Third Department Decision 7-3-13

In Matter of Surianello, the carrier appealed from a decision of the Workers Compensation Board, which ruled that the employer is not entitled to reimbursement from the Special Disability Fund. Claimant worked for the self-insured employer as an electrical construction mechanic for 20 years when, in September 2001, he was assigned to various locations at the World Trade Center (hereinafter WTC) site, where he worked for approximately six weeks. In November 2002, claimant began to experience breathing difficulties and, as a consequence of missing time from work, filed a claim for workers compensation benefits in February 2003 based upon a diagnosis of emphysema. Shortly thereafter, the employer gave notice of a claim for reimbursement out of the Special Disability Fund pursuant to Workers Compensation Law $ 15 (8) (d) citing, among other things, impairment to claimants lungs as a previous physical impairment. Claimant thereafter returned to restricted duty, then full duty but, ultimately, ceased working altogether in November 2003. Claimant filed a subsequent workers compensation claim in March 2007 based upon a diagnosis of interstitial lung disease. Over the employers objections, the claim was established in April 2009 upon the medical opinions of Carl Friedman and Neil Schacter that premised the cause of claimants lung disease on both his WTC site exposure and his prior work for the employer. The case was then returned to the calendar to establish the extent of claimants disability. A Workers Compensation Law Judge then found claimant to be permanently totally disabled, and that determination was affirmed on appeal to the Workers Compensation Board. Subsequently, the employer sought reimbursement from the Fund due to claimants preexisting lung disease. Ultimately, the Board concluded that claimants disabling lung disease was solely caused by his work exposure at the WTC site and denied the employers application. The employer now appeals and we reverse. Here, the only medical evidence concerning the cause of claimants interstitial lung disease and his resulting disability came from Friedman, a pulmonologist who performed an independent medical examination at the behest of the employer, and Dr. Schacter, claimants treating pulmonologist. In his initial report, dated August 2008, Friedman noted that a pulmonary function test conducted by the employer on June 7, 2001 revealed that claimant suffered from moderately severe restrictive lung disease. Friedman also noted that the employers medical records showed that claimant had been diagnosed with restrictive pulmonary function as far back as 1990. With regard to claimants present condition, Friedman cited evidence of interstitial lung disease and opined that claimants overall disability was materially and substantially greater due to his history of restrictive lung function than it would have been if caused by his WTC site exposure alone. In a subsequent June 2010 report, Friedman expanded on his assessment, opining that claimants preexisting restrictive lung disease made him more susceptible to other work related industrial exposures and, as a result, there was an acute exacerbation of his preexisting condition that resulted in lower functionality than claimant would have experienced from his WTC site exposure alone.

Similarly, Dr. Schacter repeatedly expressed his opinion that claimants interstitial lung disease was related to both his exposure at the WTC site and certain exposures throughout his career with the employer, which included exposure to asbestos. Thus, although reimbursement pursuant to Workers Compensation Law $ 15 (8) (d) may be denied when a work-related injury is the sole cause of a permanent disability (see Matter of Lloyd v New Era Cap Co., 80 AD3d 1016, 1018 [2011]; Matter of Coluccio v Aenco, Inc., 147 AD2d 887, 888 [1989]), there is no medical evidence present here to support the Boards conclusion that claimants disability was solely caused by his WTC site exposure and, therefore, the Fund was inappropriately discharged (see Matter of Dellheim v International Bus. Machs. Corp., 177 AD2d 887, 888 [1991]). (The Court rejected the Boards opinion that Dr Schacter opined all the disability was related to the WTC exposure.) To the extent that the Board purported to reject Friedmans later report as lacking in credibility given his initial conclusion, we note that both reports were consistent, particularly with regard to his opinion that claimants overall disability was materially and substantially greater as a result of his preexisting condition. The Court then reversed and remanded the case for further proceeding.

In Matter of Rodriquez, Appeal from a decision of the Workers Compensation Board, filed April 17, 2012, which ruled that claimant was discharged by the employer in violation of Workers Compensation Law $ 120.

On January 19, 2011, claimant was hired by C & S Wholesale Grocers, Inc. (hereinafter the employer) for the position of order selector a job that consisted of moving large pallets of grocery goods in preparation for shipment to the employers customers. As part of his duties, claimant was required to operate a motorized pallet jack to move the heavy pallets throughout the warehouse, and he was trained to use this equipment pursuant to the employers safety guidelines. At the time claimant commenced his employment, he signed a Trainee Attendance/Safety Policy acknowledging, among other things, that if [he was] injured in a preventable accident within [the] first 90 day probationary period, [he would] automatically forfeit [his] right to work for the employer. On April 12, 2011, approximately one week before the end of claimants 90-day probationary period, he injured his left foot while operating a pallet jack. Claimant immediately reported the incident to the employer, sought medical treatment and remained out of work for a few days. Upon returning to work, claimant was notified that his employment had been terminated pursuant to the terms of the 90-day policy because the employer had determined that his injury was preventable specifically, that such injury was caused by claimants unsafe operation of the pallet jack in violation of the employers safety rule.

