Calendar Date: June 5, 2018
Bartlett LLP, White Plains (Jason D. Lewis of counsel), for
appellant.
William O'Brien, State Insurance Fund, White Plains
(Kelly A. O'Neill of counsel), for Town of New Castle and
another, respondents.
Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker,
JJ.
MEMORANDUM AND ORDER
RUMSEY, J.
Appeals
(1) from a decision of the Workers' Compensation Board,
filed August 18, 2016, which ruled that claimant did not
sustain a causally-related mental injury, and (2) from a
decision of said Board, filed August 2, 2017, which denied
claimant's request for reconsideration and/or full Board
review.
Claimant,
a police officer for over 10 years, filed a workers'
compensation claim in August 2015 alleging that he had a
work-related anxiety disorder with phobic features related to
issues with blood. Claimant submitted a report from his
treating psychiatrist supporting that diagnosis and finding
that he has a "psychiatric disability of [a] marked
degree." At the hearing, claimant testified to two
incidents in 2014 in which he responded to calls and observed
blood and experienced anxiety that, on the second occasion,
rendered him unable to assist the victim and, further, that
he thereafter ceased working in 2015. The chief of police
also testified to the duties of police officers and their
exposure to bloody scenes. A Workers' Compensation Law
Judge concluded that claimant had an occupational disease
that aggravated his preexisting anxiety, with a new aspect of
phobias, and that he was entitled to workers'
compensation benefits. On the appeal by the employer and its
workers' compensation carrier, the Workers'
Compensation Board reversed, finding that claimant was not
entitled to benefits because the work-related stress that he
was exposed to was not greater than that which usually occurs
in the normal police work environment.
In
September 2016, claimant applied for reconsideration and/or
full Board review, which the carrier opposed. On April 10,
2017, while that application was pending, Workers'
Compensation Law § 10 (3) (b) was materially amended,
effective immediately. The amendment provided that, as
relevant here, "[w]here a police officer... files a
claim for mental injury premised upon extraordinary
work-related stress incurred in a work-related emergency, the
[B]oard may not disallow the claim, upon a factual finding
that the stress was not greater than that which usually
occurs in the normal work environment" (L 2017, ch 59,
part NNN, subpart I, § 1 [eff Apr. 10, 2017]).
Claimant's application for reconsideration and/or full
Board review was thereafter denied by decision filed August
2, 2017. Claimant now appeals from both Board decisions.
Claimant
argues that, in view of the substantive change in the law
that occurred while his application was pending regarding
claims for mental injuries sustained by first responders, the
Board erred in denying his application for reconsideration
and/or full Board review. Claimant points out that the change
in the law went into effect months before the Board
issued its decision on that reconsideration and full Board
review application and that, since the law went into effect
immediately, the Board should have taken it into
consideration and applied it to his pending application. We
agree.
On
claimant's appeal from the denial of his application for
review and/or reconsideration, "our inquiry is limited
to whether the Board's denial of claimant's
application was arbitrary or capricious or otherwise
constituted an abuse of discretion" (Matter of
Brasher v Sam Dell's Dodge Corp., 159 A.D.3d 1234,
1235 [2018]; see Matter of Amaker v City of N.Y. Dept. of
Transp., 144 A.D.3d 1342, 1343 [2016]). In our view, by
directing that the apparent substantive change in the law was
to take effect immediately, "the Legislature clearly
indicated that th[is] amendment[ is] to be viewed as
remedial, designed to correct imperfections in prior law, by
giving relief to [an] aggrieved party" (Matter of
Asman v Ambach, 64 N.Y.2d 989, 990 [1985] [internal
quotation marks and citations omitted]). Moreover, as a
general rule, "the law as it exists at the time a
decision is rendered on appeal is controlling"
(Matter of Alscot Inv. Corp. v Incorporated Vil. of
Rockville Ctr., 64 N.Y.2d 921, 922 [1985]; see
Matter of Asman v Ambach, 64 N.Y.2d at 990; Matter
of Willard v Haab, 170 A.D.2d 820, 822 [1991], lv
denied 78 N.Y.2d 854');">78 N.Y.2d 854 [1991]; cf. Majewski v
Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577,
583-590 [1998]). Consequently, we find that, under these
circumstances, the Board was bound to apply the law as it
existed at the time it was considering and determining the
reconsideration and/or review application, notwithstanding
the parties' apparent failure to make supplemental
arguments in submissions to the Board addressing this change
in the law. Notably, this Court has not previously
interpreted the amendment in issue and no reported judicial
decision has been found addressing it. While we are not
required to defer to the Board's statutory interpretation
of a legislative amendment, the Board's interpretation is
instructive, and our subsequent review will properly focus on
"whether the Board's interpretation of [this
amended] statute indeed is rational" (Matter of
Mancini v Office of Children & Family Servs., 151
A.D.3d 1494, 1496 [2017], lv granted 30 N.Y.3d 907');">30 N.Y.3d 907
[2017]). Accordingly, although the Board's decision
whether to grant the application was discretionary
(see 12 NYCRR 300.13 [a] [2]; 300.14 [b]; see
also Workers' Compensation Law § 23), we find
that it was improvident for the Board to deny the application
given the apparent significant intervening change in the law.
Garry,
P.J., Egan Jr., Aarons and Pritzker, JJ., concur.
ORDERED
that the decisions are reversed, without costs, and matter
remitted to the Workers' Compensation Board for further
...