                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 24, 2014                     517446
________________________________

In the Matter of the Claim of
   CINDY BAILEY,
                    Claimant,
      v
                                            MEMORANDUM AND ORDER
ACHIEVE REHAB AND NURSING
   et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   May 30, 2014

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

                             __________


      Stockton, Barker & Mead, LLP, Troy (Matthew R. Mead 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 November 8, 2012, which, among other things, assessed costs
against the employer's workers' compensation carrier pursuant to
Workers' Compensation Law § 114-a (3) (i).

      Claimant obtained workers' compensation benefits as a
result of injuries sustained in the course of her duties as a
nursing assistant. The parties stipulated that claimant had
                              -2-                517446

sustained a permanent partial disability and had not voluntarily
removed herself from the work force, and a decision to that
effect was issued in 2007. After an independent medical
examination found claimant to be capable of working with
restrictions, the employer's workers' compensation carrier
requested that counsel for claimant provide an update on
claimant's search for employment. Counsel for claimant failed to
respond to this inquiry, prompting the carrier to request that
the claim be reopened in order to determine whether claimant had
voluntarily removed herself from the work force. The Workers'
Compensation Board denied the carrier's request in September 2011
and, noting its departure from prior precedent, held that "a
claimant's failure to respond to a work search inquiry without
something more may not constitute sufficient evidence of a
triable issue of fact upon which a reopening may be based." In
so doing, the Board also delineated the types of supporting
evidence that would be necessary in order to warrant reopening a
claim. Thereafter, in 2012, the carrier again sought to reopen
the claim based upon counsel's failure to provide an updated
account of claimant's search for employment. The Board denied
the carrier's second request in November 2012 and, additionally,
assessed costs of $1,000 against the carrier pursuant to Workers'
Compensation Law § 114-a (3) (i). The employer and the carrier
now appeal, contending that the assessment of costs was
unwarranted.

      We affirm. Workers' Compensation Law § 114-a (3) (i)
permits the Board to assess costs against a party who has
"instituted or continued [a proceeding before the Board] without
reasonable ground." Here, the carrier previously had been warned
that counsel's failure to respond to its request for an updated
work search history – standing alone – would be insufficient to
reopen the underlying claim and, more to the point, was apprised
"in very clear terms of the requirements for [the] supporting
evidence necessary to reopen this claim on the question of
whether . . . claimant ha[d] voluntarily removed herself from or
[wa]s no longer attached to the labor market." Despite that
express directive, the carrier nonetheless made a second request
to reopen premised solely upon counsel's failure to respond to
the carrier's request for additional information. Under these
circumstances, we discern no abuse of discretion in the Board's
                              -3-                  517446

decision to assess costs against the carrier (cf. Matter of Wolfe
v New York City Dept. of Corr., 112 AD3d 1197, 1198 [2013];
Matter of Banton v New York City Dept. of Corr., 112 AD3d 1195,
1196-1197 [2013]). The carrier's remaining arguments on this
point, to the extent not specifically addressed, have been
examined and found to be lacking in merit.

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



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
