THird Department Decisions 3-22-12

Today the Court decided 2 cases dealing with workers’ compensation issues.

In Matter of Pelaez, The Court affirmed a decision establishing an accident as well as a decision of the Board denying Full Board review.

In December 2007, claimant was injured when he was kicked in the head by a horse and he applied for workers’ compensation benefits, listing Silverbrook Farm, Inc. as his employer. Alan Silverstone, president of Silverstone Corporation filed a C-2 form regarding the claim, stating that claimant was employed as a casual laborer by Silverstone, which was doing business as Silverbrook. The Workers’ Compensation Board indexed the claim against the State Insurance Fund as the workers’ compensation carrier for Silverstone. SIF contested the claim on various grounds, including challenging the existence of an employer-employee relationship. Ultimately, a Workers’ Compensation Law Judge found, among other things, that claimant was employed by Silverbrook at the time of his injury. The Court noted, “Whether an employer-employee relationship existed presents a factual issue for the Board, and its determination thereof will not be disturbed if supported by substantial evidence in the record” (Matter of Duma v Baca, 83 AD3d 1228, 1228 [2011] [citations omitted]; see Matter of Mendoza v Dolgetta, 81 AD3d 1043, 1044 [2011]). Here, there is substantial evidence in the record supporting the Board’s determination that Silverbrook was claimant’s employer at the time of his injury. Claimant’s paychecks from the two weeks prior to his injury were drawn on Silverbrook’s account. Further, claimant entered into a lease agreement with Silverbrook which provided that the $1,500 monthly rental for a cottage on Silverbrook property would be reduced by $500 in return for claimant, and three other tenants, performing “Night Check Provider” duties at the farm. In opposition, Silverstone relied on the testimony of Alan Silverstone and Janice Silverstone, who served as Silverbrook’s president and vice-president, respectively. They testified that claimant was employed by Silverstone and that Silverbrook was only a real estate holding company with no employees. Janice Silverstone also testified that the paychecks that were issued to claimant by Silverbrook in December 2007 were drawn from that account due to the fact that the Silverstone account did not have the funds available at that time. This testimony created a credibility issue that was within the Board’s authority to resolve (see Matter of Cassaro v Horton, 89 AD3d 1288, 1289 [2011]; Matter of Bran v Wimbish, 73 AD3d 1378, 1379-1380 [2010], lv dismissed 15 NY3d 818 [2010]). Accordingly, despite proof in the record that would support a contrary determination, the Court found no basis to disturb the Board’s decision that claimant was employed by Silverbrook at the time of his injury. The carrier/employer also appealed the denial for full board review. In its request for review the carrier alleged new evidence. The new evidence was a “service agreement” the Court noted that it was signed 12 months prior to the accident and the carrier gave no reason for it not being submitted previously Based on same the request was denied as the Court did not find the denial arbitrary or capricious it affirmed.

In Matter of Woods , the Court affirmed a denial ( from a pro se claimant) for Full Board Review/Reconsideration. In 1993, claimant suffered a work-related injury to his back and was awarded workers’ compensation benefits. Claimant was found in violation of Workers’ Compensation Law § 114-a in 2003 and the Workers’ Compensation Board rescinded claimant’s benefits and disqualified him from receiving future wage replacement benefits. In 2007, claimant raised the issue of acausally related injury to his neck, arising out of the 1993 incident. Ultimately, in a decision filed June 12, 2009, the Board ruled that the claim regarding the neck injury was time barred pursuant to Workers’ Compensation Law § 28. Claimant did not appeal from that decision, but subsequently applied for reconsideration and/or full Board review. The Board denied the application and claimant appealed. The Court stated ,”Inasmuch as claimant has appealed from only the decision denying [his] application for reconsideration and/or full Board review, the merits of the underlying decision are not properly before us” (Matter of Nikolaeva v Cattaraugus County Nursing Home, 37 AD3d 969, 969 [2007] [citations omitted]; accord Matter of Malone v VRD Decorating, 68 AD3d 1570, 1570 [2009], lv dismissed 14 NY3d 825 [2010]). Rather, “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 Kaja v Siller Bros.,Inc., 74 AD3d 1511, 1512 [2010]; accord Matter of Marks v Evergreen Country Club, 27 AD3d 914, 915 [2006]). Here, our review of the record reveals that the Board considered all of the evidence and issues before it and claimant did not seek to present newly discovered evidence or allege a material change in condition in support of his application for reconsideration and/or full Board review (see Matter of Nikolaeva v Cattaraugus County Nursing Home, 37 AD3d at 969; Matter of Marks v Evergreen Country Club, 27 AD3d at 915). Accordingly, we cannot conclude that the Board’s denial of the application was arbitrary and capricious or an abuse of discretion.

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