                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 25, 2016                   519845
________________________________

In the Matter of the Claim of
   DWAYNE McQUEER,
                    Claimant,
      v                                     MEMORANDUM AND ORDER

ADIRONDACK TANK SERVICES, INC.,
   et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   August 18, 2016

Before:   Garry, J.P., Egan Jr., Devine, Mulvey and Aarons, JJ.

                             __________


      Wolff, Goodrich & Goldman LLP, Syracuse (Robert E. Geyer
Jr. of counsel), for appellants.

                             __________


Garry, J.P.

      Appeals (1) from a decision of the Workers' Compensation
Board, filed January 2, 2014, which, among other things, ruled
that the workers' compensation carrier's offset against the
proceeds of claimant's third-party settlement had expired, and
(2) from a decision of said Board, filed July 3, 2014, which
denied a request by the employer and the carrier for
reconsideration and/or full Board review.
                              -2-                519845

      In June 2000, claimant suffered work-related injuries and
was subsequently awarded workers' compensation benefits.
Thereafter, he settled a third-party action with the consent of
the workers' compensation carrier. Issues then arose as to the
extent and applicability of the carrier's offset pursuant to
Workers' Compensation Law § 29, which were resolved in 2004 when
claimant entered into a stipulation with the employer and the
carrier (hereinafter collectively referred to as the carrier).
The stipulation provided that the carrier would be entitled to a
credit against future indemnity payments, but that causally
related medical expenses would not be subject to the credit and
would continue to be paid by the carrier. For the purpose of
computing the length of the carrier's holiday from indemnity
payments resulting from the offset, the parties agreed upon a
weekly rate and stipulated that the carrier's holiday from
payments would encompass 198.72 weeks. A Workers' Compensation
Law Judge (hereinafter WCLJ) thereafter approved the stipulation,
and the carrier ceased making indemnity payments.

      Claimant did not seek further medical attention for his
compensable injury until July 3, 2012, at which point he filed a
medical report indicating that he was suffering from a causally-
related total temporary disability. The carrier filed a request
for further action seeking a hearing to address the applicability
of Workers' Compensation Law § 25-a, and claimant likewise filed
a request for further action seeking the resumption of indemnity
payments and asserting that the carrier's holiday from indemnity
payments had expired in January 2009. The carrier did not appear
at the January 2013 hearing, at which claimant requested that his
awards be resumed at a total rate as of July 3, 2012 based upon
the expiration of the carrier's holiday and the uncontroverted
medical evidence indicating that he was totally disabled. The
WCLJ declined to address the applicability of Workers'
Compensation Law § 25-a, as the carrier was absent. As to
claimant's assertions, the WCLJ determined that the carrier's
holiday had expired in January 2009 and that benefit payments
should resume effective July 3, 2012. Upon review, the Workers'
                              -3-                519845

Compensation Board affirmed. The carrier's subsequent request
for reconsideration and/or full Board review was denied. The
carrier appeals from both decisions.

      We affirm. The Board's decisions on questions of fact and
the inferences to be drawn therefrom "[are] conclusive upon the
courts if supported by substantial evidence" (Matter of Axel v
Duffy-Mott Co., 47 NY2d 1, 6 [1979]; see Matter of Ribar v County
of Suffolk, 125 AD2d 801, 802 [1986]). Here, the Board's factual
finding that the carrier's holiday had expired was premised upon
the parties' stipulation and their actions. The plain language
of the stipulation supports the Board's decision, setting forth
the amount of the carrier's credit against indemnity payments,
the rate to be applied for purposes of calculating the length of
the holiday and the resulting agreed-upon duration of the
holiday. Other evidence in the record reveals that the
stipulation was duly approved, awards were made accordingly, and
the carrier filed documentation indicating that the case was "ON
HOLIDAY" as of April 7, 2005. Based upon these documents, the
Board found that the carrier was entitled to a holiday extending
until approximately January 28, 2009.1 The Board's finding that
the holiday expired pursuant to the parties' stipulation in
January 2009 is thus supported by substantial evidence in the
record (see Matter of Stenson v New York State Dept. of Transp.,
96 AD3d 1125, 1126-1127 [2012], lv denied 19 NY3d 815 [2012]).

      Contrary to the carrier's claim, the Board's decision was
not arbitrary and improper on the ground that it "depart[ed] from
prior Board precedent and fail[ed] to explain the reasons for its
departure" (Matter of Zaremski v New Visions, 136 AD3d 1176, 1177
[2016] [internal quotation marks and citations omitted]; see
Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516,
520 [1985]). The carrier now contends that, pursuant to its


    1
        The Board further noted that the WCLJ had declined to
make any findings for the period between the end of the carrier's
holiday and the next medical examination on July 3, 2012.
                              -4-                519845

prior precedent, the Board should not have found that the holiday
was exhausted because claimant did not meet his burden to produce
medical evidence of a continuing causally related disability
during the period of time subsequent to the carrier's suspension
of indemnity payments (see Matter of Rothe v United Med. Assoc.,
2 AD3d 1264, 1265 [2003]; Employer: Raymour's Furniture Co.,
Inc., 2006 WL 3336919, *2-3, 2006 NY Wrk Comp LEXIS 09603, *4-6
[WCB 6881 3322, Oct. 26, 2006]). Initially, we note that,
although the notice of the January 2013 hearing specified that
the duration of the carrier's holiday was to be decided at that
time, the carrier failed to appear and has never provided an
explanation or excuse for its absence. Accordingly, the WCLJ had
no opportunity to address the carrier's argument, which was
raised for the first time in its subsequent application for Board
review (compare Matter of Hulbert v Cortland County Sheriff's
Dept., 69 AD3d 987, 989 [2010], lv denied 14 NY3d 710 [2010]).

      In any event, even if the contention had been raised before
the WCLJ, a different outcome would not have been required. The
parties' stipulation makes no reference to any ongoing
responsibility on claimant's part to demonstrate a continuing
causally related disability during the carrier's holiday; to the
contrary, it plainly reveals the parties' agreement that
claimant's disability continued throughout the holiday. No such
stipulation was involved in the prior Board decision that the
carrier incorrectly contends should have governed here (see
Employer: Raymour's Furniture Co., Inc., 2006 WL 3336919 at *2-3,
2006 NY Wrk Comp LEXIS 09603 at *4-6). As that decision was not
premised on similar facts, the Board was not required to explain
why it reached a different result in this case, and the
challenged decision – which fully sets forth the rationale on
which it is based – is not arbitrary (compare Matter of Charles
A. Field Delivery Serv. [Roberts], 66 NY2d at 518; Matter of
Hernandez v Taco Bell, Inc., 52 AD3d 891, 893 [2008]).

      As for the carrier's remaining contention, we find no abuse
of the Board's "sole discretion" in its denial of the carrier's
                              -5-                  519845

request for reconsideration and/or full Board review (Workers'
Compensation Law § 23).

     Egan Jr., Devine, Mulvey and Aarons, JJ., concur.




     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
