IN RE: the Claim of Delmi MEDINA (2024)

MEMORANDUM AND ORDER

Appeals (1) from a decision of the Workers’ Compensation Board, filed November 22, 2022, which ruled that claimant did not give timely notice of injury and denied her claim for workers’ compensation benefits, and (2) from a decision of said Board, filed March 15, 2023, which denied claimant's application for reconsideration and/or full Board review.

In February 2022, claimant, a housekeeper, filed a claim for workers’ compensation benefits alleging that, in February 2021, she sustained work-related injuries to her back and bilateral knees.  The claim was controverted and, following a hearing, ultimately established by a Workers’ Compensation Law Judge (hereinafter the WCLJ) for a work-related injury to the back and both knees.  The employer and its workers’ compensation carrier sought administrative review, contending, among other things, that claimant had not provided timely written notice of the accident within 30 days of its occurrence as required by Workers’ Compensation Law § 18.  Upon conducting its administrative review, the Workers’ Compensation Board, in a November 2022 Board Panel Decision, reversed the decision of the WCLJ. The Board found that claimant did not provide written notice of the work-related accident within the requisite 30–day period and that she failed to provide a sufficient reason warranting excusal by the Board for the delay.  Claimant ‘s ensuing application for reconsideration and/or full Board review was denied by the Board in a March 2023 notice of decision.  Claimant appeals.

As an initial matter, although claimant filed notices of appeal from each of the Board's decisions, the substantive arguments in her brief relate only to the Board's March 2023 decision denying her request for reconsideration and/or full Board review.  Consequently, claimant has abandoned any challenge to the underlying November 2022 Board decision finding that she failed to provide timely notice of the work-related accident (see Matter of Fiato v. New York State Dept. of Transp., 195 A.D.3d 1251, 1252 n. 1, 149 N.Y.S.3d 691 [3d Dept. 2021], lv denied 37 N.Y.3d 917, 2022 WL 55231 [2022];  Matter of Turner v. Graphic Paper Inc., 151 A.D.3d 1127, 1128 n., 55 N.Y.S.3d 805 [3d Dept. 2017], lv denied 37 N.Y.3d 917, 2022 WL 55231 [2022];  Matter of Scalo v. C.D. Perry & Sons, Inc., 129 A.D.3d 1431, 1432, 12 N.Y.S.3d 373 [3d Dept. 2015]).  Our inquiry is therefore limited to whether the Board abused its discretion or acted in an arbitrary or capricious manner in denying claimant's application for reconsideration and/or full Board review (see Matter of Bidot v. Suffolk County Probation Dept., 205 A.D.3d 1280, 1281, 169 N.Y.S.3d 713 [3d Dept. 2022];  Matter of Petre v. Allied Devices Corp., 191 A.D.3d 1086, 1088, 141 N.Y.S.3d 536 [3d Dept. 2021], lv dismissed 37 N.Y.3d 938, 147 N.Y.S.3d 578, 170 N.E.3d 453 [2021]).  “In order to meet that standard, the record must show that the Board failed to address all relevant issues or failed to consider evidence that was not previously available” (Matter of Gorbea v. Verizon N.Y. Inc., 199 A.D.3d 1253, 1254, 159 N.Y.S.3d 179 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted]).

As we have previously recognized, “[a]pplications for Board review are to be considered by a panel of at least three members and may not be decided by the chair, or any other single member of the Board, alone” (Matter of Scalo v. C.D. Perry & Sons, Inc., 112 A.D.3d 1077, 1077, 977 N.Y.S.2d 771 [3d Dept. 2013];  see Workers’ Compensation Law §§ 23, 142[2];  Matter of Drummond v. Desmond, 295 A.D.2d 711, 713, 744 N.Y.S.2d 224 [3d Dept. 2002], lv denied 98 N.Y.2d 615, 752 N.Y.S.2d 1, 781 N.E.2d 913 [2002];  Matter of Greene v. Sproat, 18 A.D.2d 420, 421–422, 239 N.Y.S.2d 996 [1963], lv denied 13 N.Y.2d 596, 243 N.Y.S.2d 1025, 193 N.E.2d 644 [1963]).  We have also held that “[t]here is no requirement that the three members must be different than the members who issued the underlying decision” (Matter of Sparkes v. Holy Family Church, 134 A.D.3d 1188, 1189, 20 N.Y.S.3d 722 [3d Dept. 2015]).  Accordingly, and contrary to claimant's contention, we find no violation of claimant's due process rights where, as here, the same three Board panel members who issued the November 2022 Board panel decision also issued the decision denying the instant application for reconsideration and/or full Board review (compare Matter of Sparkes v. Holy Family Church, 134 A.D.3d at 1189, 20 N.Y.S.3d 722, with Matter of Scalo v. C.D. Perry & Sons, Inc., 112 A.D.3d at 1077, 977 N.Y.S.2d 771).  Finally, we are unpersuaded that the Board failed to consider the evidence and issues properly before it, and we therefore conclude that the Board's denial of claimant's application for reconsideration and/or full Board review was neither arbitrary and capricious nor an abuse of discretion (see Matter of Lopez v. Platoon Constr., Inc., 212 A.D.3d 953, 954–955, 182 N.Y.S.3d 784 [3d Dept. 2023];  Matter of Petre v. Allied Devices Corp., 191 A.D.3d at 1088, 141 N.Y.S.3d 536).

ORDERED that the decisions are affirmed, without costs.

Lynch, J.

Egan Jr., J.P., Reynolds Fitzgerald, Ceresia and Powers, JJ., concur.