                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 19, 2017                   522586
________________________________

In the Matter of RICHARD
   MAFFEI,
                    Respondent,
      v

RUSSIN LUMBER CORP. et al.,                 MEMORANDUM AND ORDER
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   December 13, 2016

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

                             __________


      William O'Brien, State Insurance Fund, Endicott (Charles L.
Browning of counsel), for appellants.

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

                             __________


Egan Jr., J.

      Appeal from a decision of the Workers' Compensation Board,
filed May 28, 2015, which, among other things, precluded the
employer and its workers' compensation carrier from offering
video surveillance into evidence.

   Claimant, a manager at a lumbar company, filed a workers'
compensation claim in 2010 that was established for occupational
disease of asthma and consequential atrial fibrillation. In June
2013, the parties were notified that the claim was ordered for
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expedited hearings pursuant to Workers' Compensation Law § 25 (3)
(d) and hearings were thereafter held on the issue of permanency
at which claimant's treating family physician, pulmonary
specialist and cardiovascular physician testified. By hearing
notice of September 4, 2013, the parties were advised that
claimant was scheduled to testify at a September 25, 2013 hearing
"to resolve the outstanding issue of permanency" and that
"[t]here shall be no adjournment, or continuance of this
expedited hearing unless the [Workers' Compensation Law Judge
(hereinafter WCLJ)] approves based upon an emergency." At the
hearing, the employer and its workers' compensation carrier
(hereinafter collectively referred to as the carrier) provided
notice that they had video surveillance of claimant, who
thereafter testified to his daily activities and medical
limitations. Following claimant's testimony, the carrier
requested a continuance to produce the video surveillance, which
it represented depicted claimant in various activities that had
been the subject of his cross-examination. The WCLJ denied the
request for an adjournment, finding that it would not be
dispositive because the medical evidence established that
claimant was totally disabled. The WCLJ thereafter issued a
decision classifying claimant with a permanent total disability,
awarded compensation and formally denied the carrier's request to
introduce the video surveillance into evidence. Upon the
carrier's appeal, the Workers' Compensation Board, with one judge
dissenting, modified, ruling, among other things, that the video
surveillance evidence should have been admitted into the record
and rescinded the classification. On mandatory full Board
review, the full Board upheld the decision of the WCLJ, finding
that no emergency existed to justify a continuance to allow the
carrier to produce the video surveillance, which the carrier
should have brought to the scheduled expedited hearing. The
carrier now appeals.

      We affirm. Pursuant to Workers' Compensation Law § 25 (3)
(d), the Board ordered that claimant's hearing be transferred to
the expedited calendar, and the parties were notified of this
well in advance of the scheduled September 25, 2013 hearing at
which the issue of permanency was to be resolved. With regard to
expedited hearings, the rules of the Board provide that
"[a]djournments . . . shall only be granted in accordance with
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[12 NYCRR 300.38]" (12 NYCRR 300.34 [f] [1]), which specifies
that "[a]djournments for . . . a hearing in a controverted claim
shall only be granted in an emergency" (12 NYCRR 300.38 [j] [1]).
An "emergency" is defined as "a serious event that occurs
preventing the timely completion of some action ordered or
directed," and includes "death in the family, serious illness,
significant prior professional or business commitment, and
inclement weather that prevents travel. It does not include any
event that can be prevented or mitigated by the timely taking of
reasonable action" (12 NYCRR 300.38 [j] [5] [emphasis added]).

      Here, the hearing notice clearly advised the parties that
an adjournment would not be granted except in the case of an
emergency. As the full Board concluded and the record reflects,
the carrier's request for an adjournment to produce and share the
video following claimant's testimony was not premised upon any
claimed emergency but, rather, was a consequence of the carrier's
choice not to bring the video to the hearing based upon the
belief that they "weren't going to be watching [it] today."
While the carrier provided claimant with the required notice of
the existence of the surveillance video prior to his testimony
(see Matter of Schuss v Delta Airlines, Inc., 120 AD3d 850, 851 n
[2014]) and was entitled to withhold production of the
surveillance video until after he testified (see Matter of
Reimers v American Axle Mfg., 2 AD3d 1246, 1247 [2003]), it
proffered no valid or compelling excuse for failing to bring the
video to the hearing, and its failure to do so did not warrant an
exception to the no-adjournment rule for expedited hearings.
Further, the request for an adjournment was not supported by an
affidavit, as required (see 12 NYCRR 300.38 [j] [2]). Even in
cases involving hearings that are not expedited, "[w]here a
party, especially a carrier, is at fault or without excuse for
failing to present evidence on time, it is not an abuse of
discretion to deny an adjournment" (Matter of Metzger v Champion
Intl. Corp., 301 AD2d 800, 802 [2003] [internal quotation marks
and citations omitted]). We find no abuse of discretion here.

      Given the advance notice that the purpose of the expedited
hearing was to resolve the issue of permanency "at one hearing"
if possible, and that adjournments would not be granted except in
the case of an emergency, we reject the carrier's contention that
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it was deprived of due process by the refusal to admit the video
surveillance into the record following an adjournment. That is,
the carrier was afforded an "opportunity to be heard at a
meaningful time and in a meaningful manner" (Mathews v Eldridge,
424 US 319, 333 [1976] [internal quotation marks and citation
omitted]; accord Matter of Kigin v State of N.Y. Workers'
Compensation Bd., 24 NY3d 459, 469 [2014]). The issue of the
propriety of the transfer of this claim to the expedited calendar
was not raised on the carrier's appeal to the Board and, thus, it
is not preserved for our review (see Matter of Prescott v Town of
Lake Luzerne, 79 AD3d 1216, 1218 n 2 [2010]). To the extent that
the carrier argues that refusing to permit an adjournment to
allow the introduction of the video prejudiced its ability to
demonstrate that claimant made a knowing misrepresentation
regarding his condition, the record reflects that the carrier
expressly stated at the hearing that it was not raising Workers'
Compensation Law § 114-a, which it reiterated on its
administrative appeal, thereby waiving this issue.

     McCarthy, J.P., Lynch, Clark and Aarons, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
