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Conway v. CBI Services11/13/2003
n notice before the WCLJ assessed liability on claimant's death claim in 2001. Workers' Compensation Law § 54 (2) provides that "notice to or knowledge of the occurrence of the injury on the part of the employer shall be deemed notice or knowledge * * * on the part of the insurance carrier" (see Matter of Klouse v City of Albany, 194 AD2d 941, 942 ). The record reflects that CBI was identified as a potentially liable employer at a hearing in September 1998 and notices of subsequent proceedings were sent to CBI. Beginning in 1998, notices were also sent to National Union, albeit in care of another of its third-party administrators. While National Union may not have received the notices because its address or its administrator of record was (*4)incorrect, the Board reasonably requires employers and carriers to ensure that correct addresses are on file (see e.g. Matter of Rite Aid Corp., WCB Nos. 6930 8433, 6980 0396 [Apr. 16, 2003] [2003 WL 1958491]; Matter of Marbro Realty Corp., WCB No. 0983 3375 [Nov. 5, 2002] [2002 WL 31497207]). Thus, we find no error in the imputation of notice to National Union (see Workers' Compensation Law § 54 ) and there is no requirement that additional notice be given to its third-party administrator (see Matter of Mount Sinai Hosp., WCB No. 0941 1066 [July 7, 2003] [2003 WL 21545656]; Matter of Tully Contr. Co., WCB No. 2000 6157 [Aug. 9, 2001] [2001 WL 1010769] ["Notice to one is notice to all."]; compare Matter of TCI of Brookhaven, WCB No. 2971 7756 [Dec. 8, 1999] [1999 WL 33267196] [WCLJ decision rescinded where third-party administrator requested, but was not given, notice of subsequent proceedings]).
We also reject the argument that the Board's finding of liability on the part of CBI and National Union is unsupported by substantial evidence or inconsistent with its earlier findings as to decedent's disability claim. Significantly, in the disability case, the issue of which employer and carrier were liable was never finally resolved. Thus, on the death claim, when the medical evidence failed to support a finding that decedent suffered from a dust disease, the Board properly ascertained the liable employer and carrier pursuant to Workers' Compensation Law § 44 rather than § 44-a (see Matter of Matice v Groveton Papers Co., 85 AD2d 841, 842-843 , lv denied 57 NY2d 601 ). Moreover, while we agree that there is no evidence that decedent had an injurious exposure when he last worked with asbestos insulation in 1989, such a contention has no relevance to the determination of liability pursuant to Workers' Compensation Law § 44. Decedent's testimony before his death indicated that he had worked with asbestos while employed by CBI in that year. Thus, the Board's finding that CBI was the last employer who did the kind of work that caused decedent's lung cancer has a rational basis and is supported by substantial evidence.
Lastly, inasmuch as decedent's settlement of his third-party personal injury claim related only to his disability claim, (*5)which is separate and distinct from claimant's application for death benefits (see Martin v Agway Petroleum Corp., 161 AD2d 1129, 1130 ), there is no merit whatsoever to the contention that CBI and National Union should be discharged from liability because they did not consent to the settlement.
Crew III, J.P., Spain, Carpinello and Kane, JJ., concur.
ORDERED that the decision is affirmed, without costs.
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