| Matter of Jones v Gardner Motors |
| 2007 NY Slip Op 09151 [45 AD3d 1125] |
| November 21, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Edward A. Jones, Appellant, vGardner Motors et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Binghamton (Jason M. Carlton of counsel), forGardner Motors and another, respondents.
Lahtinen, J. Appeals from two decisions of the Workers' Compensation Board, filed February10, 2006 and October 20, 2006, which, among other things, modified claimant's prior awardbased on calculated reduced earnings.
Claimant suffered a compensable elbow injury in October 1997. In a decision filed in June1999, a Workers' Compensation Law Judge (hereinafter WCLJ) classified claimant with apermanent moderate partial disability and awarded him, among other things, compensation at theweekly rate of $243.73. Upon appeal by the employer, the Workers' Compensation Board, in adecision filed in June 2000, affirmed the determination and award, and claimant's case wasclosed.
On February 15, 2005, claimant filed a RFA-1 form requesting that his case be reopened inorder to consider his reduced earnings. Finding that claimant had been working at reducedearnings, the WCLJ increased his weekly award retroactive to January 1, 2001, and ordered the[*2]workers' compensation carrier to continue weekly paymentsat a rate of $331.81. The carrier appealed, and the Board modified the decision of the WCLJ byrescinding the increased award for the period prior to claimant's filing of the RFA-1 form onFebruary 15, 2005. A request for reconsideration or full Board review was denied and claimantnow appeals.[FN*]
Claimant contends that two letters and accompanying payroll documentation he submitted tothe Board in September 1999 and May 2003 were applications to reopen within the meaning ofthe Workers' Compensation Law (see Matter of Krajas v Chevy Pontiac Canada Group,188 AD2d 829, 829 [1992]; Matter of Ash v Native Laces & Textiles Co., 85 AD2d 822,822 [1981]; Matter of Italiano v Mobil Oil Corp., 50 AD2d 638, 639 [1975]). The twoletters submitted to the Board by claimant made no mention of reduced earnings and, apart froma reference in the first letter that the records are being submitted "for consideration," request noaction on the part of the Board. Such correspondence " 'should not be given a strainedinterpretation' " (Matter of Hantz vBrightman Agency, 29 AD3d 1098, 1100 [2006], quoting Matter of Jones vHSBC, 304 AD2d 864, 866 [2003]), and, consequently, we find that substantial evidencesupports the Board's determination that claimant applied to reopen his claim on February 15,2005.
Claimant's remaining contentions have been considered and found to be without merit.
Cardona, P.J., Carpinello, Mugglin and Rose, JJ., concur. Ordered that the decisions areaffirmed, without costs.
Footnote *: Although claimant also appealedthe denial of his request for full Board review, claimant has failed to raise any issue with respectto the denial in his brief and, accordingly, we deem that appeal to have been abandoned (see Matter of Stromski v Jefferson AutoBody, 1 AD3d 643, 644 [2003]).