Third Department Decisions 6-5-14

In Matter of Nicpon, the special funds appealed a finding that liability shifted to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a.

Claimant sustained an injury to his lower back in March 2003 and a workers’ compensation claim was thereafter established for a temporary partial disability. In October 2005, claimant

was classified with a permanent partial disability and the self insured employer and its third-party administrator (hereinafter collectively referred to as the employer) were directed to

continue payments at a tentative reduced earnings rate of $125 per week. Thereafter, claimant sought to settle an outstanding third-party action arising out of the workplace accident for the

sum of $240,000. Claimant and the employer entered into an agreement in December 2008 – which was approved by the Workers’ Compensation Board pursuant to Workers’

Compensation Law § 32 – whereby the employer consented to the settlement of the third party action, waived its liens for both past benefits and future medical expenses, and agreed to cover future medical costs in exchange for claimant’s waiver of future indemnity benefits. In addition, the agreement made all prior tentative rates permanent Pursuant to Workers’ Compensation Law § 25-a, liability for a claim will be transferred to the Special Fund when an application is made to reopen a closed case after a lapse of seven years from the date of the injury and three years from the date of the last payment of compensation (see Matter of Thurston v. Consolidated Edison Co. of N.Y., Inc., 115 AD3d 1143, 1144 [2014]; Matter of Porter v New York State Elec. & Gas Corp., 113 AD3d 987, 988 [2014]). The issue here distills to when the last payment of compensation was made in light of the settlement agreement between claimant and the employer. We note that, inasmuch as the resolution of this question is a matter of statutory interpretation, the Board’s decision is not entitled to deference (see Matter of Rivera v North Cent. Bronx Hosp., 101 AD3d 1304, 1305 [2012]; MatteCorp., 84 AD3d 1545, 1546 [2011]).

Pursuant to Workers’ Compensation Law § 25-a (7), where a case is “disposed of by the payment of a lump sum,” the date of the last payment of compensation is established by calculating

the date to which the amount paid in the settlement would have extended had the award of indemnity benefits been made at the maximum compensation rate warranted on the date the lump-sum payment was approved (see Matter of Robinson v Holiday Showcase Rests., Inc., 46 AD3d 1178, 1179 [2007]; Employer: Cerebral Palsy Assoc. of NYS, 2014 WL 1630539, *1, 2014 NY Wkr Comp LEXIS 02610, *1 [WCB No. 0055 0289, Apr. 21, 2014]). Here, the employer entered into an agreement with claimant on December 30, 2008 that permitted claimant to retain the proceeds of the third-party action in exchange for, among other things, his forbearance of future indemnity benefits. In our view, these proceeds constituted a lump-sum payment for purposes of the statute. Contrary to the employer’s contention that the statute only

applies where the employer itself makes a lump-sum payment to the claimant, we note that the plain language of the statute indicates that it applies “where the case is disposed of by the

payment of a lump sum,” without reference to the source of such payment (Workers’ Compensation Law § 25-a [7]). Thus, because the settlement agreement effectively “disposed”

of the employer’s obligation to pay future indemnity benefits in exchange for claimant’s retention of a lump-sum payment from the third-party action, application of the statute is

appropriate to bar transfer of liability for future medical benefits to the Special Fund. However, inasmuch as the record before us is insufficient to enable us to calculate the date to

which the amount paid in the settlement would extend – taking into account such factors as the employer’s share of litigation costs and the amount of the liens that the employer waived

– the matter must be remitted to the Board for a calculation of the date of the last payment of compensation for purposes of Workers’ Compensation Law § 25-a.

In Matter of Hazan, Appeal from a decision of the Workers’ Compensation Board, filed September 19, 2012, which ruled that claimant was not a participant in the World Trade Center

rescue, recovery or cleanup operations and denied his claim for workers’ compensation benefits. On the morning of September 11, 2001, claimant, a former emergency medical technician, started walking from his residence on the upper west side of Manhattan toward the World Trade Center site to offer assistance in the rescue and recovery efforts. While en route, claimant heard that a triage center was being established at the Chelsea Piers and he proceeded to that location, where he spent the day sorting supplies and setting up a treatment area. The following day, claimant went to ground zero, found his way around the barriers, flashed his emergency medical technician card and badge to gain access to the site and attempted to search for survivors. Claimant was not registered or affiliated with any volunteer organization or agency during the course of these two days, and he did not aid in the rescue or recovery operations after September 12, 2001.

