Chrostowski v. Pinnacle Envtl. Corp.

• Decision Date: 18 February 2021
• Docket Number: 531438
• Citation: 142 N.Y.S.3d 623,191 A.D.3d 1140
• Parties: In the Matter of the Claim of Miroslaw CHROSTOWSKI, Appellant, v. PINNACLE ENVIRONMENTAL CORPORATION et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 1140

142 N.Y.S.3d 623

In the Matter of the Claim of Miroslaw CHROSTOWSKI, Appellant,

v. PINNACLE ENVIRONMENTAL CORPORATION et al., Respondents.Workers' Compensation Board, Respondent.

531438

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

Calendar Date: January 13, 2021

Decided and Entered: February 18, 2021

Geoffrey Schotter, New York City, for appellant.

Goldberg Segalla LLP, Syracuse (Cory A. DeCresenza of counsel), for Pinnacle Environmental Corporation and others, respondents.

Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a decision of the Workers' Compensation Board, filed November 29, 2019, which ruled, among other things, that claimant's application for workers' compensation benefits was time-barred.

On January 31, 2018, claimant, an asbestos handler, filed a claim for workers' compensation benefits, which, as subsequently amended,¹ alleged repetitive stress injuries to his left shoulder, both wrists and both knees. Claimant ceased working as a result of a subsequent accident – for which an additional workers' compensation claim was filed. The Workers' Compensation Board set claimant's date of disablement as March 17, 2009 and, finding that claimant knew or should have known on that date that his condition was causally related to his employment, disallowed the claim as time-barred. Claimant appeals.

A claim for workers' compensation benefits due to injuries caused by an occupational disease must be filed "within two years after disablement and after the claimant knew or should have known that the disease is or was due to the nature of the employment" ( Workers' Compensation Law § 28 ; see Matter of Sanchez v. New York City Tr. Auth., 187 A.D.3d 1273, 1273, 129 N.Y.S.3d 866 [2020] ; Matter of Patterson v. Long Is. Jewish Med. Ctr., 296 A.D.2d 774, 775, 745 N.Y.S.2d 314 [2002] ; Matter of Hastings v. Fairport Cent. School Dist., 274 A.D.2d 660, 661, 710 N.Y.S.2d 455 [2000], lv dismissed 95 N.Y.2d 926, 721 N.Y.S.2d 602, 744 N.E.2d 137 [2000] ). The Board determines the date of disablement (see Workers' Compensation Law § 42 ) and "has a degree of latitude in choosing such date, as long as its findings are based on substantial evidence" ( Matter of Bonneau v. New York City Dept. of Sanitation, 233 A.D.2d 796, 797, 650 N.Y.S.2d 427 [1996] [internal quotation marks and citation omitted]; see Matter of Hastings v. Fairport Cent. School Dist., 274 A.D.2d at 661, 710 N.Y.S.2d 455 ).

In determining the date of disablement in the instant claim, the Board reviewed claimant's medical records and relied upon a March 17, 2009 report of Laura Bienenfeld, a physician treating claimant for his respiratory issues related to his work at the World Trade Center (hereinafter WTC) site – for which claimant filed a separate workers' compensation claim in 2016.² Noted in the March 17, 2009 report was information that claimant's back and neck pain had progressed since his work at the WTC site and that another physician, Charles Kim, who was treating claimant for those conditions several years ago, advised claimant of the potential of developing paresthesia in his hands. In the March 17, 2009 report, which reflects a positive Tinsel's test at both wrists producing diffuse paresthesia in both hands, Bienenfeld diagnosed claimant with bilateral hand numbness and weakness and noted that the condition is related to claimant's prior physical activity at the WTC site and is work related. Further testing, however, was recommended to determine if the condition was caused by cervical radiculopathy.

Although a positive Tinsel test was noted in the March 17, 2009 report, the diagnosis...