The Full Board, at its meeting held on April 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on July 22, 2011.
The issues presented for Mandatory Full Board Review are:
By decision filed on December 13, 2010, the Workers' Compensation Law Judge (WCLJ) modified the claimant's AWW, modified prior awards for the period from July 2, 2003, to September 5, 2003, and found that WCL § 25-a was premature.
In a memorandum of decision filed on July 22, 2011, the majority initially noted that pursuant to WCL § 22, the Board has consistently held that the establishment of the claimant's AWW without prejudice does not bar a finding that a case has been truly closed for the purpose of shifting liability to the Special Funds pursuant to WCL § 25-a. The majority then went on to find that the carrier submitting its Form C-240, as directed, and its Form C-201, together constituted a request for further action such that further proceedings were contemplated, and therefore the case was not truly closed for the purpose of shifting liability to the Special Funds pursuant to WCL § 25-a. Therefore, the majority found the WCLJ properly determined that the carrier's request for WCL § 25-a relief was premature.
The dissenting Board Panel member would have found that as WCL § 22 establishes that a claimant's AWW is always subject to revision by the Board, the outstanding request to address the erroneous AWW set by the WCLJ in the September 11, 2003, decision, does not bar a finding that the case was truly closed for the purpose of shifting liability to the Special Funds pursuant to WCL § 25-a, and that WCL § 25-a applies effective June 18, 2010.
In its application for Mandatory Full Board Review, the carrier contends that WCL § 25-a applies as the statutory time frames have been met, there were no further proceedings contemplated following the notice of decision filed on September 11, 2003, and there is liability to shift in the form of the claim for compensation made at the December 8, 2010, hearing. The carrier contends that the claimant did not make a claim for compensation after the requirements of the statue had already been met. In the alternative, the carrier contends that given the claimant's unreasonable delay (without just cause or explanation) in requesting prior awards be modified pursuant to the modified AWW, and that the request prejudices the carrier's application for WCL § 25-a relief, awards should not have been modified based on the doctrine of laches.
In a rebuttal filed with the Board on September 9, 2011, the Special Funds asserts that the majority opinion is correct as a matter of law and fact and should be affirmed in its entirety.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On June 18, 2003, the claimant, a sales person for an automotive parts store, was injured while attempting to retrieve a muffler from a shelf.
By notice of decision filed on September 11, 2003, the WCLJ established the case for work-related injuries to the claimant's neck and upper back, set the claimant's AWW as $456.00 without prejudice, found no medical evidence for the period from June 18, 2003, to July 2, 2003, made awards for the period from July 2, 2003, to September 5, 2003, at the temporary total disability rate of $304.00 per week, authorized the carrier to discontinue payments to the claimant, directed the carrier to file a Form C-240 (Employer's Statement of Wage Earnings), and the case was marked no further action planned by the Board at that time.
The carrier submitted a Form C-8/8.6 (Notice that Payment of Compensation Has Been Stopped or Modified) on September 22, 2003, indicating that awards had been paid as directed.
The employer submitted a Form C-240 (Employer's Statement of Wage Earnings) on October 14, 2003, indicating that the claimant earned total wages of $21,997.73 for 231.50 days worked for the period from June 15, 2002, through June 21, 2003. Based on the Form C-240, the claimant's AWW worked out to $475.11, using a 260 multiple. The carrier submitted a Form C-201 (Application for Motion Calendar) on April 19, 2004, reflecting, among other things, that a computed payroll had been produced. However, no action was taken by the Board in response to the carrier's C-240 or C-201 and no further request for action was received from the carrier or the claimant until the carrier submitted a Form RFA-2 (Carrier's/Employer's Request for Further Action) on July 23, 2010, requesting a hearing to address WCL § 25-a.
Thereafter, the claimant submitted a WCL § 25-a Affidavit indicating that as a result of her compensable injuries she was given lighter duties, but her wages did not reflect the change in her condition.
In response, the case was reopened and a hearing was scheduled for December 8, 2010.
During the December 8, 2010, hearing, the Special Funds contended that the claimant's affidavit raised the issue as to whether the claimant received an advance payment of compensation in the form of light duty work, and that there was no true closing as the Form C-240 submitted by the carrier indicated a different AWW than the one set in the September 11, 2003, decision. The carrier did not oppose modifying the claimant's AWW, but did object to modifying prior awards based on the doctrine of laches. The WCLJ modified the claimant's AWW to $475.11, modified prior awards for the period from July 2, 2003, to September 5, 2003, based on the modified AWW, found no compensable lost time after September 5, 2003, and found that WCL § 25-a is premature. The WCLJ's findings were memorialized in a notice of decision filed on December 13, 2010.
