Matter of Szadek v. Wilson Greatbatch , 23 N.Y.S.3d 745 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 28, 2016 521213
________________________________
In the Matter of the Claim of
SHARON SZADEK,
Respondent,
v
WILSON GREATBATCH et al.,
Appellants, MEMORANDUM AND ORDER
and
SPECIAL DISABILITY FUND,
Respondent.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: December 15, 2015
Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.
__________
Hamberger & Weiss, Rochester (Ronald E. Weiss of counsel),
for appellants.
Steven M. Licht, Special Funds Conservation Committee,
Albany (Jill B. Singer of counsel), for Special Disability Fund,
respondent.
__________
Lynch, J.
Appeal from a decision of the Workers' Compensation Board,
filed September 8, 2014, which ruled that the employer's workers'
compensation carrier is not entitled to reimbursement from the
Special Disability Fund.
-2- 521213
Claimant successfully applied for workers' compensation
benefits after injuring her neck and back in 2004 as a result of
a slip and fall. After learning that claimant suffered from,
among other things, preexisting anterior cruciate ligament
reconstruction (left knee), a left ankle fracture, degenerative
disc disease, cervical disc disease, obesity, spondylolisthesis
and stenosis, the employer and its workers' compensation carrier
(hereinafter collectively referred to as the carrier) applied for
reimbursement from the Special Disability Fund (see Workers'
Compensation Law § 15 [8] [d]). Following proceedings relative
to the carrier's claim for reimbursement from the Fund, a
Workers' Compensation Law Judge found that claimant had sustained
a permanent partial disability and that the carrier was entitled
to reimbursement. On appeal, a panel of the Workers'
Compensation Board affirmed. Thereafter, upon full Board review,
the Board found that the carrier was not entitled to
reimbursement because it failed to meet its burden of showing
that Workers' Compensation Law § 15 (8) (d) applies in this case.
The carrier now appeals from the full Board's September 2014
decision.
We affirm. In order to obtain reimbursement from the Fund
pursuant to Workers' Compensation Law § 15 (8) (d), the carrier
"'must demonstrate that claimant suffered from (1) a preexisting
permanent impairment that hindered job potential, (2) a
subsequent work-related injury, and (3) a permanent disability
caused by both conditions that is materially and substantially
greater than would have resulted from the work-related injury
alone'" (Matter of Crane v Dalrymple Gravel & Contr. Holding, 117
AD3d 1378, 1378-1379 [2014], quoting Matter of Burley v Theriault
Transp., 85 AD3d 1423, 1423 [2011]; accord Matter of Pawlitz–
Delgaizo v Community Gen. Hosp., 106 AD3d 1365, 1366 [2013]).
"With regard to the first requirement, the issue is whether the
claimant's preexisting condition would be a hindrance to his or
her general employability, not whether it was an obstacle or
handicap to the claimant's particular employment" (Matter of
Schworm v Frito Lay, Inc., 104 AD3d 1048, 1049 [2013]; see Matter
of Zeppieri v Hofstra Univ., 94 AD3d 1288, 1289 [2012]; Matter of
Shepler v City of Tonawanda, 67 AD3d 1313, 1314 [2009]).
-3- 521213
Here, we agree with the Board that the carrier failed to
prove that claimant's preexisting conditions hindered or were
likely to hinder her employability (see Matter of Crane v
Dalrymple Gravel & Contr. Holding, 117 AD3d at 1378-1379; Matter
of Conway-Acevedo v Consolidated Edison Co. of NY, Inc., 114 AD3d
1016, 1017 [2014]). While the carrier presented evidence of
claimant's medical conditions and treatment received prior to her
2004 work-related injury, as well as testimony from its medical
expert, who opined that claimant's injuries to her left ankle and
knee, spondylolisthesis, foraminal stenosis and degenerative disc
disease were permanent in nature and would be a potential
hindrance to certain types of employment, the expert's view was
based upon generalities and speculation. Notably, the expert did
not examine or conduct a medical interview of claimant (see
Matter of Pawlitz–Delgaizo v Community Gen. Hosp., 106 AD3d at
1366; cf. Matter of Schworm v Frito Lay, Inc., 104 AD3d at 1049),
and the expert reviewed only X rays of claimant's left ankle and
knee taken in 2000 and did not review diagnostic studies of
claimant's back or neck that predated claimant's 2004 work-
related injury. The medical records reviewed by the expert also
do not indicate that her preexisting medical conditions were
permanent or that she could only work with restrictions. Indeed,
claimant testified that, although she missed some work due to her
injuries in July 2000, she returned to full-duty work without
restrictions by October 2000 and explained that, prior to her
2004 injury, there were no jobs that she avoided due to her prior
medical conditions (cf. Matter of Zeppieri v Hofstra Univ., 94
AD3d at 1289). She also testified that, at the time of her work-
related injury in 2004, she did not have any pain or recurrent
problems with her ankle or knee, had not yet received any
treatment for her neck or back and was not actively receiving
treatment for any medical conditions. We therefore conclude that
the Board's decision is supported by substantial evidence (see
Matter of Pawlitz–Delgaizo v Community Gen. Hosp., 106 AD3d at
1366; Matter of Hartman v Top's Mkt., Inc., 104 AD3d 1043, 1044
[2013]; Matter of Pinter v Louis J. Kennedy Trucking Corp., 82
AD3d 1481, 1481-1482 [2011]; Matter of Kakuriev v Home Serv.
Sys., LLC, 80 AD3d 1033, 1034 [2011]; Matter of Bushey v Schuyler
Ridge, 77 AD3d 1006, 1007 [2010]).
-4- 521213
McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court