Appeals court says doctor's injuries from mass shooting a workers' comp board matter
The hospital filed the workers' compensation claim on the doctor's behalf three days after the shooting.
A multijurisdictional matter involving a doctor’s injuries from a mass shooting at Bronx-Lebanon Hospital in 2017 was resolved by New York’s top court on Thursday, with the seven jurists in accord in remanding the matter to the state workers’ compensation board.
The New York Court of Appeals ruling places the injured doctor’s federal civil complaint against the hospital in serious jeopardy.
The top court was unconvinced by the plaintiff’s argument the case didn’t qualify for workers’ comp because of the lack of a “nexus” between the victim’s injuries and person who caused them.
Writing for the court, Judge Caitlin Halligan said that, although the record showed “undisputed” evidence the victim and shooter were strangers prior to the massacre, a lack of evidence for a workplace assault’s motivation doesn’t rebut the rebuttable presumption set forth in Workers’ Compensation Law § 21 (1).
The presumption provides that when an injury arises in the course of a worker’s employment, it is presumed to arise out of his employment and therefore is compensable by the board, absent substantial evidence to the contrary.
The injured doctor’s Brooklyn-based appellate lawyer, Arnold Kriss, reacted by calling for legislative reforms.
Kriss said lawmakers should remove the rebuttable presumption from the law. This would put all such claims before the New York State Workers’ Compensation Board.
Kriss said he sued in federal court out of good faith. He said he didn’t see a nexus between his client’s injuries and the person who caused them.
Meanwhile, the top court reversed a unanimous holding by a midlevel Albany appeals court in February 2022, which had allowed the victim’s federal lawsuit against the hospital and the state workers’ compensation board to proceed.
State law says an employer providing workers’ compensation benefits for on-the-job injuries cannot be sued for the same injuries.
But Kriss said he will explore options for continuing the federal lawsuit.
“We can ask the federal court to consider their [2019] decision and proceed,” Kriss said. “Or Bronx-Lebanon’s attorneys could make a motion to dismiss the case, based on this being a state issue.”
The hospital had filed the workers’ compensation claim on the doctor’s behalf three days after the shooting, and the doctor never authorized the claim, instead suing the hospital and the store that sold the shooter his rifle in the U.S. District Court for the Southern District of New York in March 2018.
The federal case, which seeks damages for negligence, negligent infliction of emotion distress, negligent hiring, retention, training and supervision, was trending favorably for the injured doctor.
That court rejected the hospital’s motion to dismiss, holding that the doctor’s injuries were not compensable under workers’ comp because there wasn’t evidence suggesting the shooting originated in work-related differences.
The federal court stayed the complaint until the Court of Appeals resolved the workers’ compensation claim.
Kriss said he respects the Court of Appeals’ decision, but disagrees with it, “not only in light of the well-reasoned decision by the Third Department, but also, in a federal judge’s decision finding that the injuries sustained by (his client Dr. Justin Timperio) by a random shooter had no connection to and did not arise from Dr. Timperio’s position as a medical resident.”
Kriss added that he found the decision “surprising” in light of the top court recognizing the Third Department as “the primary appellate court reviewing Workers’ Compensation appeals in a prior decision.”
Legislative fix
New York’s workers’ comp law was enacted in 1914 to protect employees from injury in the workplace, while protecting employers from civil claims, if the workplace is deemed safe.
Kriss said that in light of the Court of Appeals decision, lawmakers should make it a strict liability — that if one is hurt at work, it should be a workers’ comp matter, while eliminating the presumption.
But Kriss acknowledged that this would cause lobbyists for insurance carriers to come to Albany “yelling and screaming about insurance premiums killing employers.”
“Their yelling and screaming would be so loud that the Court of Appeals would hear it,” he said.
Timperio was shot by ex-hospital employee Dr. Henry Bello on June 30, 2017.
Bello had worked for the hospital from August 2014 until his resignation in February 2015, following an allegation he sexually harassed a hospital employee.
Bello had entered wearing a doctor’s coat and hospital identification badge while carrying a loaded AR-15 rifle.
He set fire to the hospital’s 16th-floor nursing station, using a juice container filled with gasoline. Bello shot Timperio, shot and killed another doctor, and shot and wounded four other medical staffers and a patient. He then shot and killed himself.
Kriss said his client, now 36, will never work in the medical profession again because of his injuries.
Caryn L. Lilling, a founding partner of Mauro Lilling Naparty, which represented Bronx-Lebanon Hospital, didn’t return a message from the Law Journal.
Sarah L. Rosenbluth argued the case on April 16 on behalf of the New York State Workers’ Compensation Board.
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