Bruscino v. Verizon

178 A.D.3d 1272

115 N.Y.S.3d 527

In the Matter of the Claim of Michael BRUSCINO, Appellant,

v.VERIZON, New York, et al., Respondents.

Workers' Compensation Board, Respondent.

529445

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

Calendar Date: November 21, 2019

Decided and Entered: December 19, 2019

Fine, Olin & Anderman, LLP, New York City (Vincent Rossillo of counsel), for appellant.

Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E. Wolinski of counsel), for Verizon, New York and another, respondents.

Before: Garry, P.J., Egan Jr., Lynch and Devine, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a decision of the Workers' Compensation Board, filed December 12, 2018, which ruled, among other things, that claimant failed to comply with 12 NYCRR 300.13(b)(4)(v) and denied review of a decision by the Workers' Compensation Law Judge.

In 2010, claimant, a field technician, sustained a work-related injury to his lower back when he fell while lifting and moving a computer. His subsequent claim for workers' compensation benefits was established for an injury to his back and, following a hearing, he was ultimately classified as having a permanent partial disability in 2012. In April 2018, the employer and its workers' compensation carrier (hereinafter collectively referred to as the employer) filed an RFA–2 form requesting a hearing to address the outstanding issue of claimant's loss of wage-earning capacity, which was not determined at the time that he was classified as having a permanent partial disability. A hearing ensued, at the conclusion of which a Workers' Compensation Law Judge (hereinafter the WCLJ) made both oral and written findings that, among other things, claimant sustained a 65% loss of wage-earning capacity and that the cap on benefits began to run on February 13, 2012, when claimant was classified as having a permanent partial disability. Following issuance of the WCLJ's written decision, the employer filed an application with the Workers' Compensation Board seeking review of the WCLJ's decision (form RB–89). The Board denied the application, finding that the employer failed to indicate an exception or objection on the record at the hearing to the WCLJ's ruling regarding when the cap on benefits began to run and, furthermore, that the employer's application for Board review was defective because it was not properly filled out pursuant to 12 NYCRR 300.13(b)(1). Claimant appeals.

We affirm. Under the Board's regulations, "the application for administrative review ... shall specify the issues and grounds for the appeal" ( 12 NYCRR 300.13 [b][2][i] ) and "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] ). "Consistent with these requirements, the Board may deny an application for review ‘where the appellant did not interpose a specific objection or exception to a ruling or award by a [WCLJ]’ " at the hearing ( Matter of Markolovic v. MTA Bus Eastchester Depot , 174 A.D.3d 1271, 1272, 106 N.Y.S.3d 416 [2019], quoting 12 NYCRR 300.13 [b][4][v]; see Matter of Sweeney v. Air Stream A.C. Co., 167 A.D.3d 1222, 1222–1223, 87 N.Y.S.3d 757 [2018], lv denied 33 N.Y.3d 903, 2019 WL 1998063 [2019] ).

Our review of the record indicates that, at the conclusion of the August 2018 hearing, the WCLJ made certain oral findings, which included his...