Matter of Bordino v. Consolidated Edison Co. of NY, Inc. , 23 N.Y.S.3d 727 ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: January 28, 2016                   519255
    ________________________________
    In the Matter of the Claim of
    RONALD BORDINO,
    Respondent,
    v
    CONSOLIDATED EDISON CO. OF NY,
    INC., et al.,
    Appellants,
    and                                   MEMORANDUM AND ORDER
    SPECIAL FUND FOR REOPENED
    CASES,
    Respondent.
    WORKERS' COMPENSATION BOARD,
    Respondent.
    ________________________________
    Calendar Date:   December 15, 2015
    Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.
    __________
    Cherry, Edson & Kelly, LLP, Tarrytown (Ralph E. Magnetti of
    counsel), for appellants.
    Steven M. Licht, Special Funds Conservation Committee,
    Albany (Jill B. Singer of counsel), for Special Fund for Reopened
    Cases, respondent.
    __________
    Clark, J.
    Appeal from a decision of the Workers' Compensation Board,
    filed September 6, 2013, which ruled that liability did not shift
    to the Special Fund for Reopened Cases pursuant to Workers'
    -2-                519255
    Compensation Law § 25-a.
    Claimant worked as an electrical splicer for Consolidated
    Edison Co. of NY, Inc. (hereinafter the self-insured employer)
    for many years. He experienced serious respiratory problems
    after being exposed to noxious vapors at work on October 26, 1995
    and filed a claim for workers' compensation benefits. His claim
    was established for causally related occupational disease,
    specifically chronic asthma and reactive airway disease.
    Claimant continued to work after filing this claim and received
    medical treatment for his respiratory problems. On January 8,
    2002, he sustained a work-related back injury and filed another
    claim for workers' compensation benefits for which he was
    classified as having a permanent partial disability. In the
    latter part of 2002, claimant retired from his position and
    subsequently received payments from the self-insured employer
    under a disability retirement plan.
    In 2011, the self-insured employer, through its claims
    administrator, made an application for further action seeking to
    shift liability for claimant's benefits under the 1995 claim to
    the Special Fund for Reopened Cases pursuant to Workers'
    Compensation Law § 25-a. Following hearings, a Workers'
    Compensation Law Judge found that Workers' Compensation Law
    § 25-a was inapplicable and discharged the Special Fund. A panel
    of the Workers' Compensation Board upheld this decision and the
    self-insured employer and its third-party administrator now
    appeal.
    The sole issue presented is whether the self-insured
    employer's payment of disability retirement benefits were
    attributable to claimant's 1995 occupational disease and
    constituted an advance payment of compensation precluding
    liability from being shifted to the Special Fund pursuant to
    Workers' Compensation Law § 25-a. We note that "'whether an
    advance payment of compensation has been made is a factual
    question for the Board to resolve, and its determination in this
    regard, if supported by substantial evidence in the record as a
    whole, will not be disturbed'" (Matter of Wetterau v Canada Dry,
    124 AD3d 1165, 1167 [2015], quoting Matter of Guidice v Herald
    Co., 88 AD3d 1175, 1176 [2011]; see Matter of Foglia v New York
    -3-                519255
    City Housing Auth., 132 AD2d 762, 763 [1987]). Notably,
    "[r]etirement benefits that can be awarded only 'on the basis of
    an occupational disability . . . must be considered payments of
    compensation' for purposes of Workers' Compensation Law § 25-a,
    while those 'result[ing] solely from a finding of disability
    regardless of its cause are not advance payments of
    compensation'" (Matter of Stranahan v Camp Adirondack, 78 AD3d
    1369, 1370 [2010], quoting Matter of Krystofik v General Elec.
    Co., 54 AD2d 137, 139 [1976]; see Matter of Brock v Great A & P
    Tea Co., 84 AD2d 645, 646 [1981], appeal dismissed 56 NY2d 593
    [1982]; see also Matter of Pignataro v Westchester Parkway Police
    Dept., 5 AD2d 523, 526-527 [1958], affd 7 NY2d 848 [1959]).
    Here, claimant testified that he retired from his position
    due to a number of health concerns, including his respiratory
    problems that were the basis for his occupational disease claim.
    Notably, in the medical evaluation prepared by claimant's
    treating physician, the physician referenced claimant's
    respiratory problems as a reason for his retirement.1
    Furthermore, claimant received a disability retirement pension,
    as opposed to a regular retirement pension, after he left his
    job. Although claimant retired the same year that he injured his
    back, this does not, without more, establish that his retirement
    was solely due to his back injury. Under the circumstances
    presented, we find that substantial evidence supports the Board's
    finding that the disability retirement payments received by
    claimant were at least partially due to his occupational disease
    and that such payments, therefore, constituted an advance payment
    of compensation for purposes of Workers' Compensation Law § 25-a
    (see Employer: Great Meadow Correctional Fac., 
    2011 WL 4847545
    ,
    2011 NY Wrk Comp LEXIS 5696 [WCB No. 5971 9336, Oct. 3, 2011]).
    Accordingly, the Board properly discharged the Special Fund from
    liability.
    McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.
    1
    Although the physician misstated the date of claimant's
    retirement, this did not detract from his observation that
    claimant's respiratory problems were a reason for claimant's
    retirement.
    -4-                  519255
    ORDERED that the decision is affirmed, without costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 519255

Citation Numbers: 135 A.D.3d 1253, 23 N.Y.S.3d 727

Filed Date: 1/28/2016

Precedential Status: Precedential

Modified Date: 1/12/2023