Claim of Valerie Ir. v. Cattaraugus Cnty. Dep't of Nursing Homes-Olean Pines, 528938

• Decision Date: 30 April 2020
• Docket Number: 528938
• Citation: 122 N.Y.S.3d 440,182 A.D.3d 956
• Parties: In the Matter of the Claim of Valerie IRELAND, Respondent, v. CATTARAUGUS COUNTY DEPARTMENT OF NURSING HOMES–OLEAN PINES et al., Appellants. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

182 A.D.3d 956
122 N.Y.S.3d 440

In the Matter of the Claim of Valerie IRELAND, Respondent,
v.
CATTARAUGUS COUNTY DEPARTMENT OF NURSING HOMES–OLEAN PINES et al., Appellants.

Workers' Compensation Board, Respondent.

528938

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

Calendar Date: January 13, 2020
Decided and Entered: April 30, 2020

122 N.Y.S.3d 441

Hamberger & Weiss LLP, Buffalo (John D. Land of counsel), for appellants.

Lewis & Lewis, PC, Buffalo (Emily F. Janicz of counsel), for Valerie Ireland, respondent.

Letitia James, Attorney General, New York City (Marjorie S. Leff of counsel), for Workers' Compensation Board, respondent.

Before: Egan Jr., J.P., Lynch, Devine, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from a decision of the Workers' Compensation Board, filed October 4, 2018, which denied a request by the employer and its workers' compensation carrier to rehear or reopen claimant's workers' compensation claim.

Claimant was awarded workers' compensation benefits in 2012 after suffering a work-related injury to her back. The claim was later amended to include an injury to claimant's neck. In December 2013, awards were continued at a temporary partial disability rate. In 2015, the employer and its workers' compensation carrier (hereinafter collectively referred to as the employer) raised the issue of claimant's attachment to the labor market. In January 2016, a Workers' Compensation Law Judge (hereinafter WCLJ) determined that claimant was attached to the labor market "as evidenced by a diligent and persistent job search," and the case was continued to address permanency. Prior to a hearing on permanency, the parties stipulated that, among other things, claimant had sustained a 75% permanent partial disability and a 75% loss of wage-earning capacity. The parties also stipulated that claimant would produce a job search sheet every 60 days. The stipulation was approved by the WCLJ and incorporated into a March 17, 2016 decision.

In August 2018, the employer sought to reopen the claim to address claimant's voluntary removal from the labor market, citing no evidence of a job search since June 2017. The Workers' Compensation Board denied the request on the ground that, pursuant to the April 2017 amendment to Workers' Compensation Law § 15(3)(w), claimant was not required to demonstrate an ongoing attachment to the labor market. The employer appeals.

Workers' Compensation Law § 15(3)(w) was amended, effective April 10, 2017 (L 2017, ch 59, part NNN, subpart A, § 1), to provide, in relevant part, that, in

122 N.Y.S.3d 442

certain cases of permanent partial disability, "[c]ompensation ... shall be payable during the continuance of such permanent partial disability, without the necessity for the claimant who is entitled to benefits at the time of classification to demonstrate ongoing attachment to the labor market." This Court has previously found that the 2017 amendment applies retroactively "to claimants who have involuntarily withdrawn from the labor market and are entitled to receive wage replacement benefits having been classified with a permanent partial disability" ( Matter of O'Donnell v. Erie County, 162 A.D.3d 1278, 1280–1281, 78 N.Y.S.3d 506 [2018], rev ' d on other grounds 35 N.Y.3d 14, 124 N.Y.S.3d 12, 146 N.E.3d 1171, 2020 N.Y. Slip Op. 02095 [2020] ). In addressing the issue of retroactive application, the Court of Appeals, in Matter of O'Donnell v. Erie County, 35 N.Y.3d 14, 124 N.Y.S.3d 12, 146 N.E.3d 1171, 2020 N.Y. Slip Op. 02095 [2020] ), pointed out that the parties agreed that the amendment applied retroactively to a claimant eligible for benefits when classified with a permanent partial disability, and commented, "[w]e agree [that] this interpretation is correct" ( id. at 20, 124 N.Y.S.3d 12, 146 N.E.3d 1171 ). Here, claimant was classified as having a permanent partial disability in the WCLJ's March 2016 decision. At the time of classification, there had not been a finding that claimant had voluntarily withdrawn from the labor market, nor was there any finding of a voluntary withdrawal by the Board prior to the 2017 amendment (compare Matter of Santos v. Brickens Constr. Inc., 175 A.D.3d 1742, 1743, 110 N.Y.S.3d 94 [2019] ; Matter of Pryer v. Incorporated Vil. of Hempstead, 175 A.D.3d 1663, 1665–1666, 108 N.Y.S.3d 494 [2019] ; Matter of Scott v. Visiting Nurses Home Care, 172 A.D.3d 1868, 1871–1872, 101 N.Y.S.3d 767 [2019], lv . dismissed 34 N.Y.3d 1011, 115 N.Y.S.3d 206, 138 N.E.3d 1089 [2019] ). In light of the foregoing, we find that the 2017 amendment applies retroactively to the claim and obviates the need for claimant to demonstrate an attachment to the labor market (see ...