Select Full Board and Panel Decisions

Case # G0443898
Matter of NYC Dept of Corrections
2013 NY Wrk Comp G0443898

By: Board Members Munnelly, Williams and Higgins

Ruling:

The self-insured employer (SIE) requests review of the Workers' Compensation Law Judge (WCLJ) decision filed February 4, 2013. The claimant filed a rebuttal.

ISSUE

The issue presented for administrative review is whether a penalty pursuant to WCL § 25-2(c) was properly assessed against the SIE.

FACTS

This claim had previously been established for work related injuries to the claimant's right hand, left hand, right third finger, right elbow and right knee, based upon an accident which occurred on September 16, 2011. The claimant underwent right knee surgery on June 6, 2012, as shown in a medical report filed by Dr. Graziosa on July 6, 2012. No C-8.1 was filed objecting to the surgery.

On July 24, 2012, the claimant's counsel requested that a decision be issued making awards to the claimant for the period of June 6, 2012, to June 28, 2012, as the claimant was totally disabled during this period due to knee surgery. The SIE was sent a copy of this request, as well as a copy of the underlying medical report. Both documents were visible in e-case by July 26, 2012.

On October 4, 2012, a Notice of Proposed Decision was filed which made awards to the claimant for the period of June 6, 2012, to June 28, 2012, temporary total disability, credit employer subject to verification and the submission of a reimbursement request. The SIE was directed to file a form C-240 showing the claimant's wages for the year prior to the injury, and to file a C-11 form within 30 days.

The SIE objected to the Proposed Decision as "there was no lost time from 6/6/12-6/27/12," and the proposed decision was cancelled. The claimant then requested a hearing on the basis that the SIE had unreasonably objected to the proposed decision when the medical evidence clearly demonstrated that the claimant had knee surgery (and lost time) beginning on June 6, 2012.

On December 31, 2012, the SIE filed a C-11 form (Employer's Report of Injured Employee's Change in Employment Status), dated October 7, 2012, alleging that the claimant lost time from work for the period of September 17, 2011, to September 18, 2011 and for the period of September 21, 2011, to September 21, 2011 only. No mention was made of any lost time in June 2012.

At the hearing held on January 30, 2013, the SIE's counsel stated that its grounds for the objection was the C-11 filed by the SIE, which described that the claimant had no lost time after September 22, 2011. The SIE's position was that if the claimant had surgery, then counsel wanted the claimant to testify as to whether the surgery was authorized. The SIE argued that even if the claimant had surgery, there was no indication that the surgery was ever authorized by the SIE. However, the SIE did not file any C-8.1 forms objecting to the surgery.

The WCLJ found that the SIE objected to the proposed decision without basis and assessed a penalty pursuant to WCL § 114-a(3)(i) in the amount of $500.00 against the SIE, and a penalty in the amount of $300.00 against the SIE pursuant to WCL § 25(2)(c).

LEGAL ANALYSIS

The SIE asserts that the decision is in error because it reasonably relied upon the C-11 the employer prepared in the ordinary course of business and that, as the claimant had unlimited sick leave, it was incumbent upon him to report his lost time as being work related. Thus the penalty assessed pursuant to WCL § 25(2)(c) was without basis.

In rebuttal, the claimant's counsel asserts that the decision should be affirmed because when the SIE objected to the proposed decision, the claimant's counsel provided the SIE with the RFA-1 which included a copy of the operative report.

WCL § 25-2(c) provides:

Here, the evidence shows that the SIE objected to the award of compensation made in the proposed decision without just cause, as found by the WCLJ where the uncontroverted evidence shows the claimant had knee surgery June 6, 2012. Additionally, despite the evidence filed in this matter and sent to the SIE, the SIE continued the proceedings caused by its failure to withdraw the objection even after it was again sent information regarding the claimant's lost time. The SIE neither had a valid basis for the objection, nor a valid basis for going forth with the hearing to address its invalid objection. The Board Panel notes that a brief investigation on the part of the SIE prior to the time it filed its objection would have revealed that the C-11 filed in this matter was in error. Moreover, the SIE had sufficient time to conduct an investigation even after the claimant filed the RFA-1 (pointing out that the SIE was in error in objecting to the proposed decision), which would then have resulted in the SIE withdrawing its objections prior to a hearing being held. Because even a cursory investigation was not made by the SIE, the objections were improperly interposed and improperly continued at an unnecessary hearing. For these reasons, the penalty assessed by the WCLJ was proper.

Therefore the Board Panel finds, upon a review of the record and based upon a preponderance of the evidence, that the penalty assessed pursuant to WCL § 25-2(c) was proper and supported by the record.

WCL § 23 states that, "if the employer or carrier files an application for administrative review, and the Board finds that the "application was made for the purpose of delay or upon frivolous grounds, the board shall impose a penalty in the amount of five hundred dollars upon the employer or insurance carrier, which penalty shall be added to the compensation and paid to the claimant. The penalties provided herein shall be collected in like manner as compensation."

As noted above, the record shows that at the time the C-11 was prepared and filed, the SIE was in possession of evidence both sent to the SIE with the claimant's RFA-1, and in the Board file, which clearly showed the claimant had knee surgery on June 6, 2012. Rather than withdrawing its objection, the SIE permitted the objection to stand and the hearing to proceed. There is no evidence that the SIE made any attempt to ascertain the validity and accuracy of the C-11 in the face of the clear medical evidence which contradicted the C-11, and which contradicted the SIE's stated reason for the objection to the proposed decision.

Under the circumstances, the contention by the SIE that it was reasonable for it to rely upon the C-11 has no basis for support in the record. Therefore, the Board Panel finds, upon review of the record and based upon a preponderance of the credible evidence, that the present application for review was made by the SIE for the purpose of delay or upon frivolous grounds and that pursuant to WCL § 23, the SIE should be assessed a penalty in the amount of $500.00, payable to the claimant. The penalty is to be added to the amount of compensation awarded.

Similarly, as the SIE has continued these proceedings by instituting the instant application for review without reasonable grounds, particularly as the SIE admitted that the C-11 it relied upon as a basis for objecting to the period of lost time was in error and was contradicted by the medical evidence. As such, a penalty of $250.00 pursuant to WCL § 114-a(3)(i) is warranted.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed February 4, 2013 is AFFIRMED. The Board Panel further finds that the SIE is assessed a penalty pursuant to WCL § 23 in the amount of $500.00, and a penalty pursuant to WCL § 114-a(3)(i) in the amount of $250.00. No further action is planned at this time.

All concur.