In the Matter of David W. Howard, Respondent,v.Stature Electric, Inc., et al., Appellants. Workers' Compensation Board, Respondent.BriefN.Y.February 5, 20131 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Argued by: Christine A. Scofield, Esq. Time Requested: 15 minutes STATE OF NEW YORK COURT OF APPEALS ___________________________________________________________________ In the Matter of the Claim for Compensation Benefits under the Workers’ Compensation Law, made by DAVID W. HOWARD, Employee Claimant-Respondent. vs. STATURE ELECTRIC, INC., Employer Docket No.: 507356 And WCB No.: 60303798 THE STATE INSURANCE FUND, Insurance Carrier Appellants And NEW YORK STATE WORKERS’ COMPENSATION BOARD, Respondent. _________________________________________________________________ BRIEF ON BEHALF OF CLAIMANT-RESPONDENT ____________________________________________________________________ Submitted by: Christine Ann Scofield, Esq. Attorney for the Claimant- Respondent Suite D, 506 East Washington Street Syracuse, New York 13202 (315) 474-5533 Phone (315) 701-4458 Facsimile July 13, 2012 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 ITEM CONTENTS ~.JIL..II'JIL~.JILJ OF CASES AND AUTHORITIES QUESTION PRESENTED ANSWER REQUESTED PRELIMINARY STATEMENT STATEMENT OF FACTS ARGUMENT u ....... , ....... 1 PAGE 1 2 2 3 3 5 9 9 The Department reversible error by distinguishing an Alford guilty plea from a Non-Alford guilty plea. Department State JlLJlUlLt..Y' ......... of issues .. 11 commit reversible error when found meet its of proving .... _""'JIIUIl"' ....... 18 Conclusion 19 20 21 22 23 24 25 26 27 28 1 1 2 3 Cases TABLE OF CASES AND AUTHORITIES 4 v .. Stature Electric, 72 3d 1167 5 (3rd 2010) lII~dllrf"h Carolina v .. Alford, 400 U.S .. 25, 91 SeCt. 6 160, 27 L.Ed .. 2d 162, 1970 LEXIS 153 (1970) 8 9 10 11 Ie v. Serrano, N .. Y .. 2d 304,206 2d 330 258 N .. Y .. S.. 386, 1965 N.Y .. LEXIS 1499 (1965) erchant's Mutual Insurance Co. v. Salvatore Arzillo 98 A.D .. 495, 472 N.Y"S .. 2d 97, 1984 N"Y .. App.Div .. LEXIS 16496 (2d Dept. 1984) atter of Aaron v .. Babara 72 1602 (4th Dept .. 2011) 12 D' Arata Vo New York Central Mutual, 75 N.Y.. 563, 13 563 N .. Y"S.. (1990) 14 Statutes 15 16 orkers' Compensation Law §1 17 nsurance Degree, ew York State Corrections §701 Law §176 .. 15 18 ew York State Corrections Law §702 UESTION Cited 2 2,3,8,9, II, 3,10 p .. 10, 11 11 13, 19 20 21 22 23 24 25 26 27 28 The Appellant's question presented for review is "Whether Appellate Department misapplied controlling .JlJUll .... '.... .., ..... ...,..,. of law misapprehended the relevant facts disregarded well-settled an~=-= an administrative law,," 2 1 2 3 The correct answer is that the ANSWER Department exactly followed Court 4 of Appeals precedent recognizing that of the case law is clear 5 6 such a plea may be preclusive rather than ~~ be preclusive.. In of the actual facts of this case, is clear that a determination that such 7 a plea must preclude any opportunity to test the evidence of a false 8 accusation creates grave danger of injustice. 9 10 11 12 PRELIMINARY STATEMENT This brief is submitted opposition to Appellant's appeal of a decision 13 Y the Appellate Division Department on April 1, 2010 in this case .. 14 David Howard v .. Stature Electric, 72 AD3d 1167 (3Td 2010» That Decision 15 eversed a Workers' Compensation Board's Memorandum of Board Panel 16 Decision on October 6, 2008 denying 17 because of the State Insurance Fund's claim Howard an evidentiary hearing he should be collaterally 18 estopped from a hearing because had been convicted of Insurance 19 the Fourth Degree .. 20 We appealed the Board Panel Decision of October 6, 2008 on the ground 21 that collateral estoppel does not apply in a case such as which there has The plea to Insurance 22 been no determination of 23 24 25_ S .. factual basis of was made by agreement without any accord 160,27 1970 Ue So (1970) 26 15 N .. Y .. 2d 304, 206 No 2d 330,258 N .. Y .. S .. 386,1965 27 No (1965). parties the case, 28 3 1 ssistant Attorney and the Court Judge, agreed to issuance a 2 ertificate of .JIlL ... _J ...... ""' .... from Disabilities, which was signed on the date of sentencing .. 3 makes it clear that the factual allegations were never examined and 4 that ....... 