| Matter of Williams v City of New York |
| 2009 NY Slip Op 07556 [66 AD3d 1203] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of Carmelita Williams, Appellant, v City of NewYork, Respondent. Workers' Compensation Board, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Mordecai Newman of counsel),for City of New York, respondent.
Lahtinen, J. Appeal from a decision of the Workers' Compensation Board, filed August 7,2008, as amended by decision filed June 5, 2009, which ruled, among other things, that claimantwas not a participant in the World Trade Center rescue, recovery or cleanup operations anddenied her claim for workers' compensation benefits.
Claimant was employed as an auditor with the New York City Department of SocialServices and worked in lower Manhattan at 180 Water Street. Within a week of the terrorists'attacks on September 11, 2001, she returned to work at that location, but her job duties weretemporarily changed. She had previously conducted internal audits of city vendors and agencies.However, she was reassigned to write checks that provided disaster funds to various individualswho had suffered immediate financial impact from the attack. This involved face-to-face contactwith individuals coming to her location to receive funds. She initially carried out this newassignment at the 180 Water Street location, but soon moved to another lower Manhattan [*2]building on Centre Street[FN1] because it was larger. Her hours were extended to include six to seven days a week and 10 to 12hours per day. She remained in this special assignment until February 2002, and then returned toher normal duties. She continued working until September 2002, when she took a regularretirement with over 30 years of credited service.
Claimant allegedly began experiencing an exacerbation of her respiratory condition whileworking on the special assignment. She subsequently filed four claims for workers'compensation benefits between December 2005 and June 2007. In October 2006 and May 2007,she submitted forms registering as a participant in the World Trade Center rescue, recovery andcleanup so as to be entitled to the provisions of the recently enacted Workers' CompensationLaw article 8-A (see L 2006, ch 446, as amended). A Workers' Compensation Law Judgefound that claimant had been involved in rescue, recovery and cleanup and, thus, her claim wasprotected by Workers' Compensation Law article 8-A from dismissal for being untimely(see Workers' Compensation Law § 28). Upon review, the Workers' CompensationBoard determined that claimant's activity did not constitute rescue, recovery and cleanup withinthe meaning of Workers' Compensation Law § 161 (1) and, accordingly, disallowed herclaim as untimely.[FN2]Claimant appeals.
Workers' Compensation Law article 8-A was enacted "to remove statutory obstacles totimely claims filing and notice for latent conditions resulting from hazardous exposure for thosewho worked in rescue, recovery or cleanup operations following the World Trade CenterSeptember 11th, 2001 attack" (Senate Mem in Support, 2006 McKinney's Session Laws of NY,at 1915; see Minkowitz, Practice Commentaries, McKinney's Cons Laws of NY, Book64, Workers' Compensation Law, art 8-A, at 488). It is undisputed that this legislation wasintended to be liberally construed to provide a potential avenue of relief for workers andvolunteers suffering ill health as a result of their efforts in the aftermath of the terrorists' attacks.The liberal intent of the statute is reflected by the fact that the Legislature has amended the lawtwice to extend the deadline for claimants to file for coverage (see L 2008, ch 489,§ 18; L 2007, ch 199, § 1; see generally Matter of Smith v Tompkins CountyCourthouse, 60 NY2d 939, 941 [1983] [stating the general rule that the Workers'Compensation Law is to be liberally construed]).
To qualify for the coverage afforded by the statute, a claimant must essentially establishthree elements, which relate to time, location and activity. The first two elements are clearlydefined by the statute. The time element is limited to relevant activity occurring betweenSeptember 11, 2001 and September 12, 2002 (see Workers' Compensation Law §161 [1] [i]-[iv]). The locations are specifically spelled out in the statute and include, as pertinenthere, the[*3]"World Trade Center site" (see Workers'Compensation Law § 161 [1] [i]), which "means anywhere below a line starting from theHudson River and Canal Street; east on Canal Street to Pike Street; south on Pike Street to theEast River; and extending to the lower tip of Manhattan" (Workers' Compensation Law §161 [2]). The qualifying activity that a person must show if his or her location was the WorldTrade Center site is that he or she "participated in the rescue, recovery, or cleanup operations"(Workers' Compensation Law § 161 [1] [i]).[FN3] This language, which is susceptible to varying interpretation and application, is the focus of thecurrent appeal.
Claimant contends that the Board construed the qualifying activity in the statute toonarrowly and focused unduly in her case on the word "rescue" rather than "recovery." Underwell-established rules of statutory construction, each word of a statute is to be given effect(see McKinney's Cons Laws of NY, Book 1, Statutes § 231; see also Matter ofSIN, Inc. v Department of Fin. of City of N.Y., 71 NY2d 616, 621-622 [1988]). While thethree terms (rescue, recovery, cleanup) will often overlap in the context of postattack activity atthe World Trade Center site, nevertheless, in a situation where a participant's activity falls withinonly one of the terms, he or she would still be covered by the statute. Since the word recovery isnot separately defined in the statute and had not been construed prior to enactment of the statuteto have a "technical or peculiar significance," the word should "be interpreted according to themeaning . . . generally accepted at the time of enactment" (McKinney's Cons Lawsof NY, Book 1, Statutes § 232).
