In the Matter of the Claim of Melody Wohlfeil, Respondent,v.Sharel Ventures, LLC, Respondent, Workers' Compensation Board, Appellant.BriefN.Y.August 29, 2018ORIGINAL1 MELVIN BRESSLER Attorney at Law 58 Tobey Ct. Pittsford, NY 14534 Tel: (585) 586-5993 Fax: (585) 586-0717 Not for service of process June 4,2018 ■5::NY Court of Appeals Att: John P. Asiello, Esq. 20 Eagle St. Albany, NY 12207-1095 5«f i Re: Matter o/Wohlfeil, Worker’s Compensation Claimant v. Sharell Ventures, LLC, etal. 2018-00010. Dear Mr. Asiello: We respectfully submit this letter-submission on behalf of Claimant- Respondent pursuant to 22 NYCRR 500-11 BACKGROUND Claimant filed a Worker’s Compensation Claim which, after the usual hearing resulted in an award based on a finding by the Law Judge (“WCLJ”) that she had a permanent-partial disability. On her appeal, the Board Panel confirmed that decision. On her further appeal to the Appellate Division, Third Department, the findings below were modified, the Court holding that Ms. Wohlfeil had suffered a permanent total disability (155 AD 3d 1264 emphasis supplied). There were two dissents to that decision, permitting an appeal as of right to this Court. In turn, this Court invoked Rule 500-11, Both The Board, through the State Attorney General, Laura Etlinger, Esq. of Counsel and the Employer represented by Melissa Haberfield, Esq., have filed Submissions, to which we now respond. NY Court of Appeals, June 4, 2018, page 2. ISSUES PRESENTED. The only issue presented is the Third Department's modification of the nature of the disability from “Permanent Partial” to “Permanent Total” based on the majority's finding that the Board's Decision was not based on substantial evidence. The case history and operative facts leading to the appellate court's modification are well presented in that court's opinion and the letter submissions of both the Attorney General, as representative of the Board, and the employer's attorney, Melissa Haberfield, Claimant supported her claim through her testimony and that of her treating physician, Dr. Clifford Ameduri, and also the deposition testimony of Dr. Guy Corkill, retained by the Board. It is not disputed that both physicians concluded that Ms. Wohlfeil was unable to work and was therefore permanently and totally disabled. Nevertheless, the WCLJ ignored the medical findings of Dr. Corkill and held that Ms. Wohlfeil's disability was permanent but partial, in effect overruling the consistent medical findings that Ms. Wohlfiel was unable to be gainfully employed and therefore totally disabled. On appeal to the Board, that decision by the WCLJ was affirmed, and on further appeal the appellate division, a majority of the third department panel reversed (or modified) the decision finding that the proof supported a finding of total permanent disability, consistent the medical findings and opinions which prompted the appeal to this Court. The thrust of both opposing submissions is that the appellate division exceeded its authority in overruling the decision of the Board, because a certain deference to the decision of the Administrative Agency is required. Generally, the Courts, in reviewing administrative decisions must look for substantial evidence supporting the findings of the reviewing Agency, such as the Worker's Compensation Board in this case. As this Court held in 300 Gramatan Ave. v. State Div. of Human Rights, 45 NY 2d 176 at 181, that determination by a court is a question of law. NY Court of Appeals, June 4, 2018, page 3. The Court below made such review in detail of the Board's findings and concluded that those findings were not supported by substantial evidence 155 AD 3d at 1265. Both respondents in their respective submissions maintain that the Court below exceeded its authority by rejecting the Board's findings (including, of course, the findings of the WCLJ). The dissenters below argued that the Court had to determine whether there was substantial evidence to support the Board’s determination, and then argues that the majority erred “By giving credence to evidence that the Board discredited *** the majority improperly usurps and intrudes upon the Board's role to make credibility determinations. ” (155 AD 3d 1267) . There is a serious problem with this analysis. In Genovese Drug Stores, Inc v. Harper, 49 AD 3d 735, the Court held that Judicial review of an administrative determination made after a hearing required by law, is limited to whether that determination is supported by substantial evidence (quoting from an earlier case). That court then continued (same paragraph): “[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists” (citation omitted). Here, there was no conflicting evidence and no room for choice. All the medical evidence supported the finding of permanent total disability. Ignoring the findings of both physicians did not provide any evidence of a permanent partial disability. To the contrary, it demonstrates a lack of any evidence, let alone substantial evidence concerning the extent os the disability. In a similar situation, in Golovashchenko v. ASAR International Corp, 153 AD 3d 1475, at 1477, the Court noted with disapproval that: i NY Court of Appeals, June 4, 2018, page 4. The WCLJ, who was not a medical doctor, appears to have undertaken his own independent analysis of the medical evidence in concluding that claimant was capable of performing light work. The Court reversed and remanded that case on that issue. That was a sound decision there and equally sound here. There is no suggestion that either of the testifying physicians were inexperienced or incompetent to make an analysis. Not to make too fine a point about competence, it was after all, the Board that chose Dr. Corkill as their expert. Without the medical proof, there is no basis for the Board (or the Court) to make any decision on the extent of Ms. Wohlfeil's disability. We therefore urge that there is no reason for further appellate review and the Court should simply affirm the decision below. Respectfully submitted, /HuUv»l Melvin Bressler, Attorney for Melody Wohlfiel I Certificate of Compliance [22 NYCRR500.il (m)] By my signature below, I certify that this Submission Letter was printed in 14 point Times New Roman, and that the total word count is 947 words (not counting this Certificate). [APL 2018-00010, June 5, 2018]. Melvin Bressler State of New York Court of Appeals Matter of Melody Wohlfeil, Respondent. Affirmation of Service vs. APL 2018-00010 Sharel Ventures, LLC, Appellant, I, Melvin Bressler, an attorney, affirm, under penalty of perjury, that I served two copies of Respondent's Letter Submission on each of the parties listed below, by mailing it, by first class mail, postage prepaid, at the addresses listed below, on June 5, 2018. I am over eighteen years old, not a party to this action, and my offices are in Pittsford, NY. Mailed to: NY Attorney General Att: Laura Etlinger, Esq. The Capitol Albany, NY 12224-0341 Melissa Haberfield 13 East Mohawk St., STE 200 Buffalo, NY 14203 June 5, 2018 Melvin Bressler