| Matter of Beers v Jump Start Advanced Academics |
| 2008 NY Slip Op 09499 [57 AD3d 1026] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Gary Beers, Respondent, v Jump StartAdvanced Academics et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Tomkiel & Tomkiel, New York City (Stanley A. Tomkiel, III of counsel), for Gary Beers,respondent. Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), forWorkers' Compensation Board, respondent.
Cardona, P.J. Appeal from a decision of the Workers' Compensation Board, filed May 12, 2006,which, among other things, ruled that claimant sustained a work-related injury.
Claimant filed a claim for a work-related injury in May 2005, which was controverted by hisemployer and its workers' compensation carrier (hereinafter collectively referred to as the carrier). Thecarrier, after having received a notice of hearing at the address it supplied to the Workers'Compensation Board, appeared at the first hearing in August 2005. A subsequent hearing wasscheduled for December 5, 2005. However, while a notice for that hearing was sent to the carrier atthe same address, the carrier failed to appear. The hearing was held in the carrier's absence. Thereafter,relying on the testimony of claimant, claimant's medical reports and an independent medicalexamination, the Workers' Compensation Law Judge (hereinafter [*2]WCLJ) ruled that claimant had established accident, notice andcausation, and awarded benefits. The carrier sought Board review, claiming a violation of due processbecause it had allegedly not received notice of the December 2005 hearing. Noting, among otherthings, that the notice of hearing had not been returned by the post office, the Board found no credibleevidence to establish that the carrier had not received notice and upheld the decision of the WCLJ,prompting this appeal.
Initially, to the extent that, on this appeal, the carrier continues its argument that it was denied dueprocess because of the alleged nonreceipt of notice of the December 2005 hearing, we areunpersuaded. The Board specifically failed to credit the carrier's assertions in that regard and "it is notthis Court's function to second-guess the Board's resolution of factual and credibility issues" (Matter of Little v Gaines Elec. Contr., Inc.,36 AD3d 1056, 1057 [2007] [citation and internal quotation marks omitted]).
We also find lacking in merit the carrier's generalized due process claims, i.e., that the WCLJ erredin not attempting to contact the carrier's attorney or adjourning the matter upon the carrier'snonappearance at the December 2005 hearing and, further, that it was an abuse of discretion for theBoard not to rescind the decision and order a new hearing on that basis. Notably, the regulations do notspecifically provide for adjournments in situations where the carrier has failed to appear. Moreover,while 12 NYCRR 300.10 (b) permits a WCLJ to grant an adjournment where a carrier fails to presentscheduled evidence, this remedy is discretionary. Thus, while it certainly would have been permissiblefor the WCLJ to accord the carrier latitude with respect to the default in appearance, since the carrierhas presented no excuse for the failure to appear at the hearing aside from the claimed nonreceipt ofnotice, we cannot conclude that an abuse of discretion occurred herein (see e.g. Matter of Finchum v Colaiacomo, 1AD3d 672, 673 [2003]) and, therefore, we find no basis to reverse the Board's decision (see generally Matter of Donlin v West BabylonFire Dist., 1 AD3d 813, 814 [2003]; Matter of Doerle v JC Penney Co., 262 AD2d882, 882-883 [1999]; Matter of Di Leonardo v Heathcote Fish Market, 97 AD2d 576, 577[1983]; cf. Matter of Olistin vWellington, 3 AD3d 618, 619 [2004]).
Finally, although the carrier also challenges specific findings in the WCLJ's decision in favor ofclaimant, we find the arguments unpreserved inasmuch as they were not raised in the carrier'sapplication for Board review (see Matter ofMartin v New York Tel., 46 AD3d 1136, 1137 n [2007]; Matter of Toner v Michael Hanley Moving &Stor., 40 AD3d 1199, 1200 [2007], lv denied 9 NY3d 808 [2007]).
Spain, Carpinello, Malone Jr. and Stein, JJ., concur. Ordered that the decision is affirmed, withcosts to claimant.