Third Department decisions 5-29-15

The Court decided several cases this week. In Matter of Beck, the carrier appealed the finding that the employer and its third-party administrator were not entitled to reimbursement from the Special Disability Fund. In 1997, claimant’s husband (hereinafter decedent)established a claim for workers’ compensation benefits for asbestos related pleural disease and chronic irritative bronchitis, resulting from prolonged asbestos exposure at work. Following his death from lung cancer in 2005, claimant applied for death benefits. The employer and its third-party administrator (hereinafter collectively referred to as the employer) opposed and, in the alternative, sought reimbursement for the death benefits from the Special Disability Fund pursuant to Workers’ Compensation Law § 15 (8). The Workers’ Compensation Board ultimately awarded claimant death benefits and determined, among other things, that reimbursement from the fund was inappropriate. The employer now appeals. Initially, the employer has not demonstrated that, but for a preexisting permanent impairment, decedent’s death would not have occurred (see Matter of Shepler v City of Tonawanda, 67 AD3d 1313, 1313-1314 [2009]). Accordingly, the Board properly denied reimbursement from the Fund pursuant to Workers’ Compensation Law § 15 (8) (e) (see Matter of Smith v Pfaudler Co., Div. of Sybron Corp., 58 AD2d 902, 902-903 [1977]). The employer also argues that the Board erred in denying reimbursement for the death benefits under Workers’ Compensation Law § 15 (8) (ee). Such reimbursement from the Fund “require[s] a showing that decedent’s lung cancer [was] causally related to, or was precipitated by, a dust disease such as asbestosis” (Matter of Gillard v Consolidated Edison of N.Y., Inc., 115 AD3d 1121, 1122 [2014] [internal quotation marks and citation omitted]; see Workers’ Compensation Law § 15 [8] [ee];Matter of Smith v Bell Aerospace, 125 AD2d 140, 142 [1987]). In situations “where a dust disease is not a direct cause of death, but is merely a contributory factor or precipitant to a [decedent’s] death, the reimbursement rules related to dust disease cases are applicable” (Matter of Fama v P & M Sorbara, 29 AD3d 170, 174 [2006] [internal quotation marks and citation omitted], lv dismissed 7 NY3d 783 [2006]; see Matter of Smith v Bell Aerospace, 125 AD2d at 142). Here, the Board found that reimbursement pursuant to Workers’ Compensation Law § 15 (8)(ee) was inapplicable due to the fact that decedent’s underlying claim had not been established for asbestosis. In our view, however, the relevant inquiry for the Board under the statute is not whether decedent’s prior disability claim was established for asbestosis, but whether there is a causal link between his death from lung cancer and asbestosis related to his employment (see Workers’ Compensation Law § 15 [8] [ee]). Notably, the Board denied reimbursement here despite acknowledging that “decedent might have been diagnosed with asbestosis prior to his death” (compare Matter of Gillard v Consolidated Edison of N.Y., Inc., 115 AD3d at 1122-1123). Accordingly, the matter must be remitted so the Board may address this issue. In Matter of Kuczynski, the carrier appealed from a decision of the Workers’ Compensation Board,filed January 29, 2013, which ruled that apportionment applied to claimant’s workers’ compensation award. Claimant was employed at Kennedy Valve from 1978 to 1980, a foundry that was owned by ITT Grinnell during that time. During 1981 and 1982, claimant worked at Trinity Foundry and, in 1994, he returned to work for Kennedy Valve, which was then owned by McWane Inc. He had only worked for Kennedy Valve/McWane for one week when he injured his shoulder and never returned to work there. In 2004, he filed a claim for workers’ compensation benefits, after being diagnosed with chronic obstructive pulmonary disease (hereinafter COPD). Following hearings where all three foundry employers appeared, a Workers’ Compensation Law Judge found that claimant’s COPD was related to his foundry work and established the claim.1 None of the foundry employers appealed this determination. Kennedy Valve/McWane, as the most recent foundry employer, was found liable