The Full Board, at its meeting held on April 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on July 31, 2012.
The issue presented for Mandatory Full Board Review is whether compensation payments should be resumed pending development of the record on the issue of the claimant's attachment to the labor market.
In a supplemental decision filed on May 12, 2011, the Workers' Compensation Law Judge (WCLJ) noted the prior compensation payments made by the carrier and the amount of the claimant's recovery from the settlement of his third party action, and found that payments to the claimant should have resumed on July 10, 2010, at the rate of $400.00 per week, with $264.00 deducted from the first payment of compensation.
In a Memorandum of Decision filed July 31, 2012, the Board Panel majority modified the WCLJ's decision to rescind, without prejudice, the direction for the carrier to resume compensation payments to the claimant, and to direct that the case be restored to the trial calendar for development of the record concerning the claimant's work activity, attachment to the labor market and entitlement to ongoing awards.
The dissenting Board Panel member would have affirmed the WCLJ's decision and would have directed the carrier to resume compensation payments pending further development of the record.
In the application for Mandatory Full Board Review filed on August 23, 2012, the attorney for the claimant requests that the Board Panel majority decision be rescinded, and argues that the decision to suspend benefits was erroneous for two reasons: (1) the carrier did not timely raise the issues for review before the WCLJ at the hearing held on April 9, 2010; and (2) the carrier has provided no evidence to support its allegations that work activity and labor market attachment were at issue.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This is an established claim for injuries to the neck and back that resulted from an accident that occurred on June 9, 2000, while the claimant, a parcel delivery service driver, was struck by a motor vehicle while standing in the street.
In a decision filed on June 29, 2001, the claimant was classified with a permanent partial disability and the carrier was directed to continue payments at the rate of $400.00 per week.
On December 24, 2002, the carrier filed a C-8/8.6 form to report that it suspended payments of compensation as of December 7, 2002, based on the claimant's settlement of a third-party action for a net recovery in the amount of $158,664.00.
In a decision filed on February 19, 2003, the WCLJ found that the claimant had settled his third-party action with the consent of the workers' compensation carrier for the amount of $158,664.00. The WCLJ made awards from June 18, 2001, to February 8, 2003, and continuing at the rate of $400.00 per week, subject to the carrier's credit for the claimant's third-party recovery.
On August 28, 2009, the carrier filed a form RFA-2 to request a hearing to consider the claimant's work activities. The carrier alleged that the claimant had refused to complete a work and activities form.
By a Form ERFA-2.1 dated September 14, 2009, the Board directed the claimant to comply with the carrier's request to complete the work and activities form and directed the carrier to renew its request for further action in 60 days in the event of the claimant's failure to comply.
On November 18, 2009, the carrier submitted another form RFA-2 to renew its request for a hearing based on the claimant's failure to complete a work and activities form provided to him on September 17, 2009.
A hearing was scheduled for April 9, 2010, the purpose of which, according to the hearing notice, was to consider "the issue of claimant's work activities." The claimant was not present at the hearing held on April 9, 2010, and after an off-the-record discussion, the carrier requested a referral for an actuarial computation to determine the date when compensation payments should resume since a referral was not previously made. The WCLJ agreed to make the referral as requested. The carrier then indicated that "once it's ready to come back we can address whatever issues are appropriate." The WCLJ responded, "Okay. Anything else?" The claimant's attorney responded, "No. That's fine."
In the decision filed on April 14, 2010, the WCLJ directed the parties to produce the closing statement from the settlement of the claimant's third-party action and indicated that, upon production of the statement, the Board would compute deficiency compensation.
On April 7, 2011, the claimant submitted the closing statement as directed and in the supplemental decision filed on May 12, 2011, the WCLJ determined that, "[a]ssuming that the carrier made compensation payments until December 7, 2002, and assuming that the claimant recovered $158,664.00 in a third-party action settlement, then payments should have resumed July 10, 2010, at $400.00 with $264.00 deducted from the first payment of compensation." The WCLJ marked the case "no further action." The carrier sought administrative review of that decision.
