State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 16, 2016 520904 

________________________________

In the Matter of the Claim of 

RODNEY LEVINE,

Appellant,

v

HEALTH FIRST (HF MANAGEMENT MEMORANDUM AND ORDER

SERVICES LLC) et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: May 24, 2016

Before: Lahtinen, J.P., McCarthy, Garry, Clark and Mulvey, JJ.

__________

The Klein Law Group, PC, New York City (Arnold E. DiJoseph

III of counsel), for appellant.

Fischer Brothers, New York City (Martin Krutzel of

counsel), for Health First (HF Management Services LLC) and

another, respondents.

__________

Mulvey, J.

Appeals (1) from a decision of the Workers' Compensation

Board, filed June 11, 2014, which, among other things, ruled that

claimant's' application for review failed to comply with 12 NYCRR

300.13 (a) and denied review of a decision by the Workers'

Compensation Law Judge, and (2) from a decision of said Board,

filed October 14, 2014, which denied claimant's request for

reconsideration and/or full Board review.
-2- 520904 

Claimant reportedly sustained a work-related injury in 2011

for which he submitted a claim for workers' compensation

benefits, which the employer and its workers' compensation

carrier (hereinafter collectively referred to as the employer)

controverted. Following a hearing, a Workers' Compensation Law

Judge (hereinafter WCLJ) disallowed the claim, finding that

claimant had not provided timely notice of the claim to the

employer as required by Workers' Compensation Law § 18 and had

failed to meet his burden of demonstrating that the employer was

not prejudiced. Claimant filed an application for review with

the Workers' Compensation Board, and the employer filed a

rebuttal asserting that claimant's application for review did not

comply with the service requirements of 12 NYCRR 300.13 (e) (1)

(i) and was not timely served on the carrier. In a decision

filed June 11, 2014, the Board concluded that claimant's

application for review was defective and did not comply with the

requirements of 12 NYCRR 300.13 (a) for several reasons,

including that it contained an unsigned affirmation. The Board

also relied upon the fact that while the application for review

of the WCLJ decision filed on June 27, 2013 indicated that

service on the parties was accomplished by mail, it did not

specify a date of mailing and that the employer, in its rebuttal,

had submitted proof that the application was served on the

carrier on July 30, 2013, more than the allowed 30 days after the

decision was filed. Thus, the Board concluded that the evidence

did not establish that claimant timely served the employer as

required by 12 NYCRR 300.13 (a), and it exercised its discretion

to deny review of the WCLJ decision. 

Claimant subsequently applied for reconsideration and/or

full Board review requesting that the Board accept its

application for review and address the WCLJ decision on the

merits, but did not argue that the Board's factual findings were

in any respect incorrect regarding the content of claimant's

application for review. Claimant, however, submitted with that

application for reconsideration and/or full Board review a copy

of an application for review also dated July 7, 2013, which was

signed but again did not contain a date that the employer was

served by mail. The employer submitted a rebuttal contending,

among other things, that the Board had properly rejected

claimant's application for review as untimely served on the
-3- 520904 

employer and because the affirmation of service was unsigned and

the affidavit of service was incomplete. The Board denied

claimant's request for reconsideration and/or full Board review,

finding that its June 11, 2014 decision contained no errors of

law or fact. Claimant now appeals from both decisions.

Upon review of the record on appeal, we conclude that the

matter must be remitted to the Board to certify the record on

appeal pursuant to Rules of the Appellate Division, Third

Department (22 NYCRR) § 800.18 (d). The employer raises the very

serious allegation that the copy of claimant's application for

review contained in the "joint record on appeal" prepared by

claimant is not the same document that claimant submitted to and

filed with the Board, in that the document in the record is

signed; the employer attaches to its brief what it represents is

the actual unsigned document that claimant filed with the Board. 

This allegation contains support in the Board's findings in its

June 11, 2014 decision, and claimant did not submit a reply brief

addressing this allegation. The employer did not stipulate to

the record on appeal and it was not certified by the Board (see

Rules of App Div, 3d Dept [22 NYCRR] § 800.18 [d]; CPLR 5532). 

On that point, claimant's attorney submitted an affirmation in

compliance pursuant to CPLR 2105 (see Rules of App Div, 3d Dept

[22 NYCRR] § 800.18 [d]), attesting that it had sent three

proposed record lists as well as the arguments it intended to

raise on appeal (see Rules of App Div, 3d Dept [22 NYCRR]

§ 800.18 [b]), to which claimant asserts the employer did not

respond. However, the record is not clear that the proposed

record lists were timely served on the employer or that claimant

sent the required request to stipulate (see Rules of App Div, 3d

Dept [22 NYCRR] § 800.18 [b] [2], [3]). 

Accordingly, we cannot resolve the employer's

representation that claimant in his joint record on appeal

substituted a signed application for review for an unsigned

application for review filed with the Board, or determine whether

the joint record on appeal was properly filed with this Court

pursuant to Rules of the Appellate Division, Third Department (22

NYCRR) § 800.18. Consequently, we must remit the matter to the

Board to determine whether to certify that the joint record on

appeal filed with this Court is "true and correct" – and,
-4- 520904 

specifically, to resolve whether the application for Board review

contained in the joint record on appeal at pages 21-22 was filed

with the Board and is properly part of the record; if not, the

Board is directed to make findings and to correct the record on

appeal prior to certifying same (Rules of App Div, 3d Dept [22

NYCRR] § 800.18 [d]). 

Lahtinen, J.P., McCarthy, Garry and Clark, JJ., concur.

ORDERED that the decisions are withheld, and matter

remitted to the Workers' Compensation Board for further

proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court