The Full Board, at its meeting held on May 21, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 27, 2012.
The issue presented for Mandatory Full Board Review is whether the carrier presented sufficient evidence to warrant reopening the case.
The Board Panel majority found that the carrier did not present sufficient evidence to warrant reopening the case.
The dissenting Board Panel member would have granted the reopening request.
The carrier filed an application for Mandatory Full Board Review on September 12, 2012.
The claimant filed a rebuttal on October 5, 2012.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant has an established claim for a back injury arising out of a work accident on July 27, 2005. The claimant was found to suffer from a mild to moderate permanent partial disability in a Notice of Decision (NOD) filed on November 6, 2008.
At a hearing on November 18, 2010, the claimant's attorney requested that awards be brought up to date, except for a finding of no compensable lost time for the period from February 19, 2010, to September 16, 2010, because the claimant was incarcerated. The claimant's attorney advised the Workers' Compensation Law Judge (WCLJ) that the claimant would produce proof of his prior involvement in VESID and his enrollment in Monroe Community College within 30 days.
In an NOD filed on November 23, 2010, the WCLJ awarded the claimant lost wage benefits for the period from December 5, 2008, to February 19, 2010, at the permanent partial disability rate of $373.60, found no compensable lost time for the period from February 19, 2010, to September 16, 2010, awarded permanent partial disability benefits for the period from September 16, 2010, to November 19, 2010, and directed the carrier to continue benefits at that rate. The WCLJ also directed the claimant "to produce evidence of work search within 30 days" and marked the case for no further action.
In a letter dated March 9, 2011, and filed with the Board on March 10, 2011, the claimant's attorney forwarded documentation regarding the claimant's enrollment in school and involvement in Rochester Works. A document entitled "Certificate of Admissions" from Monroe Community College indicates that the claimant enrolled on January 13, 2010. A document entitled "Career Action Plan" from Rochester Works, which is dated December 1, 2010, indicates that the claimant discussed what workshops were available with a Rochester Works representative.
On December 31, 2012, the carrier filed a Form RFA-2 (Carrier's Request for Further Action) requesting a hearing on the basis that "[t]he claimant has not produced evidence of attachment to the labor market within 30 days as directed by the 11/23/2010 NOD." In a letter dated January 12, 2010, the Board advised the carrier that its request was being considered a request for reopening and the Board's Administrative Review Division would issue a decision regarding whether to grant the carrier's request.
The carrier filed a second Form RFA-2 on May 4, 2012, requesting an "[u]pdate on status from administrative review division." The carrier also filed an RFA-2 on May 7, 2012, requesting a hearing because the claimant had not produced his grades from college courses taken at Monroe Community College or job search records.
The record also contains numerous letters from the carrier to the claimant's attorney requesting job search and school information.
The Board's determination whether or not to exercise its discretion with respect to the reopening of a case will generally not be set aside absent an abuse of discretion (see Matter of Burris v Olcott, 95 AD3d 1522 ; Matter of Cagle v Judge Motor Corp., 31 AD3d 1016 , lv dismissed 7 NY3d 922 ).
The purpose of the RFA-2 form is to inform the Board that the employer or carrier is requesting a reopening for further action on a case, and if the RFA-2 is filed during any period in which regular hearings are scheduled, the Board must schedule a hearing within 20 days to resolve the issue. However, because the WCLJ found that no further action was planned by the Board at the last hearing in the present case, no regular hearings were being scheduled at the time the carrier's RFA-2 was received on December 31, 2010. As a result, the Board exercised its discretion and treated the RFA-2 form as an application to reopen, such that the carrier was not entitled to a hearing within 20 days, and the case was referred to the Administrative Review Division to address the issue of the reopening.
The provisions of 12 NYCRR 300.23(c)(1) apply in any case where a claimant has been classified with a permanent partial disability and the carrier is under a directive to continue payments. In order to suspend or reduce such payments in such a case, the carrier must file an RFA-2 accompanied by supporting evidence.
In Matter of Mead Specialty Paper, the Board considered facts substantially similar to the one at bar (2012 NY Wrk Comp 60200039). The Mead claimant was directed to produce evidence of labor market attachment or change in medical condition within 30 days of a January 23, 2012, decision (id.). On March 7, 2012, the carrier filed an RFA-2 requesting a hearing regarding the claimant's failure to comply (id.). The Board Panel granted the carrier's request, finding that the claimant's failure to comply with the WCLJ's directive was sufficient to raise an issue of fact regarding whether the claimant's reduction in wage earning capacity was due solely to his failure to seek employment within his restrictions (id.).
In the present case, the carrier requested a hearing regarding the claimant's failure to produce evidence regarding his job search activities within 30 days of the filing of the November 23, 2010, NOD. The WCLJ's directive was based upon the claimant's attorney's representation that the claimant would provide this information within this time, as well as his representation that the claimant had already been participating in VESID and enrolled in college classes. However, the claimant did not produce the documentation until March 9, 2011, more than 90 days after the WCLJ ordered that it be produced. Thus, the claimant failed to comply with the WCLJ's directive.
Additionally, while the claimant's attorney represented to the WCLJ that the claimant was already involved in VESID and enrolled in classes, the documentation submitted by the claimant belies these statements. The documentation indicates that the claimant did participate with Rochester Works until December 1, 2010, and did not enroll in classes until January 2011.
While the WCLJ did not explicitly state the consequences of the claimant's failure to comply with the WCLJ's directive, implicit in every directive of the Board is that a party failing to comply will face some consequences. The fact that the WCLJ did not detail the nature of such consequences does not negate the force and effect of the directive, and should not excuse a party's failure to comply therewith.
Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the carrier submitted sufficient evidence to warrant reopening the case regarding the claimant's failure to comply with the WCLJ's directive and whether the claimant remained attached to the labor market.
ACCORDINGLY, based on the preponderance of the evidence in the record, the carrier's application to reopen the claim is GRANTED. The case is continued.