                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 28, 2016                   519255
________________________________

In the Matter of the Claim of
   RONALD BORDINO,
                    Respondent,
      v

CONSOLIDATED EDISON CO. OF NY,
   INC., et al.,
                    Appellants,
      and                                   MEMORANDUM AND ORDER

SPECIAL FUND FOR REOPENED
   CASES,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   December 15, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


      Cherry, Edson & Kelly, LLP, Tarrytown (Ralph E. Magnetti of
counsel), for appellants.

      Steven M. Licht, Special Funds Conservation Committee,
Albany (Jill B. Singer of counsel), for Special Fund for Reopened
Cases, respondent.

                             __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed September 6, 2013, which ruled that liability did not shift
to the Special Fund for Reopened Cases pursuant to Workers'
                              -2-                519255

Compensation Law § 25-a.

      Claimant worked as an electrical splicer for Consolidated
Edison Co. of NY, Inc. (hereinafter the self-insured employer)
for many years. He experienced serious respiratory problems
after being exposed to noxious vapors at work on October 26, 1995
and filed a claim for workers' compensation benefits. His claim
was established for causally related occupational disease,
specifically chronic asthma and reactive airway disease.
Claimant continued to work after filing this claim and received
medical treatment for his respiratory problems. On January 8,
2002, he sustained a work-related back injury and filed another
claim for workers' compensation benefits for which he was
classified as having a permanent partial disability. In the
latter part of 2002, claimant retired from his position and
subsequently received payments from the self-insured employer
under a disability retirement plan.

      In 2011, the self-insured employer, through its claims
administrator, made an application for further action seeking to
shift liability for claimant's benefits under the 1995 claim to
the Special Fund for Reopened Cases pursuant to Workers'
Compensation Law § 25-a. Following hearings, a Workers'
Compensation Law Judge found that Workers' Compensation Law
§ 25-a was inapplicable and discharged the Special Fund. A panel
of the Workers' Compensation Board upheld this decision and the
self-insured employer and its third-party administrator now
appeal.

      The sole issue presented is whether the self-insured
employer's payment of disability retirement benefits were
attributable to claimant's 1995 occupational disease and
constituted an advance payment of compensation precluding
liability from being shifted to the Special Fund pursuant to
Workers' Compensation Law § 25-a. We note that "'whether an
advance payment of compensation has been made is a factual
question for the Board to resolve, and its determination in this
regard, if supported by substantial evidence in the record as a
whole, will not be disturbed'" (Matter of Wetterau v Canada Dry,
124 AD3d 1165, 1167 [2015], quoting Matter of Guidice v Herald
Co., 88 AD3d 1175, 1176 [2011]; see Matter of Foglia v New York
                                 -3-                519255

City Housing Auth., 132 AD2d 762, 763 [1987]). Notably,
"[r]etirement benefits that can be awarded only 'on the basis of
an occupational disability . . . must be considered payments of
compensation' for purposes of Workers' Compensation Law § 25-a,
while those 'result[ing] solely from a finding of disability
regardless of its cause are not advance payments of
compensation'" (Matter of Stranahan v Camp Adirondack, 78 AD3d
1369, 1370 [2010], quoting Matter of Krystofik v General Elec.
Co., 54 AD2d 137, 139 [1976]; see Matter of Brock v Great A & P
Tea Co., 84 AD2d 645, 646 [1981], appeal dismissed 56 NY2d 593
[1982]; see also Matter of Pignataro v Westchester Parkway Police
Dept., 5 AD2d 523, 526-527 [1958], affd 7 NY2d 848 [1959]).

      Here, claimant testified that he retired from his position
due to a number of health concerns, including his respiratory
problems that were the basis for his occupational disease claim.
Notably, in the medical evaluation prepared by claimant's
treating physician, the physician referenced claimant's
respiratory problems as a reason for his retirement.1
Furthermore, claimant received a disability retirement pension,
as opposed to a regular retirement pension, after he left his
job. Although claimant retired the same year that he injured his
back, this does not, without more, establish that his retirement
was solely due to his back injury. Under the circumstances
presented, we find that substantial evidence supports the Board's
finding that the disability retirement payments received by
claimant were at least partially due to his occupational disease
and that such payments, therefore, constituted an advance payment
of compensation for purposes of Workers' Compensation Law § 25-a
(see Employer: Great Meadow Correctional Fac., 2011 WL 4847545,
2011 NY Wrk Comp LEXIS 5696 [WCB No. 5971 9336, Oct. 3, 2011]).
Accordingly, the Board properly discharged the Special Fund from
liability.

         McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.


     1
        Although the physician misstated the date of claimant's
retirement, this did not detract from his observation that
claimant's respiratory problems were a reason for claimant's
retirement.
                        -4-                  519255

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
