Tomlin v. Asplundh Tree Expert Co.

• Decision Date: 18 July 1996
• Citation: 229 A.D.2d 740,645 N.Y.S.2d 612
• Parties: In the Matter of the Claim of Frederick H. TOMLIN, Respondent, v. ASPLUNDH TREE EXPERT COMPANY, Appellant. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 612

645 N.Y.S.2d 612

229 A.D.2d 740

In the Matter of the Claim of Frederick H. TOMLIN, Respondent, v. ASPLUNDH TREE EXPERT COMPANY, Appellant Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division Third Department.

July 18, 1996.

O'Connor, Gacioch & Pope (Jeffrey A. Tait, of counsel), Binghamton, for appellant.

Meagher & Meagher (Frederick J. Meagher Jr., of counsel), Binghamton, for Frederick H. Tomlin, respondent.

Dennis C. Vacco, Attorney General (Iris A. Steel, of counsel), New York City, for Workers' Compensation Board, respondent.

Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.

CREW, Justice.

Appeal from a decision of the Workers' Compensation Board, filed April 19, 1995, which ruled, inter alia, that claimant sustained a compensable injury and awarded workers' compensation benefits.

Claimant was the site manager of an equipment repair facility operated by the employer in Delaware County, where he had been employed for approximately 23 years. In February 1984, claimant allegedly began experiencing excessive chest pains and sought medical attention. The employer sent claimant a letter granting him a medical leave of absence until March 19, 1984 and requested supporting medical documentation. Claimant's treating physician, Patrick McAndrew, sent the employer a note dated February 28, 1984 stating that he had been treating claimant since February 20, 1984 for essential hypertension, left ventricular hypertrophy and chest pain of an as-yet undetermined origin. The note further stated that claimant was undergoing a complete medical work-up and he would be unable to return to work until all tests were completed. The employer thereafter sent claimant a disability claim form with the letterhead of an insurer from which the employer had purchased a disability insurance plan in accordance with Workers' Compensation Law § 211(2). Claimant completed this form and it apparently was received in the employer's home office on April 3, 1984. The employer, however, thereafter used this claim form as a claim for disability insurance pursuant to a salary continuation plan that it administered itself, which never had been filed with the Workers' Compensation Board. Claimant was paid benefits in accordance with this plan.

Thereafter, pursuant to the employer's request, claimant was examined by the employer's physician, John Walters, on April 6, 1984. In the report filed by Walters, it was noted that claimant has "rather constant chest pain" that does not resemble angina and that there was "[n]o evidence for organic heart disease". Thereafter, the employer informed claimant that inasmuch as he did not have a "bona fide" disability, his absence from work would be considered a voluntary termination of his employment. Claimant then filed for statutory disability benefits under Workers' Compensation Law article 9.

Claimant subsequently filed a claim for discriminatory discharge with the Board alleging that the employer violated Workers' Compensation Law § 241 by firing him in retaliation for his claim for disability benefits. The employer opposed the claim on the ground that, inter alia, the Board lacked jurisdiction. The Board concluded that it had jurisdiction to hear the case and, further, that claimant had been discriminated against in violation of Workers' Compensation Law § 241. The Board also ruled that claimant's damages should be reduced in light of evidence that claimant may have been able to find other work during the applicable period yet failed to actively seek employment. This...