11-."",.,.11- of parties to the criminal case was that conviction should 5 have no impact on Mr. Howard's rights ..... LlLlIl ........... civil law .. The Appellate 6 Division Third Department is experience the 7 nterpretation of the Law and the Workers' Compensation Law to 8 onsider this case.. Therefore that Court was a better position to fully 9 nderstand whether collateral estoppel should apply such a case.. All we 10 opportunity to have the "evidence" tested in a before 11 orkers' Compensation Board. 12 As a result of Memorandum and Order filed by the Appellate Division, 13 Third Department filed on April 1, 2010, an evidentiary hearing was held on 14 December 22,2010 .. The Appellant failed to prove its case .. Inexplicably, the 15 Appellant omitted from the Record on Appeal the Reserved Decision filed by 16 the Workers' Compensation Law Judge on March 17 the proceedings conducted on December 22, 2010, 201 transcript of 18 evidence. As of these items UfJllJll~'p""".IIl have been JIlJllJll ... 'JIL ............. ..., ....... documents offered as the Record on 19 Appeal pursuant to Rules of Practice, I have included a 20 Supplementary Appendix acco~d with the Rules Practice Part 500 .. 14( c) .. 21 omitted items make clear that Mr .. Howard was fact not working during 22 the relevant did file any false documents. charge 23 the Appellant has maintained, upon venue Onondaga County was 24 predicated, is Howard filed Work Activity Forms that was 25 orking at various Perhaps most glaring defect is fact none 26 Activity Forms offered at trial covered a the 27 offered any "proof' working" periods 28 4 1 Appellant offered testimony pictures as "proof," Workers' 2 Compensation Law Judge the 3 equested review of that Reserved Decision, the Workers' Compensation 4 5 Court of Appeals granted the Appellant's motion for leave to appeal.. 6 The Court of Appeals has over this appeal to 7 5602(a). 8 9 STATEMENT OF FACTS 10 David worked years for Stature Electric. In the course of 11 his work, he was injured several times.. Most the time he either kept working 12 or returned to work at the first chance to do so .. When he suffered the injury 13 this claim on 3/19/03, he kept working as long as he finally sought 14 medical care on 3/25/03.. stayed out of work only as long as various 15 doctors involved found totally disabled and returned to work on a light duty 16 basis every chance he was given.. was very valuable to and 17 employer accommodated his limitations.. carrier a laminectomy 18 discectomyat 3-4 L 4-5 which was performed on 3/15/04.. the 19 Notice of Decision filed 2/3/04, the surgery was authorized per WCL §25(1)(f) .. 20 (Record po 35) had the surgery on 3/15/04. (Record p. 39) to 21 Krawchenko on 4/1/04, 5/10/04, 6/21/04 for post-operative treatment and 22 examination.. 5/10/04 narrative, Dr .. Krawchenko us the physical 23 therapy that had been requested shortly after the surgery had just been authorized.. expressed concern that recovery was delayed probably ...... 'UlLql.lll ...... "",'UIL by get the therapy going when have 26 started.. also says that Mr. should be than 27 has 55) On 6/7/04 Mr.. was examined by 28 5 1 Independent Medical (IME) 2 opines that is totally disabled; his report need physical therapy for three 3 months; and should be re-examined in months, which would be 4 September, based this on a review of medical evidence an 5 and his examination of Mr.. (Record - 49) is clear that his 6 medical opinion is be less than totally disabled 7 at least that next Independent Medical Examination .. 8 When Mr.. saw Dr .. Krawchenko on 8/9/04, the doctor said was 9 totally disabled. His report says, "has been instructed to remain out of work 10 on restricted activities .. " (Record p. 58) Since Mr .. Howard not bear staying 11 out of work and his employer needed his help, returned to work on a light 12 duty basis on 8/16/04 .. The documents in the file (including the Notice of Decision 13 1/19/05) (Record p .. 64) make it clear that was back at work on light duty, 14 but wages from 8/16/04 at least through 1/13/05.. Despite his need 15 for treatment and a series of additional reports, kept working at light 16 duty left work for second surgery which resulted a rO_IIF1IIOII'·!!IIl_IIL-~l" 17 of and edema affecting discs .. Mr. worked until the day before 18 the second surgery was performed on 5/15/07. p.67) has been 19 able to to work at Stature Electric since that surgery .. 