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No Error of Law or Fact In An Application For Full Board Review

Feb 1, 2021 | MAD News, NYS Workers Compensation

This was a claim which was established in 2018, where despite substantial opportunity with her own medical providers, the claimant failed to report that she had returned to work after the accident of this file. The issue was aggressively litigated for fraud, as the claimant made numerous misrepresentations about her work to the WCLJ and her medical providers. The WCLJ correctly found the evidence submitted overwhelmingly demonstrated claimant was actively earning income and the claimant’s failure to disclose the employment barred the claimant from receiving any future indemnity benefits for the claim

Claimant then filed an appeal of the decision. Notably, claimant’s counsel resubmitted to the Board Panel the same exact argument which was submitted to the WCLJ by memorandum of law. The Board affirmed the WCLJ’s Decision in a unanimous decision, making any request for review of the Board Panel decision by a Full Board Review discretionary. Of note, upon application for Full Board Review, claimant’s counsel submitted, yet again, the same exact argument which was submitted to both the WCLJ and Board Panel.

We argued that where no errors of fact or law are present in the decision below, discretionary Full Board review is must be denied. See e.g. Matter of Levine v. Health First, 140 AD3d 1417 [2016].  We further argued the claimant merely suggested that the Board Panel and WCLJ drew incorrect or improper inferences from the largely undisputed facts of the claim and that such a position does not rise to the level of imputing an error of fact or law, and as such, Full Board Review in the matter must be denied. The Full Board ultimately decided that our position that no error of law or fact was made was accurate and denied the discretionary Full Board Review accordingly.

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