| Matter of Colella v New York City Health & Hosps. Corp. |
| 2007 NY Slip Op 08809 [45 AD3d 1078] |
| November 15, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Brian Charles Colella, Respondent, vNew York City Health and Hospitals Corporation, Appellant. Workers' Compensation Board,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Steven Segall of counsel), forWorkers' Compensation Board, respondent.
Spain, J. Appeal from a decision of the Workers' Compensation Board, filed May 23, 2006,which ruled that claimant was discriminated against by the employer in violation of Workers'Compensation Law § 120.
Claimant, an electrician with provisional employee status, was exposed to asbestos during ahospital renovation project. He thereafter filed with his employer an occupational injury reportregarding the exposure and discussed his intention to assert a workers' compensation claim.Three days later, claimant received a work performance assessment which indicated that he metthe standards in all respects. Five days after that, claimant was terminated. Claimant testifiedthat, when he asked the employer why he was fired, he was told "we don't have to tell you."Alleging that he was wrongly discharged for asserting a workers' compensation claim, claimantfiled a complaint pursuant to Workers' Compensation Law § 120. Following a hearing atwhich the employer failed to appear, a Workers' Compensation Law Judge upheld the complaintand the Workers' Compensation Board thereafter affirmed that decision. The [*2]employer now appeals.
Initially, contrary to the employer's contention, we do not find that the Board abused itsdiscretion in declining to reopen the hearing (see 12 NYCRR 300.14). The record revealsthat the employer received adequate advance notice of the hearing, yet never requested anadjournment.
Turning to the merits, it is unlawful for an employer to discharge an employee on the basisthat such employee has claimed or attempted to claim workers' compensation benefits(see Workers' Compensation Law § 120). Here, claimant's testimony concerningthe timing of events regarding his informing the employer about his harmful exposure toasbestos, his satisfactory work performance evaluation, his uncontradicted testimony that he hadbeen informed that his provisional employment was to be extended and his ultimate terminationwithout explanation provide substantial evidence to support the Board's decision that theemployer fired claimant in violation of Workers' Compensation Law § 120 (see Matter of Little v Gaines Elec. Contr.,Inc., 36 AD3d 1056, 1057 [2007]). Accordingly, the Board's decision is affirmed.
Cardona, P.J., Crew III, Peters and Carpinello, JJ., concur. Ordered that the decision isaffirmed, without costs.