20 On 12/1/05 Mr. Howard was arraigned in Salina Town Court on criminal 21 charges of Insurance Fraud in 22 Degree, and Offering a False Degree, Grand Larceny in the ....... JIl ...... ""'Jil.IlIIL- For Filing in the Third Degree" 23 all of the alleged activity occurred Jefferson County, charges 24 were made and prosecuted Onondaga County based on State .JILJil.Il.:JI ....... JIl 25 Fund's address New York.. may seem to be 26 this choice made very difficult for to produce some of 27 would be this case.. prosecutor a plea 28 6 1 bargain a guilty plea to a misdemeanor a sentence Conditional 2 Discharge no restitution.. this a favorable of 3 the case, Mr .. Howard knew that had done what charge alleged so he 4 could Although discussions on charge continued, there was no 5 progress.. case was presented to the Jury .. 6 Unfortunately, the key witness, have supported Mr .. Howard's 7 defense had been intimidated and scared .. (Supplementary Appendix - Transcript 8 - 12/22/10 - 53, line 10 to p. 57, line 12) case was based on "surveillance" 9 performed by employees or contractors hired by the State Insurance Fund .. 10 Those investigators made videotapes four different periods between 11 2003 and June, 2004.. many videotapes that are presented WCL §114-a 12 cases, most of the surveillance shows presence or absence of Howard's 13 car .. Some of it shows people who are not Mr .. Howard, "investigator" 14 thinks these people are Mr .. Howard .. The only tape that shows someone actually 15 working is a picture of another person, specifically the son of the man who owns 16 scrap yard where picture was taken .. Until the evidentiary hearing held 17 SORT SEEN 18 19 Once the indictment was issued, Howard was arraigned Onondaga 20 County Court.. Based on the policy of the District Attorney's Office, the plea 21 bargain now required a plea to a felony, the sentence proposed remained 22 mostly same - a Discharge and some restitution.. Clearly neither 23 jail nor prison was proposed .. Since Howard was no more guilty the 24 felony misdemeanor, he take the offer.. jury 25 was parties spoke regarding 26 scheduled At time, Howard that he were 27 convicted after trial, the sentence to prison for 1 1/3 28 7 or words to effect.. This was the first time that a Judge 1 4 years in state 2 or Assistant Attorney had said that he would have a substantial chance of 3 incarceration .. Mr .. Howard panicked. was terrified prospect of going 4 to prison. still had done was so scared of possibility of 5 going to that agreed to take offer was specifically that 6 would plea to felony Insurance Fraud Degree ...... JUL' ............ 7 Law §176 .. 15 in what is called an would be sentenced to a 8 Conditional Discharge, pay restitution $2,500 .. 00, and receive a Certificate 9 Relief from Disabilities.. On June 25, 2007 he entered the plea.. You note that 10 the transcript of the proceedings on that day does not include any allocution of 11 admission to the facts of the case .. (Record 27 pages 76-81) August 12 2007 State Fund sent a "Victim Statement" to Judge Fahey 13 asking he go back on his word and require that restitution be paid the 14 amount of $14,341 .. 05 .. While they were at it, they asked that Mr .. Howard be 15 required to give any future right to wage-loss benefits and medical benefits .. 16 No such waiver was by Court. was sentenced as 17 on August 20, 2007.. paid the amount of restitution of $2,500 .. 00 .. 18 The Certificate of from Disabilities was signed by Judge Fahey as 19 promised. (Record Item 37, page 153) 20 State not raise question ofWCL §114-a 21 12/13/07, although they were clearly aware the criminal charges from 22 beginning to Appellant consistently resisted any opportunity to test 23 its "evidence." Mr .. 24 demanded that 25 wasUT~-IT1I~ 26 27 28 and I have consistently the allegations be properly tested.. is clear is that claim that Mr .. video times covered by the be 8 1 2 3 4 Apparently by the facts of the case, demanding that the Court ignore opinions based on :.0...., • .."...,.11..11. ..... .11.,., persists in evidentiary hearing which ......... a.JIL __ to prove its case .. 