O'Donnell v. Catapano

210 A.D.3d 1259

178 N.Y.S.3d 276

In the Matter of the Claim of James O'DONNELL, Appellant,

v.Grow Kiewi T. CATAPANO et al., Respondents.

Workers’ Compensation Board, Respondent.

534169

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

Calendar Date: October 11, 2022

Decided and Entered: November 17, 2022

Pashman Stein Walder Hayden, Purchase (Marc M. Yenicag of counsel), for appellant.

James Fiedler, Acting General Attorney, State Insurance Fund, Albany (Rudolph Rosa Di Sant of counsel), for Grow Kiewi T. Catapano and another, respondents.

Before: Garry, P.J., Clark, Aarons, Pritzker and Fisher, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a decision of the Workers’ Compensation Board, filed March 15, 2021, which ruled that the reopening of the claim was barred by Workers’ Compensation Law § 123.

By decision filed August 24, 1999, claimant established a claim for Caisson disease resulting from his exposure to compressed air in connection with his employment as a construction worker. Per that decision, claimant's date of disablement was determined to be "July 23, 1999 which is the date of the first medical evidence for the condition." Claimant was found to have a 7.5% schedule loss of use (hereinafter SLU) of each arm and a 10% SLU of each leg, and he was awarded 104.4 weeks of benefits beginning July 23, 1998, with the last payment being made on August 1, 2000.

No further action was taken until submission of a Doctor's Initial Report in January 2017, noting claimant's increased impairment, which was followed by a Doctor's Report of MMI/Permanent Impairment form in March 2017, noting an increased SLU of each of claimant's extremities. In May 2017, claimant submitted a Request for Further Action to reopen the case and requested additional awards based upon an increase in the SLU of his extremities due to the progression of his Caisson disease. The employer's workers’ compensation carrier opposed the reopening, asserting, among other things, that the application for further awards was untimely pursuant to Workers’ Compensation Law § 123. Following a hearing, a Workers’ Compensation Law Judge ruled, among other things, that Workers’ Compensation Law § 123 applied. Upon administrative appeal, claimant asserted that Workers’ Compensation Law § 123 did not apply given that the July 23, 1999 date of disablement set forth in the August 24, 1999 decision rendered his application to reopen timely. The Workers’ Compensation Board, in a decision filed March 15, 2021, found, among other things, that the August 24, 1999 decision setting the date of disablement as July 23, 1999, rather than July 23, 1998, was an inadvertent error, and affirmed the Workers’ Compensation Law Judge's decision that the application to reopen was untimely. Claimant appeals.

We affirm. Workers’ Compensation Law § 123 vests the Board with continuing jurisdiction to reopen closed cases, except where the application to reopen "is made after a lapse of [18] years from the date of the injury or death and also a lapse of eight years from the date of the last payment of compensation" (see ...