Yesterday the Court decided 6 cases dealing with workers compensation cases.

March 22, 2013

In Matter of Swanko , Appeal from an amended decision of the Workers’ Compensation Board, filed November 7, 2011, which, among other things, ruled that apportionment pursuant to Workers’
Compensation Law § 44 is not applicable to claimant’s workers’ compensation award.

Claimant was employed for many years as a carpenter. Late in 2005, injuries to claimant’s hips, knees, shoulders and wrists caused him to stop working. He thereafter filed a claim for workers’ compensation benefits, asserting that repetitive trauma sustained in connection with his employment caused the disabling injuries. The employer and its workers’ compensation carrier controverted the claim. Following a hearing, the Workers’ Compensation Law Judge (hereinafter WCLJ) established the claim as an accidental injury due to repetitive trauma. Subsequently, the WCLJ determined that, inasmuch as this is an accident claim and not an occupational disease claim, apportionment pursuant to Workers’ Compensation Law § 44 does not apply. Upon appeal, the
Workers’ Compensation Board affirmed the WCLJ’s determination and later issued an amended decision in which it also clarified the accident date. The employer and carrier appealed the amended
decision, solely arguing that the Board’s denial of apportionment was in error because the claim should have been classified as an occupational disease, not an accident.
The Court found that the argument of the employer and carrier regarding classification of this claim as an accident rather than an occupational disease is not properly before them inasmuch as no
appeal from the WCLJ’s determination of this issue was taken (see Matter of Mistofsky v Consolidated Edison Co. of N.Y., Inc., 68 AD3d 1256, 1258 [2009]; Matter of Nomikos v Ionic Painting Corp.,
27 AD3d 843, 843-844 [2006], lv denied 7 NY3d 701 [2006]; see also Workers’ Compensation Law § 23). In any event, were that decision properly before us, we would affirm it, as the record
contains substantial evidence supporting the determination classifying the claim as an accident (see Matter of Laib v State Ins. Fund, 101 AD3d 1279 [2012]; Matter of Parsons-Zieba v
Cornell Univ., 2 AD3d 1044, 1044-1045 [2003]).

In Matter of Riley, the claimant appealed Appeal from a decision of the Workers’ Compensation Board, filed November 30, 2011, which ruled that the reopening of the
claim was barred by Workers’ Compensation Law § 123 .

Claimant sustained a work-related injury to his right knee in 1990 for which he obtained a schedule loss of use award. His condition worsened following a 2003 injury and, in September 2008,
a Workers’ Compensation Law Judge (hereinafter WCLJ) found that the claim was reopened – effective August 2006 – and shifted liability to the Special Fund for Reopened Cases.
Thereafter, in a February 2009 decision, another WCLJ attributed 70% of claimant’s overall disability to the 1990 injury and authorized right knee replacement surgery. When claimant sought further
benefits after undergoing the surgery in January 2011,1 the Special Fund argued that the claim had been truly closed in April 2009 following authorization for the surgery, and that any additional
awards would be untimely pursuant to Workers’ Compensation Law § 123. Although a WCLJ found otherwise, upon review the Workers’ Compensation Board ultimately agreed with the Special
Fund and reversed the decision of the WCLJ. Claimant appealed and the Court reversed.

Workers’ Compensation Law § 123 prohibits an award of benefits against the Special Fund “after a lapse of eighteen years from the date of the injury or death and also a lapse of
eight years from the date of the last payment of compensation” (see Matter of Zechmann v Canisteo Volunteer Fire Dept., 85 NY2d 747, 751 [1995]). However, such statutory bar only applies if
the claimant’s case was truly closed, a factual issue for the Board that depends upon whether “further proceedings, such as the submission of additional medical evidence, were contemplated” at
the time of the purported closing (Matter of Ford v New York City Tr. Auth., 27 AD3d 792, 794 [2006], lv dismissed 7 NY3d 741 [2006]; accord Matter of Runge v National Baseball League, 93
AD3d 1015, 1016 [2012]; see Matter of Zechmann v Canisteo Volunteer Fire Dept., 85 NY2d at 751; Matter of Carubia v Colt Indus. [Crucible Steel], 12 AD3d 827, 828 n [2004]). The test is
whether further proceedings were contemplated, not whether they were actually planned (see Matter of Barker v Buffalo Color Corp., 32 AD3d 1138, 1139 [2006]; Matter of Pegoraro v Tessy
Plastics Corp., 287 AD2d 909, 910 [2001], lv dismissed and denied 98 NY2d 669 [2002])

