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.
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While claimant was a correction officer for the selfinsured 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
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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.
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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