Rios v. Rockaway Contracting Corp.

213 A.D.3d 1061

184 N.Y.S.3d 185

In the Matter of the Claim of Justo RIOS, Respondent,

v.ROCKAWAY CONTRACTING CORP. et al., Appellants.

Workers’ Compensation Board, Respondent.

534723

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

Calendar Date: January 9, 2023

Decided and Entered: February 9, 2023

Rabinowitz, Galina & Rosen, Mineola (Michael M. Rabinowitz of counsel), for appellants.

Polsky, Shouldice & Rosen, PC, Rockville Centre (Timothy J. Rogers of counsel), for Justo Rios, respondent.

Letitia James, Attorney General, New York City (Donya Fernandez of counsel), for Workers’ Compensation Board, respondent.

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

MEMORANDUM AND ORDER

Fisher, J. Appeal from a decision of the Workers’ Compensation Board, filed July 3, 2020, which denied the application of the employer's workers’ compensation carrier for reconsideration and/or full Board review.

In 2018, claimant was injured while working at a construction site and filed a claim for workers’ compensation benefits, naming Rockaway Contracting Corporation as his employer. At an initial hearing in May 2019, Fast Track Drywall and Ibanez Construction Services Corporation were identified as potential employers and Ibanez was put on notice. At a hearing held in December 2019, claimant testified that he was working for Rockaway at the time of his injuries and provided an identification card that identified him as a Rockaway employee during the relevant time period and referenced the work site at which he was injured. Claimant further testified that Rockaway always paid him in cash, but that after his injuries, for reasons unknown to him, he received payment in the form of three checks from Ibanez. Although Ibanez's president was listed as a witness at the hearing and was to testify by telephone, he did not appear. Following the hearing, in a decision filed December 16, 2019, the Workers’ Compensation Law Judge (hereinafter WCLJ) found, among other things, that Rockaway was the responsible employer.

In its application for Workers’ Compensation Board review, Rockaway submitted new evidence in the form of affidavits from Ibanez's president and an Ibanez foreperson, both attested to on December 24, 2019, stating that claimant was an employee of Ibanez at the time of his injuries. Upon review, the Board refused to consider the newly produced affidavits, finding that Rockaway had not provided a sufficient explanation for why this evidence could not have been presented before the WCLJ (see 12 NYCRR 300.13 [b][1][iii]), and affirmed the WCLJ's decision. The application for reconsideration and/or full Board review of the Board's decision by Rockaway's workers’ compensation carrier was denied and Rockaway appeals from the denial of that application.

We affirm. Inasmuch as Rockaway has only appealed from the Board's denial of its application for reconsideration and/or full Board review, the merits of the underlying Board decision are not before us (see Matter of Mascali v. Town/Vil. of Harrison, 203 A.D.3d 1424, 1425, 162 N.Y.S.3d 799 [3d Dept. 2022] ; Matter of Gorbea v. Verizon N.Y. Inc., 201 A.D.3d 1168, 1169, 156 N.Y.S.3d 927 [3d Dept. 2022] ). Rather, our inquiry is limited to whether the Board's denial of the application was arbitrary and capricious or otherwise constituted an abuse of discretion (see Matter of Bidot v. Suffolk County Probation Dept., 205 A.D.3d 1280, 1281, 169 N.Y.S.3d 713 [3d Dept. 2022] ; Matter of Eastman v. Glens Falls Hosp., 202 A.D.3d 1232, 1233, 163 N.Y.S.3d 653 [3d Dept. 2022] ).

"The Board's regulations provide that an appealing party seeking to ‘introduce additional documentary evidence in the administrative appeal that was not presented before the WCLJ must submit a sworn affidavit, setting forth the evidence, and explaining why it could not have been presented before the WCLJ’ " ( Matter of Lawrence v. Department of Corr. of the City of N.Y., 178 A.D.3d 1239, 1240, 115 N.Y.S.3d 550 [3d Dept. 2019]...