for the claim. Kennedy Valve/McWane thereafter raised the issue of apportionment of liability, pursuant to Workers’ Compensation Law § 44, with the previous foundry employers. The Workers’ Compensation Board ultimately apportioned liability for the claim to ITT Grinnell at 71%, Trinity at 28% and Kennedy Valve/McWane at 1%. Trinity and its workers’ compensation carrier now appeal. The Workers’ Compensation Law Judge based his determination on the opinions of various medical experts that claimant’s COPD was causally related to his foundry employment. He also found that medical treatment costs for claimant’s disease should be apportioned as 25% related to foundry work and 75% related to claimant’s history of smoking. Subsequent to the Board’s decision, Kennedy Valve/McWane informed the Board that claimant had died. Generally, the death of a party automatically stays litigation until a representative of that party has been substituted (see CPLR 1015 [a]; 1021).Inasmuch, however, as claimant’s death does not impact the issues raised on appeal, we will address the merits of the appeal (see We affirm. Pursuant to Workers’ Compensation Law § 44, the liable employer may seek apportionment of the total compensation due among previous employers in the same field who employed the claimant “at the time of or following the contraction of the compensable occupational disease” (Matter of Polifroni v Delhi Steel Corp., 46 AD3d 970, 971 [2007]; see Matter of Fazzary v Niles, 89 AD3d 1187, 1188 [2011]). Here, the only evidence presented as to when claimant contracted COPD was the report and testimony of Kennedy Valve/McWane’s medical expert, who opined that claimant had contracted COPD by 1978. Although the expert further opined that claimant’s foundry work had only a minimal impact on his disease, we find that the Board’s determination that claimant contracted COPD prior to his 1994 employment with Kennedy Valve/McWane and that liability for the claim should be apportioned between the foundry employers is supported by substantial evidence and it will not be disturbed (see Matter of Fazzary v Niles, 89 AD3d at 1188). ORDERED that the decision is affirmed, without costs. In Matter of Francis, the claimant appealed the fact that the Board refused to reopen his case. As the result of a work-related injury to claimant’s right hand in 1987, claimant was classified as having a permanent partial disability and awarded workers’ compensation benefits. In 1993, the Workers’ Compensation Board approved a lump-sum nonschedule adjustment pursuant to Workers’ Compensation Law § 15 (5–b) in the amount of $54,600, and the case was closed. Claimant filed several applications to reopen the claim that were denied by the Board. A 2010 denial of such an application on the ground that claimant did not demonstrate a change in condition not contemplated at the time of the original settlement was subsequently affirmed by this Court (95 AD3d 1515 [2012]). In 2012, claimant filed another application to reopen the claim that was also denied by the Board, and claimant now appeals. The Court affirmed. As in the matter previously before this Court, claimant has not demonstrated that there has been an unanticipated change in his condition or degree of disability since the lump-sum nonschedule adjustment, and the Board’s denial of the application on this ground will not be disturbed (see id. at 1516; Matter of Bunnell v Sangerfield Inn, 35 AD3d 1021, 1022 [2006]; Matter of Babalola v Olsten Temporary Staffing Corp., 8 AD3d 917, 917-918 [2004], lv dismissed 3 NY3d 752 [2004]). We also find that claimant’s request for an extreme hardship redetermination of his disability status pursuant to Workers’ Compensation Law § 35 was properly denied. Such redeterminations apply to “capped” permanent partial disability awards under Workers’ Compensation Law § 15 (3) (w) (see Workers’ Compensation Law § 35 [3]). Inasmuch as these awards apply only to accidents that occurred on or after March 13, 2007 (see L 2007, ch 6, §§ 4, 82 [a]), the Board properly ruled that claimant is ineligible for an extreme hardship redetermination under Workers’ Compensation Law § 35. Claimant’s remaining claims have been considered and found to be without merit.
