| Matter of Karolkowski v Wolff & Munier, Inc. |
| 2007 NY Slip Op 08802 [45 AD3d 1069] |
| November 15, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Peter Karolkowski, Claimant, v Wolff& Munier, Inc., et al., Appellants, and Employers Insurance Company of Wausau et al.,Respondents. Workers' Compensation Board, Respondent. |
—[*1] Stewart, Greenblatt, Manning & Baez, Syosset (Patrick M. Conroy of counsel), forEmployers Insurance Company of Wausau and another, respondents.
Peters, J. Appeal from a decision of the Workers' Compensation Board, filed December 30,2005, which ruled that claimant sustained two causally related occupational diseases.
Claimant, a sheet metal worker, was exposed to asbestos in the course of his employmentwith Wolff & Munier, Inc. Employers Insurance Company of Wausau was the employer'sworkers' compensation carrier from January 1988 until February 1994 and the State InsuranceFund (hereinafter the carrier) was the employer's carrier from April 14, 1994 until the employerceased its business operations later that year. When claimant was diagnosed with colon cancer onJuly 21, 1992, he stopped working and never resumed employment. In March 1994, he filed aclaim for workers' compensation benefits, listing both asbestos related colon [*2]cancer and asbestosis as his injuries. On June 13, 1995, claimantwas evaluated by Susan Daum, an internist, who diagnosed him with pleural asbestosis and, forthe first time, informed him that his exposure to asbestos was a contributing factor in thedevelopment of his colon cancer.
After a hearing at which claimant and three physicians testified, the Workers' CompensationLaw Judge (hereinafter WCLJ) determined that there was sufficient proof that claimant suffersfrom an occupational disease of "asbestos related pleural disease," but insufficient proof ofasbestos related colon cancer. After a review of that decision by the Workers' CompensationBoard, the WCLJ decision was modified to find sufficient evidence of asbestos related coloncancer. The Board set a date of disablement for each of the two conditions: July 21, 1992 forcolon cancer and June 13, 1995 for asbestos related pleural disease.
Contending that the Board erred, as a matter of law, in setting two dates of disablement sinceboth diseases arose out of the same exposure to asbestos, the carrier notes claimant's filing ofonly one C-3 claim form and the fact that the colon cancer is the only disabling disease. Yet, thisCourt has noted, and the carrier acknowledges, that "there is no provision in the Workers'Compensation Law which specifically requires the filing of separate claims for discreteoccupational diseases" (Matter of Famav P & M Sorbara, 29 AD3d 170, 173 [2006], lv dismissed 7 NY3d 783[2006]).[FN1] We find no legal authority to support the carrier's position and no evidence that either of thesedates is erroneous, when viewed individually upon the consideration of appropriate factors(see Workers' Compensation Law § 42; Matter of Hastings v Fairport Cent.School Dist., 274 AD2d 660, 661-662 [2000], lv dismissed 95 NY2d 926 [2000];Matter of Bonneau v New York City Dept. of Sanitation, 233 AD2d 796, 797 [1996]).
As to the carrier's contention that claimant's failure to file a second claim resulted in itspotential loss of defenses, we find such claim both speculative and premature. The WCLJindicated, in a 2002 notice of decision, that "[a]ll carriers raise C-7 issues" (see Workers'Compensation Law § 25 [2]). With no award of benefits yet made and the WCLJ notingthat "the issue of the proper carrier ha[s] not been sufficiently addressed and argued," the carrier'sclaim is premature. Moreover, with no evidence that the carrier ever attempted to seek "secondinjury fund" relief pursuant to Workers' Compensation Law § 15 (8) (d), or even raisedthat issue before the WCLJ or the Board, this contention must also be rejected.[FN2] Finally, finding that the carrier's reliance on Matter of Estrada v Peepels Mech. Corp. (30 AD3d 659, 660[2006]) is misplaced since, in that case, there was never a claim pending with respect to one ofclaimant's conditions, we affirm.
Mercure, J.P., Spain, Carpinello and Mugglin, JJ., concur. Ordered that the decision isaffirmed, without costs.
Footnote 1: We have previously referencedthe Board's setting of two dates of disablement with respect to one claim without comment as thespecific issue was not raised (see Matter of Kraus v Marcus Decorating Co., 284 App Div914 [1954], mod 284 App Div 994 [1954]).
Footnote 2: It appears that such requestwould be untimely (see Workers' Compensation Law § 15 [8] [f]).