State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 12, 2015 519932 

________________________________

In the Matter of the Claim of

TEREZE MARKU,

Claimant,

v

ABM INDUSTRIES et al.,

Respondents,

and MEMORANDUM AND ORDER

AGGREGATE TRUST FUND,

Appellant.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: September 11, 2015

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

__________

Michael Miliano, New York State Insurance Fund, Albany

(Nancy E. Wood of counsel), for appellant.

Jones Jones, LLC, New York City (M. Carmel Corcoran of

counsel), for ABM Industries and another, respondents.

__________

Egan Jr., J.

Appeals (1) from a decision of the Workers' Compensation

Board, filed February 4, 2014, which ruled that Continental

Casualty Company is entitled to a refund of $18,765 from the

Aggregate Trust Fund, and (2) from a decision of said Board,

filed July 3, 2014, which denied the application of the Aggregate

Trust Fund for reconsideration and/or full Board review.
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Claimant, who worked for a janitorial services company,

sustained work-related injuries to her back, right hip and right

leg, as well as a consequential depressive disorder, following an

August 2000 accident wherein she slipped on a strawberry while

cleaning a kitchen. A Workers' Compensation Law Judge

(hereinafter WCLJ) classified claimant as permanently partially

disabled, awarded her continuing payments of $225 per week and

directed that the employer's workers' compensation carrier

deposit into the Aggregate Trust Fund (hereinafter ATF) "an

amount equal to the present value of all unpaid benefits together

with such additional sum as is necessary for the administration

of such fund" (see Workers' Compensation Law § 27 [2]). The

WCLJ's decision further provided, "A supplemental decision will

follow which will detail the amount of the deposit. The carrier

is responsible for payments as directed until the deposit is made

into [the] ATF." By decision filed December 31, 2010, the

Workers' Compensation Board affirmed, continued the case and

referred the matter to the ATF "for an actuarial computation of

the deposit amount [due]." The Board further noted that

"[f]ollowing the issuance of a supplemental decision that

contains the amount of the deposit, the case can be marked for no

further action."1

The actuarial computation was completed in July 2011, and

the present value of the award was calculated to be $126,848.83

as of November 17, 2011. However, despite repeated requests by

both the ATF and the carrier, a supplemental decision detailing

the sum due and directing the carrier to make the required

deposit was not issued. Following a hearing in January 2013, a

WCLJ found that the Board's December 2010 decision was sufficient

to direct the carrier's payment of the award to the ATF,

chastised the carrier for failing to do so and imposed a penalty

for what was deemed to be an "unnecessary hearing."

While the carrier's application for Board review was

pending, the carrier deposited $126,848.83 with the ATF and

requested reimbursement in the amount of $18,765 – the latter sum

1 The carrier apparently did not perfect its subsequent

appeal of the Board's December 2010 decision to this Court.
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representing the weekly benefits that the carrier paid to

claimant between November 11, 2011 and June 22, 2013. A second

actuarial computation was performed, which computed the interest

on the award and deducted that amount ($12,402.32)2 from the sum

sought by the carrier, reducing the carrier's refund to

$6,344.68. A WCLJ directed the ATF to refund that amount to the

carrier, which the ATF did, and the carrier sought Board review.

The Board rescinded the penalty previously imposed and, by

decision filed February 4, 2014, found that, because the promised

supplemental decision directing the carrier to deposit a specific

sum was not tendered, the carrier was not liable for interest on

the award and awarded the carrier a refund in the amount of

$18,765. The ATF's application for reconsideration and/or full

Board review was denied, and the ATF now appeals from both the

Board's February 2014 decision and the denial of its application

for reconsideration and/or full Board review.

Workers' Compensation Law § 27 (2) was amended in 2007 to

require that where, as here, a permanent partial disability award

pursuant to Workers' Compensation Law § 15 (3) (w) is made on or

after July 1, 2007, such award must be paid into the ATF (see

Matter of Proulx v Burnett Process, 77 AD3d 1036, 1037 [2010];

