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Case # G1296489
Date of Accident: 02/27/2014
District Office: NYC
Employer: Globe Storage & Moving Co Inc
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 67055046
Date of Filing of Decision: 08/21/2017
Claimant's Attorney: Caruso Spillane Leighton Contrastano Ulaner & Savino
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 18, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed December 9, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the carrier's application for administrative review should have been considered.

The Workers' Compensation Law Judge (WCLJ) found that the claimant should be awarded a 40% schedule loss of use (SLU) of the right shoulder pursuant to the carrier's independent medical examination (IME), and continued the case for development of the record on whether the claimant should be awarded a 50% SLU of the right arm consistent with his treating doctor's opinion.

The Board Panel majority rescinded the WCLJ decision and continued the case to consider apportionment to the prior right shoulder SLU award and to develop the record on the issue of whether claimant violated Workers' Compensation Law (WCL) § 114-a.

The dissenting Board Panel member would affirm the WCLJ decision.

The claimant filed an application for Mandatory Full Board Review on January 6, 2017, arguing that the carrier never raised these issues before the WCLJ and the prior right shoulder case was not newly discovered because that claim involved the same employer and carrier.

The carrier filed a rebuttal on February 3, 2017, requesting that the majority decision be upheld.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This case was previously established for work-related injuries to the right shoulder, head, neck and back. The average weekly wage for the year before the February 27, 2014, accident was set at $1,536.41.

The issue of proper schedule loss of use for the right shoulder was addressed during the May 9, 2016, hearing. During the hearing, the WCLJ awarded the claimant a 40% SLU of the right shoulder consistent with the carrier's medical evidence, and he continued the case for medical testimony to see if the treating doctor's opinion of a 50% SLU of the right shoulder should be adopted. During the hearing, the carrier's hearing representative did not object to this finding in any manner, nor did he raise the issue of WCL 114-a. The findings and awards made at the May 9, 2016, hearing are reflected in a decision filed May 20, 2016.

The carrier's application for administrative review asserted that the WCLJ's May 20, 2016, decision should be rescinded because the carrier discovered that the claimant had a prior work-related right shoulder injury that he received an SLU award for. The carrier asserted that the claimant violated WCL 114-a by concealing this prior right shoulder injury.

The claimant's rebuttal asserted that these issues were not properly raised before the WCLJ, and the prior claim is not newly discovered evidence because that claim from 2000 was against the same carrier and employer as the current claim.

Review of the claimant's other file shows that he injured his neck, back and shoulders on May 9, 2000 (WCB # 00035449). The claim was established for the neck, back, left shoulder and right shoulder. The claimant ultimately received a 27.5% SLU award for the left arm and a 25% SLU for the right arm during the hearing held on November 4, 2003.

LEGAL ANALYSIS

At the time the carrier filed its application for administrative review, 12 NYCRR 300.13(a) provided that an "application [for review] must make reference to the record below or such part thereof as is relevant to the issues and grounds raised in such application and indicate when and where they were raised before the Workers' Compensation Law Judge." Pursuant to 12 NYCRR 300.13(e)(1)(iii) [subsequently renumbered to 12 NYCRR 300.13(b)(4)(v)], 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 [2006]).

"If the application for review offers new and additional evidence that was not in the record and was not presented to the [WCLJ], it must state reasons showing that such evidence could not have been presented to the [WCLJ] or could not have been produced as directed by the [WCLJ]. The board panel, in its discretion, may accept such evidence or may deny review and refuse to consider such new or additional evidence if it finds that such evidence could and should have been presented to the [WCLJ]" (12 NYCRR 300.13[g]). Where a party presents "a credible reason" for its failure to submit the evidence before the WCLJ, it is not an abuse of discretion for the Board Panel to consider the evidence when it is submitted with an application for administrative review" (Matter of Bonilla v Country Rotisserie of Riverhead, 122 AD3d 1035 [2014]).

In this case, the prior workers' compensation claim in which claimant was awarded an SLU of the right arm involved the same employer and carrier. The carrier had ample opportunity to raise the issues asserted for the first time in its application for review at or before the May 9, 2016, hearing. However, the carrier failed to raise the issues of the prior SLU and WCL § 114-a during the May 9, 2016, hearing. Therefore, the carrier's application for review should have been denied.

CONCLUSION

ACCORDINGLY, the carrier's application for review is DENIED. The WCLJ decision filed May 20, 2016, REMAINS IN EFFECT. The case is continued.