Case # G0514403
Matter of Dept of Design & Construction
2012 NY Wrk Comp G0514403
By: Board Members Dudley, Bell and Libous
The claimant requests review of the Workers' Compensation Law Judge (WCLJ) reserved decision filed May 21, 2012. The self-insured employer (SIE) filed a timely rebuttal.
The issue presented for administrative review is whether the case should be transferred to White Plains.
The case was established for a neck injury as a result of a work-related accident on October 25, 2011. The claimant's average weekly wage was determined to be $1,959.03 per C-240 without prejudice.
The employer filed a C-2 (Employer's Report of Work-Related Injury/Illness) form dated November 18, 2011, indicating that the claimant had returned to work on October 31, 2011. The C-2 listed the claimant's mailing address as Bronx, New York. In a C-3 (Employee Claim) form, the claimant stated that he returned to work on October 25, 2011. The claimant indicated that his mailing address was in Bronx, New York, and stated that his work address was in Long Island City, New York.
In correspondence dated April 16, 2012, the claimant requested to have all his hearings handled in the Peekskill District at the White Plains hearing point. The claimant stated that the White Plains location was by far the most convenient location for him. The claimant provided no further explanation in his change of venue request.
In a reserved decision dated May 21, 2012, the WCLJ denied the requested change in venue for an insufficient basis and found the generic form letter with a box circled by the claimant, generally alleging convenience, with no further explanation of the reason for the requested change, to be inadequate. The WCLJ further noted that the claimant resides in New York City, with Manhattan being the District Office which covers the Bronx, and that the claimant also works in New York City.
The claimant contends that venue should be changed to White Plains. The claimant asserts that White Plains is a more accessible venue rather than Manhattan, as travelling to White Plains allows his family members who will be taking him up there to avoid traffic and parking. The claimant alleges that White Plains is convenient as a matter of time and traffic. The claimant requests that the hearing point be transferred to White Plains.
The SIE asserts that the claimant's argument that White Plains is more accessible than Manhattan from his residence is inaccurate and insists that the claimant's residence is closer to the Manhattan location. The SIE maintains that it would take an additional twenty-five minutes by public transportation and an additional ten minutes by automobile to travel to the White Plains location compared to the Manhattan hearing point. Attached to its rebuttal, the SIE provided Google documentation with driving directions suggesting that the travel time and distance from the claimant's home to the Manhattan hearing point was shorter than the travel time and distance involved from his home to the White Plains hearing point. In addition, the SIE notes that the claimant is currently working and his two current work locations are closer to the Manhattan hearing point. The SIE requests that the decision be affirmed.
Workers' Compensation Law (WCL) § 141 provides, in pertinent part, that "[t]he chair shall . . . designate the times and places for the hearing of claims under this chapter . . . . The chair, in the name of the board . . . may make administrative regulations and orders providing . . . for the fixing of the times and places for the hearing of claims . . . ." Pursuant to 12 NYCRR 300.7, claims scheduled for referee hearings shall appear on appropriate calendars as may be established by the chair and board hearings shall be appointed for and held at such times and places as may be established by the chair to meet the convenience and requirements of the several districts in the State.
The Board's general venue rule provides that hearings are scheduled in the district where the claimant resides or, in any county designated by the claimant if the claimant does not reside in New York State. A change of venue request is subject to the discretion of the Chair and is based on an articulated justification with due consideration to the other parties in interest. If a venue change request involves a municipal corporation, public authority, or public benefit corporation as the employer, and requests a venue outside the boundaries of the municipal entity, such request needs to be carefully review for its impact on the municipality. A party must submit a venue change request in writing and provide sufficient justification to warrant a transfer of a claim. Venue change requests are reviewed by the Workers' Compensation (WC) Senior Law Judge in the district in which the claim was originally scheduled. Upon making a determination, the WC Senior Law Judge issues a written decision granting or denying the request.
The Board Panel finds that the claimant has failed to provide sufficient justification to transfer the claim for further proceedings from Manhattan to White Plains. The form letter signed by the claimant and presented by his attorney is woefully inadequate to support and justify a change of venue. The burden is on the requestor to present a sufficient justification for the Board to deviate from the general rule that claims are venued in the district where the claimant resides.
Here, the claimant resides in Bronx, New York. The claimant asserts that White Plains is a more accessible venue than Manhattan and is more convenient as a matter of time and traffic. However, the claimant has not provided any substantiation for his contention and his assertion that White Plains provides more convenience in terms of time and traffic, without more, is speculative. It should be noted that while the claimant indicated in his April 16, 2012, correspondence that White Plains was by far the most convenient location for him, he provided no explanation, exactly, as to why. We further note that the claimant returned to employment in October 2011 to a Long Island City, New York, work location, which suggests that his medical condition would not be an issue with travel to Manhattan. Accordingly, we conclude that Manhattan remains the appropriate hearing point in this matter.
Therefore, the Board Panel finds, upon review of the record and based upon a preponderance of the evidence, that sufficient justification does not exist for a change of venue to White Plains.
ACCORDINGLY, the WCLJ reserved decision filed May 21, 2012, is AFFIRMED in its entirety. No further action is planned at this time.