5 ARGUMENT 6 POINT 1 7 The Department not commit reversible error by 8 distinguishing an Alford guilty plea from a Non-Alford guilty 9 plea. 10 11 Criminal charges are resolved by lIlJlLIIlUnLAU'lIllil or guilty plea or jury trial or non- New York State. When case is resolved by either of trial, 12 prosecutor and the defense offer their evidence and show the weaknesses 13 the other side's case in the course of direct and cross-examination and the 14 admission of forms of evidence .. To be successful a prosecutor must offer 15 evidence that supports the charge and proves all of the specific elements of the 16 charge.. A properly case gives fact enough details to determine 17 each element has proven.. Failure to prove any the elements 18 results an acquittal.. the great majority of cases, the case is 19 resolved by a "plea bargain .. " Except in an Alford plea, the Judge must require 20 an by Defendant of sufficient facts to show that of the elements 21 of the charge are admitted .. contrast, an Alford plea is essentially to the title 22 of the charge without any details.. is therefore impossible for the Judge to know 23 any of details that would satisfy the elements of the charge - not even the 24 date.. An Alford plea is fundamentally different a because 25 an admission specific facts.. purposes sentencing, it has 26 which there is an allocution of the facts as a condition of 27 28 acceptance of certain circumstances given preclusive 9 1 effect, but none of cases on this issue determine that it result 2 collateral estoppel fora.. Throughout Appellant's argument, counsel 3 quotes many cases correctly as saying that the plea may preclude a 4 evidentiary hearing, repeatedly claims that the has to be interpreted to 5 mean must. is only through the repetition of this assertion - as were true - 6 that Appellant can reach the incorrect conclusion its counsel urges on 7 Court. Simply saying something over and over does not make it true. 8 is precisely facts of this case that make clear that the legal analysis 9 that an Alford plea may preclude the right to an evidentiary hearing should not 10 be changed to one that requires that it must preclude opportunity .. Now 11 that we know that the Appellant was not successful proving its case before a 12 Workers' Compensation Law Judge, we that preclusion would have 13 resulted injustice. The Appellant has ignored fact that Mr. Howard was 14 granted a Certificate Relief from Disabilities on the day was sentenced .. 15 does not specify that he is relieved from prosecution before Workers' 16 Compensation Board, it is clear that the parties to the case were not 17 saying that be denied an evidentiary hearing before the Workers' 18 Compensation Certificate relieves a some of the 19 various disabilities that can affect as a of a conviction.. it not clear 20 the net effect disposition is that the parties, including the Judge, 21 IIJl.IL.IL'ULJl"'&.Il ... "" ..... that this conviction was not to preclude a proper litigation of 22 issue before the Workers' Compensation Board? 23 for the position that claimant's plea guilty has 24 a ,.,. .... "' ...... 111 .. claims on Merchant's Mutual Insurance Co. v .. 25 Salvatore Arzillo, 495, 472 N.. S. 97, No App .. 26 16496.. that case was convicted of Arson the Fourth Degree 27 a plea of guilty ...... JIUIL' ..... .,."JIl People v .. Serrano, When sued 28 10 1 insurer payment of damage caused by fire, Court plea 2 had a preclusive effect. case is not on point the Mr. Howard's case .. 3 Merchant's Mutual, cit., decision goes to substantial .IIl ..... JIL ..... "' ....... 4 plea and inquiry by as to elements was no 5 such in Mr. Howard's case. 6 Appellant's on Matter of Aaron He v. Barbara H., 72 7 1602 (4th Dep't 2011) is not on point. The Respondent that Child Abuse case 8 had testified Family Court that she had not sexually abused the child who was 9 subject of the criminal action .. The Family Court Judge then dismissed the 10 case.. Defendant/Respondent pled guilty court by an Alford plea 11 to a charge of sexually abusing the same child.. The Family Court on its own 12 motion vacated the dismissal and effectively reopened the case.. Falsely testifying 13 before a Judge is not only a bad idea, but can be a good reason why the standard 14 is that an Alford plea may preclude an evidentiary 15 POINT 2 16 did not reversible error when 17 found that State Insurance did its 18 of proving identity of issues. 19 the Appellant claims that the Department's decision that 20 the carrier failed to meet its of proving of issues was an error, 21 the Department was exactly correct. is even clearer now that 22 Appellant's evidence has been tested that test. of the 23 hearing County does not admission to any of the elements of 24 charge of Workers' Compensation Law §1 is nothing stated on 25 record includes other name 26 the plea 27 28 admission .. 