                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 23, 2015                    519309
________________________________

In the Matter of the Claim of
   APRIL L. HILLMAN,
                    Respondent,
      v

KOHL'S NEW YORK D.C. et al.,                MEMORANDUM AND ORDER
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   March 26, 2015

Before:   Peters, P.J., Lahtinen, Rose and Devine, JJ.

                             __________


      Weber, Gallagher, Simpson, Stapleton, Fires & Newby LLP,
New York City (Naveen M. Nadipuram of counsel), for appellants.

      Mark Lewis Schulman, Monticello, for April L. Hillman,
respondent.

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

                             __________


Lahtinen, J.

      Appeal from a decision of the Workers' Compensation Board,
filed October 2, 2013, which ruled, among other things, that
claimant was entitled to workers' compensation benefits at the
temporary total disability rate.
                              -2-                  519309

      Claimant has an established workers' compensation claim for
a neck and shoulder injury that occurred in 2007 and has received
benefits at the temporary total disability rate since 2008. A
Workers' Compensation Law Judge (hereinafter WCLJ) issued a
decision in November 2012 that, among other things, continued
benefits at that rate. The WCLJ then issued a decision in May
2013 that continued benefits at the temporary total disability
rate, but granted the employer, its workers' compensation carrier
and its third-party administrator (hereinafter collectively
referred to as the employer) the right to suspend payments if
claimant failed to produce current medical evidence. The
employer appealed from both the November 2012 and May 2013
decisions, and the Workers' Compensation Board affirmed. The
employer now appeals.

      With regard to the November 2012 WCLJ decision, the
employer sought Board review upon the bases that the medical
evidence did not warrant a finding of temporary total disability
and that claimant had voluntarily withdrawn from the work force.
Because these issues were not raised before the WCLJ, however,
the Board did not abuse its discretion in refusing to consider
them (see 12 NYCRR 300.13 [e] [1] [iii]; Matter of Forte v City &
Suburban, 292 AD2d 738, 739 [2002]). The employer did raise
those issues in the leadup to the May 2013 WCLJ decision, arguing
that they warranted a rescission of the continuing award of
benefits at the temporary total disability rate. The employer
accordingly properly presented for review the question of whether
benefits should be awarded from May 2013 onward, but the Board
found that the appeal from that decision was "moot" because the
arguments were identical to the ones it refused to consider in
the appeal from the November 2012 decision. Under these
circumstances, "the Board failed to engage in its fact-finding
role, thereby depriving [the employer] of the opportunity to have
the Board consider the merits of an issue that was properly
preserved,' [and] its decision must be reversed to allow that
review to occur" (Matter of Tucker v Fort Hudson Nursing Home, 65
AD3d 1442, 1443 [2009], quoting Matter of Spector v New York City
Bd. of Educ., 292 AD2d 741, 742 [2002]).

     Peters, P.J., Rose and Devine, JJ., concur.
                              -3-                  519309

      ORDERED that the decision is reversed, without costs, and
matter remitted to the Workers' Compensation Board for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
