IN RE: the Claim of Jose HERNANDEZ (2006)

Appeal from a decision of the Workers' Compensation Board, filed April 1, 2005, which, inter alia, denied the State Insurance Fund's application for review.

Claimant filed for workers' compensation benefits after he was injured in August 2003 while working for Excel Recycling Corporation. At a hearing before a Workers' Compensation Law Judge (hereinafter WCLJ), he admitted to buying his Social Security card to obtain work in the United States.   Thereafter, the WCLJ established the case for injuries to claimant's back, left leg and left foot, and awarded him benefits.   Excel and its workers' compensation carrier, the State Insurance Fund (hereinafter collectively referred to as the carrier), applied to the Workers' Compensation Board for review of the WCLJ's decision, asserting that benefits should not be awarded because claimant is an undocumented alien who is not legally authorized to work in the United States.   The Board denied the application on the ground that the issue was not raised before the WCLJ. The carrier now appeals.

The carrier argues that the federal Immigration Reform and Control Act (hereinafter IRCA), as interpreted by the United States Supreme Court in Hoffman Plastic Compounds v. National Labor Relations Bd., 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 [2002], preempts the Board's policy of disregarding immigration status in determining eligibility for workers' compensation benefits (see generally Matter of Testa v. Sorrento Rest., 10 A.D.2d 133, 197 N.Y.S.2d 560 [1960], lv. denied 8 N.Y.2d 705, 201 N.Y.S.2d 1025, 167 N.E.2d 650 [1960] ).   The carrier concedes that the issue of IRCA's applicability here was not raised before the WCLJ, but nevertheless maintains that the Board erred in declining to entertain the issue because it presents a question of pure statutory interpretation (see Richardson v. Fiedler Roofing, 67 N.Y.2d 246, 251, 502 N.Y.S.2d 125, 493 N.E.2d 228 [1986] ).   As the Board counters, however, the carrier's argument is fact-dependent and turns on its unproven assertion that claimant actually presented his false documents to the employer in violation of IRCA (see generally Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 360, 812 N.Y.S.2d 416, 845 N.E.2d 1246 [2006] ).   In any event, it is well settled that a carrier may “waive issues, including its defenses, expressly or by reason of its conduct” (Matter of Collier v. Brightwater Beer & Soda Distrib., 147 A.D.2d 868, 870, 538 N.Y.S.2d 90 [1989], affd. on mem. below 75 N.Y.2d 949, 555 N.Y.S.2d 690, 554 N.E.2d 1278 [1990] ), and the Board is “not obligated to consider” an issue that was not raised and developed at the hearing before the WCLJ (Matter of Forte v. City & Suburban, 292 A.D.2d 738, 739, 739 N.Y.S.2d 761 [2002];  see 12 NYCRR 300.13[e][1][iii];  Matter of Brown v. Orange County Home & Infirmary, 283 A.D.2d 797, 797, 724 N.Y.S.2d 223 [2001];  see also Matter of Fina v. New York State Olympic Regional Dev. Auth., 7 A.D.3d 939, 940, 777 N.Y.S.2d 530 [2004] ).   Under these circumstances, we cannot say that the Board abused its discretion in refusing to consider the issue.

ORDERED that the decision is affirmed, without costs.

MERCURE, J.

CARDONA, P.J., PETERS, SPAIN and CARPINELLO, JJ., concur.