11 1 Appellant argues made no argument as to identity of issues 2 before the Is it not clear that our to the 3 Department was that the carrier had failed to offer any proof the plea to 4 proved elements of charge Workers' 5 Compensation Law §114-a? that makes is essentially 6 that Mr.. admitted the elements of Workers' Compensation Law §1 7 by the simple act of pleading to Insurance Fraud the From the 8 Appellant's perspective two things involve something that amounts to 9 fraud, so that should be enough.. Especially in light of what the carrier actually 10 offered for proof on December 22,2010, it is clear that the documents 11 Howard sent to the carrier not even relate to alleged "proof' that 12 documents were false. the Workers' Compensation Board's electronic case 13 record, known as eCase, the Work Activity Forms that were relied as 14 proving that Mr .. Howard filed false statements (which are included 15 Supplementary Appendix at pages 98-106) are dated 9/18/03 through 4/22/04. 16 the carrier had been able to convince the Workers' Compensation Law 17 who at hearing that the video proved that Mr" Howard was working 18 on May 12,2004 20,2004, she could not have him violation of 19 Workers' Compensation Law §114-a based on the Work Activity Forms filed for 20 dates before May 2004.. carrier offered no Work Activity Forms for the 21 relevant of time.. the Workers' Compensation Judge had found 22 carrier's evidence convincing, she could have found violation of Workers' 23 Compensation §114-a based on his testimony at trial that was not 24 anywhere between 3/15/04 and 8/16/04, that would not have been a 25 basis the charge on he was on 8/20/07 .. She 26 find evidence offered by the carrier the carrier 27 28 proven §1 12 1 now ........ .III.J .. ...., ....... to properly prove that issues are 2 identical. reason is is no basis to what elements of Workers' 3 Compensation Law §114-a were violated the entry the Alford guilty plea to 4 Insurance the Degree (Penal Law §176 .. 15), because no JIl&4'-"II. .. ' ... e ... JIl 5 admissions were made .. Clearly Workers' Compensation 6 that the "false statement or representation" was made §114-a requires purpose of 7 obtaining compensation to section 15" of the Workers' Compensation 8 Law.. There is no language incorporated the plea allocution that indicates if or 9 whether Mr .. Howard "knowingly" made a "false statement or representation .. " 10 The carrier has that fraud was committed by the claimant on 10/15/03. 11 We know that by the fact that they arbitrarily have issued C-8 forms indicating 12 of indemnity money paid to Mr .. Howard after that date is an 13 overpayment. The problem is that there is no hint anywhere in the that gives 14 any support for such a date even if you believed the evidence they offered .. There 15 is no Work Activity for that date and no evidence from any source to 16 support proof offered the Appellant at the trial on December 17 22,2010, none of Work Activity Forms addressed period covered by the 18 "video" or testimonial evidence they believed to reflect Mr .. Howard at work .. 19 Appellant either did not read the transcript of the proceedings at the trial or 20 that the Court would never see it. 21 Memorandum of Board Panel Decision dated October 6, 2008, which 22 we appealed (Record - p .. 153), quote D' Arata v. New York Central Mutual, 75 23 N .. Y .. 2d 563 NoY .. S .. 2d (1990) , to define estoppel." 24 clearly on in reaching the that "collateral 25 estoppel" Howard's to an ." .. ".,UlII..-. ..... ...-. on carrier's 26 W CL § 114-a ' ... diL&4JILlIlJl.JIle We contended that this is not a case that fits 27 State ..IIL.III..III...,,' ..... JiL is "clearly party seeking the of collateral 28 13 1 estoppel." D' Arata, op.cit., that party "must prove that 2 was necessarily decided the prior action is decisive the present action." 3 As was no allocution of a factual basis for the charge of Insurance Fraud 4 plea was entered or document before the Court, 5 State cannot prove what, any, "issue was necessarily decided" 6 in the criminal case.. Of course, without an allocution of "facts" is no 7 way to show that "there is an identity of issues .. " New York 8 states: Law §176.15 9 10 11 12 A person is guilty of insurance fraud the fourth degree when he commits a fraudulent insurance act thereby wrongfully takes, obtains, or withholds or attempts to wrongfully take, obtain or withhold property with a value excess one thousand dollars. 13 Neither the plea nor the statute plead to indicate any nexus with WCL §114-a .. 