In Matter of Schirizzo, the claimant appealed a finding that she had voluntarily removed herself from the labor market. Claimant had worked for the employer as a bank teller for 22 years when she sustained a work-related injury to her back in 2009. She never returned to work and her claim for workers’ compensation benefits was established. Claimant retired in 2012 and was found to have a permanent impairment of 75%. Issues of attachment to the labor market and loss of wage earning capacity were raised and the Workers’ Compensation Board ultimately determined that claimant had involuntarily retired and had a 99% loss of wage earning capacity. The employer and its workers’ compensation carrier now appeal. We affirm. “Whether a retirement or withdrawal from the labor market is voluntary is a factual determination to be made by the Board, and its decision will be upheld when supported by substantial evidence” (Matter of Ballou v Southworth-Milton, Inc., 107 AD3d 1084, 1085 [2013] [citation omitted]; see Matter of Griffin v Town of DeWitt, 100 AD3d 1129, 1129 [2012]). A retirement is involuntary when the claimant’s disability caused or contributed to the retirement (see Matter of Lombardo v Otsego County Empls., 125 AD3d 1079, 1080 [2015]; Matter of Coyle v Midwest Steel, 90 AD3d 1358, 1359 [2011]). Here, claimant testified that being a bank teller was the only job that she had ever had and that she could not return to work because she was unable to perform her job duties as a result of her injuries. Further, medical evidence in the record reflects that, on account of her injuries, claimant could not sit or stand for prolonged periods of time and could not lift more than 15 pounds. In light of the foregoing, substantial evidence supports the Board’s determination that claimant’s disability caused or contributed to her retirement (see Matter of Coyle v Midwest Steel, 90 AD3d at 1359; Matter of Funke v Eastern Suffolk BOCES, 80 AD3d 971, 972 [2011]). In establishing r of loss of wage earning capacity, the Board properly considered her functional limitations, the fact that she only possessed a high school education, as well as her age, her limited work experience and her 75% permanent impairment (see Matter of Cameron v Crooked Lake House, 106 AD3d 1416, 1416 [2013], lv denied 22 NY3d 852 [2013]; see also Employer: We Care Transportation, Inc., 2014 WL 3752256, *2, 2014 NY Wrk Comp LEXIS 04845, *5-*6 [WCB 8050 1872, Jul 25, 2014]; New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 47-49 [2012]). Accordingly, we find that the Board’s establishment of a 99% loss of wage earning capacity is supported by substantial evidence and it will not be disturbed. In Matter of LaClaire, the carrier appealed a finding that the claimant was entitled to permanent partial disability benefits rather than a schedule loss of use award for her knee injuries. Claimant sustained a work-related injury to her left knee in 2007 and successfully applied for workers’ compensation benefits. Her claim was subsequently amended to include a right knee injury. The Workers’ Compensation Board ultimately determined that, among other things, her condition warranted a marked permanent partial disability classification rather than a schedule loss of use award. The employer and its workers’ compensation carrier (hereinafter collectively referred to as the employer) now appeal. Whether a schedule loss of use award or an award of continuing disability benefits is appropriate constitutes a question of fact for resolution by the Board, and its determination will be upheld if supported by substantial evidence in the record (see Matter of Kondylis v Alatis Interiors Co., Ltd., 116 AD3d 1184, 1185 [2014]; Matter of Height v Con Edison, 78 AD3d 1468, 1468 [2010], lv denied 16 NY3d 708 [2011]). An award of continuing disability benefits, rather than a schedule loss of use award, “is indicated where there is a continuing condition of pain or continuing need for medical treatment or the medical condition remains unsettled” (Matter of Dillabough v Jaquith Indus., 305 AD2d 884, 884-885 [2003] [internal quotation marks and citations omitted]; see Matter of Kondylis v Alatis Interiors Co., Ltd., 116 AD3d at 1186). Claimant’s orthopedic surgeon testified that continuing disability benefits were appropriate, noting that claimant suffered from crepitus, swelling and severe pain in her knees that would likely worsen over time. Relying upon those observations, the surgeon opined that she had sustained a permanent partial disability at a 75% level. A physician who conducted an independent medical examination of claimant disagreed with that assessment but, deferring to the Board’s assessment of credibility, we conclude that substantial evidence supports its finding of a marked permanent partial disability (see Matter of Dillabough v Jaquith Indus., 305 AD2d at 885; Matter of Walker v New Process Gear Div., 201 AD2d 768, 769 [1994]). As a final matter, we cannot say that the Board abused itsdiscretion in requiring further proof as to what overpayments, if any, the employer had made to claimant (see Workers’ Compensation Law § 22; Matter of Dovi v Grand Union Co., 64 AD2d 343, 344 [1978]). In the Matter of Ouderkirk, the carrier (SF) appealed from a decision of the Workers’ Compensation Board, filed January 27, 2014, which, among other things, ruled that claimant’s removal from the labor market was