Sylvester v. Marco Petroleum Industries

Insurance Company

Chartis Claims

Date Decided

May 10, 2016

Panel Members

Glen Goodnough

Sue Jerome

Mike Stovall




Total Incapacity Benefits Reduction in Benefits Penalties Employee Definition

File Size

245 KB


Summary from the Troubh Heisler Attorneys

Sylvester was injured at work and was thereafter laid off, so the WC Board awarded him ongoing total incapacity benefits. Marco found a job for Sylvester at a nonprofit organization and offered to pay him $7.50 per hour for about 6 hours per week, which Marco accepted. Marco then filed a Petition for Review seeking an order reducing his benefits to reflect his earnings, and Marco unilaterally reduced Sylvester's weekly benefits as permitted by §205(9)(B)(2). Sylvester filed a Petition for Penalties with the Abuse Investigation Unit arguing that Sylvester was volunteering, not working, and requesting that the AIU fine Marco $200 per day.

The petition for penalties was handled by Hearing Officer Dunn, who ordered the filing of position papers but declined to hold a testimonial hearing, finding an absence of “extraordinary circumstances,” in accordance with by WCB Rule Ch. 15. H.O. Dunn then issued a decision declining to impose a fine and finding instead that Marco's reduction was proper based on Sylvester's actual earnings. Sylvester filed a motion for further findings of fact and conclusions of law and asked H.O. Dunn to take testimony to allow Sylvester a chance to prove that the job was not “real at all.” H.O. Dunn denied the motion, and Sylvester appealed.

The Appellate Division panel vacated H.O. Dunn's decision for 2 reasons: (1) he should have allowed an evidentiary hearing; and (2) he should have ordered a stay of the proceedings until the Administrative Law Judge issued a decision on the Petition for Review, to avoid conflicting results.

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