Opinion
October 19, 1978
Appeal from a decision of the Workers' Compensation Board, filed October 4, 1977, which denied the employer's application to reopen a prior determination of the board, rendered January 14, 1977, upon a discrimination claim pursuant to section 120 of the Workers' Compensation Law. A decision to grant or deny an application to reopen and reconsider a prior determination rests in the sound discretion of the Workers' Compensation Board and such a decision will not be disturbed unless it is found to be arbitrary and capricious or an abuse of discretion (Matter of De Maio v Rockford Plumbing Heating, 63 A.D.2d 1041). An examination of this record discloses that the employer ignored several notices of hearing, received over a two-year period, directing its appearance before a referee to interpose an answer to claimant's charges. While the penalty ultimately incurred was substantial, the employer's difficulties were self-imposed and we cannot say, as a matter of law, that the board abused its discretion (see Matter of Rusyniak v Syracuse Flying School, 37 N.Y.2d 384). Additionally, we find no merit in the employer's constitutional arguments. Decision affirmed, with costs to respondents filing briefs against the appellant. Mahoney, P.J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.