| Matter of Li v Southern Garden, Inc. |
| 2010 NY Slip Op 00432 [69 AD3d 1175] |
| January 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Man C. Li, Claimant, v SouthernGarden, Inc., 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.
McCarthy, J. Appeal from a decision of the Workers' Compensation Board, filed July 29,2009, which, among other things, discharged the Special Disability Fund from liability underWorkers' Compensation Law § 15 (8) (d).
In January 2000, claimant filed a claim with the Workers' Compensation Board for injuriessustained to his head. Claimant's work-related injury was established and the employer's workers'compensation carrier, Allcity Insurance Company, was directed to make payments. In August2001, the carrier's third-party administrator, York Claims Service, Inc., filed a notice forreimbursement from the Special Disability Fund (hereinafter the Fund) under Workers'Compensation Law § 15 (8) based on a previous injury sustained by claimant.
In April 2005, the Board approved a settlement agreement between claimant and the carrierpursuant to Workers' Compensation Law § 32. In light of the carrier's reimbursementclaim, the Special Funds Conservation Committee (hereinafter the Committee) was also a partyto the agreement. The agreement noted that the issue of permanency was outstanding and that theparties had decided to settle the claim rather than litigate the issue. The Committee gaveprovisional consent to the settlement, "subject to the carrier's successful claim under [Workers'Compensation Law § ] 15 (8) (d), less any statutory retention period remaining at the timeof the approval of this agreement." The agreement expressly provided that the Committee'sconsent "is not to be construed as a concession of liability under . . . [s]ection 15(8) (d)." Thereafter, the Workers' Compensation Law Judge (hereinafter WCLJ) granted York'sreimbursement claim. The Fund filed an application for Board review and the Board reversed theWCLJ's decision. We affirm.
Initially, we are unpersuaded by York's claim that the Board improperly considered theFund's application for review. The Board did not abuse its discretion in accepting the Fund'sapplication, which was one day late (see 12 NYCRR 300.13 [a]; 300.30; Matter of Cohen v New York City Dept. ofEnvtl. Protection, 18 AD3d 1036, 1037 [2005], lv dismissed 5 NY3d 872[2005]). Nor did the Board abuse its discretion in refusing to consider York's untimely rebuttal,filed more than two months late (see 12 NYCRR 300.13 [b], [e] [2]; cf. Matter of Doner v Nassau CountyPolice Dept., 24 AD3d 978, 979 [2005]). York's claim that it was not served with noticeof the appeal is unavailing, as York admits that notice was served on the carrier, which is the trueparty in interest (see Workers' Compensation Law § 54 [2]; cf. Matter of Wilkinson v Bendix FrictionCorp., 32 AD3d 636, 637-638 [2006]; Matter of Wilson v Chicago Bridge & Iron, 2 AD3d 1004, 1005[2003]). To the extent that York argues, for the first time on appeal, that service upon the carrierwas made at the wrong address, the issue is not preserved for our review (see Matter of Neville v Magazine Distribs.,Inc., 61 AD3d 1165, 1166 [2009], lv denied 12 NY3d 712 [2009]; Matter of Beers v Jump Start AdvancedAcademics, 57 AD3d 1026, 1028 [2008]).
Next, we reject York's claim that the Board improperly considered the permanency issue inconnection with York's reimbursement claim. The issue was specifically preserved in thesettlement agreement and, at the hearing before the WCLJ, the Fund clearly stated its positionthat reimbursement should be denied because the carrier's own doctor conceded that claimantwas not disabled and there was no evidence to support the claim.
Turning to the merits, we note that "Workers' Compensation Law § 15(8)—known as the 'Secondary Injury Law'—provides an incentive to employers tohire permanently disabled persons [and] . . . permits an employer to obtainreimbursement from the . . . Fund[ ] for workers' compensation benefits andmedical expenses awarded for permanent disability or death arising out of and in the course ofthe employment of a previously disabled person" (Matter of Mills v Staffking [HiddenVal.], 271 AD2d 146, 147 [2000] [citation omitted]); see Workers' CompensationLaw § 15 [8] [d], [e]). To prevail on a claim for reimbursement under Workers'Compensation Law § 15 (8) (d), "an employer must show that the claimant had apreexisting permanent impairment that hindered job potential, a subsequent injury arising out ofand in the course of employment, and a permanent disability caused by both conditionsmaterially and substantially greater than what would have been caused by the work-relatedinjury alone" (Matter of Saunders v Pepsi Cola, 249 AD2d 780, 781 [1998] [citationomitted]).
Based on its review of the record, the Board denied reimbursement because the work-relatedinjury did not result in a permanent disability. Findings by claimant's treating physician thatclaimant suffered a partial permanent disability contradicted findings by the carrier's consultantthat claimant suffered no permanent disability. "It is the prerogative of the Board to resolvefactual disputes created by conflicting medical opinions" (Matter of Fonda v Norton Co.,195 AD2d 834, 835 [1993], citing Matter of Biller v State Ins. Fund, 186 AD2d 300, 301[1992]). William B. Head Jr., a board-certified psychiatrist and neurologist, examined claimanton behalf of the carrier and "fail[ed] to find objective evidence of any permanent neurological orpsychiatric condition or disability." This independent medical examination by the carrier'sconsultant provided substantial evidence supporting the Board's determination and, therefore, wewill not disturb it even though evidence in the record might support a contrary result (see Matter of Flynn v Managed Care,Inc., 27 AD3d 794, 796 [2006], lv denied 7 NY3d 717 [2006]; Matter ofSaunders v Pepsi Cola, 249 AD2d at 781).
Spain, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the decision isaffirmed, without costs.