State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: August 25, 2016 519845 

________________________________

In the Matter of the Claim of

DWAYNE McQUEER,

Claimant,

v MEMORANDUM AND ORDER

ADIRONDACK TANK SERVICES, INC.,

et al.,

Appellants.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: August 18, 2016

Before: Garry, J.P., Egan Jr., Devine, Mulvey and Aarons, JJ.

__________

Wolff, Goodrich & Goldman LLP, Syracuse (Robert E. Geyer

Jr. of counsel), for appellants.

__________

Garry, J.P.

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

Board, filed January 2, 2014, which, among other things, ruled

that the workers' compensation carrier's offset against the

proceeds of claimant's third-party settlement had expired, and

(2) from a decision of said Board, filed July 3, 2014, which

denied a request by the employer and the carrier for

reconsideration and/or full Board review.
-2- 519845 

In June 2000, claimant suffered work-related injuries and

was subsequently awarded workers' compensation benefits. 

Thereafter, he settled a third-party action with the consent of

the workers' compensation carrier. Issues then arose as to the

extent and applicability of the carrier's offset pursuant to

Workers' Compensation Law § 29, which were resolved in 2004 when

claimant entered into a stipulation with the employer and the

carrier (hereinafter collectively referred to as the carrier). 

The stipulation provided that the carrier would be entitled to a

credit against future indemnity payments, but that causally

related medical expenses would not be subject to the credit and

would continue to be paid by the carrier. For the purpose of

computing the length of the carrier's holiday from indemnity

payments resulting from the offset, the parties agreed upon a

weekly rate and stipulated that the carrier's holiday from

payments would encompass 198.72 weeks. A Workers' Compensation

Law Judge (hereinafter WCLJ) thereafter approved the stipulation,

and the carrier ceased making indemnity payments.

Claimant did not seek further medical attention for his

compensable injury until July 3, 2012, at which point he filed a

medical report indicating that he was suffering from a causallyrelated total temporary disability. The carrier filed a request

for further action seeking a hearing to address the applicability

of Workers' Compensation Law § 25-a, and claimant likewise filed

a request for further action seeking the resumption of indemnity

payments and asserting that the carrier's holiday from indemnity

payments had expired in January 2009. The carrier did not appear

at the January 2013 hearing, at which claimant requested that his

awards be resumed at a total rate as of July 3, 2012 based upon

the expiration of the carrier's holiday and the uncontroverted

medical evidence indicating that he was totally disabled. The

WCLJ declined to address the applicability of Workers'

Compensation Law § 25-a, as the carrier was absent. As to

claimant's assertions, the WCLJ determined that the carrier's

holiday had expired in January 2009 and that benefit payments

should resume effective July 3, 2012. Upon review, the Workers'
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Compensation Board affirmed. The carrier's subsequent request

for reconsideration and/or full Board review was denied. The

carrier appeals from both decisions.

We affirm. The Board's decisions on questions of fact and

the inferences to be drawn therefrom "[are] conclusive upon the

courts if supported by substantial evidence" (Matter of Axel v

Duffy-Mott Co., 47 NY2d 1, 6 [1979]; see Matter of Ribar v County

of Suffolk, 125 AD2d 801, 802 [1986]). Here, the Board's factual

finding that the carrier's holiday had expired was premised upon

the parties' stipulation and their actions. The plain language

of the stipulation supports the Board's decision, setting forth

the amount of the carrier's credit against indemnity payments,

the rate to be applied for purposes of calculating the length of

the holiday and the resulting agreed-upon duration of the

holiday. Other evidence in the record reveals that the

stipulation was duly approved, awards were made accordingly, and

the carrier filed documentation indicating that the case was "ON

HOLIDAY" as of April 7, 2005. Based upon these documents, the

Board found that the carrier was entitled to a holiday extending

until approximately January 28, 2009.1 The Board's finding that

the holiday expired pursuant to the parties' stipulation in

January 2009 is thus supported by substantial evidence in the

record (see Matter of Stenson v New York State Dept. of Transp.,

96 AD3d 1125, 1126-1127 [2012], lv denied 19 NY3d 815 [2012]).

 

Contrary to the carrier's claim, the Board's decision was

not arbitrary and improper on the ground that it "depart[ed] from

prior Board precedent and fail[ed] to explain the reasons for its

departure" (Matter of Zaremski v New Visions, 136 AD3d 1176, 1177

[2016] [internal quotation marks and citations omitted]; see

Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516,

520 [1985]). The carrier now contends that, pursuant to its

1 The Board further noted that the WCLJ had declined to

make any findings for the period between the end of the carrier's

holiday and the next medical examination on July 3, 2012.
-4- 519845 

prior precedent, the Board should not have found that the holiday

was exhausted because claimant did not meet his burden to produce

medical evidence of a continuing causally related disability

during the period of time subsequent to the carrier's suspension

of indemnity payments (see Matter of Rothe v United Med. Assoc.,

2 AD3d 1264, 1265 [2003]; Employer: Raymour's Furniture Co.,

Inc., 2006 WL 3336919, *2-3, 2006 NY Wrk Comp LEXIS 09603, *4-6

[WCB 6881 3322, Oct. 26, 2006]). Initially, we note that,

although the notice of the January 2013 hearing specified that

the duration of the carrier's holiday was to be decided at that

time, the carrier failed to appear and has never provided an

explanation or excuse for its absence. Accordingly, the WCLJ had

no opportunity to address the carrier's argument, which was

raised for the first time in its subsequent application for Board

review (compare Matter of Hulbert v Cortland County Sheriff's

Dept., 69 AD3d 987, 989 [2010], lv denied 14 NY3d 710 [2010]). 

In any event, even if the contention had been raised before

the WCLJ, a different outcome would not have been required. The

parties' stipulation makes no reference to any ongoing

responsibility on claimant's part to demonstrate a continuing

causally related disability during the carrier's holiday; to the

contrary, it plainly reveals the parties' agreement that

claimant's disability continued throughout the holiday. No such

stipulation was involved in the prior Board decision that the

carrier incorrectly contends should have governed here (see

Employer: Raymour's Furniture Co., Inc., 2006 WL 3336919 at *2-3,

2006 NY Wrk Comp LEXIS 09603 at *4-6). As that decision was not

premised on similar facts, the Board was not required to explain

why it reached a different result in this case, and the

challenged decision – which fully sets forth the rationale on

which it is based – is not arbitrary (compare Matter of Charles

A. Field Delivery Serv. [Roberts], 66 NY2d at 518; Matter of

Hernandez v Taco Bell, Inc., 52 AD3d 891, 893 [2008]).

As for the carrier's remaining contention, we find no abuse

of the Board's "sole discretion" in its denial of the carrier's
-5- 519845 

request for reconsideration and/or full Board review (Workers'

Compensation Law § 23).

Egan Jr., Devine, Mulvey and Aarons, JJ., concur.

ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court