Matter of Parkhurst v United Rentals Aerial Equip., Inc., 75 AD3d

702, 703 [2010], affd 17 NY3d 908 [2011]). Once the carrier

makes such a deposit, "it is relieved of liability and the ATF

assumes responsibility for all future payments to the

beneficiary" (Matter of Turdo v Dellicato Vineyards, 73 AD3d 143,

145 [2010]; see Workers' Compensation Law § 27 [3]; Matter of

Mace v Owl Wire & Cable Co., 284 AD2d 672, 674 [2001]). "As a

general principle, the obligation to pay the lump sum into the

ATF is fixed once the carrier is directed to pay it" (Matter of

Monahan v Founders Pavilion, Inc., 123 AD3d 1170, 1171 [2014]

[emphasis added, citations omitted]; see generally Matter of

Becker v Rauli & Sons, Inc., 88 AD3d 1040, 1041 [2011]; Matter of

Appley v American Food, 82 AD3d 1563, 1564 [2011]). Should the

carrier appeal that directive, "the carrier is not required to

2 The interest was computed from November 11, 2011 until

the carrier tendered payment to the ATF on July 5, 2013.
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pay the [lump-sum] amount [into the ATF] so long as it is . . .

making timely payments to the claimant as compensation becomes

due" (Matter of Monahan v Founders Pavilion, Inc., 123 AD3d at

1171; see Workers' Compensation Law § 23). However, in the event

that "the award directing payment into the ATF is affirmed,

Workers' Compensation Law § 27 (4) provides for payment of the

lump sum as of the effective date of the original award plus

interest" (Matter of Monahan v Founders Pavilion, Inc., 123 AD3d

at 1171-1172 [internal quotation marks omitted]).

Here, the WCLJ assessed interest on the underlying award

from November 11, 2011 to July 5, 2013 – reasoning that the

carrier should have paid the award following the issuance of the

Board's December 2010 decision. The Board disagreed, concluding

that, in the absence of a supplemental decision directing it to

tender a specific sum to the ATF in the first instance, the

carrier should not be liable for the interest assessed. Based

upon our review of the record, the relevant statutes and the

applicable case law, we cannot say that the Board's decision in

this regard was arbitrary and capricious or otherwise constituted

an abuse of discretion.

First, contrary to the ATF's assertion, neither Workers'

Compensation Law § 27 (4) nor 12 NYCRR 393.2 addresses – much

less compels – an award of interest under the circumstances

presented here. Additionally, the ATF's argument on this point

ignores the fact that, as noted previously, the carrier's

obligation to pay is premised upon a specific directive to do so

(see Matter of Monahan v Founders Pavilion, Inc., 123 AD3d at

1171; see generally Matter of Becker v Rauli & Sons, Inc., 88

AD3d at 1041; Matter of Appley v American Food, 82 AD3d at 1564). 

Here, the Board found (and the record clearly demonstrates) that

a supplemental decision detailing the amount due and directing

the carrier's deposit thereof – the issuance of which was

expressly contemplated by both the original WCLJ and the Board –

was never tendered. In conjunction therewith, the Board

implicitly – and, in our view, rationally – concluded that

neither the C-40 request for actuarial computation nor the

Board's December 2010 decision was sufficient to direct the
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carrier to make the required deposit.3 Hence, the Board

reasoned, absent the requisite directive to pay, the carrier

should not be compelled to pay interest.4 As we discern no basis

upon which to disturb the Board's conclusion in this regard, the

February 2014 decision is affirmed. The ATF's remaining

contentions, including its assertion that the Board abused its

discretion in denying the ATF's application for reconsideration

and/or full Board review, have been examined and found to be

lacking in merit.

McCarthy, J.P., Lynch and Clark, JJ., concur.

ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

3 Although the ATF cites Employer: Matter of Home Depot USA

(2011 WL 483972, 2011 NY Wkr Comp LEXIS 967 [WCB 8040 8901, Feb.

8, 2011]) for the proposition that a C-40 may suffice in this

regard, the cited case is distinguishable in that the parties

therein accepted the C-40 calculation without any request for

further documentation. Here, both the carrier and the ATF

repeatedly sought a supplemental decision on this point, thereby

evidencing an unwillingness to accept the actuarial calculation

without further review.

4 To the extent that the ATF relies upon this Court's prior

decision in Matter of Flynn v Managed Care, Inc. (100 AD3d 1115,

1115-1116 [2012]), we need note only that Flynn is

distinguishable in that the carrier in that case was expressly

directed to deposit a particular sum with the AFT and thereafter

withheld payment and paid the beneficiaries directly while

pursuing various appeals.