Kretunski v. Citywide Envtl. Servs.

202 A.D.3d 1423

164 N.Y.S.3d 679

In the Matter of the Claim of Marian KRETUNSKI, Appellant,

v.CITYWIDE ENVIRONMENTAL SERVICES et al., Respondents.

Workers’ Compensation Board, Respondent.

533065

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

Calendar Date: January 5, 2022

Decided and Entered: February 24, 2022

Schotter, Millican, Sinaniyeva & Masilela, LLP, New York City (Geoffrey Schotter of counsel), for appellant.

Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe of counsel), for Citywide Environmental Services and another, respondents.

Before: Egan Jr., J.P., Lynch, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J. Appeal from a decision of the Workers’ Compensation Board, filed August 20, 2020, which ruled, among other things, that claimant's claim was untimely under Workers’ Compensation Law § 28.

On July 18, 2019, claimant, an asbestos handler for approximately 20 years, filed a claim for workers’ compensation benefits, claiming various repetitive stress injuries. Prima facie medical evidence was found for injuries to claimant's back, right knee and both shoulders and wrists. Following a hearing, a Workers’ Compensation Law Judge (hereinafter WCLJ) set the date of disablement as June 27, 2017 and, finding that claimant knew or should have known on that date – which is when he first sought medical treatment – that his condition was causally related to his employment, disallowed the claim. In addition, the WCLJ noted that, in any event, claimant did not sufficiently demonstrate that his current condition stems from a distinctive feature of his job. The Workers’ Compensation Board, among other things, adopted the findings of fact and opinion of the WCLJ that the date of disablement was June 27, 2017 and affirmed the WCLJ's decision disallowing the claim as untimely. Claimant appeals.

"A claim for workers’ compensation benefits due to injuries caused by an occupational disease must be filed within two years after disablement and after the claimant knew or should have known that the disease is or was due to the nature of the employment" ( Matter of Chrostowski v. Pinnacle Envtl. Corp., 191 A.D.3d 1140, 1140, 142 N.Y.S.3d 623 [2021] [internal quotation marks and citations omitted]; see Matter of Rho v. Beth Israel Med., 194 A.D.3d 1324, 1325, 149 N.Y.S.3d 334 [2021], lv denied 37 N.Y.3d 912, 2021 WL 4735659 [2021] ; Matter of Osorio v. TVI Inc., 193 A.D.3d 1219, 1220, 147 N.Y.S.3d 159 [2021] ; see also Workers’ Compensation Law § 28 ). It is well settled that "the Board ordinarily has great latitude in setting a date of disablement, which date may acceptably reflect the first date of causally related treatment, the date on which the claimant first received a diagnosis indicating that the condition was work related, the date on which the claimant began to lose time from work due to the work-related disability, the date on which the claimant was advised by a physician to stop working due to the work-related disability, and the date on which the claimant actually stopped working because of that disability" ( Matter of Lewandowski v. Safeway Envtl. Corp., 190 A.D.3d 1072, 1076–1077, 139 N.Y.S.3d 705 [2021] [internal quotation marks and citations omitted]; see Matter of Osorio v. TVI Inc., 193 A.D.3d at 1221, 147 N.Y.S.3d 159 ; see also Workers’ Compensation Law § 42 ). To that end, if the Board's decision is supported by substantial evidence, it will not be disturbed (see Matter of Osorio v. TVI Inc., 193 A.D.3d at 1220, 147 N.Y.S.3d 159 ; Matter of Bunn v. Wegmans Food Mkts., Inc., 130 A.D.3d 1133, 1134, 12 N.Y.S.3d 655 [2015] ).

We are unpersuaded by claimant's contentions that where, as here, the Board selects a date of disablement that renders the claim untimely, it is acting contrary to the spirit and intent of the Workers’ Compensation Law and, further, that there must be a definitive conclusion of causal relationship from a doctor before the Board determines whether a claim is untimely under Workers’ Compensation Law § 28. We do find, however, that substantial evidence does not support the Board's determination setting the date of disablement as June 27, 2017.

Claimant first sought medical treatment for his physical difficulties in June 2017 when he consulted a pain specialist, but testified that he had been...