                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 20, 2014                   518594
________________________________

In the Matter of the Claim of
   MERLINE DOBNEY,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
EASTMAN KODAK COMPANY et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 7, 2014

Before:   Lahtinen, J.P., Stein, McCarthy, Rose and Clark, JJ.

                             __________


      Hamberger & Weiss, Rochester (Stephen P. Wyder of counsel),
for appellants.

      Bronk & Sommers, PC, Rochester (Daniel A. Bronk of
counsel), for Merline Dobney, respondent.

      Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for Workers' Compensation Board,
respondent.

                             __________


McCarthy, J.

      Appeal from an amended decision of the Workers'
Compensation Board, filed September 16, 2013, which, upon
reconsideration, ruled that the employer and its third-party
administrator were not entitled to reimbursement for certain
benefits paid to claimant.
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      Claimant injured her right knee in the course of her
employment and was awarded workers' compensation benefits for
lost time from work in 2006, 2009 and early 2010. The benefits –
totaling approximately $11,500 – were payable as reimbursement to
the self-insured employer, which had paid claimant $17,400 in
wages while she was absent from work. The wages were paid
pursuant to the employer's workers' compensation supplement plan,
which provided that employees who suffered a workers'
compensation injury would receive the difference between their
workers' compensation benefits and the amount of pay that they
would have received under a separate short-term disability plan –
100% of their salary initially, and 70% after a certain period of
time. That is, injured employees were to receive either 100% or
70% of their salary through a combination of traditional workers'
compensation benefits and benefits under the supplement plan.

      In June 2010, the employer and its third-party
administrator (hereinafter collectively referred to as the
employer) again requested reimbursement in connection with
additional benefits paid, and claimant asserted that the employer
was entitled only to reimbursement of benefits paid as workers'
compensation benefits, as opposed to that paid as supplement to
those benefits. The employer sought reimbursement for all
benefits paid pursuant to its supplemental benefit plan, up to
the statutory maximum compensation rate. At a hearing, the
employer admitted that it had not submitted a copy of its benefit
plan prior to the first award of workers' compensation benefits
to claimant. Thereafter, a Workers' Compensation Law Judge
awarded claimant a 55% schedule loss of use of her right leg,
equal to 158.4 weeks of compensation at $400 per week, and
determined that the employer was not entitled to reimbursement
out of that award for wages paid in excess of workers'
compensation benefits. The Workers' Compensation Board
ultimately affirmed, prompting this appeal.

      We affirm. The employer argues that the Board erred in
applying Workers' Compensation Law § 25 (4) (c), rather than
subdivision (4) (a) of that section, in resolving its
reimbursement request. Section 25 (4) (c) requires that
employers seeking reimbursement for benefits paid to an injured
employee pursuant to an employee benefit "plan . . . [that]
                              -3-                518594

provide[s] that the injured employee . . . shall be limited in
the amount of benefits or payments thereunder if he or she shall
be entitled to [workers' compensation] benefits under this
chapter" must file "proof of the terms of [the employee benefit]
plan . . . before award of compensation is made" (Workers'
Compensation Law § 25 [4] [c]; see Matter of Karl v New Venture
Gear, 41 AD3d 1024, 1025 [2007], lv dismissed 9 NY3d 1000
[2007]). This Court has held that an employer's right to "seek
credits against schedule awards for moneys paid pursuant to an
employee benefit plan . . . stems from Workers' Compensation Law
§ 25 (4) (c) and is limited by the restrictions in that
provision" (Matter of Staruch v New York Tel. Co., 277 AD2d 830,
833 [2000], lv dismissed and denied 96 NY2d 852 [2001]). We
concluded that subdivision (4) (a), which imposes no requirement
to file the terms of a plan and, indeed, "makes no reference to
proof of plan terms[,] . . . was not intended to address moneys
paid from an employee benefit plan" (id.).

      Here, as the Board explained, the employer's workers'
compensation supplement plan limited the amount of benefits that
an employee with a work-related injury would receive as compared
to an employee entitled to benefits under the employer's short-
term disability plan – essentially deducting workers'
compensation benefits from the amount paid in salary under the
short-term disability plan. Even considering the workers'
compensation supplement plan alone, we conclude that the injured
employee is limited in the amount of benefits paid "thereunder" –
meaning from the plan itself – if he or she is awarded workers'
compensation benefits (Workers' Compensation Law § 25 [4] [c]).
While the employee initially receives his or her full salary from
the supplement plan, if the employer is reimbursed out of a
workers' compensation award, then the employee has received less
in (or is "limited in the amount of") benefits from the
supplement plan itself due to his or her entitlement to those
workers' compensation benefits. Thus, Workers' Compensation Law
§ 25 (4) (c) is applicable and, inasmuch as the employer
admittedly failed to file proof of the terms of the plan prior to
the first award of benefits, the Board properly determined that
the employer's right to compensation was limited to the amount
paid to claimant as workers' compensation benefits (see Matter of
Karl v New Venture Gear, 41 AD3d at 1025; Matter of Staruch v New
                              -4-                  518594

York Tel. Co., 277 AD2d at 833; see also Matter of Groth v
Daimler Chrysler Corp., 41 AD3d 1021, 1022-1023 [2007], lv
dismissed and denied 9 NY3d 1000 [2007]).

     Lahtinen, J.P., Stein, Rose and Clark, JJ., concur.



      ORDERED that the amended decision is affirmed, with costs
to claimant.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
