| Matter of Rodgers v New York City Fire Dept. |
| 2011 NY Slip Op 00451 [80 AD3d 1091] |
| January 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Daniel Rodgers, Appellant, v NewYork City Fire Department et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Norman Corenthal of counsel),for New York City Fire Department and another, respondents.
Kavanagh, J. Appeal from a decision of the Workers' Compensation Board, filed October 6,2008, which, among other things, ruled that claimant's application for workers' compensationbenefits was time-barred by Workers' Compensation Law § 28.
On September 11, 2001 and the days that followed, claimant—a civil employee of theNew York City Fire Department—was charged with cleaning and repairing fire trucks thathad responded to the scene of the terrorist attacks that had occurred at the World Trade Center. InFebruary 2002, claimant received medical treatment for bronchitis. As his condition deteriorated,he was ultimately diagnosed with gastroesophageal reflux, reactive airway dysfunction, apneaand posttraumatic stress disorder. Claimant filed a claim for workers' compensation benefits, butcontinued to work until his retirement in February 2007. The previous year, the employer, in aC-7 form dated August 17, 2006, argued, among other things, that the claim was untimelybecause it was filed more than two years after the accident that created the conditions that causedclaimant's illness (see Workers' Compensation Law § 28). After hearings wereconducted, a workers' compensation law judge ruled in claimant's favor [*2]finding that the claim was properly filed (see Workers'Compensation Law art 8-A), that he was disabled and that his disability was caused by conditionshe encountered in the work place. On review, the Workers' Compensation Board reversed thisdecision and denied the claim as untimely. Claimant now appeals.
A claim for workers' compensation benefits will, as a general rule, be found to be untimely ifit is not filed within two years after an accident alleged to have caused the claimant's injuries(see Workers' Compensation Law § 28). A finding that a claim is untimely will beupheld if it comports with applicable law and is supported by substantial evidence (see Matter of Feliciano v New York CityHealth & Hosps. Corp., 65 AD3d 784, 785 [2009]; Matter of Zucker v Port Auth. of N.Y. & N.J., 57 AD3d 1249,1250-1251 [2008]; Matter of Cagle v White Auto Parts, 297 AD2d 897, 898 [2002]).Here, the Board dismissed this claim because it found that it was filed on November 27,2006—or well outside the two-year statutory time period. However, this finding is at oddswith record evidence before the Board indicating that the claim was filed prior to November 27,2006. Specifically, the employer's C-7 form challenging the claim is dated August 17, 2006, ormore than three months prior to when the Board's decision states that the claim was "filed."Moreover, claimant's C-3 form requesting workers' compensation benefits for these injuries isdated August 28, 2003—and contains a notation indicating that it had been "submitted" to"Debbie" on that date and sent by facsimile on September 10, 2003. Simply stated, the recordbefore the Board does not support its finding as to when the claim was filed, and the matter mustbe remitted for further proceedings to determine the claim's actual filing date (see generally Matter of Coursey v AppliedMinds, Inc., 13 AD3d 865, 866 [2004]).
We do agree with the Board that Workers' Compensation Law article 8-A—and theexception it contains to the two-year filing requirement—does not apply to workperformed by claimant at sites other than those specifically described in the statute. Claims filedoutside the two-year statutory time period "shall not be disallowed" as untimely (Workers'Compensation Law § 168) if made by "[p]articipant[s] in World Trade Center rescue,recovery or cleanup operations" (Workers' Compensation Law § 161 [1]). However, thestatute limits its application to claims generated by work actually performed "at the World TradeCenter site[,] . . . the Fresh Kills Land Fill in New York city[,] . . . theNew York city morgue or the temporary morgue on pier locations on the west side of Manhattan. . . or . . . on the barges between the west side of Manhattan and theFresh Kills Land Fill in New York city" (Workers' Compensation Law § 161[1]).[FN1]Claimant acknowledges that much of the work he performed in connection with the World TradeCenter attacks took place in Brooklyn and Queens—and not at sites identified by thestatute. However, he contends that the exception in the statute should nevertheless apply becausethe fire apparatuses he cleaned and repaired at those locations came from the World Trade Centersite.
"Where a statute describes the particular situations in which it is to apply and no qualifyingexception is added, an irrefutable inference must be drawn that what is omitted or not includedwas intended to be omitted or excluded" (Matter of Alonzo M. v New York City Dept. [*3]of Probation, 72 NY2d 662, 665 [1988] [internal quotationmarks and citation omitted]). Here, the statute, by its terms, limits its application to workperformed at specific geographical locations. By describing these locations with such specificity,the Legislature clearly manifested an intention to limit the application of this exception to thetwo-year filing requirement to work actually performed at these sites (see Matter of Williams v City of NewYork, 66 AD3d 1203, 1206 n 4 [2009]).[FN2]
While claimant performed most of his work at locations not covered by the statute, he didtestify to being on duty during part of the relevant time period at the World Trade Center site.Aside from simply noting that claimant had not been stationed at that location, the Board did notaddress in its decision whether the work performed by claimant at the World Trade Center site, ifit contributed to his disability, qualified for the exception created by this statute. Since workperformed at this location could qualify for coverage under the statutory exception, the mattermust be remitted to the Board for further proceedings in regard to this particular issue.
Mercure, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the decision is modified,without costs, by reversing so much thereof as held that the claim was time-barred; matterremitted to the Workers' Compensation Board for further proceedings not inconsistent with thisCourt's decision; and, as so modified, affirmed.
Footnote 1: The World Trade Center site isdefined to include "anywhere below a line starting from the Hudson River and Canal Street; easton Canal Street to Pike Street; south on Pike Street to the East River; and extending to the lowertip of Manhattan" (Workers' Compensation Law § 161 [2]).
Footnote 2: In that regard, we note that theRetirement and Social Security Law includes those "who . . . repaired, cleaned orrehabilitated vehicles . . . that were contaminated by debris in the World TradeCenter site, . . . regardless of whether the work . . . was performedwithin the World Trade Center site" (Retirement and Social Security Law § 2 [36] [e][v] [emphasis added]).