The Third Department Cases Dealing With Worker’s Compensation Issues 12-4-14

Today the Court decided 2 cases dealing with workers compensation .

In Matter of Monahan, the carrier appealed from a decision of the Workers Compensation Board, filed March 7, 2013, which, among other things, directed the employers workers compensation carrier to make a deposit into the aggregate trust fund pursuant to Workers Compensation Law $ 27 (2).

A work-related injury in 2006 resulted in a Workers Compensation Law Judge (hereinafter WCLJ) classifying claimant in 2009 as having a permanent partial disability and directing the workers compensation carrier to make a deposit into the aggregate trust fund (hereinafter ATF) (see Workers Compensation Law $ 27 [2]).

An administrative appeal by the employer and carrier (hereinafter collectively referred to as the carrier) was unsuccessful, as the Workers Compensation Board affirmed the WCLJ on December 28, 2009. That same day, the WCLJ rendered a supplemental decision setting the ATF deposit at $127,241.44 payable by March 17, 2010.

While appeals were pending from those decisions, claimant died in April 2010 from causes unrelated to the underlying injury. The carrier then requested that the decisions directing it to make a lump-sum payment to the ATF be rescinded because of claimants death. The Board upheld the decision by a 2 to 1 vote. Because there was a dissent, the carrier was entitled to and sought full Board review. The full Board affirmed the relevant decisions and imposed a frivolous appeal penalty on the carrier of $500. The carrier now appeals.

The carrier initially argues that it should not have to make the payment into the ATF because claimant died at a time when a stay on that payment was in effect and her death extinguished the carriers future financial obligation regarding the claim. As a general principle, the obligation to pay the lump sum into the ATF is fixed once the carrier is directed to pay it (see Matter of Becker v Rauli & Sons, Inc., 88 AD3d 1040, 1041 [2011]; Matter of Marconi v Marshall, 284 App Div. 728, 730 [1954]). During the time that an appeal is pending regarding the lump-sum payment, the carrier is not required to pay the amount so long as it is as here making timely payments to the claimant as compensation becomes due (see Workers Compensation Law $ 23; Matter of Appley v American Food, 82 AD3d 1563, 1564 [2011]). However, if the carrier ultimately loses its appeal and the award directing payment into the ATF is affirmed, Workers Compensation Law $ 27 (4) provides for payment of the lump sum as of the effective date of the original award plus interest, and adds that The foregoing provision shall apply in the event of such review or appeal regardless of whether the widow or widower or other parties in interest have died or the widow or widower remarried subsequent to the date as of which the present value of the original award was computed (emphasis added). The language of the statute is consistent with the conclusion that, if the carriers appeal is unsuccessful, then the obligation to pay a lump sum into the ATF remains in effect as of the date that payment was directed regardless of whether the claimant died during the time the appeal was pending (see generally Matter of Raynor v Landmark Chrysler, 18 NY3d 48, 56 [2011]; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]).

The Board was not required, as alternatively urged by the carrier, to recalculate the amount of its payment into the ATF in light of payments that the carrier had made to claimant. The carriers payments to claimant during the pendency of the appeal are accounted for and an adjustment provided by a credit in the statute (see Workers Compensation Law $ 27 [4]; see also Matter of Flynn v Managed Care, Inc., 100 AD3d 1115, 1115 [2012]).

Finally, we find merit in the carriers argument that there was no basis for determining that its appeal to the full Board was frivolous. The issue regarding the effect on the lump-sum payment of claimants death while an appeal was pending generated a dissent from the Board, and the law was not so well settled as to support the conclusion that the carriers appeal was frivolous (see Matter of Appley v American Food, 82 AD3d at 1565).

In Matter of Manka, Appeal from a decision of the Workers Compensation Board, filed February 22, 2013, which, among other things, ruled that the death of claimants husband was causally related to his employment.

David Manka (hereinafter decedent) worked for the employer from 1987 to 2003 and, during the early years of his employment, his duties included testing samples of ortho-toluidine, which is known to cause bladder cancer. Decedent was diagnosed in 2007 with ureteral cancer and died from the disease in 2008. Claimant, decedents widow, filed for workers compensation death benefits. The employer controverted the claim asserting, among other things, the absence of a causal link between exposure to ortho-toluidine and ureteral cancer. The Workers Compensation Law Judge credited claimants expert regarding causation and found that decedent had died as a result of an occupational disease. The Workers Compensation Board affirmed. The employer and its workers compensation carrier (hereinafter collectively referred to as the employer) now appeal.

The employer argues that, although there are studies linking ortho-toluidine exposure to bladder cancer, there are no established links of such exposure to ureteral cancer and, thus, claimant failed to establish causation. In a claim for workers compensation benefits based upon occupational disease, the claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her employment (Matter of Ferraina v Ontario Honda, 32 AD3d 643, 644 [2006] [citations omitted]; accord Matter of Dosztan v Kraft Foods, 113 AD3d 1007, 1008 [2014]).

When considering a claim for benefits, the Board is not . . . bound by common law or statutory rules of evidence (Workers Compensation Law $ 118; see Matter of Carroll v Knickerbocker Ice Co., 218 NY 435, 440 [1916]; Matter of Paiz v Coastal Pipeline Prods. Corp., 9 AD3d 717, 718 [2004]). The Board is vested with the discretion to assess the credibility of medical [proof] and its resolution of such issues is to be accorded great deference, particularly with respect to issues of causation (Matter of Perez v Mondial Tiles, Inc., 104 AD3d 998, 998-999 [2013] [internal quotation marks and citations omitted]). Claimants expert proof included reports by Steven Markowitz, an occupational and environmental physician, who conducted a study of employees who worked at the facility where decedent was exposed to ortho-toluidine and found a statistically significant link between such exposure and bladder cancer.

Although he acknowledged a lack of studies directly concluding that ortho-toluidine causes ureteral cancer, he explained that ureteral cancer is difficult to study because it is very rare. He pointed to scientific literature concluding that the suspected occupational causes of ureteral cancer were similar to the causes established for bladder cancer. After noting that decedent did not smoke or have any other known risk factor for ureteral cancer, he related that decedent was definitely exposed to orthotoluidine, ortho-toluidine is a human bladder carcinogen, ureters have the same type of cells as the bladder, ureters are directly connected to the bladder, and urinary carcinogens flow through the ureters to reach the bladder. Markowitz found the link between ortho-toluidine exposure and ureteral cancer to be highly plausible and opined to a reasonable degree of certainty that decedents cancer stemmed from such exposure. While the employers experts disagreed with Markowitz and a different conclusion by the Board would have been reasonable, substantial evidence nonetheless supports the Boards determination.

The decision was affirmed.

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