involuntary. Claimant suffered a work-related injury to his back in 1998 and was awarded workers’ compensation benefits for the time period from January 17, 2000 to April 10, 2000. Medical treatment for his back continued and the Special Fund for Reopened Cases accepted liability for the claim in 2006. In 2012, an orthopedic surgeon found claimant to be totally disabled due to the work-related injury to his back and surgery was performed. In a proposed decision, the Workers’ Compensation Board awarded claimant compensation at a $400 weekly rate from the date of surgery going forward. The Special Fund objected and sought to obtain claimant’s testimony as to his attachment to the labor market prior to the surgery. A Workers’ Compensation Law Judge denied the request and granted claimant the same benefits included in the proposed decision. The Workers’ Compensation Board affirmed the decision upon administrative appeal, finding that the record evidence demonstrated that claimant had involuntarily separated from the labor market by taking disability retirement in 2003 due, in part, to his work-related back injury and, therefore, claimant’s testimony was unnecessary. The Court reversed. Whether claimant had voluntarily removed himself from the labor market prior to his surgery is relevant in determining whether he had a post-retirement loss of wages as a result of the disability related to the surgery (see Matter of Lombardo v Otsego County Empls., 125 AD3d 1079, 1081 [2015]; Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582, 584 [2006]). Here, the Board determined that claimant involuntarily withdrew from the labor market based upon its finding that claimant had retired in 2003 due in part to his compensable back injury. In reaching this determination, the Board relied on an affidavit executed by claimant in 2006 in conjunction with the transfer of liability to the Special Fund. Notably, however, claimant does not state in the affidavit that he retired in 2003, or that he stopped working due to a disability at that time. The only reference he makes as to why he might have stopped working in 2003 was a reference to the fact that, during that year, the employer closed the mill where he worked. There is no indication in the record as to what work claimant was performing for the employer at the time that the mill closed or whether claimant was disabled in 2003. Although claimant also states in the 2006 affidavit that he was retired at that time and was collecting Social Security disability and retirement benefits related to depression, his back, both knees, breathing difficulties and arthritis, the medical reports in the record reflect that he was working until 2009. Given the lack of proof in the record that claimant retired in 2003 due at least in part to his compensable back injury, the Board’s finding that he involuntarily removed himself from the labor market at that time is not supported by substantial evidence (see Matter of Lombardo v Otsego County Empls., 125 AD3d at 1081). Further, in light of the relevance of whether claimant’s decision to retire was due at least in part to a work-related disability, we find, under these circumstances, that the Special Fund was prejudiced by the denial of its request for claimant’s testimony regarding this issue (see Matter of Lewis v Stewart’s Mktg. Corp., 90 AD3d 1345, 1346 [2011]; Matter of Emanatian v Saratoga Springs Cent. School Dist., 8 AD3d 773, 774 [2004]). Accordingly, the Board’s decision must be reversed. In Matter of Larberg, the claimant appealed a finding that denied his request for Full Board Review. Claimant alleged that he suffers from work-related heart disease and, in 2008, the Workers’ Compensation Board determined that his claim for workers’ compensation benefits had properly been closed for lack of prima facie medical evidence. In 2013, he applied for reconsideration and/or full Board review. The Board denied his application, and claimant now appeals. We affirm. Inasmuch as claimant has only appealed from the Board’s denial of his request for full Board review, the merits of the underlying decision are not before us (see Matter of Kalkbrenner v Accord Corp., 123 AD3d 1303, 1304 [2014]; Matter of Mazzaferro v Fast Track Structures, Inc., 106 AD3d 1302, 1302 [2013]). Instead, the sole issue for our consideration is whether the denial of full Board review “was arbitrary and capricious or otherwise constituted an abuse of discretion” (Matter of Kalkbrenner v Accord Corp., 123 AD3d at 1304). The decision here was neither, as claimant failed to “show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination” (Matter of D’Errico v New York City Dept. of Corrections, 65 AD3d 795, 796 [2009], appeal dismissed 13 NY3d 899 [2009]; accord Matter of Regan v City of Hornell Police Dept., 124 AD3d 994, 997 [2015]). Matter of Venditti, claimant filed an appeal to a decision finding he did not sustain a work related injury to the neck and back. Claimant was awarded workers’ compensation benefits for injuries to his ribs, chin, right shoulder and left knee after he was involved in a motor vehicle accident while working. The Workers’ Compensation Law Judge determined, however, that claimant had failed to establish causally related injuries to his neck and back. Upon review, the Workers’ Compensation Board affirmed this decision and claimant now appeals. We affirm. Claimant bore the burden of establishing