                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 29, 2015                   518246
________________________________

In the Matter of the Claim of
   RICHARD J. CONNOLLY,
                    Claimant,
      v

CONSOLIDATED EDISON et al.,
                    Appellants,             MEMORANDUM AND ORDER
      and

SPECIAL DISABILITY FUND,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   December 16, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, 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 Disability Fund,
respondent.

                             __________


Lynch, J.

      Appeal from an amended decision of the Workers'
Compensation Board, filed March 28, 2013, which ruled that the
self-insured employer is not entitled to reimbursement from the
Special Disability Fund.
                              -2-                518246

      In 1999, a claim was established for claimant for the
occupational diseases of asbestosis, asbestosis-related pleural
disease and chronic obstructive pulmonary disease following his
lengthy employment with Consolidated Edison, a self-insured
employer. The employer was found to be entitled to reimbursement
from the Special Disability Fund pursuant to Workers'
Compensation Law § 15 (8) (ee). Claimant thereafter died on
April 29, 2011 and his widow filed a claim for death benefits,
which the employer controverted, and the Special Funds
Conservation Committee was put on notice. A Workers'
Compensation Law Judge (hereinafter WCLJ) later granted a request
by the Special Funds Conservation Committee to be removed from
notice, finding that it was not liable for reimbursement under
Workers' Compensation Law § 15 (8) (ee). After the parties
submitted medical proof on causation, a WCLJ established the
claim for work-related death and ordered the employer to
reimburse claimant's widow for funeral expenses. The employer
sought administrative review. The Workers' Compensation Board
agreed that claimant's death was causally related. The Board
further determined that the employer's claim for reimbursement
from the Special Disability Fund for death benefits was time-
barred because it was made after July 1, 2010, the outside date
for such reimbursement claims under Workers' Compensation Law
§ 15 (8) (h) (2) (A). On appeal by the employer and its third-
party administrator (hereinafter collectively referred to as the
employer), we affirm.

      Where, as here, an employee is disabled due to a dust
disease, Workers' Compensation Law § 15 (8) (ee) provides that an
"employer . . . or carrier shall . . . be reimbursed from the
special disability fund . . . for all compensation and medical
benefits subsequent to those payable for the first . . . [260]
weeks of disability for claims where the date of accident or date
of disablement occurred on or after August [1, 1994]." Likewise,
if an employee has died due to a dust disease, the statute
provides that an "employer or . . . carrier shall be reimbursed
from the special disability fund . . . for all death benefits
payable in excess of . . . [260] weeks for claims where the date
of accident or date of disablement occurred on or after August
[1, 1994]" (Workers' Compensation Law § 15 [8] [ee]). Such
reimbursement is expressly subject to the limitations contained
                              -3-                518246

in Workers' Compensation Law § 15 (8) (h) (2) (A), which "bars
claims based upon dates of disablement or accident after July 1,
2007" (Matter of Krausa v Totales Debevoise Corp., 84 AD3d 1545,
1546 [2011]; see Matter of Castelli v NRG, 85 AD3d 1414, 1415
[2011], lv denied 17 NY3d 714 [2011]). That subdivision further
expressly provides, as here dispositive, that "[n]o carrier or
employer . . . may file a claim for reimbursement from the
special disability fund after July [1, 2010] and no written
submission or evidence in support of such a claim may be
submitted after that date" (Workers' Compensation Law § 15 [8]
[h] [2] [A] [emphases added]; see Workers' Compensation Law § 15
[8] [ee] [reimbursement is "subject to the limitations of"
section 15 (8) (h) (2) (A)]; Matter of Krausa v Totales Debevoise
Corp., 84 AD3d 1545 at 1546]). Given the "clear and unambiguous"
terms of the reimbursement limitations provision of section 15
(8) (h) (2) (A), this Court has given effect to the plain meaning
of the language employed (Matter of Orens v Novello, 99 NY2d 180,
185 [2002]) by recognizing that the provision bars "all new
claims after July 1, 2010" (Matter of Krausa v Totales Debevoise
Corp. , 84 AD3d at 1547 [emphasis added]).

      We reject the employer's argument that its claimed
entitlement to reimbursement from the Special Disability Fund is
not a "new" claim, on the premise that it relates back to the
original disablement in 1999 thereby establishing its right to
reimbursement for a death occurring after July 1, 2010. In this
regard, a claim for reimbursement for death benefits is "separate
and distinct" from the original claim for reimbursement for
disability benefits (Matter of House v International Talc Co.,
261 AD2d 687, 689 [1999]; see Workers' Compensation Law §§ 15 [8]
[ee], [f], [g], [h]). That is, "[t]he right to death benefits
does not accrue prior to death" and death, while not a new injury
or accident, results in a "new claim" for purposes of death
benefits reimbursement (Commissioners of State Ins. Fund v
Hallmark Operating, Inc., 61 AD3d 1212, 1213 [2009]; see Matter
of Zechmann v Canisteo Volunteer Fire Dept., 85 NY2d 747, 751-752
[1995]).

     Here, since claimant died in 2011, and the employer's
                                -4-                518246

claim1 for reimbursement for death benefits was necessarily made
after the July 1, 2010 cut-off date, the claim is barred under
Workers' Compensation Law § 15 (8) (h) (2) (A) (compare Matter of
Krausa v Totales Debevoise Corp., 84 AD3d at 1546 [death and the
death benefit reimbursement claim occurred in 2009, before the
July 1, 2010 cut-off for all new claims]). As we noted in Matter
of Krausa, while section 15 (8) (h) (2) (A) bars reimbursement
for claims "based upon dates of disablement or accident after
July 1, 2007," it further and without qualification precludes
"all new claims after July 1, 2010" (id. at 1547). While the
former limitation provision did not bar reimbursement for the
November 2007 death of the claimant in that case because his date
of disablement was prior to July 1, 2007 (id. at 1547; compare
Matter of Castelli v NRG, 85 AD3d at 1415), here, the employer's
pursuit of reimbursement for death benefits for a death that
occurred after July 1, 2010 is barred by the latter provision,
which is not tied to the date of disablement or accident. This
conclusion is consistent with "the Legislature's stated intent to
close the Special Disability Fund to new claims" (Matter of
Krause v Totales Debevoise Corp., 84 AD3d at 1547; see Public
Authorities Law § 1680-l [3]; Matter of Castelli v NRG, 85 AD3d
at 1415; Matter of Jaworek v Sears Roebuck & Co., 67 AD3d 1161,
1162-1163 [2009], lv denied 14 NY3d 704 [2010]). Accordingly,
the Board's decision that the employer's reimbursement claim for
death benefits is barred by Workers' Compensation Law § 15 (8)
(h) (2) is supported by the language and legislative history of
that statute.

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




    1
        Although no separate written claim for death benefits
reimbursement was filed (see Workers' Compensation Law § 15 [8]
[f]), this requirements has been relaxed in dust cases (see
Matter of Castelli v NRG, 85 AD3d at 1415-1416; Matter of
Seminerio v Glen Partitions, Inc., 59 AD3d 886, 887-888 [2009]).
The determinative fact is that reimbursement for death benefits
from the Special Disability Fund was pursued after the cut-off
date of July 1, 2010.
                              -5-                  518246

      ORDERED that the amended decision is affirmed, without
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
