                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 5, 2015                     517840
________________________________

In the Matter of the Claim of
   FRANK O'BRIEN,
                    Respondent,
      v

ALBANY COUNTY SHERIFF'S                     MEMORANDUM AND ORDER
   DEPARTMENT et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   January 9, 2015

Before:   McCarthy, J.P., Rose, Egan Jr. and Devine, JJ.

                             __________


      Walsh & Hacker, Albany (Glenn D. Chase of counsel), for
appellants.

      The Law Firm of Alex C. Dell, PLLC, Albany (Courtney E.
Holbrook of counsel), for Frank O'Brien, respondent.

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

                             __________


McCarthy, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed January 22, 2013, which, among other things, ruled that the
employer was not entitled to reimbursement for certain benefits
paid to claimant.
                              -2-                517840

      While claimant was a correction officer for the self-
insured employer, he sustained several work-related injuries to
his shoulders. During periods that claimant missed time from
work as a result of these injuries, the employer paid him "the
full amount of his regular salary or wages" pursuant to General
Municipal Law § 207-c (1). A Workers' Compensation Law Judge
found that claimant had a temporary total disability for several
periods of time when he was not working, and awarded benefits for
those periods. For two of those time periods (from March 2008 to
June 2008 and from November 2008 to April 2009), the employer did
not file a request for reimbursement until after the awards of
compensation for those periods had been made. The Workers'
Compensation Law Judge later awarded claimant a schedule loss of
use for each of his shoulders and found that the employer was
precluded from seeking reimbursement for the two time periods for
which it had not timely filed claims for reimbursement. Upon the
application for review by the employer and its third-party
administrator (hereinafter collectively referred to as the
employer), the Workers' Compensation Board affirmed. The
employer appeals.

      Initially, we disagree with the employer's contention that
the Board departed from prior precedent without explanation. The
Board did not need to explain the different holding in its
decision in Employer: City of Schenectady (2009 WL 2598388, 2009
NY Wrk Comp LEXIS 12631 [WCB No. 5070 3195, Aug. 12, 2009]),
because a plain reading of that decision reveals that it is
factually distinguishable from the present matter. There, the
Board noted that the employer had made a timely reimbursement
request for the relevant time periods.

      Here, the Board correctly determined that the employer was
required to file timely requests for reimbursement, but did not
do so. Workers' Compensation Law § 25 (4) (a) provides that
"[i]f the employer has made advance payments of compensation, or
has made payments to an employee in like manner as wages during
any period of disability, [the employer] shall be entitled to be
reimbursed out of an unpaid instalment or instalments of
compensation due, provided [the employer's] claim for
reimbursement is filed before award of compensation is made." If
this statute alone is applied here, the employer is precluded
                              -3-                517840

from recovering the full wages paid to claimant pursuant to
General Municipal Law § 207-c because the employer did not file
requests for reimbursement prior to the initial awards of
compensation benefits for the relevant time periods (see Matter
of Karl v New Venture Gear, 41 AD3d 1024, 1025 [2007], lv
dismissed 9 NY3d 1000 [2007]; Matter of Groth v Daimler Chrysler
Corp., 41 AD3d 1021, 1022 [2007], lv dismissed and denied 9 NY3d
1000 [2007]).

      The employer contends that Workers' Compensation Law § 30
applies instead. That statute provides that "any salary or wages
paid to . . . [a claimant] under and pursuant to [General
Municipal Law § 207-c] shall be credited against any award of
compensation . . . under this chapter" (Workers' Compensation Law
§ 30 [3]). To analyze these provisions, "the text of a statute
is the best evidence of legislative intent and, where the
statutory language is clear and unambiguous, the court should
construe it so as to give effect to the plain meaning of the
words used" (Matter of Retired Pub. Empls. Assn., Inc. v Cuomo,
123 AD3d 92, 94-95 [2014] [internal quotation marks and citation
omitted]; see Matter of Tall Trees Constr. Corp. v Zoning Bd. of
Appeals of Town of Huntington, 97 NY2d 86, 91 [2001]). Because
these two provisions are related statutes in the Workers'
Compensation Law, they "must be construed together unless a
contrary legislative intent is expressed, and courts must
harmonize the related provisions in a way that renders them
compatible" (Matter of Tall Trees Constr. Corp. v Zoning Bd. of
Appeals of Town of Huntington, 97 NY2d at 91; see Matter of M.B.,
6 NY3d 437, 447 [2006]). Workers' Compensation Law §§ 25 and 30
both provide a right to reimbursement out of future benefits,
with section 30 being more specific regarding the statutory basis
for the wage replacement payments sought to be reimbursed.
Workers' Compensation Law § 25 (4) (a) additionally provides that
the employer will waive that right if it fails to timely submit a
claim for reimbursement. "If by any fair construction, a
reasonable field of operation can be found for [both of these
related] statutes, that construction should be adopted" (People v
Newman, 32 NY2d 379, 390 [1973], cert denied 414 US 1163 [1974]
[internal quotation marks and citation omitted]; accord Matter of
Consolidated Edison Co. of N.Y. v Department of Envtl.
Conservation, 71 NY2d 186, 195 [1988]; Matter of County of St.
                              -4-                  517840

Lawrence v Shah, 95 AD3d 1548, 1552 [2012]). A reasonable
construction of these two statutes is to read them together and
conclude that the right of reimbursement granted by both statutes
will be waived if the employer fails to submit a timely request
for reimbursement. Inasmuch as this is the reading adopted by
the Board, its decision should not be disturbed.

     Rose, Egan Jr. and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
