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The petitioner’s legal dispute arose from a series of workers’ compensation claims related to injuries sustained during her employment at separate employers. While a 2013 back injury at one facility resulted in a settled claim, subsequent incidents at a second employer led to new claims, all of which were contested. Following a bifurcated trial focused on compensability, the judge dismissed the claims against one employer, citing credibility concerns, a decision later upheld by the Appellate Division.

The petitioner worked as a licensed certified nursing assistant at Palace Rehab & Care Center (Palace) from 2008 to 2016. She began employment with Premier Cadbury, LLC (Cadbury) in 2015, initially working shifts for both employers. She resigned from Palace in 2016 and worked for Cadbury full-time until she was terminated in June 2018.

In 2013, while working for Palace, she filed a workers’ compensation claim for a low back injury that occurred on June 5, 2013, as she helped a patient out of bed. On August 22, 2017, a judge issued an order approving settlement on that claim. 

In June 2018, the petitioner re-opened her case against Palace and, shortly thereafter, filed two additional claims against Cadbury. One was for an alleged incident on February 11, 2018, an aggravation to her low back injury, and another was for a June 8, 2018, injury to her left hip, left knee, and low back while picking up a resident. Cadbury denied the claims.

It was noted in the pre-trial memorandum for all of these cases that there was to be bifurcation of certain issues and nothing indicated the petitioner objected to same. The petitioner testified—but noted she was taking oxycodone and muscle relaxers which affected her memory—that she had memory issues as a result of “long COVID.” In the written decision, the judge noted the petitioner’s demeanor and response when questioned by the respondent’s attorney regarding the incidents at Cadbury. The judge specifically observed that she did not make eye contact, became agitated, and blamed it on her memory. The petitioner also denied all descriptions of the mechanisms of injury as stated in incident reports and medical records regarding her June 8, 2018, injury. 

After the petitioner’s testimony, Cadbury presented Carole Tate, the director of nursing in 2018, and Susan Duban, executive assistant in 2018 and HR coordinator, at trial. The petitioner’s and Palace’s attorneys objected to these witnesses, claiming they could not lay a foundation for the documents to which they would be testifying. The judge noted they could testify if they could lay a proper foundation. While Duban testified about the reporting procedures, Tate testified that she had first-hand knowledge of any work-related incidents as she would help prepare incident reports. She confirmed she created the February 11, 2018, incident report based on the information provided by the petitioner. While someone else created the June 8, 2018, report, she had reviewed and signed it. The judge then entered the incident reports into evidence. 

Cadbury’s attorney indicated he wanted to present medical experts to testify as to the authenticity of the records and the history taken from the petitioner in order to have those records admitted into evidence. On the third day of trial, the parties agreed to admit certain documents into evidence. 

In February 2024, the judge issued an order and written decision dismissing the petitioner’s claims against Cadbury, stating the trial was bifurcated on the issue of compensability. He pointed out the inconsistencies in the petitioner’s testimony and documents in evidence. He found she was not credible, dismissed the claims against Cadbury with prejudice, and held that the claim against Palace would proceed as he, the judge, had not made a finding on causal relationship yet.

The petitioner and Palace appealed, arguing the judge confused legal and medical causation, improperly relied on the petitioner’s testimony to determine credibility, and improperly relied on hearsay documents. The Appellate Division affirmed the judge’s decision, stating there was no abuse of discretion or a plain error on the bifurcation decision and no confusion between legal and medical causation. While the petitioner asked the court to disregard the judge’s assessment of her credibility, the Appellate Division noted the deferential standard given to the judge who had the opportunity to hear the witness. 

_{What’s Hot in Workers’ Comp, Vol. 29, No. 5, May 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}