State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 11, 2015 519152 

________________________________

In the Matter of THOMAS H.

GREENWOOD,

Claimant,

v MEMORANDUM AND ORDER

INLAND FISHER GUIDE et al.,

Appellants.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: April 20, 2015

Before: Lahtinen, J.P., Rose, Devine and Clark, JJ.

__________

Falge & McLean, PC, North Syracuse (Dean LaClair of

counsel), for appellants.

Eric T. Schneiderman, Attorney General, New York City

(Donya Fernandez of counsel), for respondent.

__________

Lahtinen, J.P.

Appeal from a decision of the Workers' Compensation Board,

filed August 27, 2013, which modified a decision of a Workers'

Compensation Law Judge by increasing the award rate payable to

claimant as a result of his permanent partial disability.

In 1994, accident, notice and causal relationship were

established for claimant's chest strain injury and an award of

compensation was set at a weekly rate of $400 from March 3, 1993

until the date of his retirement on June 6, 1993. In 1996,

claimant's attorney requested a hearing to resolve additional
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issues, including the extent of claimant's disability and

possible reduced earnings. Ultimately, by decision dated August

9, 2000, the Workers' Compensation Board affirmed the April 22,

1999 decision of the Workers' Compensation Law Judge (hereinafter

WCLJ) finding that claimant, who was permanently partially

disabled as a result of the work-related injury, had not

voluntarily withdrawn from the labor market. The Board's

decision also affirmed the WCLJ's subsequent May 18, 1999

decision that continued claimant's compensation awards at various

rates and period of time from June 1, 1993 through April 21,

1999, with continued payments thereafter of $400 less

reimbursement to the employer of $175. 

In 2010, apparently in connection with an offer to settle

claimant's case in accordance with Workers' Compensation Law

§ 32, an issue arose as to whether reimbursement payments of $175

were in fact made to the employer in connection with payments

made to claimant. The employer's workers' compensation carrier

was directed to produce a copy of the pension plan, as well as

all reimbursement payments made to the employer from 1999 to

date. Although documentation establishing the $225 weekly

payments to claimant from April 21, 1999 to the present was

submitted, no records could be produced of any payments made to

the employer to substantiate the $175 reimbursement. In

addition, because the 1999 hearing transcript had been destroyed,

the basis for the May 18, 1999 WCLJ decision directing

reimbursement to the employer could not be ascertained. As a

result, the WCLJ, among other things, made certain assumptions in

ultimately setting a tentative reduced earnings rate of $225 per

week to claimant. The Board modified that decision, finding that

the employer was no longer entitled to reimbursement given the

employer's failure to submit evidence "that its disability

benefits plan continued to pay claimant benefits subsequent to

April 21, 1999" and continued claimant's weekly award rate at

$400 as of April 21, 1999. The employer and its carrier appeal.

Upon our review of the record, we find that the Board's

decision is not supported by substantial evidence. Contrary to

the Board's findings, there is no indication in the record that

suggests any disability payments to claimant were paid by the

employer's "disability benefits plan" either before or after his
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retirement such that there was a need to reimburse the employer. 

Rather, the record establishes that claimant received workers'

compensation benefits prior to his retirement and, following his

retirement, claimant sought compensation based upon his limited

workplace participation as a machinist due to his injury, thereby

implicating his entitlement to reduced earnings. Significantly,

following the WCLJ's finding that claimant did not voluntarily

leave the work force, the notice of hearing stated, and other

documents in the record confirm, that the purpose of the next

hearing was "questions of reduced earnings" and directed claimant

to "produce records of earnings since retirement." Nevertheless,

the Board's decision at issue herein does not address any reduced

earnings award, but bases the award on the employer's entitlement

to reimbursement in connection with disability benefit plan

payments. Other than the WCLJ's May 18, 1999 decision, it is

impossible to discern any evidence in the record that any

disability payments were made pursuant to a plan by the employer

that would lead to a situation involving the need for

reimbursement to the employer. As the Board's finding that

claimant was entitled to a $400 award is predicated upon the

employer's failure to produce evidence regarding payments

pursuant to its "disability benefit plan," we find that the

decision is not supported by substantial evidence in the record

(see generally Matter of Schroeder v U.S. Foodservice, 107 AD3d

1135, 1137 [2013]; Matter of Stranahan v Camp Adirondack, 78 AD3d

1369, 1371 [2010]). Accordingly, and despite the fact that the

1999 hearing transcript was destroyed, the matter must be

remitted for further development of the record as to whether

claimant ever received or was even entitled to disability

payments subsequent to April 21, 1999 and to address the absence

of a reduced earnings award in the decision at issue herein.

We need not address claimant's remaining argument in light

of the foregoing.

Rose, Devine and Clark, JJ., concur.
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ORDERED that the decision is reversed, without costs, 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