Claim of Polifroni v. Delhi Steel Corp.
In the Matter of the Claim of James Polifroni v. Delhi Steel Corporation, Workers' Compensation Board
Full Opinion (html_with_citations)
Appeals (1) from a decision of the Workersâ Compensation Board, filed May 8, 2006, which denied the workersâ compensation carrierâs request for apportionment among certain of claimantâs prior employers pursuant to Workersâ Compensation Law § 44, and (2) from a decision of said Board, filed November 21, 2006, which denied the workersâ compensation carrierâs request for reconsideration or full Board review.
Beginning in November 1999, claimant was employed by Delhi Steel Corporation as a metal fabricator and welder. In January 2004, claimant complained to Delhi Steel of wrist pain, which led to the eventual establishment of workersâ compensation claims for the occupational disease of carpal tunnel syndrome for both wrists. During the proceedings, Delhi Steelâs workersâ compensation carrier raised the issue of apportionment under Workersâ Compensation Law § 44. The Workersâ Compensation Law Judge (hereinafter WCLJ) reserved on that issue, choosing not to determine the contracting date for claimantâs occupational disease, place claimantâs previous employers on notice or schedule hearings on that issue until the issue of permanency for the left wrist was decided. The carrier then appealed the WCLJâs decision to reserve on the issue of apportionment to the Workersâ Compensation Board. Finding âno basis for an apportionment of claimantâs disability,â the Board modified the decision of the WCLJ. The carrier now appeals the Boardâs decision and its subsequent denial of the carrierâs application for full Board review.
Here, in reaching its conclusion that there was no basis for apportionment, the Board reasoned that â[t]he record does not include any medical evidence prior to February 19, 2004 that the claimant was disabled due to carpal tunnel syndrome. The record . . . indicates that the claimant had worked for the employer herein since 1999 and that he did not complain of any disability until 2004. There is no evidence in the record that the claimant was disabled from work due to this condition prior to his employment with the employer herein which could support a finding that the claimant had contracted this occupational disease while employed with a former employerâ (emphasis added). The Board focused on claimantâs lack of prior disablement from work, as opposed to evidence concerning the timing of his contraction of carpal tunnel syndrome. This reasoning resulted in a misapplication of Workersâ Compensation Law § 44. Simply put, disability while employed by a previous employer is not a prerequisite to a finding that a claimant contracted an occupational disease while employed by that employer (see Matter of Commissioner of Taxation & Fin. v Nu-Art Adv. Co., 271 NY
Mercure, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the decisions are reversed, without costs, and matter remitted to the Workersâ Compensation Board for further proceedings not inconsistent with this Courtâs decision.