Case # 09547027
Date of Accident: 03/14/1995
District Office: NYC
Employer: Con Edison
Carrier: Consolidated Edison Co of NY
Carrier ID No.: W373005
Carrier Case No.: 95001441
Date of Filing of Decision: 04/20/2012
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on March 20, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on February 22, 2011.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. whether the claim should be amended to include asbestosis;
2. whether the SIE may take a credit pursuant to WCL § 29(4) against the claimant's third party recovery; and
3. whether a penalty should be assessed against the SIE pursuant to WCL § 25(3)(f) , or pursuant to WCL § 25(1)(e).

In a decision filed on January 15, 2010, the Workers' Compensation Law Judge (WCLJ) found that the claim should not be amended to include asbestosis; found that no further development of the record was required on the issue of whether the claim should be amended to include asbestosis; and found that the third party credit claimed by the SIE on its C-8 is revoked since the credit is for settlement of a third party claim related to a non-established site of injury.

The Board Panel majority agreed with the findings that the claim should not be amended to include asbestosis, and that the SIE is not entitled to a credit against the claimant's net recovery from his third party action for asbestosis under WCL § 29. However, the Board Panel majority modified the WCLJ's decision to find that a penalty should be assessed against the SIE pursuant to WCL § 25(1)(e), and to direct further development of the record on the issue of the amount of the penalty to be imposed.

The dissenting Board Panel member would "find that the employer is entitled to take credit for the third party action, and that the case must be returned to the WCLJ to determine all issues concerning the third party action, including, but not limited to proper credit and consent." The dissenting member found that the claimant's "workers' compensation benefits and his third party settlement both originate from the same work environment [and] although there may be a different medical diagnosis in the two claims, they are both clearly related by causality."

The SIE filed an application for Mandatory Full Board Review on March 23, 2011. This decision will also address the SIE's application for review from the WCLJ's decision filed April 13, 2011, which assessed a penalty against the SIE pursuant to WCL § 25(3)(f).

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

On July 31, 1995, the claimant filed a C-3 form to report that he has asbestosis as a result of his work for the employer.

The record contains a copy of a report signed by Dr. Daum of an x-ray taken on March 14, 1995, which showed parenchymal abnormalities consistent with pneumoconiosis. No other abnormalities were found.

Dr. Gould, the claimant's treating pulmonologist, submitted a narrative report of an examination on August 8, 2000, and noted the claimant's work history for 34 years during which the claimant "had very heavy direct and airborne unprotected exposure to asbestos… and other occupational dusts and fumes." Dr. Gould noted that x-rays done in March 1995 and April 1995 showed parenchymal abnormalities consistent with pneumoconiosis. Dr. Gould diagnosed pulmonary asbestosis, asbestos-related pleural disease, and COPD (asthmatic type). Dr. Gould opined that "[t]here is a definite causal relationship between the patient's occupation" and his diagnosed conditions. Dr. Gould found that the claimant should not return to his former occupation and that he is permanently disabled from performing any gainful work.

Dr. Friedman, the SIE's consulting physician, submitted an IME-4 report of an examination on February 2, 2002, and diagnosed the claimant with "chronic obstructive lung disease with hyper-reactive symptoms associated with cough [and] recurrent episodes of acute bronchitis." Dr. Friedman opined that the claimant's "exposure to respiratory irritants early in his career as well as inhalation exposure in 1987 may be responsible for airway disease at this time." However, Dr. Friedman specifically noted that "[a] review of the x-ray revealed no evidence of asbestosis or asbestos-related pleural disease." Dr. Friedman stated that the claimant "continues to work as a dispatcher although his pulmonary function clearly reflects moderate obstruction consistent with a respiratory disability."

In a decision filed on June 13, 2002, the WCLJ established the claim for an occupational disease involving chronic obstructive pulmonary disease (COPD), with a date of disablement of March 14, 1995; classified the claimant with a permanent partial disability; and found no compensable lost time.

Dr. Gould submitted a C-4 report of an examination on September 8, 2003, and diagnosed COPD (asthma type). Dr. Gould noted that the claimant is working but opined that the claimant was partially disabled and unable to perform his regular work duties. The attached handwritten notes are difficult to read but it is noted that a chest x-ray showed bilateral pleural asbestosis.

The record contains a copy of a letter dated February 12, 2006, from the claimant to his employer indicating that he is resigning "effective on February 28, 2006, due to a pulmonary (asbestosis) condition." (ECF Doc ID #130843253).

The record contains a copy of the claimant's application for social security disability dated March 9, 2006. On the application, the claimant reported that he has several disabling conditions, including asbestosis (ECF Doc ID #142089224, p. 5).

