IN RE: the Claim of RONALD BORDINO

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of RONALD BORDINO, Respondent, v. CONSOLIDATED EDISON CO. OF NY, INC., et al., Appellants, SPECIAL FUND FOR REOPENED CASES, Respondent. WORKERS' COMPENSATION BOARD, Respondent.

519255

Decided: January 28, 2016

Before:  McCarthy, J.P., Egan Jr., Lynch and Clark, JJ. Cherry, Edson & Kelly, LLP, Tarrytown (Ralph E. Magnetti of counsel), for appellants. Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), for Special Fund for Reopened Cases, respondent.

MEMORANDUM AND ORDER

Calendar Date:  December 15, 2015

Appeal from a decision of the Workers' Compensation Board, filed September 6, 2013, which ruled that liability did not shift to the Special Fund for Reopened Cases pursuant to Workers' Compensation Law § 25–a.

Claimant worked as an electrical splicer for Consolidated Edison Co. of NY, Inc. (hereinafter the self-insured employer) for many years.  He experienced serious respiratory problems after being exposed to noxious vapors at work on October 26, 1995 and filed a claim for workers' compensation benefits.  His claim was established for causally related occupational disease, specifically chronic asthma and reactive airway disease.  Claimant continued to work after filing this claim and received medical treatment for his respiratory problems.  On January 8, 2002, he sustained a work-related back injury and filed another claim for workers' compensation benefits for which he was classified as having a permanent partial disability.  In the latter part of 2002, claimant retired from his position and subsequently received payments from the self-insured employer under a disability retirement plan.

In 2011, the self-insured employer, through its claims administrator, made an application for further action seeking to shift liability for claimant's benefits under the 1995 claim to the Special Fund for Reopened Cases pursuant to Workers' Compensation Law § 25–a.  Following hearings, a Workers' Compensation Law Judge found that Workers' Compensation Law § 25–a was inapplicable and discharged the Special Fund. A panel of the Workers' Compensation Board upheld this decision and the self-insured employer and its third-party administrator now appeal.

The sole issue presented is whether the self-insured employer's payment of disability retirement benefits were attributable to claimant's 1995 occupational disease and constituted an advance payment of compensation precluding liability from being shifted to the Special Fund pursuant to Workers' Compensation Law § 25–a.  We note that “ ‘whether an advance payment of compensation has been made is a factual question for the Board to resolve, and its determination in this regard, if supported by substantial evidence in the record as a whole, will not be disturbed’ ” (Matter of Wetterau v. Canada Dry, 124 AD3d 1165, 1167 [2015], quoting Matter of Guidice v. Herald Co., 88 AD3d 1175, 1176 [2011];  see Matter of Foglia v New York City Housing Auth., 132 A.D.2d 762, 763 [1987] ).  Notably, “[r]etirement benefits that can be awarded only ‘on the basis of an occupational disability ․ must be considered payments of compensation’ for purposes of Workers' Compensation Law § 25–a, while those ‘result[ing] solely from a finding of disability regardless of its cause are not advance payments of compensation’ ” (Matter of Stranahan v. Camp Adirondack, 78 AD3d 1369, 1370 [2010], quoting Matter of Krystofik v. General Elec. Co., 54 A.D.2d 137, 139 [1976];  see Matter of Brock v. Great A & P Tea Co., 84 A.D.2d 645, 646 [1981], appeal dismissed 56 N.Y.2d 593 [1982];  see also Matter of Pignataro v Westchester Parkway Police Dept., 5 A.D.2d 523, 526–527 [1958], affd 7 N.Y.2d 848 [1959] ).

Here, claimant testified that he retired from his position due to a number of health concerns, including his respiratory problems that were the basis for his occupational disease claim.  Notably, in the medical evaluation prepared by claimant's treating physician, the physician referenced claimant's respiratory problems as a reason for his retirement.1  Furthermore, claimant received a disability retirement pension, as opposed to a regular retirement pension, after he left his job.  Although claimant retired the same year that he injured his back, this does not, without more, establish that his retirement was solely due to his back injury.  Under the circumstances presented, we find that substantial evidence supports the Board's finding that the disability retirement payments received by claimant were at least partially due to his occupational disease and that such payments, therefore, constituted an advance payment of compensation for purposes of Workers' Compensation Law § 25–a (see Employer:  Great Meadow Correctional Fac., 2011 WL 4847545, 2011 N.Y. Wrk Comp LEXIS 5696 [WCB No. 5971 9336, Oct. 3, 2011] ).  Accordingly, the Board properly discharged the Special Fund from liability.

McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

FOOTNOTES

FN1. Although the physician misstated the date of claimant's retirement, this did not detract from his observation that claimant's respiratory problems were a reason for claimant's retirement..  FN1. Although the physician misstated the date of claimant's retirement, this did not detract from his observation that claimant's respiratory problems were a reason for claimant's retirement.