Here, the Board’s bare summary conclusion that there was a true closing of the case on April 6, 2009 and that no further action was contemplated at that time lacks any factual support
and, in fact, is arguably contradicted by the record. The April 2009 decision relied upon by the Board (which the Court noted only indicates an inactive status and not a true closing)
simply stated that the matter was “[p]ending outcome of surgery on right knee. No further action is planned by the Board at this time,” and provides no information as to whether further Board
action was contemplated once the outcome of claimant’s surgery was determined (see Matter of Hartwell v Amphenol Interconnect Prods., 51 AD3d 1245, 1247 [2008];
Matter of Bates v Finger Lakes Truck Rental, 41 AD3d 957, 959 [2007]). We note that, two months prior to the April 2009 decision relied upon by the Board, the WCLJ issued a decision
authorizing claimant’s knee surgery and continuing the cases “to make awards in accordance with this decision, subject to any credits. The Court went on to chastise the Board,
stating considering the nature of the surgery being requested, and the fact that medical examinations of claimant in October and November 2008 revealed that claimant had a moderate partial
disability to his right knee, the Board’s conclusion that no further proceedings were contemplated in April 2009 when surgery was authorized is dubious and, more importantly, is completely
lacking in any record support (compare Matter of Nanni v Source Corp., 98 AD3d 1225, 1227 [2012]). Under these circumstances, we find that the Board’s determination that the April 2009 decision
constituted a true closing was not supported by substantial evidence and must be reversed (see Matter of Granberry v JCCA Edenwald, Inc., 33 AD3d 1102, 1103 [2006]).

In Matter of Hartman, the carrier appealed a ruling that the employer’s workers’ compensation carrier is not entitled to reimbursement from the Special Disability Fund.

Claimant injured her back while working for the employer in 2007 and thereafter was awarded workers’ compensation benefits. Upon learning that claimant suffered from preexisting
hypertension and bilateral degenerative joint disease of the knees, the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) applied for
reimbursement from the Special Disability Fund (see Workers’ Compensation Law § 15 [8] [d]). The WCLJ established 15-8 d relief and the Board reversed. On appeal the Court affirmed.

“To qualify for reimbursement from the Fund, the [carrier] must demonstrate that claimant suffered from (1) a preexisting permanent impairment that hindered job potential, (2) a
subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than would have resulted from the work-related injury
alone” (Matter of Burley v Theriault Transp., 85 AD3d 1423, 1423 [2011] [citations omitted]; see Matter of Zeppieri v Hofstra Univ., 94 AD3d 1288, 1289 [2012]; Matter of Kakuriev v Home Serv.
Sys., LLC, 80 AD3d 1033, 1034 [2011]). In this regard, “preexisting conditions that are controlled by medication have been found, without more, not to constitute a hindrance to
employability” (Matter of LaDuke v Schenectady Community Action Program, 102 AD3d 1069, 1070 [2013]).