On April 12, 2007, the claimant filed an RFA-1 to request a hearing because he had stopped working.

Dr. Friedman submitted an IME-4 report of an examination on September 12, 2007, and still found no evidence of asbestosis or asbestos-related pleural disease. Dr. Friedman noted that on the x-ray the parenchyma is clear, and there is no evidence of pleural disease.

Dr. Gould submitted subsequent C-4 reports of treatment on February 13, 2008, and July 1, 2008, and continued to diagnose only COPD (asthma type).

In a decision filed on February 20, 2009, the WCLJ, among other findings, made awards for the period from March 1, 2006, to February 18, 2009, at the rate of $400.00 per week (total award of $62,000 for that period), from which an attorney's fee of $13,900 was to be deducted, and directed the SIE to continue payments at $400.00 per week. The SIE filed an application for administrative review contending that claimant's retirement constituted a voluntary removal from the labor market. The SIE also argued that claimant had commenced a third party action which may have been settled without consent and that awards should be suspended pending production of information concerning the third party action. In a decision filed on July 29, 2009, a Board Panel affirmed the WCLJ's decision in its entirety and declined to consider the SIE's argument concerning claimant's third party action because it was not raised before the WCLJ.

On August 6, 2009, the SIE filed an amended C-8 and reported that the total award of $73,120.00 payable to the claimant pursuant to the Board Panel's decision was being reduced by the amount of $29,655.81, as a "third party reimbursement to employer." The total balance to the claimant was reported to be $29,564.19, which included the deduction of attorney's fees.

On August 27, 2009, the claimant filed an RFA-1 form to request a hearing since he had not been paid as directed in the July 29, 2009, Board Panel decision. Attached to the RFA-1 is a copy of a check issued by the SIE to the claimant dated August 5, 2009, in the amount of $29,564.19, with a notation indicating that the check reflected payment of awards for the period from February 3, 2006, to September 1, 2009, "as per award less atty fee, employer reimb."

On September 3, 2009, the carrier filed an RFA-2 indicating that it accepted the claim for asbestosis.

In a notice of hearing dated December 22, 2009, the parties were informed that a hearing was scheduled for January 12, 2010, to consider the "[q]uestion of third party action." The claimant was directed to produce his third party settlement papers, and the SIE was directed to produce a C-8/8.6.

At the hearing held on January 12, 2010, the claimant's attorney noted that the claim is established solely for chronic obstructive pulmonary disease, and argued that the SIE should not be taking a credit for the third party settlement because that was for an action related to asbestosis. The claimant's attorney requested that a penalty be assessed against the carrier based on its failure to pay awards as directed in the July 29, 2009, Board Panel decision. The SIE's attorney responded that the SIE is accepting the case for asbestosis and asbestos-related pleural disease. The attorney for the Special Funds Conservation Committee (SFCC) was present and opposed amendment of the claim to include asbestosis, noting that the medical evidence in the record does not support such a diagnosis. The SIE noted that the claimant's application for social security disability and his resignation letter support a finding that he is claiming asbestosis. However, the claimant's attorney responded that asbestosis is not being raised as a site of injury and further noted that the IME report does not give a causal relationship for asbestosis. The SIE's attorney noted that Dr. Gould diagnosed asbestosis in 2003 based on an x-ray reading and requested the opportunity to take the testimony of Dr. Gould. Initially, the WCLJ indicated that further development of the record was needed for testimony of the physicians. The SIE agreed with that decision. However, after hearing the arguments of the parties, the WCLJ found that the SIE cannot unilaterally take a credit for the third party settlement because asbestosis is not an established site of injury. The WCLJ also found that it was unnecessary to litigate the issue of whether the claim should be amended to include asbestosis. The SIE objected to the findings and raised additional issues of WCL § 114-a and whether the SIE consented to the third party settlement (Hearing Transcript, 1/12/10, pp. 14-15). The claimant's attorney argued that the SIE had raised a "frivolous controversy" and also objected to the WCLJ's decision to not impose a penalty on the carrier.

The WCLJ's findings were set forth in a decision filed on January 15, 2010, which expressly found that "asbestosis is not to be added as a site of injury, nor need the issue be litigated." Both the SIE and the claimant sought review of that decision.

LEGAL ANALYSIS

In its application for Mandatory Full Board Review, the SIE argues that the dissenting Board Panel member properly found that the SIE is entitled to a WCL § 29 offset. The SIE also argues "that the Board [should] exercise its appropriate discretion to amend the [claim] to include asbestosis in order to have the claim qualify for relief under [WCL §] 15-8(ee)."