In March 2010, claimant registered his participation as a volunteer in the World Trade Center rescue, recovery and/or cleanup operations with the Workers’ Compensation Board (see

Workers’ Compensation Law § 162) and thereafter filed this claim for workers’ compensation benefits for injuries allegedly sustained as a result of his exposure to dust and toxins at the

sites in question. Following various proceedings, a Workers’ Compensation Law Judge (hereinafter WCLJ) found that claimant sustained a compensable injury for gastro esophageal reflux

disease, depression, anxiety, chronic rhinitis and sinusitis and awarded benefits. The World Trade Center Volunteer Fund sought review of the WCLJ’s decision, contending that claimant failed to

meet the definition of “volunteer” because he did not provide proof that he was acting under the direction and control of a volunteer agency. In rebuttal, claimant argued, among other

things, that the case also should have been established for asthma. The Board reversed the WCLJ’s decision, finding that claimant did not meet the definition of “first response emergency

services personnel” as set forth in the final revised Order of the Chair No. 967 issued by the Board’s chair in 2006 and, hence, did not qualify as a volunteer. This appeal by claimant ensued.

Workers’ Compensation Law article 8-A, which is to be afforded a liberal construction, “was enacted ‘to remove statutory obstacles to timely claims filing and notice for latent

conditions resulting from hazardous exposure for those who worked in rescue, recovery or cleanup operations following the World Trade Center September 11, 2001 attack'”

(Matter of Williams v City of New York, 66 AD3d 1203, 1204 [2009], quoting Senate Mem in Support, 2006 McKinney’s Session Laws of NY, at 1915). A “volunteer” may qualify for coverage

under the statute provided he or she tenders to the Board satisfactory evidence that he or she participated in the rescue, recovery, or cleanup operations at the World Trade Center site (see Workers’ Compensation Law § 161 [1] [b] [i]) – a geographical location defined by Workers’ Compensation Law § 161 (2) – between September 11, 2001 and September 12, 2002 and suffers from a “[q]ualifying condition,” including rhinitis and sinusitis (see Workers’ Compensation Law § 161 [3] [a]), gastro esophageal reflux disease (see Workers’ Compensation Law § 161 [3] [c]) and anxiety or depression (see Workers’ Compensation Law § 161 [3] [d]). Here, the Board did not directly address the time, location and activity elements of the statute; rather, the Board denied claimant’s application for workers’ compensation benefits solely because claimant “did not serve under the direction of an authorized rescue entity or volunteer agency” and, hence, “[did] not meet the definition of [a] volunteer” within the meaning of Workers’ Compensation Law article 8-A.

“It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature. The starting point is always to look to the language itself and where

the language of a statute is clear and unambiguous, courts must give effect to its plain meaning” (Matter of Joyce v. Coface N. Am. Ins. Co.-Commissioner of Labor], 116 AD3d 1132, 1133 [2014]

[internal quotation marks and citations omitted]; see Matter of Talisman Energy USA, Inc. v New York State Dept. of Envtl. Conservation, 113 AD3d 902, 904 [2014]), as “the text of a

provision is the clearest indicator of the enactors’ intent” (Nostrom v A.W. Chesterton Co., 15 NY3d 502, 507 [2010]). Here, Workers’ Compensation Law § 161 does not define the term

volunteer, and Workers’ Compensation Law article 8-A is otherwise silent in this regard. Affording such term its plain and ordinary meaning (see McKinney’s Cons Laws of NY, Book 1,

Statutes § 232), a volunteer is defined as, among other things, “a person who performs a service willingly and without pay” (Dictionary.com, http://dictionary.reference.com/browse/

volunteer [accessed May 12, 2014]). Noticeably absent from both Workers’ Compensation Law article 8-A and the commonly understood meaning of the word volunteer is any requirement that

such individual “serve under the direction of an authorized rescue entity or volunteer agency.” Accordingly, the Board’s imposition of such a requirement is, to our analysis, contrary to

the plain terms of the statute.

