Trombino v. FMB Inc.

210 A.D.3d 1212

177 N.Y.S.3d 799

In the Matter of the Claim of Marc TROMBINO, Claimant,

v.FMB INC., Respondent,andLiberty Insurance Corporation, Appellant,

and

Ace American Insurance Company, Respondent.

Workers’ Compensation Board, Respondent.

532194

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

Calendar Date: October 18, 2022

Decided and Entered: November 10, 2022

Chartwell Law, New York City (Jason D. Lewis of counsel), for appellant.

Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E. Wolinski of counsel), for Ace American Insurance Company, respondent.

Letitia James, Attorney General, New York City (Marjorie S. Leff of counsel), for Workers’ Compensation Board, respondent.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a decision of the Workers’ Compensation Board, filed March 5, 2020, which ruled that Liberty Insurance Corporation is responsible for claimant's workers’ compensation benefits.

In September 2016, claimant, an iron worker, filed a claim for workers’ compensation benefits, citing work-related lung conditions, including silicosis and chronic obstructive pulmonary disease, and referencing FMB Inc. as his employer. The Workers’ Compensation Board initially indexed the claim against Phoenix Insurance Co. as the responsible carrier.¹ Phoenix disputed coverage on this claim, and, after an investigation by the Board's Bureau of Compliance Enforcement Unit identified Ace American Insurance Company and Liberty Insurance Corporation² as potential carriers for FMB, the Board issued a corrected notice of indexing naming Liberty as the responsible carrier. Liberty appeared and raised several issues, including no prima facie evidence, no occupational disease and lack of coverage.

At a July 27, 2017 hearing, claimant testified that FMB was his last employer, and he outlined the time period he worked for FMB and the location at which he was working. Liberty's intended lay witness did not show up for the hearing, and the Workers’ Compensation Law Judge (hereinafter WCLJ) then precluded Liberty from calling any lay witnesses. Liberty did not raise any issue regarding coverage at the hearing, and the WCLJ found prima facie evidence of the claim and continued the case for deposition testimony from the medical experts. Following the submission of the depositions, Liberty filed a written summation arguing that claimant did not suffer from any pulmonary impairment, but again did not raise any issue regarding coverage. Thereafter, the WCLJ established the claim, finding that claimant had an occupational disease for silicosis, chronic obstructive pulmonary disease, rhinitis, bronchitis and mixed dust disease and classified claimant as having a permanent total disability.³

Liberty sought Board review of the WCLJ's determination, raising several issues, including, for the first time, that its policy did not cover the location where claimant had testified that he was working for FMB. The Board initially rejected the documentary proof of lack of coverage submitted by Liberty in its request for Board review for failing to comply with 12 NYCRR 300.13. The Board rescinded, without prejudice, the finding of a permanent total disability due to issues regarding maximum medical improvement but otherwise affirmed the WCLJ's decision. Liberty appealed that decision to this Court and also sought full Board review. In the interim, the Board panel issued an amended decision stating that, in its discretion, it would treat Liberty's documentary evidence of lack of coverage as an application to reopen and remitted the matter for a hearing on the issue of coverage, but it made no other amendments to its prior decision. Prior to the hearing, the Board put Ace American on notice as a potential carrier. Ace American asserted that Liberty should be barred from denying coverage by the doctrine of laches, and the WCLJ accepted and agreed with this argument. The Board affirmed this decision on administrative review, and Liberty appeals.⁴

We affirm. "The doctrine of laches can apply in workers’ compensation cases when there has been an inexcusable delay in raising the defense of noncoverage together with actual injury or prejudice" ( Matter of Manticoff v. American Bldg. Maintenance, 63 A.D.3d 1308, 1309, 880 N.Y.S.2d 751 [3d Dept. 2009] [internal quotation marks and citations omitted]; see Matter of Nunez v. Ulster BOCES/Arden Hill, 167 A.D.3d 1218, 1219, 89 N.Y.S.3d 470 [3d Dept. 2018] ). "The Board's determination regarding the applicability of the laches doctrine will not be disturbed on appeal if supported by substantial evidence" ( Matter of Fuller v. Jackson, 205 A.D.3d 1291, 1292, 169 N.Y.S.3d 711 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of Hopkins v. Alcas Corp., Cutco Cutlery, 63 A.D.3d 1342, 1343, 880 N.Y.S.2d 754 [3d Dept. 2009] ). The record reflects that documents filed in the Board's electronic case file in February 2017 identified Ace American as a potential responsible carrier for the claim. Claimant testified in July 2017 that he was working for FMB at the Hudson Yards...