Francis v. Jewelry Box Corp. of Am.

• Citation: 95 A.D.3d 1515,2012 N.Y. Slip Op. 03902,945 N.Y.S.2d 767
• Parties: In the Matter of the Claim of Neville FRANCIS, Appellant, v. JEWELRY BOX CORPORATION OF AMERICA et al., Respondents, and Special Fund for Reopened Cases, Respondent. Workers' Compensation Board, Respondent.
• Decision Date: 17 May 2012
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1515
945 N.Y.S.2d 767
2012 N.Y. Slip Op. 03902

In the Matter of the Claim of Neville FRANCIS, Appellant,
v.
JEWELRY BOX CORPORATION OF AMERICA et al., Respondents,
and
Special Fund for Reopened Cases, Respondent.
Workers' Compensation Board, Respondent.

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

May 17, 2012.

[945 N.Y.S.2d 768]

Neville Francis, New York City, appellant pro se.

Cherry, Edson & Kelly, L.L.P., Carle Place (Shayne L. Dorr of counsel), for Jewelry Box Corporation of America and another, respondents.

Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), for Special Fund for Reopened Cases, respondent.

Before: MERCURE, J.P., ROSE, STEIN, GARRY and EGAN JR., JJ.

MERCURE, J.P.

[95 A.D.3d 1515]Appeal from a decision of the Workers' Compensation Board, filed December 14, 2010, which denied claimant's application to reopen his workers' compensation claim.

After sustaining a traumatic work-related crush injury to his right hand in August 1987, claimant was classified as having a permanent partial disability and awarded workers' compensation benefits. On May 26, 1993, the Workers' Compensation Board approved a lump-sum nonschedule adjustment pursuant to Workers' Compensation Law § 15(5–b) in the amount of [95 A.D.3d 1516]$54,600, and the case was closed. Thereafter, claimant made several applications attempting to reopen his claim. These applications were rejected, however, because he did not demonstrate a change in condition that was not contemplated at the time of the original settlement. As relevant to the subject reopening request, claimant submitted, among other things, a letter and medical narrative report from his treating psychologist, alleging that claimant is totally disabled due to chronic major depression, posttraumatic stress disorder and chronic pain disorder stemming from the August 1987 accident. The Board, noting that claimant previously waived his right to have his case established for psychiatric injury, ruled that the proof submitted was insufficient to support his request to reopen his claim. This appeal followed.

We affirm. “[A] lump-sum nonschedule adjustment effectively closes the claim unless the Board finds proof ‘that there has been a change in condition or in the degree of disability of [the] claimant not found in the medical evidence and, therefore, not contemplated at the time of the adjustment’ ” (Matter of Bunnell v. Sangerfield Inn, 35 A.D.3d 1021, 1022,...