Case # 59801280
Date of Accident: 12/14/1997
District Office: Albany
Employer: NYS Division for Youth
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 44131670-097
Date of Filing of Decision: 09/10/2012
Claimant's Attorney: Ouimette, Goldstein & Andrews LLP
Panel: Robert E. Beloten

The Full Board, at its meeting on July 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision duly filed and served on November 10, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether an advanced payment against future awards in the amount of $5,000.00 should be paid back by the claimant in the amount of $50.00 weekly or bi-weekly.

This issue was referred to the Board Panel as a result of the claimant's filing of a form C-21 (Application for an Advanced on Periodic Payments of Compensation) and SIF's denial of same.

The Board Panel majority granted the claimant a lump sum advance of $5,000.00 against the claimant's periodic payments of compensation, and determined that said advance is to be paid back at the rate of $50.00 bi-weekly, until the $5,000.00 lump sum advance is satisfied.

The dissent does not dispute the granting of claimant's application for a lump sum request, but would find that the claimant must pay back the lump sum award at the rate of $50.00 per week, until the $5,000.00 lump sum advance is satisfied. The dissenting panelist believes that such a repayment plan would not have a negative impact upon the claimant's finances and would result in a more reasonable repayment period.

In its application for Mandatory Full Board Review filed on December 7, 2011, the State Insurance Fund (SIF) argues that the claimant has demonstrated the financial ability to repay the advance at $50.00 per week. SIF further notes that the lump sum advance already has been paid to the claimant in accordance with the Board Panel decision.

In a rebuttal filed on January 6, 2012, the claimant argues that her finances were accurately reviewed and that it would be in the best interest of the claimant and not injurious to SIF for the $5,000.00 advance to be paid back at the rate of $50.00 bi-weekly.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This case was established for compensable work-related injuries of December 14, 1997, to the neck, right shoulder and right hand. The claimant's average weekly wage was fixed at $896.14. By a decision filed on September 10, 2001, the claimant was classified as having a permanent partial disability and awarded continuing benefits at the rate of $375.00 per week. By a decision filed on March 7, 2011, the claimant was awarded benefits at an overall rate of $400.00 per week, apportioned 50% to this case and 10% each to WCB case numbers 59212946, 59311846, 59417512, 59612801, and 59715346, with an effective date of apportionment as May 23, 2008.

In a form C-21 (Application for an Advance on Periodic Payments of Compensation) filed on February 7, 2011, the claimant requested an advanced payment against future payments of compensation in the amount of $5,000.00. The claimant maintained that the money was needed so that she could pay for medical care of her sick son who resides in Peru (with her sister and brother) and to pay overdue bills.

The claimant indicated that she receives $800.00 monthly in Social Security benefits and $750.00 in retirement benefits. The claimant lists her monthly expenses, as $496.00 for rent, $106.00 for utilities, $30.00-$40.00 for her phone, $332.00 for her car payment, $132.00 for her car insurance, $450.00 per month for food and medications and $400.00 for family support of her son, sister and brother.

The Board's records show that the Social Services Unit of the Workers' Compensation Board discussed the petition for a lump sum advance with the claimant. The social worker has explained the actuarial credit to the claimant. The claimant understands and approves the use of the actuarial credit. The Board's social worker requests that the lump sum advance be approved, and indicated that the claimant would be willing to pay back the advance at the rate of $50.00 bi-weekly until the lump sum advance is satisfied.

In addition, by Form C-21.1, the social worker advised SIF to begin the process of actuarial computation and to advise the Board whether the request for an advance was being approved or disapproved and then to respond within ten days of the Board's July 8, 2011, correspondence, otherwise the right to disapprove would be waived.

In a letter dated July 12, 2011, SIF indicated that it was denying the lump sum advance request because the claimant is 75-years of age and the $5,000.00 advance if repaid at $25.00 per week would take 200 weeks to repay. The carrier further argues that the claimant is already in an overpayment situation involving Special Funds Conservation Committee (Special Funds) and SIF, in the amount of $2,800.00. The carrier further mentions that the claimant refused its § 32 offer of $90,000.00 and further argues that it is not the purpose of the workers' compensation benefits to care for individuals who are not residing with nor who are financially dependent on the claimant.

LEGAL ANALYSIS

Pursuant to Workers' Compensation Law (WCL) § 25(5)(b), the Board, upon the application of a claimant, may commute periodic continuing payments made under the WCL into one or more lump sum payments where such commutation would be in the interest of justice.

A review of the record indicates that the input of the Board's social worker who has been in contact with the claimant recommended approval of the claimant's request, including the terms of repayment at $50.00 bi-weekly. Making a straightforward comparison of the claimant's monthly income (even when considering the total amount of worker's compensation benefits she is receiving) to her monthly expenses fails to take other variables into account such as income taxes, inflation, and her son's increasing medical costs. Here, it was found that the need for the advance was properly demonstrated by the claimant. Under the circumstances, the hardship upon the claimant, an elderly individual on a fixed income to repay the advance at a rate of $50.00 per week versus $25.00, clearly outweighs any hardship to SIF.

Therefore, the Board Panel finds, upon review of the record and based upon a preponderance of the evidence, that it would be in the interest of justice, and in the best interest of the claimant to grant the lump sum advance of $5,000.00, against the claimant's periodic payments of compensation, In addition, the Board Panel finds that said advance is to be paid back at the rate of $50.00 bi-weekly, until the $5,000.00 lump sum advance is satisfied.

However, the record reveals that there is an administrative error in the Board's file. A form RB-62 (Notice of Board Decision) was filed in the case on December 6, 2011, indicating that based upon the lump sum advance of $5,000 and a weekly reduction in compensation benefits of $50.00, full compensation benefits can resume after 100.10 weeks and may resume on October 11, 2013. This is inconsistent with the Board Panel's findings, and requires correction. It is also noted that on February 3, 2012, SIF filed a form EC-8/8.6 (Notice that Payment of Compensation has been Stopped or Modified) based on the incorrect form RB-62. Thus, a proper actuarial accounting also is in order.

CONCLUSION

Accordingly, the claimant's application for an advance payment of $5,000.00 against her periodic payments of compensation in WCB Case Number 59801280 is APPROVED with said advance to be paid back at the rate of $50.00 bi-weekly, until the $5,000.00 lump sum advance is satisfied. In addition, an actuarial accounting and revised forms RB-62 and EC-8/8.6 are ordered herein.