Calendar Date: April 28, 2017
M. Gluck, New York City, for appellants.
T. Schneiderman, Attorney General, New York City (Donya
Fernandez of counsel), for Workers' Compensation Board,
Before: Garry, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
(1) from that part of a decision of the Workers'
Compensation Board, filed April 16, 2015, which assessed
Frida Brown and Kenneth Brown with a penalty pursuant to
Workers' Compensation Law § 26-a (2) (b), and (2)
from a decision of said Board, filed July 9, 2015, which
denied the Browns' request for reconsideration and/or
full Board review.
2009, claimant started working for Frida Brown and her
husband, Kenneth Brown (hereinafter collectively referred to
as the employers), as a live-in domestic worker performing
housekeeping and child care duties. On May 18, 2012, she cut
her right hand on a broken piece of glass while washing
dishes. As a result of injuries sustained to her right hand
and thumb, she filed a claim for workers' compensation
benefits. Following hearings before a Workers'
Compensation Law Judge (hereinafter WCLJ), her case was
established for a work-related injury to her right hand, with
an average weekly wage of $350, and she was awarded benefits.
In addition, the WCLJ found that the employers did not
maintain workers' compensation coverage on the date of
the accident in violation of Workers' Compensation Law
§ 50 and assessed a penalty of $86, 000, covering the
time period of December 31, 2009 through May 18, 2012,
pursuant to Workers' Compensation Law § 26-a (2)
(b). A panel of the Workers' Compensation Board affirmed
the WCLJ's decision. Thereafter, the employers submitted
an application for reconsideration and/or full Board review,
which was denied. The employers appeal from both decisions.
employers take issue only with the amount of the penalty
assessed under Workers' Compensation Law § 26-a (2)
(b). The statute provides two alternatives for calculating
the penalty to be imposed upon an employer who has failed to
maintain workers' compensation coverage. It states, in
relevant part, that the Board "shall impose an
assessment in the sum of [$1, 000] for each [10-]day period
of non-compliance or a sum not in excess of two times the
amount of the cost of compensation for its payroll for the
period of such failure" (Workers' Compensation Law
§ 26-a  [b]). Here, the WCLJ used the former method
and assessed a penalty of $86, 000, calculated by multiplying
$1, 000 by 86, the number of 10-day increments within the
period of December 31, 2009 to May 18, 2012. The employers,
however, contend that the penalty should have been calculated
using the latter method, which is based on the cost of
coverage. They assert that, utilizing that method, the
penalty would not have exceeded $3, 000 given the low per
capita premium cost for insuring indoor domestic workers.
the employers never objected to the penalty or raised this
argument during proceedings before the WCLJ, even though they
conceded that claimant was an employee and that they failed
to maintain workers' compensation coverage . In addition,
the employers did not present any testimony or other proof
with respect to the duration and circumstances of
claimant's employment or the reason for their failure to
obtain workers' compensation coverage. Although the Board
could have declined to address the penalty, given the
employers' failure to raise an objection before the WCLJ
(see 12 NYCRR former 300.13 [e]  [iii];
Matter of Tricarico v Town of Islip, 136 A.D.3d
1127, 1128 ; Matter of Naylon v Erie County Highway
Dept., 14 A.D.3d 932, 933 ), it reviewed the
propriety of the penalty based on the meager record before
it. Crediting claimant's testimony as to the duration of
her employment and finding no evidence to substantiate the
employers' claim that they were unwitting homeowners
unaware of the necessity of obtaining workers'
compensation coverage, the Board found that the $86, 000
penalty was appropriate. Upon reviewing the record and the
manner in which the penalty was calculated, we find no reason
to disturb the Board's decision (see generally Matter
of Johnson v Via Taxi, Inc., 77 A.D.3d 1024, 1026
). We further note that, insofar as the employers
failed to raise their challenge to the constitutionality of
the statute before the Board, this claim has not been
preserved for our review (see Matter of Huang Sheng Ku v
Dana Alexander Inc., 12 A.D.3d 988, 989 ).
with respect to the employers' request for
reconsideration and/or full Board review, the employers were
required to demonstrate that "newly discovered evidence
exist[ed], that there ha[d] been a material change in
condition, or that the Board improperly failed to consider
the issues raised in the application for review in making its
initial determination" (Matter of Amaker v City of
N.Y. Dept. of Transp., 144 A.D.3d 1342, 1343 
[internal quotation marks and citations omitted]; see
Matter of Von Maack v Wyckoff Hgts. Med. Ctr., 143
A.D.3d 1019, 1020 , lv dismissed 29 N.Y.3d 965');">29 N.Y.3d 965
). The employers submitted an affidavit and other
documentation seeking to establish that claimant had not been
hired until 2011 and that they were unaware of the need to
obtain a workers' compensation policy covering a domestic
worker because they had relied on the representations of
their insurance agent. In addition, the employers'
counsel provided a letter referencing a newly promulgated
regulation. None of the employers' submissions, however,
set forth grounds warranting reconsideration and/or full
Board review. Consequently, we find that the Board did not
abuse its discretion or act arbitrarily or capriciously in
denying the employers' request (see Matter of Levine
v Health First [HF Mgt. Servs. LLC], 147 A.D.3d 1193,
1195 ; Matter of Von Maack v Wyckoff Hgts. Med.
Ctr., 143 A.D.3d at 1020).
J.P., Egan Jr., Lynch and Aarons, JJ., concur.
that the decisions are affirmed, without costs.