Bidot v. Suffolk Cnty. Prob. Dep't

2022 NY Slip Op 03423

In the Matter of the Claim of Juan A. Bidot, Appellant, v. Suffolk County Probation Department et al., Respondents.

Workers' Compensation Board, Respondent.

No. 533094

Supreme Court of New York, Third Department

May 26, 2022

Calendar Date:April 25, 2022

John F. Clennan, Ronkonkoma, for appellant.

Cherry, Edson & Kelly, LLP, Melville (David W. Faber of counsel), for Suffolk County Probation Department and another, respondents.

Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Fisher, JJ.

Pritzker, J.

Appeal from a decision of the Workers' Compensation Board, filed January 13, 2021, which denied claimant's request for reconsideration and/or full Board review.

In May 2019, claimant, a probation officer who had worked in a sex offender unit from 2007 through 2018, filed an occupational disease claim for workers' compensation benefits alleging that he had developed posttraumatic stress disorder, anxiety and depression due to prolonged and repeated exposure to sex offenders and the nature of their cases. ^[1] The self-insured employer and its third-party administrator subsequently controverted the claim. Following hearings, a Workers' Compensation Law Judge, among other things, established the occupational disease claim for posttraumatic stress disorder, with a date of disablement of August 21, 2019, and found that claimant had sustained no compensable lost time. Upon administrative appeal, the Workers' Compensation Board reversed the decision of the Workers' Compensation Law Judge and disallowed the claim, finding that claimant failed to demonstrate that the psychological stress that he sustained was greater than that experienced by similarly situated probation officers assigned to the sex offender unit in which he worked. Claimant then applied for reconsideration and/or full Board review, which was denied by the Board in a January 2021 decision. Claimant appeals from the January 2021 decision.

We affirm. Initially, inasmuch as "claimant has appealed only from the decision addressing [his] application for reconsideration and/or full Board review, our review is limited to whether the Board abused its discretion or acted in an arbitrary and capricious manner in denying that application" (Matter of Gorbea v Verizon N.Y. Inc., 199 A.D.3d 1253, 1253-1254 [2021] [internal quotation marks and citations omitted]). To satisfy that standard, "he was required to demonstrate that newly discovered evidence existed, that there had been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination" (Matter of Moore v U.S. Xpress, Inc., 201 A.D.3d 1083, 1085 [2022] [internal quotation marks and citations omitted]; see Matter of Singletary v Schiavone Constr. Co., 174 A.D.3d 1240, 1242 [2019]; Matter of D'Errico v New York City Dept. of Corrections, 65 A.D.3d 795, 796 [2009], appeal dismissed 13 N.Y.3d 899 [2009]).

Upon reviewing the record before us, we find that claimant's application for reconsideration and/or full Board review failed to allege a material change in condition or set forth any newly discovered evidence that would warrant granting his request....