Pursuant to 12 NYCRR 300.13(e)(1)(iii), the Board may deny review of any "issue that was not raised and developed at the hearing before the WCLJ" (Matter of Hernandez v Excel Recycling Corp., 31 AD3d 1091 ). Nevertheless, when a Board Panel decision restores a case to the hearing calendar, directs further development of the record on a particular issue, and directs the WCLJ to render another decision on the completed record, any party adversely affected by the WCLJ's resulting decision is entitled to Board Panel review even if, at the hearing, the party did not take exception to the WCLJ's decision (see Matter of Williams v New York State Dept. of Transp., 277 AD2d 592 ).
Here, the April 9, 2010, hearing was specifically scheduled at the Board's direction based on the claimant's failure to complete and submit the carrier's work and activities form as previously directed by the Board. At that hearing, the carrier agreed with a referral for the actuarial computation of deficiency compensation but also stated on the record, with the agreement of the WCLJ and the claimant's attorney, that the remaining issues would be addressed at the next hearing. The transcript of the hearing held on April 9, 2010, contains no indication that the WCLJ was directing awards to be made at that time, and no awards were actually made until the supplemental decision filed on May 12, 2011.
Therefore, the Full Board finds that the carrier's request for review of the awards made in the supplemental decision filed on May 12, 2011, should not be denied based on the carrier's failure to object to the direction for computation of the date for the resumption of compensation payments that was made at the hearing held on April 9, 2010.
Turning to the issue of whether the awards should be suspended pending further development of the record on the claimant's work activity and labor market attachment, the Full Board has previously considered how to proceed when determining whether a permanently partially disabled claimant's third-party credit has been exhausted (Matter of Partners Cleaning, LLC, 2010 NY Wrk Comp 09663737). As noted by the Full Board in Matter of Partners Cleaning, LLC,
"While the claimant's classification with a permanent partial disability does [allow the Board to infer] causally related lost earnings, this principle must be balanced against the numerous variables faced by the carrier. The claimant could incur medical and transportation expenses, which would shorten the time period for the carrier's credit. Moreover, it always a possibility that the claimant could move, die, or become incarcerated during the holiday period, whereby the carrier would be unable to recommence payment absent affirmative action by the claimant or the claimant's representative (i.e., notification to the carrier and the Board). Furthermore, the claimant could have returned to work with greater earnings, returned to work with reduced earnings, or withdrawn from the labor market. The foregoing facts could either lengthen the time period for the carrier's holiday or eliminate it altogether.
However, unless the claimant submits tax returns or regular work updates to the carrier on a proactive basis, the aforementioned information is generally only in the possession of the claimant, not the carrier. Thus, any Board decision which indicates that the carrier 'should' resume payments on a speculative date set sometime in the future based solely upon the amount of the third-party credit and the weekly compensation rate, should not be interpreted as an award of compensation subject to penalties. This date should merely serve as a guideline for the claimant to use to reopen a case and develop the record on the issue of the resumption of payments."
The issue of deficiency compensation will be affected if further development of the record reveals that the claimant has returned to work, is entitled to reduced earnings, or has withdrawn from the labor market.
Therefore, the Full Board finds that the WCLJ's direction for the carrier to resume compensation payments as of July 10, 2010, is rescinded, without prejudice, pending further development of the record on the issues of the claimant's work activity, attachment to the labor market and entitlement to ongoing awards.
ACCORDINGLY, the WCLJ supplemental decision filed on May 12, 2011, is MODIFIED to rescind the findings of the date and the amount for the resumption of compensation payments by the carrier, without prejudice. The rest of the WCLJ decision remains in effect. The case is restored to the trial calendar for development of the record concerning the claimant's work activity, attachment to the labor market and entitlement to ongoing awards. The case is continued.