WCL §; 25-a
The Special Fund for Reopened Cases under WCL § 25-a becomes liable when a case is reopened more than seven years from the date of an injury and more than three years from the date of the last payment of compensation (Matter of Gillette v Staub & Son, 8 AD2d 896 ). The purpose of this statute is to shift liability for paying stale claims to the Special Funds (see Matter of Russel v Carborundum Company, 105 AD2d 541 ). For WCL § 25-a to be applicable, there must have been a "true closing" of the case, which occurs when the case is closed with no further proceedings contemplated (see Matter of Casey v Hinkle Iron Works, 299 NY 382 ; Matter of McGarry v Capatano & Grow Const. Co., 58 AD2d 372 , aff'd 44 NY2d 946 ).
Setting a claimant's AWW without prejudice, in and of itself, would not bar a finding that a claim was truly closed for the purposes of WCL § 25-a (see e.g. Matter of Vermont Pure Springs, 2009 NY Wrk. Comp. 60008417; Matter of Sackets Harbor CSD, 2008 NY Wrk. Comp. 60009206). However, in the instant case, not only did the WCLJ set the AWW without prejudice, but he also requested the carrier to submit a Form C-240, which suggests that further proceedings were contemplated on the issue of the proper AWW. The carrier complied with the request by submitting a Form C-240 (which indicated that the AWW was not set at the proper amount), and subsequently filed a Form C-201 requesting a motion calendar decision. Prior to the carrier's application for WCL § 25-a relief, no final decision was issued and the claimant's AWW was never set at the proper rate per the Form C-240. Based on the preceding, the record supports a finding that the case was not truly closed by the WCLJ's September 11, 2003, decision because further proceedings were contemplated.
Furthermore, in order for payments of compensation to be a bar to a finding of WCL § 25-a, the payments must be made within three years of the application to reopen. Contrary to the carrier's assertion, making awards retroactively to a period of lost time within three years from an application to reopen would not be a bar to WCL § 25-a. Pursuant to WCL § 25-a, only if the awards to the claimant had actually been paid within three years of the application to reopen would a contrary result be warranted. It is not enough that compensation might subsequently become due for a period within three years of the application to reopen.
Therefore, the Full Board finds, upon review of the record and based upon a preponderance of the evidence, that WCL § 25-a does not apply to this claim at the present time.
Modification of Prior Awards
Workers' Compensation Law § 123 gives the Board continuing jurisdiction over each case, and gives the Board the authority to modify or change former findings, awards, decisions or orders as in its opinion may be just.
Workers' Compensation Law § 22, in pertinent part, states:
"Upon its own motion or upon the application of any party in interest, on the ground of a change in conditions or proof of erroneous wage rate, the board may at any time…review any award, decision or order and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded…"
The equitable doctrine of laches can be applied in the workers' compensation forum to estop a party from raising an issue after an inexcusable delay (see Matter of Mangum v National Union Fire Ins. Co., 14 AD3d 968 ). "An essential element of the equitable doctrine of laches is delay prejudicial to the opposing party (see New York Pub. Interest Research Groups v Levitt, 62 AD2d 1074, appeal dismissed 46 NY2d 849) and, if the party seeking to invoke the doctrine is on notice that the opposition may seek the contested relief, laches will not apply (see Cohen v Krantz, 227 AD2d 581)" (Matter of Kobre v Camp Mogen Avraham, 293 AD2d 893 ).
In the present case, the WCLJ, in the decision filed on September 11, 2003, set the claimant's AWW as $456.00 without prejudice and directed the carrier to file a Form C-240 (Employer's Statement of Wage Earnings). The carrier subsequently filed a C-240 reflecting claimant's earnings prior to her injury. Clearly, the carrier was aware at least as early as the issuance of the WCLJ's September 11, 2003, decision that claimant's AWW might be modified, which would result in the modification of awards, and was in no way prejudiced by any delay in modifying those awards.
Therefore, based on the preceding, the Full Board further finds that the carrier has failed to meet its burden of showing that the doctrine of laches should bar the modification of the claimant's prior awards.
ACCORDINGLY, the WCLJ decision filed on December 13, 2010, is AFFIRMED. No further action is planned at this time.