Kozlowski v. Howard Sober Inc.

• Decision Date: 12 December 1996
• Citation: 650 N.Y.S.2d 902,234 A.D.2d 725
• Parties: In the Matter of the Claim of Richard KOZLOWSKI, Appellant-Respondent, v. HOWARD SOBER INC. et al., Respondents-Appellants, and Liberty Mutual Insurance Company et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 902

650 N.Y.S.2d 902

234 A.D.2d 725

In the Matter of the Claim of Richard KOZLOWSKI, Appellant-Respondent, v. HOWARD SOBER INC. et al., Respondents-Appellants and Liberty Mutual Insurance Company et al., Respondents Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 12, 1996.

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria L.L.P. (John A. Collins, of counsel), Buffalo, for appellant-respondent.

Williams & Williams (Mark W. Kerwood, of counsel), Buffalo, for National Union Fire Insurance Company, respondent-appellant.

Hamberger & Weiss (Ronald E. Weiss, of counsel), Buffalo, for Liberty Mutual Insurance Company, respondent.

Dennis C. Vacco, Attorney General (Howard B. Friedland, of counsel), New York City, for Workers' Compensation Board, respondent.

Before MIKOLL, J.P., and CREW, WHITE, CASEY and YESAWICH, JJ.

CASEY, Justice.

Cross appeals from two decisions of the Workers' Compensation Board, filed April 3, 1995 and September 26, 1995.

Claimant, a truck driver, was injured in September 1981 while unloading a truck when a chain wrapped around his left hand and pulled him up and over the frame of the truck. During proceedings on claimant's 1981 application for workers' compensation benefits, injuries to his left hand, elbow and shoulder were noted. The case was closed with a schedule loss of the use of the left hand in October 1983.

A new claim was filed in July 1986 based upon severe cervical pain which claimant experienced following his exposure to motel air conditioning during a truck delivery. Claimant also sought to reopen and amend the 1981 claim to include the cervical pain as causally related to the 1981 accident. Following numerous interlocutory decisions and hearings, the Workers' Compensation Board rendered the decisions on appeal, concluding (1) that the 1986 incident and claimant's cervical pain constituted an accident and accidental injury within the meaning of the Workers' Compensation Law, and (2) that claimant's cervical pain which began in 1986 was due to axonal changes in the nerve root resulting from an injury to the neck in the 1981 accident, but (3) his 1981 claim could not be amended because of the two-year time bar contained in Workers' Compensation Law § 28.

Claimant and the employer's workers' compensation insurance carrier on the risk for the 1986 claim appeal. Claimant contends that the Board erred in concluding that he was barred from amending his 1981 claim. The carrier agrees with claimant's argument, and also contends that the 1986 incident was not an accident and the injuries from that incident did not arise out of and in the course of claimant's employment. We will consider the latter two arguments first.

We reject the carrier's argument that an accident within the meaning of the Workers' Compensation Law requires some element of suddenness or something catastrophic. "An accidental injury need not result suddenly or from the immediate application of some external force but may accrue gradually over a reasonably definite period of time" (Matter of Johannesen v. New York City Dept. of Hous. Preservation & Dev., 84 N.Y.2d 129, 136, 615 N.Y.S.2d 336, 638 N.E.2d 981). To succeed on his claim, claimant was required to show "unusual environmental conditions or events assignable to something extraordinary that caused an accidental injury" (id., at 138, 615 N.Y.S.2d 336, 638 N.E.2d 981). The carrier contends that claimant's mere exposure to the cooling effect of air conditioning is insufficient (see, Matter of Floom v. Harfred Operating Co., 52 A.D.2d 703, 382 N.Y.S.2d 579).

The Board, however, found that after a very hot day of driving, "claimant sustained a posterior cervical sprain due to the cool draft directed at his posterior cervical region by the motel's air conditioning during his overnight stay on the road". There is substantial evidence to support the Board's conclusion that claimant's 1986 neck injury, resulting in severe cervical pain that did not previously exist and caused by claimant's exposure to unusual environmental conditions over a reasonably definite period of time, constituted an accidental injury within the meaning of the Workers' Compensation Law (see, Matter of Pessel v. R.H. Macy & Co., 40 A.D.2d 746, 336 N.Y.S.2d 814, affd 33 N.Y.2d 721, 349 N.Y.S.2d 995, 304 N.E.2d 565). We also reject the carrier's contention that, as a...