Case # 40804883
Date of Accident: 06/05/2008
District Office: Hauppauge
Employer: Suffolk County Water Authority
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 62913504-245
Date of Filing of Decision: 03/29/2012
Claimant's Attorney: Grey & Grey LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on February 28, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on January 21, 2011.

ISSUE

The issue presented for Full Board Review is whether the carrier's untimely application for administrative review should be considered.

The Workers' Compensation Law Judge (WCLJ) found that the claimant had suffered causally related loss of earnings and directed indemnity awards for various periods, including awarding a $465.00 tentative rate for the period September 23, 2008, through December 10, 2008.

The Board Panel majority determined that the claimant did not sustain causally related loss of earnings for the period September 23, 2008, through December 10, 2008, and rescinded awards for this period. The majority did not acknowledge or address the issue of the carrier's untimely application.

The dissenting Board Panel member found that the claimant stopped working due to both his back injury and his blood clot, whereby the award for the period September 23, 2008, though December 10, 2008, was proper. The dissenting Board Member did not acknowledge or address the issue of the carrier's untimely application.

In an application for Mandatory Full Board Review filed February 21, 2011, the claimant contends that the carrier's application for Board Review was untimely pursuant to Workers' Compensation Law (WCL) § 23, as it was not received by the Board until October 26, 2009, and the WCLJ's decision was filed September 3, 2009. The claimant argues that either the carrier should have sent proof that the application for review was timely faxed to the Board or the carrier's application should not have been considered as it was untimely. In the alternative, the claimant contends that the Board Panel should have affirmed the decision of the WCLJ based upon the claimant's credible testimony, the medical evidence, and the concessions of the employer witnesses.

In a rebuttal filed March 15, 2011, the carrier argued that the Board Panel's decision is based upon a careful review of the facts and should be affirmed. The carrier does not address the issue of the untimely application for administrative review in its rebuttal. Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

On June 5, 2008, the claimant suffered a work-related aggravation of a pre-existing back condition. At the time of the June 5, 2008, injury, the claimant was working as a utility worker. This case was established for the back in a proposed decision which was finalized on October 22, 2008. According to the carrier's C-8/8.6 form filed on September 24, 2008, the claimant was paid compensation benefits until he returned to work on September 2, 2008.

At a hearing held on February 26, 2009, the carrier raised the issue of causally related disability for the period September 23, 2008, through December 10, 2008, based on information that the claimant was diagnosed with a non-occupational blood clot and pulmonary embolism on September 23, 2008. The carrier contended that the claimant was disabled from that non-occupational condition as opposed to his compensable back condition.

Following development of the record, the WCLJ ruled that there was sufficient evidence to support the claimant's contention that he was disabled because of his occupational back condition for the period September 23, 2008, through December 10, 2008, and awarded a $465.00 tentative rate for that period. The WCLJ also made various other awards, all of which were memorialized in the decision filed on September 3, 2009. In an untimely application for administrative review filed with the Board on October 26, 2009, the carrier appealed the award for the period September 23, 2008, through December 10, 2008, arguing that the claimant was out of work during that period solely due to his unrelated blood clot. In a rebuttal filed October 21, 2009, the claimant asserted that the carrier's application should be denied, pursuant to 12 NYCRR 300.13(e), unless the carrier could produce proof of timely filing via fax. In the alternative, the claimant maintained that the WCLJ's decision was proper, as he stopped working due to his causally related back injury.

LEGAL ANALYSIS

"'[WCL] § 23 requires a party seeking review of a WCLJ decision to file a written application for review with the Board within 30 days of the filing of the decision' (Matter of Hyland v Matarese, 56 AD3d 841 [2008] [citations omitted]; see 12 NYCRR 300.13[a], [e][1][i]; Matter of Toner v Michael Hanley Moving & Stor., 40 AD3d 1199 [2007], lv denied 9 NY3d 808 [2007])" (Matter of Stojanov v Eastman Kodak Co., 72 AD3d 1153 [2010]). "[A]n application is deemed filed with the board on the date of actual receipt of such application by the board" (12 NYCRR 300.13[a]).

In this case, the carrier's application for review was not timely submitted to the Board in accordance with WCL § 23 and 12 NYCRR 300.13(a), as the application was received by the Board on October 26, 2009, more than 30 days after the WCLJ's decision was filed on September 3, 2009. While it is evident that the claimant received the carrier's application for review before the Board, as he filed a rebuttal on October 21, 2009, the carrier had a separate duty to file the application in a timely fashion with the Board, and failed to do so. The carrier has never submitted any evidence that its application for review was filed with the Board prior to October 26, 2009. While the claimant alleged in his rebuttal that the carrier's application for review was not timely filed with the Board, the Board Panel failed to address that issue.

Based on the preceding, the Full Board finds that the preponderance of the evidence in the record suggests a finding that the carrier did not timely file its application for review pursuant to WCL § 23 and 12 NYCRR 300.13(a), as the application was received by the Board on October 26, 2009, more than 30 days after the WCLJ's decision was filed on September 3, 2009. Therefore, the Full Board declines to consider carrier's untimely application for review.

CONCLUSION

Accordingly, the WCLJ decision filed on September 3, 2009, remains in effect. No further action is planned by the Board at the present time.