State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 16, 2016 520904
________________________________
In the Matter of the Claim of
RODNEY LEVINE,
Appellant,
v
HEALTH FIRST (HF MANAGEMENT MEMORANDUM AND ORDER
SERVICES LLC) et al.,
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: May 24, 2016
Before: Lahtinen, J.P., McCarthy, Garry, Clark and Mulvey, JJ.
__________
The Klein Law Group, PC, New York City (Arnold E. DiJoseph
III of counsel), for appellant.
Fischer Brothers, New York City (Martin Krutzel of
counsel), for Health First (HF Management Services LLC) and
another, respondents.
__________
Mulvey, J.
Appeals (1) from a decision of the Workers' Compensation
Board, filed June 11, 2014, which, among other things, ruled that
claimant's' application for review failed to comply with 12 NYCRR
300.13 (a) and denied review of a decision by the Workers'
Compensation Law Judge, and (2) from a decision of said Board,
filed October 14, 2014, which denied claimant's request for
reconsideration and/or full Board review.
-2- 520904
Claimant reportedly sustained a work-related injury in 2011
for which he submitted a claim for workers' compensation
benefits, which the employer and its workers' compensation
carrier (hereinafter collectively referred to as the employer)
controverted. Following a hearing, a Workers' Compensation Law
Judge (hereinafter WCLJ) disallowed the claim, finding that
claimant had not provided timely notice of the claim to the
employer as required by Workers' Compensation Law § 18 and had
failed to meet his burden of demonstrating that the employer was
not prejudiced. Claimant filed an application for review with
the Workers' Compensation Board, and the employer filed a
rebuttal asserting that claimant's application for review did not
comply with the service requirements of 12 NYCRR 300.13 (e) (1)
(i) and was not timely served on the carrier. In a decision
filed June 11, 2014, the Board concluded that claimant's
application for review was defective and did not comply with the
requirements of 12 NYCRR 300.13 (a) for several reasons,
including that it contained an unsigned affirmation. The Board
also relied upon the fact that while the application for review
of the WCLJ decision filed on June 27, 2013 indicated that
service on the parties was accomplished by mail, it did not
specify a date of mailing and that the employer, in its rebuttal,
had submitted proof that the application was served on the
carrier on July 30, 2013, more than the allowed 30 days after the
decision was filed. Thus, the Board concluded that the evidence
did not establish that claimant timely served the employer as
required by 12 NYCRR 300.13 (a), and it exercised its discretion
to deny review of the WCLJ decision.
Claimant subsequently applied for reconsideration and/or
full Board review requesting that the Board accept its
application for review and address the WCLJ decision on the
merits, but did not argue that the Board's factual findings were
in any respect incorrect regarding the content of claimant's
application for review. Claimant, however, submitted with that
application for reconsideration and/or full Board review a copy
of an application for review also dated July 7, 2013, which was
signed but again did not contain a date that the employer was
served by mail. The employer submitted a rebuttal contending,
among other things, that the Board had properly rejected
claimant's application for review as untimely served on the
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employer and because the affirmation of service was unsigned and
the affidavit of service was incomplete. The Board denied
claimant's request for reconsideration and/or full Board review,
finding that its June 11, 2014 decision contained no errors of
law or fact. Claimant now appeals from both decisions.
Upon review of the record on appeal, we conclude that the
matter must be remitted to the Board to certify the record on
appeal pursuant to Rules of the Appellate Division, Third
Department (22 NYCRR) § 800.18 (d). The employer raises the very
serious allegation that the copy of claimant's application for
review contained in the "joint record on appeal" prepared by
claimant is not the same document that claimant submitted to and
filed with the Board, in that the document in the record is
signed; the employer attaches to its brief what it represents is
the actual unsigned document that claimant filed with the Board.
This allegation contains support in the Board's findings in its
June 11, 2014 decision, and claimant did not submit a reply brief
addressing this allegation. The employer did not stipulate to
the record on appeal and it was not certified by the Board (see
Rules of App Div, 3d Dept [22 NYCRR] § 800.18 [d]; CPLR 5532).
On that point, claimant's attorney submitted an affirmation in
compliance pursuant to CPLR 2105 (see Rules of App Div, 3d Dept
[22 NYCRR] § 800.18 [d]), attesting that it had sent three
proposed record lists as well as the arguments it intended to
raise on appeal (see Rules of App Div, 3d Dept [22 NYCRR]
§ 800.18 [b]), to which claimant asserts the employer did not
respond. However, the record is not clear that the proposed
record lists were timely served on the employer or that claimant
sent the required request to stipulate (see Rules of App Div, 3d
Dept [22 NYCRR] § 800.18 [b] [2], [3]).
Accordingly, we cannot resolve the employer's
representation that claimant in his joint record on appeal
substituted a signed application for review for an unsigned
application for review filed with the Board, or determine whether
the joint record on appeal was properly filed with this Court
pursuant to Rules of the Appellate Division, Third Department (22
NYCRR) § 800.18. Consequently, we must remit the matter to the
Board to determine whether to certify that the joint record on
appeal filed with this Court is "true and correct" – and,
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specifically, to resolve whether the application for Board review
contained in the joint record on appeal at pages 21-22 was filed
with the Board and is properly part of the record; if not, the
Board is directed to make findings and to correct the record on
appeal prior to certifying same (Rules of App Div, 3d Dept [22
NYCRR] § 800.18 [d]).
Lahtinen, J.P., McCarthy, Garry and Clark, JJ., concur.
ORDERED that the decisions are withheld, and matter
remitted to the Workers' Compensation Board for further
proceedings not inconsistent with this Court's decision.
ENTER:
Robert D. Mayberger
Clerk of the Court