Belfiore v. Penske Logistics LLC

203 A.D.3d 1431

165 N.Y.S.3d 611

In the Matter of the Claim of Wayne Charles BELFIORE, Claimant,

v.PENSKE LOGISTICS LLC et al., Appellants.

Workers’ Compensation Board, Respondent.

533503

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

Calendar Date: February 9, 2022

Decided and Entered: March 17, 2022

Goldberg Segalla LLP, Buffalo (James M. Specyal of counsel), for appellants.

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

Before: Lynch, J.P., Clark, Aarons, Colangelo and Fisher, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from a decision of the Workers’ Compensation Board, filed December 11, 2020, which ruled, among other things, that Penske Logistics LLC and its workers’ compensation carrier failed to comply with 12 NYCRR 300.13(b) and denied review of a decision by the Workers’ Compensation Law Judge.

In February 2020, claimant, a hospital delivery driver, sustained head and traumatic brain injuries when he slipped and fell while unloading material from a truck at work. Shortly thereafter, the employer and its workers compensation carrier (hereinafter collectively referred to as the carrier) filed a first report of injury alleging that claimant's injuries were not causally related to his employment but resulted from a preexisting medical condition.¹ Hearings ensued, and, in June 2020, a Workers’ Compensation Law Judge (hereinafter WCLJ) directed the parties to depose claimant's treating physicians and afforded the carrier an opportunity to obtain an independent medical examination of claimant, which was subsequently performed in July 2020. At a hearing held on August 27, 2020, at which only claimant and his counsel appeared, the WCLJ, relying on the findings contained within the report of the physician who performed the independent medical examination, concluded that claimant's injuries were causally related and established the claim for an injury to the head and for a subdural hemorrhage, a subarachnoid hemorrhage, an intraparenchymal hemorrhage, multiple skull fractures and a right posterior parietal scalp hematoma.

The carrier subsequently filed an application for Board review (form RB–89) of the WCLJ's September 2020 notice of decision, challenging, among other things, establishment of the claim without its presence at the August 27, 2020 hearing. The carrier also attached to its application what it characterized as new and additional medical records/evidence, along with a sworn affidavit setting forth the evidence and alleging why said records could not have been presented before the WCLJ. The Workers’ Compensation Board denied review of the carrier's application for review of the WCLJ's September 2020 decision based upon its failure to preserve its objection to the issues raised and noncompliance with the requirements governing the content of its application as set forth in 12 NYCRR 300.13. The Board also declined to accept and consider the additional documentary evidence submitted by the carrier with its application for Board review. The carrier appeals, arguing that the Board erred in denying review of its application for review of the WCLJ's September 2020 decision and in declining to consider the additional documentary evidence submitted with its application.

We affirm. "We have consistently recognized that 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 thereof" ( Matter of Boehm v. Town of Greece, 196 A.D.3d 947, 947–948, 151 N.Y.S.3d 531 [2021] [internal quotation marks and citations omitted]; accord Matter of Barber v. County of Cortland, 193 A.D.3d 1202, 1203, 147 N.Y.S.3d 179 [2021] ). Those regulations require, in relevant part, that "an application to the Board for administrative review of a decision by a [WCLJ] shall be in the format as prescribed by the Chair [and] ... must be filled out completely" ( 12 NYCRR 300.13 [b][1]; see Matter of Simon v. Mehadrin Prime, 184 A.D.3d 927, 928, 123 N.Y.S.3d 554 [2020] ; Matter of Turcios v. NBI Green, LLC, 182 A.D.3d 964, 965, 120 N.Y.S.3d 879 [2020] ). As relevant here, the Board's regulations provide that the application for administrative 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 regulations further provide that the Board, in its discretion, may deny an application for review "[w]here, as here, a party who is represented by counsel fails to comply with the formatting, completion and service submission requirements set forth by the Board" ( Matter of Barber v. County of Cortland, 193 A.D.3d at 1203, 147 N.Y.S.3d 179 [internal quotation marks and citations omitted]; see 12 NYCRR 300.13 [b][4][i]) or "where the appellant did not interpose a specific objection or exception to a ruling or award by a [WCLJ]" ( 12 NYCRR 300.13 [b][4][v]).

Our review of the record indicates that, at the conclusion of the August 27, 2020 hearing, the WCLJ made certain oral findings, which included, among other things, establishment of the claim based upon the presumptions contained within Workers’ Compensation Law § 21 and the fact that the carrier's independent medical examiner concluded that claimant's injuries were causally related. It is not disputed that the carrier did not appear at the August 27, 2020 hearing and that it therefore did not interpose a specific objection or exception to the rulings made by the WCLJ, as is required by 12 NYCRR 300.13(b)(4)(v) (see Matter of Abdiyev v. Eagle Container Corp., 181 A.D.3d 1132, 1133, 121 N.Y.S.3d 400 [2020] ; Matter of Bruscino v. Verizon, N.Y., 178 A.D.3d 1272, 1273, 115 N.Y.S.3d 527 [2020] ). Moreover, in response to question number 15 on the application for Board review asking for specification of, among other things, "the objection or exception that was interposed to the [WCLJ's] ruling" and "the date when it was interposed" (see 12 NYCRR 300.13 [b][2][ii]; see also Workers’ Compensation Board RB–89 Instructions [Nov. 2018]), the carrier stated that it "hereby appeals all parts of the September 1, 2020 decis...