| Matter of Jaworek v Sears Roebuck & Co. |
| 2009 NY Slip Op 08114 [67 AD3d 1161] |
| November 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Beverly A. Jaworek, Claimant, vSears Roebuck & Company et al., Appellants, and Special Disability Fund, Respondent.Workers' Compensation Board, Respondent. |
—[*1] Steven M. Licht, Special Funds Conservation Committee, Albany (Jill Singer of counsel),for Special Disability Fund, respondent.
Malone Jr., J. Appeal from a decision of the Workers' Compensation Board, filed May 28,2008, which ruled that the employer was not entitled to reimbursement from the SpecialDisability Fund.
Claimant suffered a knee injury while working for the employer on July 28, 2007. Hersubsequent claim for workers' compensation benefits was not disputed by the employer'sworkers' compensation carrier. At the time of the injury, claimant also maintained concurrentemployment and, finding that claimant had sustained a temporary total disability, a Workers'Compensation Law Judge determined that a substantial portion of claimant's average weeklywage was attributable to the concurrent employer. As required by Workers' Compensation Law§ 14 (6), the Workers' Compensation Law Judge directed the employer and/or its workers'compensation carrier (hereinafter collectively referred to as the employer) to pay the full benefits[*2]award, which was $500 per week. The employer then soughtreimbursement from the Special Disability Fund for the portion of the award attributable toclaimant's concurrent employment. However, the Workers' Compensation Law Judge determinedthat the 2007 amendments to the Workers' Compensation Law prevented such reimbursement.Upon review, the Workers' Compensation Board affirmed and the employer appeals.
Initially, we note that because the issue presented here is one of pure statutory interpretation,we need not accord deference to the Board's decision (see Matter of Belmonte v Snashall, 2 NY3d 560, 565-566 [2004];Matter of Belance v Manhattan BeerDistribs., 52 AD3d 1059, 1061 [2008], lv denied 11 NY3d 715 [2009]).Nevertheless, we agree with the Board's determination that the employer's claim forreimbursement from the Special Disability Fund is barred by Workers' Compensation Law§ 15 (8) (h) (2) (A), which provides that "[n]o carrier or employer . . . mayfile a claim for reimbursement from the special disability fund, for an injury or illness with a dateof accident or date of disablement on or after" July 1, 2007 (see L 2007, ch 6,§§ 76, 77). It is apparent from the legislative history of the 2007 amendments to theWorkers' Compensation Law that the Legislature intended to close the Special Disability Fund tonew claims as of July 1, 2007 (see e.g. Governor's Program Bill Mem, Bill Jacket, L2007, ch 6, at 5; Sponsor's Mem, Bill Jacket, L 2007, ch 6, at 20; Mem of Div of Budget, BillJacket, L 2007, ch 6, at 33-34; Letter from Workers' Compensation Bd, Mar. 9, 2007, at 2-3, BillJacket, L 2007, ch 6, at 38-39). Although the employer contends that Workers' CompensationLaw § 15 (8) (l) opens a loophole around the amendments, payments referenced inthat section are those made pursuant to Workers' Compensation Law § 14 (6) and,accordingly, are subject to the date restrictions of Workers' Compensation Law § 15 (8)(h) (2) (A). Inasmuch as the statutory interpretation advocated by the employer contravenes notonly the unambiguous language of the statute but also the legislative intent, it is rejected and thedecision of the Board is affirmed.
Peters, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed,without costs.