State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 16, 2017 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: McCarthy, J.P., 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
former 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
and submitted a claim for workers' compensation benefits, which
was controverted by the employer and its workers' compensation
carrier. Following a hearing, a Workers' Compensation Law Judge
(hereinafter WCLJ) disallowed the claim, finding that claimant
had not provided timely notice of the injury to the employer (see
Workers' Compensation Law § 18). Claimant filed an application
for review with the Workers' Compensation Board, and the employer
and carrier filed a rebuttal asserting that claimant's
application for review did not comply with the service
requirements of 12 NYCRR former 300.13 (a). In a decision filed
June 11, 2014, the Board concluded that claimant's application
for review was defective in that, among other deficiencies, it
did not comply with the requirements of 12 NYCRR former 300.13
(a) as it contained an unsigned affirmation. The Board also
concluded that claimant did not timely serve the employer as
required by 12 NYCRR former 300.13 (a) and exercised its
discretion to deny review of the WCLJ's decision.
Claimant subsequently applied for reconsideration and/or
full Board review requesting that the Board accept its
application for review and address the WCLJ's decision on the
merits. The Board denied claimant's request for reconsideration
and/or full Board review and claimant now appeals from both
decisions.
Previously, due to serious concerns raised with regard to
the accuracy of the "joint record on appeal" filed by claimant,
we withheld decision and remitted the matter to the Board to
certify said record on appeal pursuant to Rules of the Appellate
Division, Third Department (22 NYCRR) § 800.18 (d) (140 AD3d 1417
[2016]). Upon remittal, the Board issued a decision which, as
directed, made findings and certified the record. The Board's
decision, made after a review of its files, clarifies that
claimant's application for Board review received by the Board on
July 26, 2013 was "unsigned" and that this document should be
(but was not) contained in the "joint record on appeal." The
Board further concluded that the signed application for Board
review contained on pages 21 and 22 of the "joint record on
appeal" was received by the Board on August 23, 2013 and,
therefore, among other infirmities, was not timely received
-3- 520904
within 30 days of the filing of the WCLJ's decision (on June 27,
2013); as such, the Board's decision indicates that it did not
consider the signed application when it rendered the June 11,
2014 decision on appeal, and that the signed application should
not properly be a part of the "joint record on appeal." As the
Board has now certified the record on appeal, this Court will not
consider the document contained on pages 21 and 22 of the "joint
record on appeal" as it is not properly a part of the record
before us.1
Turning to the Board's June 11, 2014 decision denying
review of the WCLJ's decision, pursuant to the regulation in
effect at the time, "[a]n application to the [B]oard to review a
decision of a [WCLJ] . . . shall be filed with the [B]oard within
30 days after notice of filing of the decision of the [WCLJ]
together with proof of service upon all other parties in
interest" (12 NYCRR former 300.13 [a]; see Matter of Vukel v New
York Water & Sewer Mains, 94 NY2d 494, 497 [2000]; Matter of
Harrell v Blue Diamond Sheet Metal, ___ AD3d ___, ___, 2017 NY
Slip Op 00356, *1 [2017]; Matter of Greenough v Niagara Mohawk
Power Corp., 45 AD3d 1116, 1117 [2007]). Here, while the Board
timely received the application for review, the affirmation of
filing and service was defective in that it was not signed.
Further, the affirmation contains the printed name of the
licensed representative who prepared the application, who is not
an attorney, and, therefore, could not affirm that he was "an
attorney duly admitted to the practice of law" in New York, as
the affirmation provides. In addition, the unsigned affidavit of
service indicates that claimant and the carrier were served by
mail, but it does not specify a date for the mailing and does not
indicate whether the employer was served. The employer in its
rebuttal indicated that the application was postmarked on July
30, 2013, beyond the 30-day period allowed after the filing of
the WCLJ's decision (see 12 NYCRR former 300.13 [a], [e] [1]
[i]). In view of claimant's failure to comply with the service
requirements of 12 NYCRR former 300.13 (a), we perceive no abuse
1
Pursuant to the Board decision on remittal, the record
now includes a copy of the unsigned application received by the
Board on July 26, 2013.
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of discretion in the Board's discretionary denial of review of
the WCLJ's decision (see 12 NYCRR former 300.13 [e] [1] [i];
Matter of Greenough v Niagara Mohawk Power Corp., 45 AD3d at
1117).
With regard to the Board's decision denying reconsideration
and/or full Board review, "claimant must demonstrate that newly
discovered evidence exists, that there has been a material change
in condition, or that the Board improperly failed to consider the
issues raised in the application for review in making its initial
determination" (Matter of Amaker v City of N.Y. Dept. of Transp.,
144 AD3d 1342, 1343 [2016] [internal quotation marks and citation
omitted]). Notably, "our review is limited to whether the
Board's denial of the application was arbitrary and capricious or
otherwise constituted an abuse of discretion" (Matter of Alamin v
Down Town Taxi, Inc., 141 AD3d 975, 976 [2016] [internal
quotation marks and citation omitted], appeal dismissed ___ NY3d
___ [Feb. 9, 2017]). As claimant failed to make the requisite
showing, we discern no basis upon which to conclude that the
Board abused its discretion or acted arbitrarily in denying
claimant's application for reconsideration and/or full Board
review (see id.).
McCarthy, J.P., Garry and Clark, JJ., concur.
ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court