Case # G0161229
Date of Accident: 06/18/2009
District Office: Hauppauge
Employer: Town of Islip
Carrier: Islip, Town of
Carrier ID No.: W826507
Carrier Case No.: 2009110525
Date of Filing of Decision: 08/01/2012
Claimant's Attorney: Turley, Redmond, Rosasco & Rosasco, LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on July 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on December 28, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the self-insured employer's (SIE) untimely application for Mandatory Full Board Review should be considered.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding that the evidence did not support a finding that the decedent's heart attack was caused by his employment.

The Board Panel majority reversed the WCLJ's decision, finding that the decedent's work activities precipitated the heart attack which caused his death.

The dissenting Board Panel would have affirmed the WCLJ's decision disallowing the claim.

On February 1, 2012, the SIE filed a request for Mandatory Full Board Review of the Board Panel decision duly filed and served on December 28, 2011.

The claimant filed a rebuttal on February 8, 2012.

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

FACTS

The claimant, whose husband (decedent) worked as an automotive equipment operator for the SIE, filed a Form C-62 (Claim for Compensation in a Death Case), on July 15, 2009, alleging that the decedent died at work due to a heart attack. The SIE controverted the claim.

The death certificate states that the decedent died on June 18, 2009, due to cardiac arrest and acute myocardial infarction caused by coronary artery disease.

Following lay and medical testimony, the WCLJ, at a hearing on April 13, 2011, disallowed the claim, finding that the decedent's work did not contribute to his heart attack. The WCLJ's findings were memorialized in a decision filed April 21, 2011. The claimant sought administrative review.

LEGAL ANALYSIS

In its application for Mandatory Full Board Review filed on December 28, 2011, the SIE argues that the evidence supports a finding that the decedent's heart attack was not causally related to his employment. Counsel for the SIE, acknowledging that its application for Mandatory Full Board Review was not filed within thirty days of the Board Panel's decision as required by WCL § 23, submitted with its application for Mandatory Full Board Review the affidavit of its counsel, who states that he failed to file a timely application for review because his spouse was ill and he miscalculated the time period for filing the application. The SIE requests that the lateness of its application be excused.

In rebuttal, the claimant argues that the Board should not consider the SIE's application because it was untimely. The claimant further argues that the evidence supports establishment of the death claim.

WCL § 23 provides, in relevant part,

that if the decision or determination was that of a panel of the board and there was a dissent from such decision or determination…, any party in interest may within thirty days after notice of the filing of the board panel's decision with the secretary of the board, make application in writing for review thereof by the full board, and the full board shall review and affirm, modify or rescind such decision or determination in the same manner as herein above provided for an award or decision of a referee.

In the present case, while the SIE's counsel submitted an affidavit requesting that the Full Board consider the SIE's untimely application for Mandatory Full Board Review, the affidavit does not set forth sufficient basis for excusing the untimely filing. Although a family health issue can constitute a reasonable basis for excusing a late filing, the SIE's counsel was a member of a law firm and, presumably, other attorneys were available to assist counsel in completing a timely application. Therefore, the SIE's request for Mandatory Full Board Review is untimely and will not be considered.

CONCLUSION

Accordingly, the Board Panel Memorandum of Decision filed on December 28, 2011, remains in effect. No further action is planned by the Board with respect to this matter.