| Matter of Toledo v Administration for Children Servs. |
| 2013 NY Slip Op 08500 [112 AD3d 1209] |
| December 19, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Evelyn Toledo,Appellant, v Administration for Children Services, Respondent. Workers'Compensation Board, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Jared Bretas of counsel),for New York City Administration for Children Services, respondent. Eric T. Schneiderman, Attorney General, New York City (Steven Segall of counsel),for Workers' Compensation Board, respondent.
Rose, J.P. Appeal from a decision of the Workers' Compensation Board, filedOctober 4, 2012, as amended by decision filed March 1, 2013, which, among otherthings, denied claimant's request to move the case to a different venue.
Claimant, who resides in New York City, filed a claim for workers' compensationbenefits alleging that she had sustained various work-related injuries in connection withher employment by the Administration for Children Services, an agency of the City ofNew York. A Workers' Compensation Law Judge denied claimant's request to changevenue from the New York City District Office to the City of White Plains, WestchesterCounty. On appeal, the Workers' Compensation Board affirmed, relying on a statementof general policy from the Chair of the Board, which provides that hearings are to bescheduled in the district where the claimant resides and venue change requests involvinga municipal corporation "shall not be granted except to a district office where theemployer is located." The Board also assessed a penalty against [*2]claimant's attorney pursuant to Workers' CompensationLaw § 114-a (3) (ii) for seeking review without reasonable grounds. Claimantappeals.[FN*]
Claimant's arguments challenging the validity of the Chair's policy statement and itsapplication here are not preserved for review as they were not raised before the Board(see Matter of Barone vInterstate Maintenance Corp., 73 AD3d 1302, 1303 [2010]; Matter of Huang Sheng Ku v DanaAlexander, Inc., 12 AD3d 988, 989 [2004]). Were we to consider the issue, wewould note that an interpretive or explanatory statement of general policy is not a ruleand is not required to be promulgated pursuant to the State Administrative Procedure Act(see State Administrative Procedure Act § 102 [2] [b] [iv]). In any event,the Chair has controlling authority to designate hearing places (see Workers'Compensation Law § 141; 12 NYCRR 300.7 [b]), and claimant has not identifiedany valid basis to disturb its determination here (see e.g. Matter of Domenico v United Way, 69 AD3d1061, 1062 [2010], lv dismissed 14 NY3d 793 [2010]). To the extent thatclaimant's attorney also seeks to challenge the imposition of a penalty pursuant toWorkers' Compensation Law § 114-a (3) (ii), we decline to disturb it inasmuch asthe Board's determination that the request to change venue had no reasonable basis issupported by substantial evidence (see Matter of Banton v New York City Dept. ofCorr., 112 AD3d 1195 [2013] [decided herewith]; Matter of Wolfe v New York City Dept. ofCorr., 112 AD3d 1197 [2013] [decided herewith]).
Stein, Spain and Garry, JJ., concur. Ordered that the decision is affirmed, withoutcosts.
Footnote *: Claimant appeals fromthe original Board decision, which was subsequently amended. We will treat the appealas being from the amended decision inasmuch as the two decisions "are not materiallydifferent and there has been no claim of prejudice" (Matter of Coleman v Compass Group USA, Inc./Chartwells,105 AD3d 129, 131 n 2 [2013], lv dismissed 22 NY3d 890 [2013]).