by competent medical evidence that his claimed injuries to his neck and back were causally related to his employment (see Matter of Dizenzo v Henderson & Johnson, 114 AD3d 1014, 1014 [2014]; Matter of Jaquin v Community Covenant Church, 69 AD3d 998, 999 [2010]). Claimant’s treating physician opined that claimant’s neck and back pain were causally related to the work accident. He testified, however, that this opinion was based solely upon claimant’s subjective complaints and that he has never diagnosed claimant with any injuries to his neck or back, nor has he provided any treatment to those areas. Claimant’s pain management physician testified that he began treating claimant for neck and back pain five years after the accident, but he did not know the extent of claimant’s injuries to these areas and could not give an opinion as to whether the pain was related to the accident. The employer’s medical expert, who examined claimant and reviewed his medical records, testified that claimant only complained to him of pain to his right shoulder and left knee. Regarding claimant’s neck and back, the expert diagnosed a cervical strain and a lumbar radiculopathy that had both resolved. He further testified that he could not opine that any injuries to claimant’s back or neck were causally related to his work accident. Given that the resolution of conflicting medical opinions is within the exclusive province of the Board, we find its decision to be supported by substantial evidence (see Matter of Alm v Natural Health Family Chiropractic, 85 AD3d 1500, 1501 [2011]; Matter of Cuffe v Supercuts, 83 AD3d 1344, 1345 [2011], lv denied 17 NY3d 705 [2011]). Matter of Kettavong, the carrier appealed a finding that they were not entitled to reimbursement pursuant to 25-a from the Special Funds. Claimant sustained a work-related injury to her back in April 2003 and her claim for workers’ compensation benefits was established. Liability for the claim was subsequently transferred to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a, effective April 2010. None of the parties appealed this decision. In 2012, claimant was classified with a permanent partial disability and thereafter filed a request for further action to address causally related reduced earnings. Claimant’s employer was put on notice and, following a hearing at which reduced earnings and the rescission of the transfer of liability were raised, the Workers’ Compensation Law Judge found that claimant was entitled to various awards of reduced earnings, but maintained liability with the Special Fund. Upon review, the Workers’ Compensation Board modified the determination by rescinding the transfer of liability to the Special Fund, finding that the case was not closed at the time that the employer requested the transfer due to an unresolved issue regarding whether claimant suffered a permanent disability. The employer and its workers’ compensation carrier (hereinafter collectively referred to as the employer) now appeal. The Court affirmed. “Workers’ Compensation Law § 25-a shifts liability for a claim to the Special Fund where a workers’ compensation case that was fully closed is reopened more than seven years after the underlying injury occurred and more than three years after the last payment of compensation” (Matter of Palermo v Primo Coat Corp., 88 AD3d 1042, 1042 [2011] [internal quotation marks and citations omitted], lv denied 18 NY3d 810 (2012]; accord Matter of Nanni v Source Corp., 98 AD3d 1225, 1226 [2012]). “Whether there has been a true closing of the case is a factual issue for the Board to resolve and its determination in this regard will be upheld if supported by substantial evidence” (Matter of Early v New York Tel. Co., 57 AD3d 1341, 1343 [2008] [citations omitted]; see Matter of Hunt v Price Chopper/Golub Corp., 85 AD3d 1522, 1523 [2011]). Here, a report based upon an independent medical examination of claimant was filed with the Board in 2005 in which the examiner opined that claimant had reached maximum medical improvement at that time and classified her as suffering from a mild degree of disability. Inasmuch as this report raised the issue of claimant having a permanent disability, which remained unresolved in 2011 when the employer requested that liability shift to the Special Fund, substantial evidence supports the Board’s decision that the case was not truly closed at that time and Workers’ Compensation Law § 25-a did not apply (see Matter of Pankiw v Eastman Kodak Co., 123 AD3d 1388, 1389-1390 [2014]; Matter of Bush v Montgomery Ward, 73 AD3d 1313, 1313-1314 [2010]; Matter of Carubia v Colt Indus. [Crucible Steel], 12 AD3d 827, 828 [2004]). Further, contrary to the employer’s contention, the Board “may exercise its authority to rescind former findings” (Matter of Jansch v Sagamore Children’s Fund, 302 AD2d 851, 853 [2003]; see Workers’ Compensation Law § 123) despite the lack of a timely appeal from an aggrieved party (see Matter of Spaminato v Bay Transp. Corp., 32 AD2d 345, 346-347 [1969]). We find no abuse of the Board’s discretion here. The employer now contends that the case was truly closed in October 2012 and liability should have shifted to the Special Fund at that time. Inasmuch as this issue was not before the Board, we do not address it. The remaining claims have been considered and found to be unpersuasive.

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