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CARRIER’S APPLICATION TO REOPEN CLAIM WAS MADE WITHOUT REASONABLE GROUNDS, PENALTY PROPERLY IMPOSED.

The Third Department determined the Workers’ Compensation Board found that the carrier’s application to reopen a claim was properly denied and a penalty was properly imposed:

The Board rationally concluded that proof that claimant failed to respond to the carrier’s request for job search information is insufficient to support a reopening of the claim … . The Board further concluded that, although a rejection of offers of employment, job search assistance or rehabilitative vocational services could be sufficient to reopen the claim, the letter written by the rehabilitation counselor did not constitute such an offer. Rather, the Board relied on language in a professional disclosure form that accompanied the letter, informing claimant that, following a vocational rehabilitation assessment of claimant, a vocational plan “may” be developed that “may include” counseling, job training and assistance returning to work. In light of the lack of any specific offers of employment, job training or assistance in returning to work in the rehabilitation counselor’s correspondence, the Board did not abuse its discretion by concluding that claimant’s rejection of the counselor’s services did not warrant a reopening of the claim … .

As to the penalty imposed, the Board may impose a penalty against a party who institutes or continues a proceeding in respect of a claim without reasonable ground (see Workers’ Compensation Law § 114-a [3] [i]), and the Board’s imposition of a penalty under this statute will not be disturbed if supported by substantial evidence … . The Board imposed the penalty based upon its finding that the counselor’s letter did not constitute an offer of employment or vocational services and, therefore, the carrier had “filed a request to reopen without the proper supporting documentation.” While the Board’s determination — that the rejection of the counselor’s services by claimant did not warrant a reopening of the claim — was not an abuse of discretion, we cannot say that substantial evidence supports the Board’s conclusion that, by relying on proof that the Board ultimately rejected, the carrier initiated the request to reopen the claim without reasonable grounds … . Matter of Andrews v Combined Life Ins., 2017 NY Slip Op 00360, 3rd Dept 1-19-17

 

WORKERS’ COMPENSATION LAW (CARRIER’S APPLICATION TO REOPEN CLAIM WAS MADE WITHOUT REASONABLE GROUNDS, PENALTY PROPERLY IMPOSED)

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FAILURE TO TIMELY SERVE ONE OF CLAIMANT’S EMPLOYERS WAS A VALID BASIS... CARRIER’S REQUEST FOR AN ADJOURNMENT OF AN EXPEDITED PERMANENCY HEARING...