Zimniak v. Consolidated Edison

• Decision Date: 31 January 2019
• Docket Number: 525910
• Parties: In the Matter of the Claim of John ZIMNIAK, Appellant, v. CONSOLIDATED EDISON, Respondent. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 1321
91 N.Y.S.3d 617

In the Matter of the Claim of John ZIMNIAK, Appellant,
v.
CONSOLIDATED EDISON, Respondent.

Workers' Compensation Board, Respondent.

525910

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

Calendar Date: January 7, 2019
Decided and Entered: January 31, 2019

91 N.Y.S.3d 618

Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, New York City (Michael K. Gruber of counsel), for appellant.

Cherry, Edson & Kelly, LLP, Tarrytown (Ralph E. Magnetti of counsel), for Consolidated Edison, respondent.

Before: Egan Jr., J.P., Lynch, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Lynch, J.

168 A.D.3d 1321

Appeal from a decision of the Workers' Compensation Board, filed January 30, 2017, which ruled that the reopening of the claim was barred by Workers' Compensation Law § 123.

In July 1998, claimant, a welder, filed a claim for workers' compensation benefits alleging that he suffered from asbestosis and occupational chronic lung condition due to frequent exposure to asbestos, dust, sand, chemicals, smoke and fumes while working. Following a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ) marked the claim as "no further action planned by the [Workers' Compensation] Board at this time" and found "[n]o prima facie medical evidence."

In March 2014, claimant requested that the claim be reopened based upon prima facie evidence of "chronic respiratory disease

91 N.Y.S.3d 619

due to fumes and solvents from work such as from welding fumes, construction dust, and numerous solvents and cleaning agents used in his work." The employer argued, among other things, that the claim was barred pursuant to Workers' Compensation Law § 123. A WCLJ set the date of disablement as February 4, 2014, the date that claimant stopped working, and established the claim for occupational disease involving chronic respiratory disease and reactive airway dysfunction syndrome. Upon review, the Board set the date of disablement as July 28, 1998, the date that claimant filed the claim, and concluded that the claim was barred pursuant to Workers' Compensation Law § 123 because more than seven years had

168 A.D.3d 1322

lapsed since the date of disablement. Claimant appeals, contending that Workers' Compensation Law § 123 is inapplicable because the claim was never truly closed.

We affirm. Although the Board generally retains jurisdiction over workers' compensation claims, "no claim for compensation ... that has been disallowed after a trial on the merits, or that has been otherwise disposed of without an award after the parties in interest have been given...