                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 19, 2017                   522352
________________________________

In the Matter of the Claim of
   DERRICK ANDREWS,
                    Respondent,
      v

COMBINED LIFE INSURANCE                     MEMORANDUM AND ORDER
   COMPANY et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   December 13, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

                             __________


      Hamberger & Weiss, Buffalo (Susan R. Duffy of counsel), for
appellants.

      Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers' Compensation Board,
respondent.

                             __________


McCarthy, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed April 9, 2015, which, among other things, denied a request
by the employer and its workers' compensation carrier to reopen
claimant's workers' compensation claim.

      Claimant suffered a work-related injury to his neck in 2005
and he was awarded workers' compensation benefits. In 2007, a
Workers' Compensation Law Judge determined that claimant suffered
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from a permanent partial disability and payment was directed to
claimant at $400 per week with no further action planned. In
2014, the employer's workers' compensation carrier began sending
letters to claimant and his counsel, seeking documentation of
claimant's search for work. The carrier received no response to
the letters. In 2015, a rehabilitation counselor retained by the
carrier wrote a letter to claimant and claimant's counsel,
informing claimant that his file had been assigned to the
counselor for case management services. Claimant's counsel
declined the offer.

      The employer and the carrier thereafter applied to reopen
the case, arguing that claimant was no longer attached to the
labor market. The Workers' Compensation Board denied the
request, finding that the carrier had not raised a question of
fact as to whether there was a cause for claimant's reduction in
wage-earning capacity other than his disability. The Board also
assessed a $500 penalty against the carrier for filing its
application to reopen without reasonable grounds. The employer
and the carrier now appeal.

      "The determination whether to reopen a workers'
compensation claim rests within the sound discretion of the Board
and judicial review is limited to whether there was an abuse of
that discretion" (Matter of Danin v Stop & Shop, 115 AD3d 1077,
1078 [2014] [citations omitted]; see Matter of Visic v O'Nero &
Sons Constr. Co., 115 AD3d 1082, 1082 [2014]). Where, as here,
workers' compensation benefits have been awarded based upon a
finding of a permanent partial disability, "payments of
compensation shall not be suspended or modified until an
application is made, accompanied by supporting evidence, to
reconsider the degree of impairment or wage-earning capacity"
(Matter of Danin v Stop & Shop, 115 AD3d at 1078; see 12 NYCRR
300.23 [c] [1]). The Board rationally concluded that proof that
claimant failed to respond to the carrier's request for job
search information is insufficient to support a reopening of the
claim (see Matter of Danin v Stop & Shop, 115 AD3d at 1078-1079).
The Board further concluded that, although a rejection of offers
of employment, job search assistance or rehabilitative vocational
services could be sufficient to reopen the claim, the letter
written by the rehabilitation counselor did not constitute such
                              -3-                522352

an offer. Rather, the Board relied on language in a professional
disclosure form that accompanied the letter, informing claimant
that, following a vocational rehabilitation assessment of
claimant, a vocational plan "may" be developed that "may include"
counseling, job training and assistance returning to work. In
light of the lack of any specific offers of employment, job
training or assistance in returning to work in the rehabilitation
counselor's correspondence, the Board did not abuse its
discretion by concluding that claimant's rejection of the
counselor's services did not warrant a reopening of the claim
(see id.).

      As to the penalty imposed, the Board may impose a penalty
against a party who institutes or continues a proceeding in
respect of a claim without reasonable ground (see Workers'
Compensation Law § 114-a [3] [i]), and the Board's imposition of
a penalty under this statute will not be disturbed if supported
by substantial evidence (see Matter of Banton v New York City
Dept. of Corr., 112 AD3d 1195, 1196 [2013]). The Board imposed
the penalty based upon its finding that the counselor's letter
did not constitute an offer of employment or vocational services
and, therefore, the carrier had "filed a request to reopen
without the proper supporting documentation." While the Board's
determination – that the rejection of the counselor's services by
claimant did not warrant a reopening of the claim – was not an
abuse of discretion, we cannot say that substantial evidence
supports the Board's conclusion that, by relying on proof that
the Board ultimately rejected, the carrier initiated the request
to reopen the claim without reasonable grounds (see Matter of
Logan v Westchester Med. Ctr., 117 AD3d 1311, 1312 [2014]). The
employer and carrier's remaining claims have been considered and
found to be without merit.

     Egan Jr., Lynch, Clark and Aarons, JJ., concur.
                              -4-                  522352

      ORDERED that the decision is modified, without costs, by
reversing so much thereof as assessed a penalty of $500 against
the employer's workers' compensation carrier pursuant to Workers'
Compensation Law § 114-a (3) (i), and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
