Select Full Board and Panel Decisions

Case # G2307626
Matter of Ally Roofing
2022 NY Wrk Comp G2307626

By: Board Members Delgado, Hull and Stasko

Ruling:

The Board, on its own motion, and in the interests of justice pursuant to Workers' Compensation Law (WCL) § 123, has undertaken a review of an issue relating to the instant case, namely whether the conduct of the claimant's attorney warrants the imposition of assessments under WCL § 114-a(3)(ii).

ISSUE

The issue presented for administrative review is whether a WCL § 114-a(3)(ii) assessment was properly assessed against the claimant's attorney.

FACTS

The Board has continuing jurisdiction over each case that properly comes before it pursuant to WCL § 123. This "broad jurisdiction" grants the Board "the power, on its own motion or on application, to modify or rescind a [WCLJ's] decision .... and .... its continuing jurisdiction embraces the power of modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just" (Matter of Donovan v BOCES Rockland County, 63 AD3d 1310 [2009] [internal quotation marks and citations omitted]).

It "lies within the Board's discretion to entertain arguments not raised before the Workers' Compensation Law Judge (Matter of Fina v New York State Olympic Regional Dev. Auth., 7 AD3d 939 [2004]" (Matter of Disha v Midas Serv. Experts, 27 AD3d 921 [2006])."

Workers' Compensation Law (WCL) § 114-a(3) provides that:

Pursuant to the Board's continuing jurisdiction under WCL § 123, on the Board's own motion, and in the interests of justice, the Board will address Trauring's failure to appear at the June 14, 2022 hearing, and the allegations concerning his failure to appear that were raised in his June 22, 2022 application for Board review.

It is undisputed that a hearing was schedule in this case for June 14, 2022 at 9:30 AM and the claimant and Trauring were both sent a notice of hearing. Trauring's statements on the record at the July 12, 2022 hearing indicate that he was aware that a hearing was scheduled on that date and at that time for this case.

However, Trauring contends that he appeared at the hearing on June 14, 2022, as he was signed into the Board's Virtual Hearing Center when the case was called at 9:50 AM. The presiding WCLJ indicated at the June 14, 2022 and July 12, 2022 hearings that neither the claimant nor Trauring appeared. The Board's Cloverhound software confirms that neither the claimant nor Trauring signed into the June 14, 2022 hearing. As such, he could at no time have marked himself unavailable for the hearing as he contends.

Trauring was also noticed on three other workers' compensation hearings on June 14, 2022. One at 11:00 AM in WCB Case Number G2687236, which he appeared at before a different WCLJ, and two at 3:30 PM in WCB Case Numbers G2391320 and G3044029, before the WCLJ who presided in the instant claim. He had no apparent difficulties signing into these hearings and appearing on behalf of these claimants.

The Board Panel, therefore, concurs with the determination of the presiding WCLJ that Trauring improperly failed to appear at the June 14, 2022 hearing, that there was no effort on his part to inform the Board that he would not be able to appear, or that claimant was electing not to testify. While the issue of WCL § 114-a(1) is presently moot based on SIF's withdrawal of the issue at the July 12, 2022 hearing, it was not at the time the June 14, 2022 hearing was held, and Trauring was obligated to appear on behalf of the claimant, yet failed to do so. Trauring, by his failure to appear, necessitated the continuance of a proceeding without reasonable grounds and is therefore, subject to a WCL § 114-a(3)(ii) assessment. While the WCLJ's assessment was in the amount of $250, the Board, on its own motion and in the interests of justice, hereby assesses a WCL § 114-a(3)(ii) penalty against Trauring in the amount of $500 for this particular transgression. Such assessment shall be payable to the Board for administrative expenses pursuant to WCL § 151.

Trauring filed an application for Board review on June 22, 2022 raising two issues, namely that he was improperly sanctioned by the Board for failing to appear at the June 14, 2022 hearing and the Board incorrectly precluded the claimant's testimony on the WCL § 114-a issue.

While Trauring withdrew the appeal on both of these issues in correspondence dated July 13, 2022, his filing of an appeal on June 22, 2022 necessitated review by the Board of his objectionable representations.

Trauring's contention that he appeared at the June 14, 2022 hearing at 9:50 AM (or at any other point between 9:30 AM and 10:00 AM) is not supported by the credible findings of the WCLJ who oversaw the hearing, or the Board's own records.

Trauring's absence also was not necessitated by a hearing held in another jurisdiction at 10:00 AM. Had he appeared at 9:50 AM when the case was called, claimant's testimony theoretically could have been started and completed, or a continuance could have been requested based on the hearing being called 20 minutes late.

Also, Trauring was presumably aware that a conflict could have potentially existed between the workers' compensation hearing scheduled in this case for 9:30 AM requiring the testimony of the claimant on SIF's fraud allegation, and a Social Security Administration hearing scheduled to begin thirty minutes later, at 10:00 AM. As stated by the presiding WCLJ, an adjournment should have been requested ahead of time. Trauring, realizing the potential for a conflict, should have secured coverage from another attorney for one of these hearings. Trauring's absence was, therefore, due either to a lack of awareness that he couldn't cover two hearings within a 30-minute window, or his neglect in failing to realize in advance that such a conflict was a real possibility.

Trauring's filing of the an RB-89 on June 22, 2022 necessitated a review by the Board. In this appeal, Trauring essentially doubled down on the misrepresentation concerning his failure to appear at the June 14, 2022 hearing. The Board was required to investigate his baseless contention that he signed in for the hearing, and that his failure to appear was brought about by a hearing in another jurisdiction. That he withdrew the appeal on July 13, 2022 is not a mitigating factor. By filing the June 22, 2022 application for Board review, Trauring instituted an appeal without reasonable grounds, and a $3,000 assessment pursuant to WCL § 114-a(3)(ii) is appropriate. Such assessment shall be payable to the Board for administrative expenses pursuant to WCL § 151.

The Board Panel hereby finds, by its own motion pursuant to its continuing jurisdiction under WCL § 123, that Trauring is assessed a WCL § 114-a(3)(ii) assessment in the amount of $500 based on his failure to appear at the June 14, 2022 hearing held in this case, and is further assessed a WCL § 114-a(3)(ii) assessment in the amount of $3,000 for instituting an appeal without reasonable grounds on the claimant's behalf on June 22, 2022.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed June 17, 2022 is MODIFIED as indicated in the preceding paragraph, and is AFFIRMED in all other respects. No further action is planned at this time.