Claim of D'Errico v. New York City Department of Corrections

Garry, J. (dissenting).

We respectfully dissent. While fully recognizing that our review is significantly limited in scope, we nonetheless find that remittal is required. Contrary to the majority’s assertion, this finding is not in any manner related to the underlying merits of the Workers’ Compensation Board’s determination, which we clearly may not and do not reach, but rather on a narrow procedural ground wholly consistent with the legal authority cited by the majority.

We find that the Board panel failed to adequately consider and address the legal standard applied in its determination that claimant was not exposed to a greater stressful environment *798than that normally experienced by other correctional facility employees. This failure is of such significance, and was so directly addressed within the request for reconsideration, that, in our view, the determination to deny reconsideration and/or full Board review was an abuse of the Board’s discretion.

To recover on a workers’ compensation claim for mental injury caused by work-related stress, there must be a showing that the affected claimant experienced stress “greater than that which other similarly situated workers experienced in the normal work environment” (Matter of Pecora v County of Westchester, 13 AD3d 916, 917 [2004] [internal quotation marks and citations omitted]) or “greater than [that] experienced by his [or her] peers” (Matter of Pinto v Southport Correctional Facility, 19 AD3d 948, 951 [2005]). In applying this standard, the Workers’ Compensation Law Judge addressed the issue of claimant’s classification in detail: “If one restricts the class of persons to which the claimant’s work exposed him solely to prison maintenance workers, then it follows that all prison maintenance workers would be exposed to the same or similar stress. If one identifies all municipal maintenance workers employed by New York City as the proper membership of the class of workers to which the claimant belonged, then it follows beyond a shadow of a doubt that claimant was exposed to unusual stress and I so hold.”

The Board panel reversed this portion of the determination, stating merely that “claimant was not exposed to a greater stressful environment than that which is normally experienced by other employees in the ordinary course of employment at a correctional facility” (emphasis added). The determination of the class of employees to which claimant’s stress should be compared was set forth in a wholly conclusory fashion, without any stated rationale, discussion of pertinent evidence in the record, or explanation of the reason for rejection of the classification applied by the Workers’ Compensation Law Judge.

In his application for reconsideration or full Board review, claimant directly challenged the Board’s classification, arguing that no cases, research studies, or other authorities were cited to support the group identified by the Board as similarly situated to claimant and that the record includes no evidence that nonpenal correctional facility employees, such as administrators, clerks or cooks, were exposed to traumatic experiences comparable to those he alleged. The Board denied the application, finding without discussion or any stated basis that “neither full Board review nor reconsideration of that decision is warranted.”

*799As noted by the majority, “our review is limited to whether the denial of claimant’s application for reconsideration or full Board review was arbitrary and capricious or otherwise constituted an abuse of discretion” (Matter of Earnest v J.P. Molyneux Studio, Ltd., 47 AD3d 1176, 1177 [2008], lv dismissed 10 NY3d 855 [2008]; see Matter of Carroll v Barbara Brennan, Inc., 12 AD3d 924, 925 [2004], lv dismissed 4 NY3d 794 [2005]; Matter of Dukes v Capitol Formation, 213 AD2d 756, 757 [1995], lv dismissed 86 NY2d 810 [1995], appeal dismissed 87 NY2d 891 [1995]). However, under the circumstances present here, this inquiry necessarily includes a determination as to whether “the Board fully considered issues raised by claimant in [the] application for reconsideration” (Matter of Earnest v J.P. Molyneux Studio, Ltd., 47 AD3d at 1177 [emphasis added]; see Matter of Robinson v Interstate Natl. Dealer, 50 AD3d 1325, 1326 [2008]; Matter of Wariner v Associated Press, 12 AD3d 863, 864 [2004]).

The record in this matter does not support such a determination. We have no means of determining whether the Board panel considered the critical and novel issue of claimant’s proper classification that was so squarely posed in the determination of the Workers’ Compensation Law Judge (compare Matter of NYC Dept, of Corrections, 2009 WL 936041, *2, 2009 NY Wrk Comp LEXIS 6837, *3-5 [WCB No. 0080 4596, Mar. 25, 2009] [cooks in correctional facilities]; Matter of NYS Dept, of Corrections, 2008 WL 2266751, *1, 2008 NY Wrk Comp LEXIS 4857, *1-3 [WCB No. 5070 3972, May 21, 2008] [correctional officers]; Matter of Mohawk Correctional Facility, 2006 WL 3336791, *2, 2006 NY Wrk Comp LEXIS 9475, *3-6 [WCB No. 6050 4854, Oct. 18, 2006] [registered nurses in correctional facilities]). Further, we have no means of ascertaining whether the Board considered this issue prior to determining that neither reconsideration nor full Board review was warranted, as there was no basis stated for that denial. While our role is strictly circumscribed, and the Board is allowed substantial discretion in regard to any credibility or factual determinations that it may make, nothing in the record here demonstrates that the centred legal issue directly and clearly posed was “thoroughly considered, addressed and decided” (Matter of Robinson v Interstate Natl. Dealer, 50 AD3d at 1326). In the absence of any such showing, we would remit the matter for the Board to reconsider and state a basis for its determination as to the class of employees to whom claimant should be compared in determining whether he suffered more stress than other “similarly situated workers” (Matter of Pecora v County of Westchester, 13 AD3d at 917).

Stein, J., concurs. Ordered that the decisions are affirmed, without costs.