Bakerian v. Wash. Cnty.

212 A.D.3d 969

182 N.Y.S.3d 777

In the Matter of the Claim of Amber BAKERIAN, Appellant,

v.WASHINGTON COUNTY et al., Respondents.

Workers’ Compensation Board, Respondent.

534273

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: December 14, 2022

Decided and Entered: January 12, 2023

Law Firm of Alex Dell, PLLC, Albany (Edward Obertubbesing of counsel), for appellant.

Sullivan Keenan & Oliver, LLP, Albany (John M. Oliver of counsel), for Washington County and another, respondents.

Before: Egan Jr., J.P., Clark, Pritzker, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Fisher, J. Appeal from a decision of the Workers’ Compensation Board, filed May 3, 2021, which denied claimant's request for a hearing to consider, among other things, future wage expectancy pursuant to Workers’ Compensation Law § 14(5) and an award for protracted healing periods.

Claimant, a certified nursing assistant, sustained causally-related injuries to her left shoulder in February 2008 and, in 2009, a Workers’ Compensation Law Judge (hereinafter WCLJ) set her average weekly wages and directed awards based upon periods of temporary total and partial disability. As relevant here, numerous hearings were held between 2009 and 2014 on issues related to permanency and degree of disability and the ongoing awards that were made. Claimant was examined by an orthopedic consultant retained by the self-insured employer and its third-party administrator (hereinafter collectively referred to as the employer), and by an occupational medicine physician at the behest of claimant, who submitted reports offering differing medical opinions, 50% and 40% respectively, on the issue of the appropriate schedule loss of use (hereinafter SLU) of her left arm. With the employer's consent, the Workers’ Compensation Board issued a notice of proposed decision on October 13, 2015 awarding an SLU of 40% for claimant's left arm. The Board noted that claimant was entitled to 124.8 weeks¹ of lost wage benefits but, given that she had already been paid in excess of that in temporary awards, no further awards were made. No appeal was taken from that determination.

In December 2020, claimant retained new counsel, who requested a hearing on claimant's future wage expectancy as of 2008 (see Workers’ Compensation Law § 14[5] ) and awards for periods of temporary total disability based upon protracted healing periods. The employer raised the defense of laches, noting that claimant had not timely raised these issues prior to the SLU award or thereafter. Following a hearing, a WCLJ denied claimant's request, finding that the issues raised had been resolved previously, that the defense of laches bars the request for consideration of the future wage expectancy in the calculation of the average weekly wage, and that the issue of protracted healing would not change the previous finding that the benefits paid exceeded the SLU award. On appeal, the Workers’ Compensation Board agreed, finding that laches precluded the wage expectancy issue and that the protracted healing period issue was moot. Claimant appeals.

"The doctrine of laches may apply within the context of a workers’ compensation claim when a party is guilty of the failure to assert a right for an unreasonable and unexplained length of time, accompanied by other circumstances causing prejudice to an adverse party" ( Matter of Fuller v. Jackson, 205 A.D.3d 1291, 1292, 169 N.Y.S.3d 711 [3d Dept. 2022] [internal quotation marks and citations omitted]). Notably, "[t]he Board's determination regarding the applicability of the laches doctrine will not be disturbed on appeal if supported by substantial evidence" ( Matter of Trombino v. FMB Inc., 210 A.D.3d 1212, 1214, 177 N.Y.S.3d 799 [3d Dept. 2022] [internal quotation marks and citations omitted]). The record reflects that claimant was injured in 2008 and, at all times represented by counsel, was found to have a 40% SLU in 2015, a decision to which no objection was raised and from which no appeal was taken. As the Board noted, the five-year delay since the SLU award, and over 12–year delay since the accident, in seeking to raise the issue of wage expectancy under Workers’ Compensation Law § 14(5)² based upon claimant being under the age of 25 at the time of the accident, was "significant."

Moreover, claimant offered no reason for the protracted delay and the record supports the Board's factual finding that addressing the issue of claimant's 2008 wage expectancy, as it related to her average weekly wage, after this considerable delay would be prejudicial to the employer (see Matter of Trombino v. FMB Inc., 210 A.D.3d at 1215, 177 N.Y.S.3d 799 ; cf. Matter of Fuller v. Jackson, 205 A.D.3d at 1292–1293, 169 N.Y.S.3d 711 ; Matter of Hopkins v. Alcas Corp., Cutco Cutlery, 63 A.D.3d 1342, 1343–1344, 880 N.Y.S.2d 754 [3d Dept. 2009] ). Although the "mere lapse of time does not establish prejudice" ( Matter of Hopkins v. Matter of Hopkins v. Alcas Corp., Cutco Cutlery, 63 A.D.3d at 1344, 880 N.Y.S.2d 754 [internal quotation marks, brackets and citation omitted]), "[w]hether laches should apply depends on the particular facts of each case" ( id. at 1343, 880 N.Y.S.2d 754 ).

The fact that, in 2010, the employer apparently submitted a payroll projection of wage expectancy calculated in 2008 based upon another named worker, which claimant and the Board did not ever address, undermines her claim that the issue was overlooked. Notably, in seeking a hearing on this issue in 2020, claimant did not indicate that she would accept that projection or waive the right to dispute that proof or to submit additional proof of higher wage expectancy. The submission of that unaddressed document in 2010 does not support the conclusion that the Board abused its discretion in declining to address this issue for the first time at the 2021 hearing or in invoking the equitable doctrine of laches. Further, claimant has not demonstrated that, even if future wage expectancy were considered at this belated juncture, she would benefit, i.e., that the SLU award would increase, given that she had already received in...