                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     519152
________________________________

In the Matter of THOMAS H.
   GREENWOOD,
                    Claimant,
      v                                     MEMORANDUM AND ORDER

INLAND FISHER GUIDE et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   April 20, 2015

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

                             __________


      Falge & McLean, PC, North Syracuse (Dean LaClair of
counsel), for appellants.

      Eric T. Schneiderman, Attorney General, New York City
(Donya Fernandez of counsel), for respondent.

                             __________


Lahtinen, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed August 27, 2013, which modified a decision of a Workers'
Compensation Law Judge by increasing the award rate payable to
claimant as a result of his permanent partial disability.

      In 1994, accident, notice and causal relationship were
established for claimant's chest strain injury and an award of
compensation was set at a weekly rate of $400 from March 3, 1993
until the date of his retirement on June 6, 1993. In 1996,
claimant's attorney requested a hearing to resolve additional
                              -2-                519152

issues, including the extent of claimant's disability and
possible reduced earnings. Ultimately, by decision dated August
9, 2000, the Workers' Compensation Board affirmed the April 22,
1999 decision of the Workers' Compensation Law Judge (hereinafter
WCLJ) finding that claimant, who was permanently partially
disabled as a result of the work-related injury, had not
voluntarily withdrawn from the labor market. The Board's
decision also affirmed the WCLJ's subsequent May 18, 1999
decision that continued claimant's compensation awards at various
rates and period of time from June 1, 1993 through April 21,
1999, with continued payments thereafter of $400 less
reimbursement to the employer of $175.

      In 2010, apparently in connection with an offer to settle
claimant's case in accordance with Workers' Compensation Law
§ 32, an issue arose as to whether reimbursement payments of $175
were in fact made to the employer in connection with payments
made to claimant. The employer's workers' compensation carrier
was directed to produce a copy of the pension plan, as well as
all reimbursement payments made to the employer from 1999 to
date. Although documentation establishing the $225 weekly
payments to claimant from April 21, 1999 to the present was
submitted, no records could be produced of any payments made to
the employer to substantiate the $175 reimbursement. In
addition, because the 1999 hearing transcript had been destroyed,
the basis for the May 18, 1999 WCLJ decision directing
reimbursement to the employer could not be ascertained. As a
result, the WCLJ, among other things, made certain assumptions in
ultimately setting a tentative reduced earnings rate of $225 per
week to claimant. The Board modified that decision, finding that
the employer was no longer entitled to reimbursement given the
employer's failure to submit evidence "that its disability
benefits plan continued to pay claimant benefits subsequent to
April 21, 1999" and continued claimant's weekly award rate at
$400 as of April 21, 1999. The employer and its carrier appeal.

      Upon our review of the record, we find that the Board's
decision is not supported by substantial evidence. Contrary to
the Board's findings, there is no indication in the record that
suggests any disability payments to claimant were paid by the
employer's "disability benefits plan" either before or after his
                              -3-                519152

retirement such that there was a need to reimburse the employer.
Rather, the record establishes that claimant received workers'
compensation benefits prior to his retirement and, following his
retirement, claimant sought compensation based upon his limited
workplace participation as a machinist due to his injury, thereby
implicating his entitlement to reduced earnings. Significantly,
following the WCLJ's finding that claimant did not voluntarily
leave the work force, the notice of hearing stated, and other
documents in the record confirm, that the purpose of the next
hearing was "questions of reduced earnings" and directed claimant
to "produce records of earnings since retirement." Nevertheless,
the Board's decision at issue herein does not address any reduced
earnings award, but bases the award on the employer's entitlement
to reimbursement in connection with disability benefit plan
payments. Other than the WCLJ's May 18, 1999 decision, it is
impossible to discern any evidence in the record that any
disability payments were made pursuant to a plan by the employer
that would lead to a situation involving the need for
reimbursement to the employer. As the Board's finding that
claimant was entitled to a $400 award is predicated upon the
employer's failure to produce evidence regarding payments
pursuant to its "disability benefit plan," we find that the
decision is not supported by substantial evidence in the record
(see generally Matter of Schroeder v U.S. Foodservice, 107 AD3d
1135, 1137 [2013]; Matter of Stranahan v Camp Adirondack, 78 AD3d
1369, 1371 [2010]). Accordingly, and despite the fact that the
1999 hearing transcript was destroyed, the matter must be
remitted for further development of the record as to whether
claimant ever received or was even entitled to disability
payments subsequent to April 21, 1999 and to address the absence
of a reduced earnings award in the decision at issue herein.

      We need not address claimant's remaining argument in light
of the foregoing.

     Rose, Devine and Clark, JJ., concur.
                              -4-                  519152

      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