Claimant thereafter filed a claim for workers compensation benefits and, additionally, filed a discrimination complaint against the employer under Workers Compensation Law $ 120, contending that he had been terminated in retaliation for seeking workers compensation benefits. Following a hearing on the discrimination complaint, a Workers Compensation Law Judge (hereinafter WCLJ) concluded that the employers policy as applied to claimant and in general constituted prohibited discrimination in violation of Workers Compensation Law $ 120.

The WCLJs decision was affirmed by the Workers Compensation Board, prompting this appeal by the employer. We affirm. Workers Compensation Law $ 120 prohibits an employer from discriminating against an employee because that employee either claimed or attempted to claim workers compensation benefits (see Matter of Torrance v Loretto Rest Nursing Home, 61 AD3d 1124, 1125 [2009]; Matter of Morgan v New York City Dept. of Correction, 39 AD3d 891, 892 [2007], lv denied 9 NY3d 803 [2007]). In enacting Workers Compensation Law $ 120, the Legislature intended to insure that a claimant [could] exercise his [or her] rights under the [Workers] Compensation Law . . . without fear that doing so [might] endanger the continuity of [his or her] employment (Sponsors Mem, Bill Jacket, L 1973, ch 235; see Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128, 133-134 [1984]; Matter of Axel v Duffy- Mott Co., 47 NY2d 1, 5-6 [1979]; Mem of Dept of Labor, L 1973, ch 235, 1973 NY Legis Ann at 244). Inasmuch as employers who seek to discourage their employees from pursuing workers compensation claims rarely broadcast their intentions to the world, distinguishing a discharge motivated by retaliation from a discharge based upon a legitimate business concern can be challenging (Matter of Axel v Duffy-Mott Co., 47 NY2d at 6; see Matter of Buzea v Alphonse Hotel Corp., 289 AD2d 749, 750-751 [2001]; Matter of Asem v Key Food Stores Co-Op., 216 AD2d 806, 807 [1995], lv denied 87 NY2d 802 [1995]).

Here, the employers 90-day policy provides that if a probationary employee is injured in a preventable accident a determination that is made by the employer he or she automatically forfeit[s] [his or her] right to work for the employer. Where, however, a probationary employee is observed not working safely but the underlying misconduct does not actually result in an injury, such employee does not automatically forfeit his or her right to employment; rather, the employee is subject to [an] accelerated disciplinary action up to and including termination. Indeed, when questioned by the WCLJ as to the likely consequence for a new employee who violated one of the employers safety rules but was not injured as a result thereof, the employers director of training and development testified that the infraction would be noted in the employees file and other penalties, including suspension and lost pay, may be imposed. Although the record reveals that the employers 90-day policy is applied evenhandedly and purportedly is aimed at promoting workplace safety, the policy nonetheless has a discernible impact upon probationary employees who are injured in work-related accidents, i.e., employees who potentially could seek workers compensation benefits.

The policy effectively categorizes probationary employees into two groups: those who violate safety rules but are not injured, and those who violate safety rules and are injured with only the latter group automatically forfeiting their right to work for the employer (see Matter of Asem v Key Food Stores Co-Op., 216 AD2d at 807- 808). Such a policy dissuades those probationary employees who are injured in the course of their employment and wish to remain employed from reporting their injury and pursuing workers compensation benefits, which, in turn, runs counter to the Legislatures intended purpose of insuring that employees can exercise their rights under the compensation statutes without fear that doing so may endanger the continuity of [their] employment (Sponsors Mem, Bill Jacket, L 1973, ch 235). To the extent that the employer now argues that claimant was not terminated pursuant to the 90-day policy and, thus, his termination did not violate Workers Compensation Law $ 120, this claim directly contradicts the arguments put forth by the employer both before the WCLJ and the Board. In any event, a review of the record reveals that there is substantial evidence to support the Boards determination that claimant was terminated pursuant to such policy and, therefore, we find no basis to disturb the Boards decision (see Matter of Little v Gaines Elec. Contr., Inc., 36 AD3d 1056, 1057 [2007]; Matter of Gibson v Carrier Corp., 307 AD2d 616, 618-619 [2006]; Matter of Buzea v Alphonse Hotel Corp., 289 AD2d at 751-752). The employers remaining contentions, including its assertion that it was deprived of a full and fair opportunity to develop the record, have been examined and found to be lacking in merit.

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