McCormick v. Terryville Fire Dist.

• Decision Date: 17 December 2020
• Docket Number: 530691
• Citation: 138 N.Y.S.3d 233,189 A.D.3d 1868
• Parties: In the Matter of the Claim of John MCCORMICK, Appellant, v. TERRYVILLE FIRE DISTRICT et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1868

138 N.Y.S.3d 233

In the Matter of the Claim of John MCCORMICK, Appellant,

v. TERRYVILLE FIRE DISTRICT et al., Respondents.Workers' Compensation Board, Respondent.

530691

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

Calendar Date: November 20, 2020

Decided and Entered: December 17, 2020

John F. Clennan, Ronkonkoma, for appellant.

Stewart, Greenblatt, Manning & Baez, Syosset (Thomas A. Lumpkin of counsel), for Terryville Fire District and another, respondents.

Before: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

Appeal from a decision of the Workers' Compensation Board, filed June 25, 2019, which denied claimant's application for reconsideration and/or full Board review.

Claimant, a paramedic, had a previously established claim for injuries to his neck and back that allegedly were sustained in March 2017 when was he was directed to shovel snow at work. At a subsequent hearing, the employer's workers' compensation carrier raised the issue of a Workers' Compensation Law § 114–a violation based upon, among other things, claimant's failure to disclose a prior injury to his neck. A Workers' Compensation Law Judge sustained the asserted violation and, in addition to the mandatory penalty assessed, imposed the discretionary penalty of disqualifying claimant from receiving future indemnity benefits. Upon administrative review, the Workers' Compensation Board affirmed, finding, among other things, that claimant, by admittedly failing to disclose his prior neck injury, made a material misrepresentation in order to obtain workers' compensation benefits. Claimant's subsequent application for reconsideration and/or full Board review was denied, prompting this appeal.

We affirm. The bulk of claimant's brief is devoted to raising various evidentiary issues relative to the proof adduced at the underlying hearings – specifically, a certain videotape of the injury-producing event and evidence of claimant's prior felony conviction – and the corresponding impact that such proof had upon the Board's finding that a Workers' Compensation Law § 114–a violation had occurred. However, "[i]nasmuch as claimant has only appealed from the decision denying his application for reconsideration and/or full Board review, the merits of the Board's underlying decision are not properly before us" ( Matter of Oparaji v. Books & Rattles , 168 A.D.3d 1209, 1209, 89 N.Y.S.3d 924 [2019] ; see Matter of Campos v. Federal Express Corp. , 181 A.D.3d 1118, 1118, 118 N.Y.S.3d 458 [2020] ; Matter of Singletary v. Schiavone Constr. Co. , 174 A.D.3d 1240, 1241, 104 N.Y.S.3d 435 [2019] ). As a result, "our review is limited to whether the Board's denial of the application was arbitrary and capricious or otherwise constituted an abuse of discretion" ( Matter of Singletary v. Schiavone Constr. Co. , 174 A.D.3d at 1242, 104 N.Y.S.3d 435 [internal quotation marks and citation omitted]; see Matter of Campos v. Federal Express Corp. , 181 A.D.3d at 1118, 118 N.Y.S.3d 458 ; Matter of Brasher v. Sam Dell's Dodge Corp. , 159 A.D.3d 1234, 1235, 70 N.Y.S.3d 400 [2018], appeal dismissed 32 N.Y.3d 1012, 86 N.Y.S.3d 420, 111 N.E.3d 314 [2018] ).

"To succeed on an application for reconsideration and/or full Board review, claimant must demonstrate that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination" ( Matter of Singletary v. Schiavone Constr. Co. , 174 A.D.3d at 1242, 104 N.Y.S.3d 435 [internal quotation marks and citations omitted]; see Matter of Hale v. Rochester Tel. Co. , 182 A.D.3d 961, 964, 123 N.Y.S.3d 249 [2020] ; Matter of Washington v. Human Tech. , 170...