Moreover, our conclusion in this regard is fully supported by the underlying legislative history. Following September 11, 2001, the House of Representatives appropriated various funds to,

insofar as is relevant here, assist the Board in processing claims related to the terrorist attack. To that end, $25,000,000 was allocated to the Uninsured Employers Fund “for reimbursement

of claims related to the first response emergency services personnel who were injured, were disabled, or died due to the terrorist attacks” (Department of Defense and Emergency

Supplemental Appropriations for Recovery From and Response to the Terrorist Attacks on the United States Act, 2002, as added by Pub L 107-117, 115 Stat 2230, 2313 [107th Cong, 1st Sess, Jan. 10,

2002]). In the absence of contemporaneous enabling legislation, the Board issued Order of the Chair No. 967 in June 2003, which defined the term “first response emergency services personnel”

as:

“[a]ll persons who, serving without

compensation or remuneration, and serving

under the direction of an authorized

rescue entity or volunteer agency,

provided services to deal with the

emergency situation created by the

September 11, 2001 terrorist attack on the

World Trade Center, including but not

limited to firefighting, rescue, emergency

medical, health and sanitation services,

emergency debris clearance, care and

shelter of those made homeless,

distribution of food, water, and medical

supplies and other equipment.”1

Thereafter, the Board routinely applied this definition of

volunteer to deny awards to claimants who were not associated

1 A revised order – issued in July 2003 – contained the

same definition of “first response emergency services personnel,”

and both the original and revised order also defined what

constituted an “authorized rescue entity or authorized volunteer

agency.”

with an authorized rescue entity or volunteer agency (see e.g. Employer: WTC Volunteer, 2006 WL 196769, 2006 NY Wrk Comp LEXIS 319 [WCB No. 0045 1670, Jan. 11, 2006]; Employer: WTC Volunteer,

2005 WL 3029277, 2005 NY Wrk Comp LEXIS 9568 [WCB No. 0044 7096, Nov. 1, 2005]). Thereafter, in August 2006, the Legislature enacted Workers’ Compensation Law article 8-A (see L 2006, ch 446; Senate

Mem in Support, 2006 McKinney’s Session Laws of NY at 1914). In response, a final revised Order of the Chair No. 967 was issued, which, although acknowledging this legislative enactment,

nonetheless retained the requirement that a volunteer be affiliated with an authorized rescue entity or volunteer agency in order to qualify for benefits – a requirement that the Board

has continued to impose in its subsequent decisions (see e.g. Employer: WTC Volunteer, 2013 WL 5959058, 2013 NY Wrk Comp LEXIS 10020 [WCB No. G038 2498, Oct. 29, 2013]; Employer: WTC

Volunteer, 2009 WL 1392412, 2009 NY Wrk Comp LEXIS 9211 [WCB No. 0080 3691, May 8, 2009]). The flaw in the Board’s analysis on this point is that, prior to the enactment of Workers’

Compensation Law article 8-A, several bills were circulated in the Legislature that defined a “volunteer rescue worker” as one who “rendered service under the direction and control of an

authorized rescue entity” (2003-2004 NY Senate Bill S04693; 2003- 2004 NY Assembly Bill A08844; 2001-2002 NY Assembly Bill A09482). Significantly, however, such language is not included in Workers’

Compensation Law article 8-A, and “[t]he deletion of this explicit language from the version of [Workers’ Compensation Law article 8-A] that finally passed is persuasive evidence that the

Legislature rejected” the more restrictive definition of volunteer that originally was proposed (Majewski v Broadalbin- Perth Cent. School Dist., 231 AD2d 102, 107 [1997], affd 91 NY2d

577 [1998]; see generally Matter of Jessica D. v Jeremy H., 77 AD3d 87, 89-91 [2010]). Finally, to the extent that the Board has consistently relied upon the subject orders in denying benefits to volunteers

who were not affiliated with an authorized rescue entity or volunteer association, we need note only that while Workers’ Compensation Law § 141 vests the Board’s chair with certain

powers to administer the provisions of the Workers’ Compensation Law, it does not vest him or her with the authority to supplement or amend duly enacted legislation. Accordingly, whatever the net

effect of such orders may be, they “cannot overrule the statute itself” (Matter of Russomanno v Leon Decorating Co., 306 NY 521, 525 [1954]). In sum, as neither the statutory language nor the

legislative history supports the Board’s requirement that an individual be affiliated with an authorized rescue entity or volunteer agency in order to qualify as a volunteer and, hence,

be eligible for the coverage afforded under the statute, the Board’s decision denying claimant’s application for benefits upon this particular ground cannot stand.2 That said, claimant still

must satisfy the time, location and activity elements of Workers’ Compensation Law article 8-A in order to be entitled to benefits, and we therefore remit this matter to the Board for consideration

of those issues and, more to the point, the sufficiency of claimant’s proof thereon.

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