Barrera v. Corinthian Cast Stone, Inc.

181 A.D.3d 1133

121 N.Y.S.3d 398

In the Matter of the Claim of Jesus BARRERA, Claimant,

v.CORINTHIAN CAST STONE, INC., et al., Appellants.

Workers' Compensation Board, Respondent.

529279

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

Calendar Date: February 14, 2020

Decided and Entered: March 16, 2020

Stewart, Greenblatt, Manning & Baez, Syosset (Thomas A. Lumpkin of counsel), for appellants.

Letitia James, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

In September 2002, claimant sustained a work-related injury to his left eye, and his claim for workers' compensation benefits was established. In 2006, claimant received, among other things, a schedule loss of use award, and the case was marked for no further action. Following the filing by the employer and its workers' compensation carrier (hereinafter collectively referred to as the carrier) of requests for further action by the carrier/employer (RFA–2 form) seeking a transfer of liability for the claim pursuant to Workers' Compensation Law § 25–a, hearings were conducted in 2013 before a Workers' Compensation Law Judge (hereinafter the WCLJ), and claimant was directed to produce certain evidence. At a July 3, 2018 hearing, the WCLJ ultimately made oral and written findings, which, as relevant here, denied the carrier's request for transfer of liability for the claim pursuant to Workers' Compensation Law § 25–a and removed and discharged the Special Funds Conversation Committee from notice. The carrier noted its exception on the record and subsequently filed an application for Board review (form RB–89), with an accompanying letter brief, seeking review of the WCLJ's decision. The Workers' Compensation Board issued a decision denying the carrier's application for Board review because the application was not filled out completely and, therefore, did not comply with the Board's proscribed formatting requirements. The carrier appeals.

We affirm. "As we have previously stated, the Board may adopt reasonable rules consistent with and supplemental to the provisions of the Workers' Compensation Law, and the Chair of the Board may make reasonable regulations consistent with the provisions [there]of" ( Matter of Luckenbaugh v. Glens Falls Hosp. , 176 A.D.3d 1281, 1282, 110 N.Y.S.3d 162 [2019] [internal quotation marks and citations omitted]; see Matter of Jones v. Human Resources Admin. , 174 A.D.3d 1010, 1011, 103 N.Y.S.3d 193 [2019], lv denied 34 N.Y.3d 906, 115 N.Y.S.3d 775, 139 N.E.3d 397 [2019] ). To that end, "an application for Board review must be filled out completely in the format prescribed by the ... Chair" (Matter of McCorry v. BOCES of Clinton, Essex, Warren & Washington Counties , 175 A.D.3d 1754, 1755, 110 N.Y.S.3d 90 [2019] [internal quotation marks, brackets and citations omitted]; see 12 NYCRR 300.13 [b][1]; Matter of Perry v. Main Bros Oil Co. , 174 A.D.3d 1257, 1258, 106 N.Y.S.3d 228 [2019] ) and "pursuant to the instructions for each form" ( Matter of Perry v. Main Bros Oil Co. , 174 A.D.3d at 1258, 106 N.Y.S.3d 228 [internal quotation marks and citation omitted]; see Matter of Luckenbaugh v. Glens Falls Hosp. , 176 A.D.3d at 1282, 110 N.Y.S.3d 162 ; Matter of Presida v. Health Quest Sys., Inc. , 174 A.D.3d 1196, 1197, 102 N.Y.S.3d 814 [2019] ). As relevant here, an application for Board review "shall specify the objection or exception that was interposed to the [WCLJ's] ruling, and when the objection or exception was interposed" ( 12 NYCRR 300.13 [b][2][ii] ). "The Board may deny an application for review where the party seeking review, other than a claimant who is not represented by counsel, fails to fill out completely the application" ( Matter of Sherry v. Moncon, Inc. , 178 A.D.3d 1248, 1249, 115 N.Y.S.3d 545 [2019] [internal quotation marks and citations omitted]; see 12 NYCRR 300.13 [b][4] ).

When the carrier filed its application for Board review on August 8, 2018, question number 15 on that form, as well as the accompanying instructions in effect at that time, requested that it "[s]pecify the objection or exception interposed to the ruling and when the objection or exception was interposed as required by 12 NYCRR 300.13(b)(2)(ii)." In response to question number 15, the carrier stated, "Please note the carrier's objection to not finding a transfer of liability to the Special Funds Conservation Committee pursuant to [Workers' Compensation Law §] 25–a." The Board found that the carrier's response was incomplete because there were "several...