                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 2, 2015                      519786
________________________________

In the Matter of the Claim of
   THOMAS SUNUKJIAN,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

PRICE CHOPPER et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   June 1, 2015

Before:   Lahtinen, J.P., Lynch, Devine and Clark, JJ.

                             __________


      Sullivan Keenan Oliver & Violando, LLP, Albany (Michael J.
Keenan of counsel), for appellant.

      Stockton, Barker & Mead, LLP, Troy (John B. Paniccia of
counsel), for Price Chopper and another, respondents.

                             __________


Devine, J.

      Appeal from a decision of the Workers' Compensation Board,
filed January 13, 2014, which, upon reconsideration, ruled that
the employer was entitled to reimbursement for certain benefits
paid to claimant.

      In 2002, claimant was awarded workers' compensation
benefits for bilateral carpal tunnel syndrome and a consequential
bilateral shoulder injury. Claimant was subsequently awarded a
42.82% schedule loss of use of each arm in 2004. In 2010, by
stipulation of the parties, a Workers' Compensation Law Judge
                              -2-                519786

rescinded the schedule loss of use award and classified claimant
as having a permanent partial disability, with a weekly
compensation rate of $185.04. Thereafter, the employer and its
workers' compensation carrier (hereinafter collectively referred
to as the employer) sought to be credited for the prior schedule
loss of use award payments. The Workers' Compensation Board
initially agreed with claimant that the employer had waived its
right to the credit by failing to address the issue in the
stipulation. The employer appealed, after which the full Board
rescinded the decision of the Board panel and referred the case
back to the panel for further consideration. Upon
reconsideration, the Board ultimately determined that the
employer was entitled to the credit. Claimant now appeals.

      We affirm. An employer is entitled to credit for payments
of a schedule loss of use award, made prior to the claimant being
classified with a permanent disability, "toward the payment of
compensation for periods of actual disability" (Matter of
Keselman v New York City Tr. Auth., 18 AD3d 974, 976 [2005],
appeal dismissed 5 NY3d 880 [2005], lv denied 6 NY3d 708 [2006]).
Here, there is nothing in the stipulation or elsewhere in the
record to indicate that the employer intended to waive the
credit, or that the agreed-upon compensation for claimant's
permanent disability would include the rescinded schedule loss of
use award (cf. Matter of Aska v United Jewish Appeal, 108 AD3d
897, 898 [2013]). Contrary to claimant's contention, the Board's
decision does not depart from prior Board precedent, as the Board
has previously directed that an employer take credit for payments
made pursuant to a prior schedule loss of use award after the
parties stipulated to a permanent partial disability
classification, despite the employer's failure to request such a
credit at the time of the stipulation (see Employer: McIntosh Box
Pallet, 2001 WL 962832, *1-*2, 2001 NY Wrk Comp LEXIS 86649, *1-
*3 [WCB No. 6901 2052, Jan. 16, 2001]). Thus, while "[a]
statutory or regulatory right may generally be waived by a
stipulation or by conduct evincing an intent to forgo that
right," substantial evidence supports the determination of the
Board that neither occurred here (Matter of Hernandez v Taco
Bell, Inc., 52 AD3d 891, 892-893 [2008]).

     Lahtinen, J.P., Lynch and Clark, JJ., concur.
                        -3-                  519786

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