The term recovery in the context of the aftermath of the terrorist attacks certainly could havedifferent meanings to different people. Each individual who returned to lower Manhattan in thedays and months after the attacks—to work at a job not associated with rescue andcleanup, to live, to purchase a product, to buy lunch, to visit, to mourn, toencourage—contributed, in an expansive sense of the term, to the "recovery." Althoughthe legislation is construed liberally, such an expansive interpretation of recovery was notintended. It is apparent that the Legislature realized this element of the statute would, in manycircumstances, be fact-driven and a difficult determination.[FN4] The Board is often accorded broad discretion when addressing similar factual determinationsthat have legal import under the Workers' Compensation Law (see e.g. Matter of Early v New York Tel.Co., 57 AD3d 1341, 1343 [2008] [whether case truly closed]; Matter of Victor v Steel Style, Inc., 56AD3d 1099, 1099 [2008] [status as special employee]; Matter of Jara v SMJ Envtl., Inc., 55 AD3d 1157, 1158 [2008][existence of employment relationship]; Matter of Grant v Niagara Mohawk Power Co., 53 AD3d 972, 973[2008] [voluntary withdrawal [*4]from labor market]).[FN5] It has decided cases favorably to claimants that can be characterized as basically recovery casesincluding, among others, a technician who worked installing and repairing telephone lines in therelevant area of lower Manhattan (see Verizon NY, Inc., 2008 WL 2878810, 2008 NYWrk Comp LEXIS 7135 [July 15, 2008]), a bus driver assigned to transport police andfirefighters from the staging area to ground zero (see New York City Tr. Auth., 2009 WL525476, 2009 NY Wrk Comp LEXIS 5438 [Feb. 20, 2009]), and a mechanic assigned to helprestore gas lines in the vicinity (see Con Edison, 2008 WL 593651, 2008 NY Wrk CompLEXIS 1247 [Feb. 12, 2008]). So long as the Board's construction and application of thestatutory words (rescue, recovery, cleanup) is consistent with the general accepted meaning ofsuch terms, and the underlying factual basis for making its determination is supported bysubstantial evidence, its determination will be upheld.
Here, the Board's original decision and amended decision repeatedly referred to claimant asnot participating in "rescue" activity. In both decisions the Board cited, discussed and relied ontwo of its prior decisions that dealt with rescue from the World Trade Center buildings on thedate of the attacks. In its original decision, the Board expressly relied upon its conclusion thatclaimant's "work was not a rescue-type activity" in finding the statute inapplicable. Although thiscomment was omitted from the amended decision (which was not filed until 10 months later andafter all briefs in this appeal had been filed), neither decision discussed recovery, despite the factthat this was the relevant activity in this case.[FN6]
This is not to suggest that the Board must always address each activity (rescue, recovery,cleanup) separately or that it cannot group the terms in its decision. However, repeatedlyreferring to and ostensibly premising a decision on an activity that is not germane, with noanalysis of the pertinent activity, does not permit meaningful judicial review (see Matter of Cucci v Rexer's Tang Soo DoKarate Academy, 34 AD3d 887, 889 [2006]; Matter of Caldas v 86 Alda Rest.,167 AD2d 594, 595 [1990]). Under the circumstances, we reverse and remit to the Board so thatthe relevant issue can be addressed (see Matter of Cucci v Rexer's Tang Soo Do KarateAcademy, 34 AD3d at 889).
Cardona, P.J., Peters, Malone Jr. and Stein, JJ., concur. Ordered that the decision is reversed,with costs, and matter remitted to the Workers' Compensation Board for further proceedings notinconsistent with this Court's decision.
Footnote 1: There is some confusion in therecord as to where on Centre Street the building was located, but it is undisputed that thebuilding was within the area defined as the "World Trade Center site" by Workers'Compensation Law § 161 (2). Claimant also worked briefly at a temporary site on pier 94,which her supervisor testified was located near 50th Street and, thus, outside the statutorilydefined "World Trade Center site."
Footnote 2: Although this decision wasamended by decision dated June 5, 2009, the Board's conclusion remained the same.
Footnote 3: This definition in paragraph (i)merely repeats the words from subdivision (1) that it purports to define.
Footnote 4: All the elements of the statutenecessarily entail difficult line-drawing that leaves some without a potential recovery. A personworking one block north of Canal Street who developed respiratory problems would not qualifyand undoubtedly would consider the use of Canal Street as the boundary to be unjust andarbitrary. Similarly, the time element draws an outside line on a particular date and a personworking one day thereafter would not qualify while a person working a mere day earlier would.
Footnote 5: The breadth of discretion underthe statute is illustrated by, among other things, the fact that whether a person is a volunteer isdecided "upon presentation to the board of evidence satisfactory to the board" (Workers'Compensation Law § 161 [1]).
Footnote 6: We further note that the Board'soriginal decision incorrectly stated a material fact by concluding that claimant's duties before herspecial assignment "were the very same duties she performed subsequent to the terrorist attack."While this finding was omitted from the amended decision, no pertinent analysis of claimant'sactual duties was substituted.