| Matter of McDonald v Water Tunnel Contrs. |
| 2008 NY Slip Op 04240 [51 AD3d 1151] |
| May 8, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Ernest McDonald, Respondent, vWater Tunnel Contractors et al., Respondents, and Special Disability Fund, Appellant. Workers'Compensation Board, Respondent. |
—[*1] Levene, Gouldin & Thompson, Binghamton (Joshua M. Luce of counsel), for Water TunnelContractors and another, respondents.
Kane, J. Appeal from a decision of the Workers' Compensation Board, filed February 16,2006, which ruled that Workers' Compensation Law § 15 (8) (ee) applied to claimant'saward of workers' compensation benefits.
From 1969 to 1975, claimant worked as a sand hog for the employer, assisting in the blastingand construction of underground tunnels. In 1999, he filed a claim for workers' compensationbenefits alleging that he was recently diagnosed with occupational lung diseases due to his workin the tunnels. At the preliminary hearing, claimant, the employer, its workers' compensationcarrier and the Special Fund for Reopened Cases were all represented. The Workers'Compensation Law Judge (hereinafter WCLJ) ordered that the Special Fund for [*2]Reopened Cases be discharged from notice and continued the case.In October 2002, the WCLJ established the case for chronic obstructive pulmonary disease(hereinafter COPD) and silicosis. The carrier applied for review before the Workers'Compensation Board, resulting in a March 2003 affirmance.
At later hearings, the WCLJ classified claimant with a permanent partial disability and madeawards. Based upon the establishment of the case for silicosis, a recognized dust disease, thecarrier requested that the Special Disability Fund be considered liable for reimbursementpursuant to Workers' Compensation Law § 15 (8) (ee). At a March 2005 hearing, at therequest of the Special Disability Fund, the WCLJ agreed to reconsider and review whether theoriginal establishment of the case for silicosis was based on substantial evidence. After review ofthe case, including a new independent medical examination submitted by the Special DisabilityFund, the WCLJ found that claimant was not "disabled by silicosis," so the carrier wasnot entitled to reimbursement. The carrier applied for Board review, resulting in a reversal. TheBoard found that the Special Disability Fund lacked standing to challenge the issue of diagnosis,the original decision should not have been disturbed and the Special Disability Fund wasrequired to reimburse the carrier. This appeal by the Special Disability Fund ensued.
The Special Disability Fund had standing to challenge the determination that claimant wasdisabled by silicosis. An "employee's claim for compensation and the employer's claim forreimbursement are separate and distinct, and trigger separate proceedings" (Matter of Ruffinov Rosen & Sons, 142 AD2d 177, 180 [1988], affd 74 NY2d 861 [1989]). The SpecialDisability Fund only has standing with respect to proceedings concerning claims forreimbursement against the fund, not for proceedings on claims for benefits against the employer,and it cannot relitigate elements of compensability (see Matter of Regeiro v Harbor Distrib.Corp., 182 AD2d 932, 933 [1992]; Matter of Ruffino v Rosen & Sons, supra; seealso Workers' Compensation Law § 15 [8] [i]). On the other hand, this Court affirmeda Board decision which permitted the Special Disability Fund to challenge a finding ofoccupational disease under one category but establish a compensable disease under anothercategory, because this challenge did not address the primary issue of compensability of theemployee's claim but, instead, bore on the issue of the Special Disability Fund's liability forreimbursement (see Matter of Lalla v Astoria A.C., 156 AD2d 808, 809 [1989]). Thepresent matter is similar to Lalla, in that the Special Disability Fund's challenges to thediagnosis of silicosis, and claimant's disablement due to that diagnosis, bear on its liability forreimbursement (see Workers' Compensation Law § 15 [8] [ee]). At the same time,the COPD diagnosis is left unchallenged, so that claimant will be entitled to compensation in anyevent (cf. Matter of Flynn v ManagedCare, Inc., 27 AD3d 794, 796 [2006], lv denied 7 NY3d 717 [2006]). Thus, theBoard should have entertained the Special Disability Fund's challenge.
The record does not support a finding that claimant was disabled by silicosis. The Board hasbroad authority to resolve factual questions concerning medical conditions and credibility of theevidence (see Matter of Fama v P & MSorbara, 29 AD3d 170, 172-173 [2006], lv dismissed 7 NY3d 783 [2006];Matter of Baumgarten v New York State Banking Dept., 279 AD2d 741, 741 [2001]).The Board's determination on these issues, however, must be supported by substantial evidence(see Matter of Smith v Bell Aerospace, 125 AD2d 140, 142 [1987]). Here, there was nomedical evidence establishing that claimant suffered from silicosis. Although his treatingphysicians referred to a "history of silicosis," they never reached that diagnosis. The independentmedical examination obtained by the Special Disability Fund opined that the medical records didnot support a diagnosis of silicosis, only a diagnosis of COPD. As the record [*3]lacks substantial evidence to support a finding that claimantsuffered from and was disabled due to silicosis, that finding cannot stand. Without a diagnoseddust disease, the Special Disability Fund is not required to reimburse the carrier (seeWorkers' Compensation Law § 15 [8] [ee]).
Nevertheless, there is record evidence that claimant suffers from a respiratory disease andthat his condition was caused, at least in part, by his exposure to dust during his employmentwith the employer. That evidence, together with the statutory presumption that he suffered an"injurious exposure" while working in an environment with harmful dust (Workers'Compensation Law § 47), raises a question of fact concerning claimant's condition anddisability. Accordingly, we remit for the Board to render a determination as to whether claimantsuffers from a qualifying dust disease other than silicosis, so as to require reimbursement by theSpecial Disability Fund (see Workers' Compensation Law § 15 [8] [ee]).
Peters, J.P., Carpinello, Malone Jr. and Stein, JJ., concur. Ordered that the decision isreversed, without costs, and matter remitted to the Workers' Compensation Board for furtherproceedings not inconsistent with this Court's decision.