Lloyd v. New Era Cap Co.

• Citation: 915 N.Y.S.2d 701,80 A.D.3d 1016
• Parties: In the Matter of the Claim of Chester LLOYD, Claimant, v. NEW ERA CAP COMPANY et al., Appellants, and Special Disability Fund, Respondent. Workers' Compensation Board, Respondent.
• Decision Date: 20 January 2011
• Court: New York Supreme Court Appellate Division

915 N.Y.S.2d 701
80 A.D.3d 1016

In the Matter of the Claim of Chester LLOYD, Claimant,
v.
NEW ERA CAP COMPANY et al., Appellants,
and
Special Disability Fund, Respondent.
Workers' Compensation Board, Respondent.

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

Jan. 20, 2011.

915 N.Y.S.2d 703

Hamberger & Weiss, Buffalo (Susan R. Duffy of counsel), for appellants.

Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), for Special Disability Fund, respondent.

Before: PETERS, J.P., ROSE, LAHTINEN, KAVANAGH and EGAN JR., JJ.

EGAN JR., J.

80 A.D.3d 1017

Appeal from a decision of the Workers' Compensation Board, filed June 4, 2009, which ruled that the self-insured employer was not entitled to reimbursement from the Special Disability Fund.

From 1992 to 2003, claimant worked as a sewing machine operator for the self-insured employer. In February 2003, claimant slipped and fell on ice in the employer's parking lot. As a result of the fall, claimant suffered persistent low back pain that restricted his mobility and prevented him from returning to work. The Workers' Compensation Board found that he suffered a work-related injury to his lower back and tail bone, and awarded benefits. The Board set claimant's payment percentage rate at 87.5% for a weekly award of $190.22. The employer then requested apportionment of claimant's injury between the 2003 accident and a preexisting disability caused by a 1975 gunshot wound to claimant's thoracic spine. Following a hearing, the Workers' Compensation Law Judge (hereinafter WCLJ) denied the employer's request, which was affirmed by the Board.

In March 2005, based on an agreement between the employer and claimant, claimant was classified as permanently partially disabled, and his weekly award was continued at the 87.5% disability rate. In 2007, the employer and its third-party administrator (hereinafter collectively referred to as the employer) filed an application seeking to impose liability upon the Special Disability Fund pursuant to Workers' Compensation Law § 15(8)(d). Following a hearing, the WCLJ found that "claimant has been classified as suffering from a permanent partial disability, but the consensus of the medical evidence is of a permanent and total disability" due to the low back injury, and that Workers' Compensation Law § 15(8)(d) did not apply. On review, the Board affirmed the WCLJ's decision, and this appeal by the employer ensued.

Under Workers' Compensation Law § 15(8)(d), an employer may be reimbursed from the Special Disability Fund for workers' compensation payments made after 104 weeks to a claimant who had a preexisting "permanent physical impairment" (Workers' Compensation Law § 15[8][d] ). " 'To obtain reimbursement pursuant to the statute, an employer must show that the

80 A.D.3d 1018

claimant had a preexisting permanent impairment that hindered job potential, a subsequent injury arising out of and in the course of employment, and a permanent disability caused by both conditions materially and substantially greater than what would have been caused by the work-related injury alone' " ( Matter of Saunders v. Pepsi Cola, 249 A.D.2d 780, 781, 671 N.Y.S.2d 877 [1998], quoting Matter of Sturtevant v. Broome County, 188 A.D.2d 893, 893-894, 591 N.Y.S.2d 631 [1992]; accord. Matter of Bushey v. Schuyler Ridge, 77 A.D.3d...