An interesting decision was recently rendered by the New York Appellate Court, Third Division in Cannetti v. Darr Construction Equipment Corp., 2019 NY Slip Op 05028 [173 AD3d 1493].
The dispute centers upon the death of Brian Cannetti who was involved "in a motor vehicle accident," and sustained "serious injuries." His widow sought death benefits, and the Employer/Carrier defended alleging that the accident and injuries were "caused solely by intoxication."
As an aside, it is noteworthy that death is an unfortunate part of workers' compensation. Many note that workplace deaths have decreased; "in 1912, 18,000-21,000 workers died from work-related injuries" according to the Centers for Disease Control. Decrease is positive, but death remains a tragic part of our community. The Occupational Health and Safety Administration (OSHA) says that occupational deaths in 2017 totaled 4,674. Certainly better, but still a significant volume of tragic injury. The U.S. Department of Labor categorizes these deaths as "traumatic, exposure, and consequential." The "consequential" are not perhaps as immediate results, but follow as an ultimate outcome of some trauma or illness.
In this New York case, a judge concluded that the widow "was decedent's lawful spouse and that there are four alleged dependent stepchildren." The judge made some further procedural rulings. However, by the time the parties reconvened for the next hearing, "a new WCLJ (workers' compensation law judge) was presiding over the matter." The widow's attorney objected to the change in adjudicator. Following procedural decisions, the matter was rescheduled for further proceedings with that new judge.
When the parties convened the third time, yet another WCLJ presided and announced "that the former WCLJs were (each) unavailable." The new WCLJ conducted the trial, reviewed the evidence, and concluded that "the accident was due solely to (the) decedent's intoxication and disallowed the claim." The widow sought review by the NY Workers' Compensation Board (NY has an intermediate administrative review process similar to Georgia and Kentucky). The Board affirmed the WCLJ's decision.
The widow/Claimant then sought review of the appellate court, claiming error in the reassignment of the case to the new WCLJs. She cited a provision of the NY Workers' Compensation Law, § 20. That statute says:
"[w]henever a hearing or proceeding for the determination of a claim for compensation is begun before a referee, pursuant to the provisions of this chapter, such hearing or proceeding or any adjourned hearing thereon shall continue before the same referee until a final determination awarding or denying compensation, except in the absence, inability or disqualification to act of such referee, or for other good cause, in which event such hearing or proceeding may be continued before another referee by order of the chair or [B]oard."
The appellate Court reminded that this "statute does not require that the same WCLJ preside over any and all hearings that may be conducted" regarding some particular claim. It only requires that any one hearing be started and concluded by the same presiding WCLJ absent specific identified circumstances.
The Court concluded that record evidence supported the conclusion that prior judges were "unavailable." It then discussed the intent of section 20, recognizing "that continuity in the presiding hearing officer is desirable." However, the Court explained that the first two hearings that occurred were essentially procedural. Though some decisions were made regarding the process and the admission of certain evidence, "it was not until the third appearance that testimony related to the merits of the claim was received." The Court essentially categorized those first two hearings as separate and preparatory, leading to the trial hearing. This is distinct from the widow's effort to cast the three hearings as one continuous trial in parts.
Therefore, the Court essentially determined that there was no prejudice in the widow/claimant in the reassignment of the case. Thus, the Court concluded "that the spirit of the statute was" not "violated." It is reminiscent of disputes that can become commonplace in workers' compensation proceedings. There are times when the parties do not follow the letter of a statute or rule. And, it is axiomatic that rules and laws should be followed.
However, in Florida, the Court has reached a similar conclusion regarding the enforcement of procedural process rules and laws. Decades ago, the Florida Supreme Court decided Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). This analysis holds that a technical violation of a rule or process does not necessarily dictate an outcome absent a demonstration of "actual prejudice" resulting from the violation. This, and a similar conclusion in a recent Louisiana case (Campos v. Unlimited Master Contractors (No. 18-CA-435)) is discussed further in Discretion and Prejudice.
There is sound logic in rules. They provide predictability and transparency to the process of litigation. Both of those are positive attributes and laudable goals. However, the reality of a situation must also be part of the overall due process afforded, and that turns the trial judge back from the technical violation to an analysis of whether there is an actual harm that results from the failure to comply with the law or rule. In the end, that analysis of actual harm guides the trial judge's analysis and thus must be on the minds of litigants as they make objections and arguments. That is harder than spotting technical breaches of rules or statutes, but it is what the law often requires.
Thus, litigants must be able to focus beyond the "what is so." That is, the rule or statute was violated. It is often relatively easy to spot that this or that action is not in compliance with regulations, rules, or laws. But, in the litigation setting, litigants should prepare themselves to go beyond the "what is so" argument/objection and describe to the trial judge the "so what." That is, why is the violation prejudicial, what is the actual harm that results from the "what is so." And, as noted time and again, the time for making that argument is at trial so that the trial judge has the opportunity to understand the objection, and the consequences, and to correct the objection. Appellate courts are reluctant to address process complaints that are not identified, or mentioned (preserved) at trial.
And, in the end, far too many are still dying from work out there. Our community needs to remember that and continue the progress demonstrated over the last century. We can likely continue to improve.
