Durham v. Wal-Mart Stores, Inc.

• Decision Date: 25 July 2019
• Docket Number: 527982
• Citation: 174 A.D.3d 1273,106 N.Y.S.3d 221
• Parties: In the Matter of the Claim of Esther J. DURHAM, Claimant, v. WAL–MART STORES, INC., et al., Appellants, and Special Disability Fund, Respondent. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1273

106 N.Y.S.3d 221

In the Matter of the Claim of Esther J. DURHAM, Claimant,

v. WAL–MART STORES, INC., et al., Appellants,andSpecial Disability Fund, Respondent.Workers' Compensation Board, Respondent.

527982

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

Calendar Date: May 29, 2019

Decided and Entered: July 25, 2019

Goldberg Segalla, LLP, Buffalo (Cory A. DeCresenza of counsel), for appellants.

Special Funds Group, Schenectady (Kevin J. Rumsey of counsel), for Special Disability Fund, respondent.

Before: Garry, P.J., Mulvey, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Mulvey, J. Appeal from a decision of the Workers' Compensation Board, filed May 9, 2018, which discharged the Special Disability Fund from liability under Workers' Compensation Law § 15(8).

Claimant, a cashier, sustained work-related injuries to her neck and lower back in May 2007. The employer and its workers' compensation carrier (hereinafter collectively referred to as the employer) subsequently sought reimbursement from the Special Disability Fund (hereinafter the Fund) pursuant to Workers' Compensation Law § 15(8)(d), citing claimant's preexisting hypertension

and prior established claim for a low back injury in 2005 as factors contributing to her disability. Ultimately, claimant was classified with a permanent partial disability of her cervical and lumbar spine, and the employer renewed its ongoing request for reimbursement.

Following a hearing, a Workers' Compensation Law Judge found that the employer was entitled to reimbursement – apparently relying upon a pretrial conference sheet dated March 14, 2012 and signed by representatives of the employer and the Special Funds Conservation Committee that purportedly reflected an agreement as to the employer's entitlement to reimbursement. Upon administrative review, the Workers' Compensation Board reversed, finding, among other things, that consideration of the pretrial conference sheet was barred by Workers' Compensation Law § 15(8)(h)(2)(A), that the C–250 form filed in this matter failed to list claimant's 2005 low back injury as a preexisting impairment and, in any event, that the employer failed to tender sufficient medical proof within the prescribed time limits to support its claim for reimbursement. Accordingly, the Board denied the employer's request for relief and discharged the Fund, which had assumed responsibility for Workers' Compensation Law § 15(8) reimbursement claims, from liability. This appeal by the employer ensued.

The crux of the employer's argument is that the Board erred in concluding that it was not entitled to reimbursement from the Fund under the provisions of Workers' Compensation Law § 15(8)(d). In this regard, the employer initially contends that the aforementioned pretrial conference sheet is entitled to preclusive effect, as it contains the notation "15.8 applies unless total disability develops solely due to instant case." This argument is unpersuasive, however, as the pretrial conference sheet did not meet the requirements of either a stipulation (see 12 NYCRR 300.5 [b] ) or a settlement between the parties (see Workers' Compensation Law § 32 ). Notably, any such agreement in this regard would have been subject to the approval of the Workers' Compensation Law Judge and further review by the Board (see Matter of Lloyd v. New Era Cap Co., 80 A.D.3d 1016, 1019, 915 N.Y.S.2d 701 [2011] ; Matter of Marino v. K.L.M. Royal Dutch Airlines, 194 A.D.2d 818, 819–820, 598 N.Y.S.2d 598 [1993], lv denied 82 N.Y.2d 661, 606 N.Y.S.2d 596, 627 N.E.2d 518 [1993] ). Absent proof of such approval/review here, the pretrial conference sheet was not binding, and the issue of whether the employer demonstrated its entitlement to reimbursement under Workers' Compensation Law § 15(8)(d) remained "within the exclusive province of the Board" ( Matter of Brown v. Guilderland Cent. School Dist., 82 A.D.3d 1523, 1523–1524, 922 N.Y.S.2d 575 [2011] ).

We further agree with the Board that, to the extent that the employer was relying upon the 2012 pretrial conference statement to support its claim for reimbursement, such statement was barred by the provisions of Workers' Compensation Law § 15(8)(h)(2)(A). This statute provides, in relevant part, that "no written submissions or evidence in support of such a claim [for reimbursement] may be submitted after [July 1, 2010]" ( Workers' Compensation Law § 15[8][h][2][A] ). As the pretrial conference sheet was not prepared until nearly two years after the statutory deadline for tendering evidence or other written submissions had passed, the Board correctly concluded that it was foreclosed from considering this document. For all these reasons, we discern no basis upon which to disturb the Board's finding that the pretrial conference sheet was not dispositive of the employer's reimbursement claim.

Turning to the merits, "to receive reimbursement from the Fund pursuant to Workers' Compensation Law § 15(8)(d), the employer must demonstrate that the claimant suffered from (1) a preexisting permanent impairment that hindered job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than would have resulted from the work-related injury alone" ( Matter of Murphy v. Newburgh Enlarged City Sch. Dist., 152 A.D.3d 859, 859, 58 N.Y.S.3d 708 [2017] [internal quotation marks and citations omitted]; see Matter of Conway–Acevedo v. Consolidated Edison Co. of N.Y., Inc., 114 A.D.3d 1016, 1016–1017, 979 N.Y.S.2d 882 [2014] ; Matter of Pawlitz–Delgaizo v. Community Gen. Hosp., 106 A.D.3d 1365, 1366, 967 N.Y.S.2d 146 [2013] ; Matter of Southard v. Corning Hotel Corp., 95 A.D.3d 1519, 1519–1520, 944 N.Y.S.2d 773 [2012] ).¹ Such claim for reimbursement "shall be filed on a form prescribed by the [Board] chair" ( 12 NYCRR 300.5 [e] ) – in this case, form C–250 (see Workers' Compensation Law § 15[8][f] ; Matter of Searfoss v. Anchor Glass Container Corp., 78 A.D.3d...