Here, claimant testified that her preexisting knee condition caused her only intermittent pain that, in turn, was treated with over-the-counter or prescription pain medicine as
needed (see Matter of Bushey v Schuyler Ridge, 77 AD3d 1006, 1007 [2010]). Claimant also testified that, despite whatever pain she experienced in this regard, she continued to work – without any
restrictions or accommodations – and did not incur any lost time from work as a result of her preexisting knee condition (see Matter of Pinter v Louis J. Kennedy Trucking Corp., 82 AD3d 1481,
1481 [2011]; Matter of Grabinsky v First At Nursing Servs., 79 AD3d 1494, 1495 [2010]). Although the carrier’s consultant opined that, due to claimant’s preexisting knee condition
claimant’s work-related disability was materially and substantially greater than it otherwise would have been, he did not state that the preexisting condition hindered claimant’s
employment. Accordingly, we find that substantial evidence supports the Board’s decision (see Matter of Weiner v Glenman Indus. & Commercial Contr. Corp., 95 AD3d 1516, 1518 [2012];
Matter of Burley v Theriault Transp., 85 AD3d at 1424; Matter of Kakuriev v Home Serv. Sys., LLC, 80 AD3d at 1034; Matter of Howath v BSB Inns, Inc., 79 AD3d 1553, 1554 [2010]; Matter of
Sturtevant v Broome County, 188 AD2d 893, 894 [1992]; compare Matter of Zeppieri v Hofstra Univ., 94 AD3d at 1289).

In Matter of Rodriquez, the Special Fund appealed a finding that the application for reimbursement was timely.

The employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) sought reimbursement from the Special Disability Fund (see Workers’ Compensation Law § 15 [8]).
The Fund contested the carrier’s application and, following a hearing, a Workers’ Compensation Law Judge (hereinafter WCLJ) determined that the carrier’s application was timely and it was entitled to
reimbursement. Upon review, the Workers’ Compensation Board adopted the findings of the WCLJ and affirmed the determination. The Fund appealed. The sole issue on this appeal was whether the carrier’s
application for reimbursement was timely pursuant to the final clause of Workers’ Compensation Law § 15 (8) (f), which provides that, “in the event of the reopening of a case theretofore
closed, [a claim for reimbursement must be filed] no later than the determination of permanency” (see Matter of Somers v Demco, 26 AD3d 621, 622-623 [2006], affd 8 NY3d 831 [2007]). The Fund
argues that this clause is inapplicable because the case was never truly closed. Substantial evidence supports the Board’s factual determination that the case was closed in August 2005
when the WCLJ found that there was no prima facie medical evidence and marked the case “no further action” (see Matter of Stevens v Fisher Hotels, 94 AD3d 1202, 1203 [2012]; see also
Matter of Stokes v Valeo Elec. Sys., Inc., 44 AD3d 1223, 1225 [2007], lv denied 10 NY3d 714 [2008]). Inasmuch as the carrier first filed a C-250 form seeking reimbursement from the Fund in
January 2010, which was after the reopening of the case and prior to the finding of permanency, we will not disturb the Board’s decision (see Matter of Stevens v Fisher Hotels, 94 AD3d at 1203;
Matter of Somers v Demco, 26 AD3d at 623).

In Matter of Schworm , in yet another 15-8 case the Special Funds appealed establishment of 15-8

