. I‘ll do that. ```html Labor Law ``` Wait, should I wrap the AD3d cites? Yes, as cases. - 10 AD3d 772 - 281 AD2d 744 - 125 AD2d 792 - 257 AD2d 824 - 29 AD3d 1051 - 302 AD2d 706 Done.

Notes

*
Contrary to claimant‘s contention, such a violation of workplace rules can properly form the basis for the Board‘s determinatiоn that he was terminated for misconduct, despite a prior holding in an unemployment insurance proceeding that the violation did not rise to the level of disqualifying misconduct under the meaning of the Labor Law (see Matter of McDuffie [Menorah Home & Hosp. for Aged & Infirm—Commissioner of Labor], 257 AD2d 824, 824-825 [1999]). Contrary to claimant‘s contention, such a violation of workplace rules can properly form the basis for the Board‘s determination that he was terminated for misconduct, despite a prior holding in an unemployment insurance proceeding that the violation did not rise to the level of disqualifying misconduct under the meaning of the Labor Law (see Matter of McDuffie [Menorah Home & Hosp. for Aged & Infirm—Commissioner of Labor], 257 AD2d 824, 824-825 [1999]).