Asbestosis

12 NYCRR 300.10(c) provides that when an employer or carrier desires to produce for cross-examination an attending physician whose report is on file, an adjournment shall be granted upon a timely request.

In his earliest report, Dr. Gould clearly diagnosed claimant with asbestosis, asbestosis related pleural disease and COPD. However, in subsequent C-4 reports, Dr. Gould's diagnosis was limited to COPD. Dr. Gould has never explained in any of his reports why he no longer includes asbestosis and asbestosis related pleural disease as applicable diagnoses, and has never expressly indicated that he no longer believes claimant suffers those conditions. At the hearing on January 12, 2010, the SIE requested the opportunity to take Dr. Gould's testimony on the issue of whether claimant had work-related asbestosis.

In light of the inconsistencies in Dr. Gould's reports, the Full Board finds case should be continued for the SIE to have the opportunity to take the testimony of Dr. Gould and for the WCLJ to render a decision on the issue of whether the record supports amendment of this claim to include asbestosis and asbestosis related pleural disease.

WCL § 29(4) – Credit for Third-Party Recovery

The purpose of WCL § 29 is to prevent a double recovery for the same injuries, such that a lien for compensation and medical benefits paid and a credit against the claimant's net third party recovery may only be claimed by the carrier where the third party recovery is for the same injury that was the predicate for the award of compensation benefits (Matter of Murphy v NYC Police Dept., 270 AD2d 733 [2000]; Matter of Kirk v Cent. Hudson Gas & Elec. Co., 50 AD3d 1298 [2008]).

The record does not contain any documentary evidence with respect to claimant's third party recovery. Therefore, the claimant is hereby directed to submit all documentation pertaining to his third party claim and recovery so that a reasoned decision can be made with respect to the issue of whether that recovery is for the same injury for which he received workers' compensation benefits, whether he was obligated to obtain the SIE's consent before settling that claim, and whether the SIE has a credit on the recovery pursuant to WCL § 29(4).

Penalty

The Board Panel majority found "that the correct penalty provision is Workers' Compensation Law § 25(1)(e) and not Workers' Compensation Law § 25-3(f)," and remitted the matter to the trial calendar for the WCLJ to determine the proper amount of the penalty. Upon remittal, the WCLJ, in a decision filed April 13, 2011, assessed a penalty against the SIE of $5,931.16 payable to the claimant and $50 payable into the state treasury pursuant to WCL § 25(3)(f), representing 20% of the $29,655.81 which the SIE failed to pay to the claimant within ten days of the February 20, 2009, Board Panel decision (the WCLJ's decision incorrectly indicates that the awards were directed in the February 11, 2011, Board Panel decision). The SIE filed a timely application for review of the WCLJ's April 13, 2011 decision.

WCL § 25(3)(f) provides:

If the employer or its insurance carrier fail to make payments of compensation according to the terms of the award within ten days…there shall be imposed a penalty equal to twenty percent of the unpaid compensation which shall be paid to the injured worker or his or her dependents, and there shall also be imposed an assessment of fifty dollars, which shall be paid into the state treasury.

WCL § 25(1)(e) provides:

If the employer or insurance carrier shall fail to pay any installments of compensation within twenty-five days after that same become due, there shall be paid by the employer or, if insured, its insurance carrier, an additional amount of twenty percent of the compensation then due which shall accrue for the benefit of the injured worker or his or her dependents and shall be paid to him or her or them with the compensation, unless such delay or default is excused by the board upon the application of the employer or insurance carrier upon the ground that owing to conditions over which the employer or insurance carrier had no control, such payment could not be made. The employer in each such instance shall also be assessed the sum of three hundred dollars, which shall be paid to the claimant

The Full Board finds that a penalty is warranted based on the SIE's failure to pay all awards directed in the February 20, 2009, Board Panel decision within ten days of the date that decision was issued. Therefore, the applicable penalty is for late payment of an award pursuant to WCL § 25(3)(f). The WCLJ's April 13, 2011, decision properly assessed a penalty against the SIE of $5,931.16 payable to the claimant and $50 payable into the state treasury pursuant to WCL § 25(3)(f).

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on January 15, 2010, is MODIFIED to direct that this matter be remitted to the trial calendar for the SIE to have the opportunity to take the testimony of Dr. Gould and for the WCLJ to render a decision on the issue of whether the record supports amendment of this claim to include asbestosis or asbestosis-related pleural disease; to direct that claimant submit all documentation pertaining to his third party claim and for the WCLJ to render a decision with respect to the issue of whether that recovery is for the same injury for which he received workers' compensation benefits, such that falls within the provisions of WCL § 29. The WCLJ decision filed on April 13, 2011, is AFFIRMED. The case is continued.