The claimant in March 2003 when he fell off the rear of a truck onto his injured his back and suffered a fractured vertebrae. Claimant received workers’ compensation benefits for six months, after which he returned to
work. Subsequently, the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) filed a claim for reimbursement from the Special Disability Fund
pursuant to Workers’ Compensation Law § 15 (8) for, as relevant here, a right knee injury that claimant had sustained approximately 20 years earlier in a nonwork-related motorcycle accident. In
March 2007, claimant suffered another work-related back injury while working for a different employer and, as of August 2008, his ongoing disability was apportioned 32.5% to his 2003 claim and
67.5% to his 2007 claim. Following proceedings relative to the carrier’s claim for reimbursement from the Fund, a Workers’ Compensation Law Judge held that claimant’s right knee
injury constituted a permanent physical impairment that entitled the carrier to reimbursement. The Workers’ Compensation Board affirmed, and the Fund now appeals. The Court affirmed.
To qualify for reimbursement from the Fund, an employer must show that a claimant “suffered from (1) a preexisting permanent impairment that hindered job potential, (2) a subsequent work-related injury,
and (3) a permanent disability caused by both conditions that is materially and substantially greater than would have resulted from the work-related injury alone” (Matter of Burley v Theriault Transp.,
85 AD3d 1423, 1423 [2011]; see Workers’ Compensation Law § 15 [8] [b], [d]; Matter of Grabinsky v First At Nursing Servs., 79 AD3d 1494, 1495 [2010]). With regard to the first requirement, the issue is
whether the claimant’s preexisting condition would be a hindrance to his or her general employability, not whether it was an obstacle or handicap to the claimant’s particular employment (see
Matter of Zeppieri v Hofstra Univ., 94 AD3d 1288, 1289 [2012]; Matter of Shepler v City of Tonawanda, 67 AD3d 1313, 1314 [2009]). Here, the carrier submitted both the results of an
independent medical examination and the testimony of a physician who examined claimant and found that his right knee, among other things, had limited range of motion as compared with his left
knee. The physician opined that claimant had a permanent impairment of the right knee that, had the injury been subject to workers’ compensation, would have constituted a 35% schedule loss
of use and represented a hindrance to his employment as it would limit certain activities, such as repetitive squatting, kneeling and climbing. The physician further stated that claimant’s
permanent disability due to all conditions, including his prior right knee injury, is materially and substantially greater than would have resulted from the 2003 back injury alone. Thus,
despite contrary evidence in the record – including claimant’s testimony that, upon returning to work after his knee injury, he never again lost time or required medication as a result of that
injury – we find that the Board’s decision is supported by substantial evidence (see Matter of Zeppieri v Hofstra Univ., 94 AD3d at 1289; Matter of Dupuis v Frito Lay, 74 AD3d 1618, 1618-
1619 [2010]).

In Matter of Boaro , Appeal from a decision of the Workers’ Compensation Board, filed January 27, 2012, which ruled that the death of claimant’s husband was not causally related to his employment and denied
claimant’s claim for workers’ compensation death benefits.

Claimant’s husband (hereinafter decedent) sustained two work-related heart attacks in 1982 and 1986 that rendered him permanently totally disabled. In October 2010, decedent died at
the age of 77, 24 years after he suffered the second work-related heart attack. Claimant thereafter filed a claim for workers’ compensation death benefits, which the employer and its workers’
compensation carrier (hereinafter collectively referred to as the carrier) controverted. Ultimately, the Workers’ Compensation Board disallowed the claim and this appeal ensued.
The Court affirmed. The resolution of conflicting medical opinions, particularly as they relate to causation, is within the exclusive province of the Board, and its decision will not be disturbed
when supported by substantial evidence (see Matter of Roberts v Waldbaum’s, 98 AD3d 1211, 1211 [2012]; Matter of Connolly v Hubert’s Serv., Inc., 96 AD3d 1115, 1116 [2012]). Here, the
carrier introduced the report and testimony of board-certified cardiologist Jonathan Sumner, who performed a record review and opined that there was no correlation between decedent’s two heart
attacks and his death. Sumner explained that decedent’s death was caused by atherosclerosis, a slowly progressing disease based on underlying genetic factors, that was exacerbated by decedent’s
smoking and hypertension. Sumner further explained that, following his heart attacks, decedent had a normally functioning heart, and there was no medical research to suggest that heart
attacks hasten the progression of heart disease. As such, Sumner concluded that there was no relation between decedent’s death and his previous employment. Thus, while there was some medical
evidence in the record that may support a contrary conclusion, we find the Board’s decision to be supported by substantial evidence (see Matter of Roberts v Waldbaum’s, 98 AD3d at 1212; Matter of
Ciafone v Consolidated Edison of N.Y., 54 AD3d 1135, 1135-1136 [2008]).