In re Fred A. Freer

6 Citing cases

  1. In re Anne Brown

    82 A.D.3d 1523 (N.Y. App. Div. 2011)   Cited 5 times

    at would have been caused by the work-related injury alone'" ( Matter of Bushey v Schuyler Ridge, 77 AD3d 1006, 1006, quoting Matter of Sturtevant v Broome County, 188 AD2d 893, 893-894). Although the factual determination as to whether these factors have been demonstrated is within the exclusive province of the Board, the record herein does not disclose the exact nature of the medical condition upon which the finding of permanent partial disability was based ( see Matter of O'Grady v Sealright Corp., 50 AD2d 617, 618; Matter of Harisiades v Sutter French Confections, 32 AD2d 981, 982), nor is there sufficient evidence to determine whether the subsequent condition was "separable from the prior pre-existing permanent condition and not merely . . . the culmination or the progressive process of the same disease or condition of which the pre-existing condition was a symptom or part" ( Matter of Harisiades v Sutter French Confections, 32 AD2d at 982 [internal quotation marks omitted]; see Matter of Freer v New Process Gear, 237 AD2d 869, 870; Matter of Mcintosh v Healy Constr. Co., 17 AD2d 544, 545-546, lv denied 12 NY2d 648). Furthermore, the record does not allow meaningful review as to whether the carrier has sufficiently demonstrated that claimant's preexisting ailments created a permanent impairment that hindered job potential ( see Matter of Grabinsky v First At Nursing Servs., 79 AD3d 1494, 1495; Matter of Bushey v Schuyler Ridge, 77 AD3d at 1007). Accordingly, the matter must be remitted for further development of the record.

  2. In re Shepler

    67 A.D.3d 1313 (N.Y. App. Div. 2009)   Cited 6 times

    We affirm. To obtain reimbursement from the Fund, the employer must show "(1) that the decedent had a preexisting permanent impairment that hindered or was likely to hinder his or her employment potential, (2) a compensable injury and (3) that either the injury or the death would not have occurred but for such preexisting permanent impairment" ( Matter of Flynn v Managed Care, Inc., 27 AD3d 794, 795, lv denied 7 NY3d 717; see Workers' Compensation Law § 15 [b], [e]; Matter of Freer v New Process Gear, 237 AD2d 869, 869-870 ). With regard to the first requirement, "the issue is not whether the pre-existing condition is an obstacle or likely to become a handicap to the particular job, but rather whether it [would have been] a hindrance to . . . [decedent's] employability generally" ( Matter of De Dominic v Schlitz Brewing Co., 30 AD2d 578, 579). Further, the fact that decedent's preexisting condition contributed to his death, without more, is insufficient to show that his employment potential was hindered by it ( see Matter of Flynn v Managed Care, Inc., 27 AD3d at 795).

  3. In the Matter of Claim of Flynn

    27 A.D.3d 794 (N.Y. App. Div. 2006)   Cited 6 times

    We affirm. In order for an employer to obtain reimbursement from the Fund in the case of a death, it must establish (1) that the decedent had a preexisting permanent impairment that hindered or was likely to hinder his or her employment potential, (2) a compensable injury and (3) that either the injury or the death would not have occurred but for such preexisting permanent impairment ( see Workers' Compensation Law § 15 [b], [e]; Matter of Saunders v. Pepsi Cola, 249 AD2d 780, 781; Matter of Freer v. New Process Gear, 237 AD2d 869, 870). Moreover, it is well settled that the "requirement that [the] preexisting impairment hindered job potential requires something more than evidence that the preexisting impairment contributed to decedent's death" ( Matter of Rosa v. Britt Fast Frgt., 266 AD2d 603, 604 [citations omitted]; see Matter of Brigandi v. Town Country Linoleum Carpet, 221 AD2d 728, 728-729).

  4. Matter of Imbriani v. Berkar Knitting Mills

    277 A.D.2d 727 (N.Y. App. Div. 2000)   Cited 17 times

    denied 93 N.Y.2d 833), and no newly discovered evidence or other circumstances were present which justified providing the employer a second opportunity to litigate the issue. Nor were the infirmities in the WCLJ's determination remedied in the Board's decision, which wholly failed to address claimant's procedural objection. It is well settled that the existence of a nondisabling preexisting condition will not preclude the grant of workers' compensation benefits under an occupational disease theory (see, Matter of Jarvis v. Stewart Airport Diner, 271 A.D.2d 816). Nor does such a prior diagnosis prevent recovery of workers' compensation death benefits as the work-related illness need not be the sole or even the most direct cause of death, provided that the claimant demonstrates that the compensable illness was a contributing factor in the decedent's demise (see, Matter of Altes v. Petrocelli Elec. Co., 270 A.D.2d 767; Matter of Losso v. Tesco Traffic Servs., 248 A.D.2d 812; see also, Matter of Freer v. New Process Gear, 237 A.D.2d 869). It was undisputed at the death benefit hearing that decedent's death was a direct result of his pulmonary disease, and not due to an unrelated illness or accident.

  5. In re Mills v. Staffking

    271 A.D.2d 146 (N.Y. App. Div. 2000)   Cited 8 times

    SPAIN, J. Workers' Compensation Law § 15 (8) — known as the "Second Injury Law" — provides an incentive to employers to hire permanently disabled persons (see, Matter of Freer v. New Process Gear, 237 A.D.2d 869). This incentive permits an employer to obtain reimbursement from the Special Disability Fund (hereinafter the Fund) for workers' compensation benefits and medical expenses awarded for permanent disability or death arising out of and in the course of the employment of a previously disabled person (see,Matter of Chadwick v. Mallinkrodt Anesthesia Prods., 264 A.D.2d 953). Prior to 1996, reimbursement commenced after the employer paid the first 104 weeks of benefits (see, id.). Section 39 of the Omnibus Workers' Compensation Reform Act of 1996 (see, L 1996, ch 635) (hereinafter the Omnibus Act) amended the relevant provisions of Workers' Compensation Law § 15 Work. Comp. (8) to extend the 104-week waiting period to 260 weeks for claims where the accident or disablement occurred on or after August 1, 1994.

  6. Matter of Chadwick v. Mallinkrodt Anesthesia

    264 A.D.2d 953 (N.Y. App. Div. 1999)   Cited 9 times
    Affirming denial of benefits where "[t]here is . . . no evidence that claimant's preexisting condition hindered her job potential in any way . . . [the claimant] testified that . . . she returned to work . . . with no restrictions and that . . . she was having no problems with either her neck or wrist."

    CARPINELLO, J. Workers' Compensation Law § 15 (8) provides an incentive for employers to hire disabled persons by permitting employers to obtain reimbursement from the Special Disability Fund after paying 104 weeks of benefits awarded for permanent disability or death (see, Matter of Freer v. New Process Gear, 237 A.D.2d 869). "To obtain reimbursement pursuant to the statute, an employer must show that the claimant had a preexisting permanent impairment that hindered job potential, a subsequent injury arising out of and in the course of employment, and a permanent disability caused by both conditions materially and substantially greater than what would have been caused by the work-related injury alone * * *" (Matter of Sturtevant v. Broome County, 188 A.D.2d 893, 893-894 [citations omitted]). In this case, the employer's workers' compensation insurance carrier timely applied for reimbursement under Workers' Compensation Law § 15 (8), alleging several preexisting physical impairments.