Ruffino v. Isadore Rosen & Sons

142 A.D.2d 177, 535 N.Y.S.2d 488, 1988 N.Y. App. Div. LEXIS 12975

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 1988
• Status: Published

Opinions

OPINION OF THE COURT

Levine, J.

While working for the employer in October 1973, decedent sustained an injury which resulted in a permanent partial disability, and the employer’s workers’ compensation insurance carrier was directed to pay disability benefits. Since decedent had a preexisting physical impairment (diabetes), the carrier applied for and was granted reimbursement from the Special Disability Fund pursuant to Workers’ Compensation Law § 15 (8) (d). Decedent died January 7, 1982 and claimant, his widow, filed a claim for death benefits which alleged that decedent’s death was causally related to the October 1973 injury. The carrier controverted the claim and also filed an application for reimbursement of death benefits from the Fund pursuant to Workers’ Compensation Law § 15 (8) (e). Following a hearing before an Administrative Law Judge (hereinafter ALJ), claimant’s application for death benefits was granted. The carrier did not seek Workers’ Compensation Board review of the decision which found, inter alia, a causal relationship between decedent’s death and the October 1973 injury.

At the subsequent hearing on the carrier’s application for reimbursement from the Fund, the Fund requested that the AU not make a ruling on the carrier’s application so that the Fund could seek Board review of the prior decision which ruled that claimant’s application was compensable. The request was denied and the carrier’s application for reimbursement was granted. On appeal to the Board, the Fund argued that claimant should not have been awarded benefits since there was no causal relationship between decedent’s death and the injury sustained in October 1973. The Board ultimately decided that the Fund lacked standing to raise this issue, and the Fund has appealed.

We affirm. The effect of a reversal of the Board’s decision would be to permit the Fund to intervene or litigate or relitigate all the primary issues relating to the compensability of an injured or deceased employee’s claim. The Fund bases this on the statutory right of the representative of the Fund to "be given notice of all hearings or proceedings involving the rights or obligations of [the Fund]” (Workers’ Compensation Law § 15 [8] [i]). Because the Fund’s obligation to reimburse is conditioned upon the work-related "subsequent injury * * * resulting] in the death of the employee”, as well as a determination "that either the injury or death would not have occurred except for such pre-existing permanent physical impairment” (Workers’ Compensation Law §15 [8] [e]), it is argued that the Fund has standing to contest the primary issue of causal relationship between the death and the work-related accident, the very same issue involved in claimant’s entitlement to death benefits. It should be noted that the Fund’s interpretation would also give it standing to contest the remaining elements of compensability of the underlying claim since, under the statute, the Fund’s obligation to reimburse is also conditioned upon establishment that the employee’s subsequent injury resulted from or was by an "accident arising out of and in the course of his employment” (Workers’ Compensation Law § 15 [8] [d], [e]).

Such an interpretation, in our view, is contrary to the basic statutory scheme and purpose of Workers’ Compensation Law § 15 (8). Undeniably, the statutory purpose was to encourage employers to hire the permanently handicapped by giving them a right to reimbursement from the Fund for compensation payments arising out of a subsequent work-related accident where the prior handicapping condition contributed to the extent of the employee’s disability or to his death (see, Workers’ Compensation Law § 15 [8] [a]). Clearly, the statute views the liability of the Fund as secondary and one imposed only after compensability of the claim against the employer (who always remains primarily responsible) has been established (Workers’ Compensation Law § 15 [8] [fj). Indeed, the statute, in permitting the employer to file a claim for reimbursement against the Fund at any time prior to the final determination of the underlying claim (not later than two years after the date of disability or death), clearly envisages the possibility that all issues of compensability, including causation, will have been fully litigated between the claimant and the carrier or employer before the required giving of "notice of all hearings or proceedings involving the rights or obligations of such fund” (Workers’ Compensation Law § 15 [8] [i]). The statute makes clear that the employee’s claim for compensation and the employer’s claim for reimbursement are separate and distinct, and trigger separate proceedings. The Fund’s representative is only appointed and, hence, only has standing, with respect to proceedings "involving claims against such fund” (Workers’ Compensation Law § 15 [8] [i]), not as to proceedings on claims for compensation benefits against the employer. Any fear of collusion between the employer and the claimant is obviated by the fact that there is no right to reimbursement from the Fund for the first two years of benefits (Workers’ Compensation Law § 15 [8] [d]).

Conferring full standing upon the Fund to litigate the primary issues of compensability of the underlying claim for benefits, even after an award of benefits has been made, will necessarily produce one of two alternative anomalous results, each of which will offend the purposes of Workers’ Compensation Law § 15 (8). One of such results would be that the Fund would have a right to reopen a claimant’s case and contest the compensability of the claim. This, however, would clearly be contrary to the purpose of earlier amendments to the statute enacted "to avoid extended medical controversies and delays in benefits” (Schempp v City of New York, 30 AD2d 129, 133, affd 24 NY2d 939). The only other alternative is that, as would occur here under the Fund’s position, the employer will be bound by the Board’s award of compensation to the claimant, but will then be at risk of losing reimbursement when the Fund subsequently establishes that the underlying claim was not compensable. The deleterious effect of this result on the willingness of employers to hire the handicapped is self-evident. Thus, the primary purpose of section 15 (8) will be severely undercut.

The foregoing analysis is fully supported by the fact that, where the Legislature has intended to give full standing to a special fund to contest compensability, it has done so in explicit and unmistakable terms (see, Workers’ Compensation Law § 26-a [1], [6]). The absence of any similarly explicit provision under Workers’ Compensation Law § 15 (8) is indicative that no such standing was intended. Moreover, this case involves important policy considerations, and will affect operational practices with respect to the processing of claims for benefits and for reimbursements, such that weight should be given to the interpretation by the agency charged with the responsibility for administering the statute (see, Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459; Matter of DeMayo v Rensselaer Polytech Inst., — AD2d — [Nov. 3,1988]).

We are likewise unpersuaded by the Fund’s argument that denial of any opportunity to contest causation infringed upon its right to procedural due process. That objection was not raised before the Board and, hence, was not preserved for review. In any event, the Fund is an entity created by the Legislature, administered by the Board’s Chairman and the Commissioner of Taxation and Finance (Workers’ Compensation Law § 15 [8] [h]), performing a governmental function on behalf of the State in furtherance of the purposes and policies of the Workers’ Compensation Law. As such, the Fund stands in the position of a political subdivision of the State and cannot claim rights under the Constitution against State action (see, Village of Herkimer v Axelrod, 58 NY2d 1069, 1071; Matter of Bowen v State Commn. of Correction, 104 AD2d 238, 239). Accordingly, the Board’s decision should be affirmed.