By Daniel Wiessner
ALBANY, N.Y., Feb 14 (Reuters) - A plaintiff in a personal
injury case may not litigate an issue already decided in a
related workers' compensation proceeding, the New York Court of
Appeals ruled Thursday.
In a 4-1 decision, the court precluded Jose Verdugo, who was
injured at a construction site in 2003, from seeking lost
earnings or medical expenses that he claims were incurred after
a workers' compensation judge in 2006 found that he was no
The court said the judge's ruling was binding in the
personal injury case because it was based on findings of fact.
"Although legal conclusions and conclusions of mixed law and
fact are not entitled to preclusive effect, findings of fact
that are necessary for an administrative agency to reach are
entitled to such effect," the majority wrote in an unsigned
The ruling reversed a 2011 decision from the Appellate
Division, First Department.
Verdugo was delivering food on Christmas Eve in 2003 when a
sheet of plywood from a construction site fell on him, injuring
his head, neck and back, the court said. He also developed
post-traumatic stress disorder and depression, according to the
In 2004, while Verdugo was receiving workers' compensation
benefits, his wife and sister-in-law, Maria Verdugo and Maria
Auqui, filed a personal injury suit against the owners of the
construction site, Seven Thirty One Limited Partnership, as well
as the construction manager and a subcontractor.
While the suit was pending, an administrative law judge
ruled that Verdugo no longer suffered a disability. The Workers'
Compensation Board in 2007 reversed with respect to Verdugo's
post-traumatic stress disorder, but otherwise affirmed.
In 2009, Seven Thirty One moved in the personal injury case
to preclude Auqui from seeking medical expenses or lost income
incurred after the 2006 decision, arguing that the issue had
already been decided definitively by the Workers' Compensation
The court agreed and granted Seven Thirty One's motion. The
Appellate Division, First Department, in 2011 reversed, finding
that the board's ruling involved a mixed question of law and
The Court of Appeals on Thursday disagreed.
In dissent, Judge Eugene Pigott agreed with the First
Department, finding that the board had ruled on a mixed question
of law and fact, so its decision should not bear on the personal
"The WCB had to reach a conclusion based on both questions
of fact, such as whether Verdugo had a particular injury to the
brain or body, and a question of law, namely whether the facts
amounted to a disability preventing Verdugo from returning to
his work," Pigott wrote.
Under Thursday's decision, Verdugo may still seek
compensation for pain and suffering and loss of enjoyment of
life incurred after the workers' compensation judge's 2006
ruling, because that ruling concerned only Verdugo's physical
injuries and his ability to return to work.
Auqui's attorney, Annette Hasapidis, and Richard Montes, who
represented Seven Thirty One, did not return requests for
The case is Maria Auqui v. Seven Thirty One Limited
Partnership, New York State Court of Appeals, No. 18.
For Auqui: Annette Hasapidis.
For Seven Thirty One: Richard Montes of Mauro Lilling
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