14 cannot be regarded as decisive in Mr .. Howard's case .. 15 The issuance of a Certificate of "'''''''-', ... '''.,,' from Disabilities pursuant to NYS 16 Corrections Law 701 is evidence of the criminal Court's 1I11r111t·£II1IrII .... lIn.1IrII that 17 Howard should be automatically """''',.dULJIl__ rights ...... JIlIIl'u._.lIl the Workers' 18 Compensation Law and other New State Laws .. 19 statute provides: "A Certificate of Relief from Disabilities may be 20 granted ...... to relieve an eligible offender of any forfeiture or disability, or to 21 remove any bar to his employment, automatically imposed by law by reason of 22 his conviction of the crime or of the offense specified therein .. " are some 23 limitations on its effect which apply this case .. statute goes on 24 say: "A certificate of relief from disabilities shall however, anyway 25 prevent any judicial, licensing or body, or 26 from relying specified therein as exercise 27 its discretionary power revoke, refuse issue or to renew any 28 1 license, permit, or other ............ " ........ 'U' or privilege .. " NY CLS Correc §702 indicates 2 a certificate relief from disabilities issued on day of sentencing "may 3 grant relief forfeitures as as from disabilities .. " 4 While statutes that create and define Certificate of Relief from 5 Disabilities have sometimes been argued unsuccessfully to absolutely deny 6 forfeitures and disabilities arising of a conviction such a 7 Certificate is issued, it is clear that the "body, board, or authority" is permitted 8 "to exercise its discretionary power." I have not been able to any published 9 case which the Workers' Compensation Board has been confronted with the 1 0 circumstances of this case.. is not totally clear that the Board's powers to 11 adjudicate Workers' Compensation claims necessarily fall within definition of 12 "power to suspend, revoke, refuse to issue or refuse to renew any license, permit, 13 or other authority or privilege." The right to receive wage-loss benefits and 14 medical benefits the Workers' Compensation Law is not a license nor 15 permit nor an authority nor a privilege. This may be exactly why there is no 16 case law on this point. 17 Even if the statute were found to indicate that the Workers' Compensation 18 Board has a right "to exercise its discretionary power" reliance on §701, we 19 contend "discretionary power" requires a consideration of the facts of 20 case .Bl.Bl.Bl .. " ................ .BlJIUI.fii. "' ..... .Il ....... .Bl.Blfii. testimony on the "facts" that were found or 21 admitted in criminal case.. The reasonable exercise of discretion is best done 22 ona we were demanding was a ............... "-"""" examination of the 23 "proof' claimed was sufficient to terminate Mr. Howard's rights to 24 benefits the Workers' Compensation Law §l Those ...... "111 .... "'.,... ... ,.-"" are 25 property ,.. ....................... that be denied ... "'n' ... · ..... ""lIIl11...- a and 26 litigate. 27 28 15 CONCLUSION 1 2 3 For of reasons discussed here, we request of the Appellate Department dated 4 the Memorandum of Board ..... ""', .......... _ ..... JIlUl..lll'U'..!IlJIl filed on November 30, 1 be 5 affirmed.. Mr .. has 11" .... ,. ............ ,..,.. .... terrible ...... "" .... JIl'-'''' and prosecuted 6 for a crime not commit. Appellant persists demanding 7 Court of Appeals ignore the that the Appellant not have evidence of 8 fraud was legally sufficient, which claim not stand up to the 9 of an evidentiary hearing. They were given best opportunity to press their 10 case before the Workers' Compensation Board and failed to meet their lesser 11 burden.. One would have to presume that they realized that their case was 12 deficient or they would not have expended so .... JlLJIL .... a_JILJIL energy judicial time 13 trying to avoid a trial. This is certainly not the case that would justify changing 14 that a plea of guilty a criminal case may preclude the opportunity to 15 have an evidentiary trial to a that it must preclude such a trial. a case 16 where there is no allocution of the relevant facts a plea, is clear that 17 there is no evidence that the issues are identical. Please ,...""'111",...""' .. , ...... from making the 18 change the Appellant urges .. 19 20 Respectfully submitted, 21 22 Christine Ann Scofield, Esq .. 23 24 25 26 27 28 cc: Att: Andrew W .. .JIllLJll. .. " .... JILJIL"I Court of A~peals State Insurance Fund Attorn~y General the State David Howard New York 16