The Full Board, at its meeting held on May 15, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on July 26, 2011.
The issues presented for Mandatory Full Board Review are:
In a decision filed on February 25, 2011, the Workers' Compensation Law Judge (WCLJ) found that $542.76 is the claimant's average weekly wage, including concurrent employment; found that the SIE is not entitled to reimbursement from Special Funds pursuant to WCL § 14(6) because the reimbursement request was filed after July 1, 2010; and directed that Special Funds be discharged and removed from notice.
In a Memorandum of Decision filed July 26, 2011, the Board Panel majority affirmed the WCLJ, concluding that the claimant's concurrent employment claim is not barred by the doctrine of laches, and that the SIE is not entitled to reimbursement from Special Funds pursuant to WCL § 14(6).
The dissenting Board Panel member would have denied the claim for concurrent employment, because the claimant did not timely assert her claim, and the claimant's delay has rendered the SIE ineligible to seek reimbursement pursuant to WCL Section 14(6).
In their application for Mandatory Full Board Review filed on August 25, 2011, the SIE argues that the claim for concurrent employment is barred by the doctrine of laches. Alternatively, the SIE argues that if concurrent employment is established, its failure to file a timely claim for reimbursement should be excused and the Special Funds should be directed to reimburse the SIE pursuant to WCL § 14(6). The SIE argues that because of the delay in the claimant's production of proof of her claim for concurrent employment, the SIE was unable to file a claim for reimbursement prior to the July 1, 2010 deadline.
In a rebuttal filed with the Board on September 26, 2011, the claimant argues that the doctrine of laches does not apply here because the issue of concurrent employment was raised on January 17, 2001, and the SIE had sufficient information at that time to file a request for reimbursement.
In a rebuttal filed with the Board on September 28, 2011, the Special Funds initially requests that the SIE's application for Mandatory Full Board Review be denied as untimely because it was not filed within 30 days from the Board Panel's decision, as required by WCL § 23. The Special Funds also argues that the Board Panel properly found that the SIE is not entitled to reimbursement under WCL § 14(6), because the SIE failed to file a notice of intention to seek reimbursement prior to July 1, 2010, as required by WCL § 15(8)(h)(2)(A).
Upon review, the Full Board votes to adopt the following findings and conclusions.
On January 17, 2001, the claimant filed a C-3 (Employee Claim) to report a back injury that occurred while she was working as a nurse's aide. On the C-3 the claimant stated that at the time of her injury, she was also employed by another employer, and that she lost time from work at her other employment as a result of her injury.
In a decision filed on April 11, 2001, the WCLJ established the claim for a back injury that resulted from an accident on September 6, 2000, and found a tentative average weekly wage of $354.00 per week.
On the WCLJ's "scratch sheet" for the hearing held on January 9, 2003, the WCLJ noted that one of the issues to be resolved at the next hearing was the "Crowne Plaza 14(6) issue" (ECF Doc. ID #73568134) and in a decision filed on January 21, 2003, the WCLJ noted that the case was continued to consider the question of concurrent employment.
At the hearing held on June 19, 2003, the claimant testified that at the time of her September 2000 work accident, she was also employed by Crowne Plaza (formerly the Omni Hotel) as a waitress. The claimant testified that she had a letter from a woman in the Human Resources Department of the Crowne Plaza. The letter purportedly indicated that the claimant was employed by the Crowne Plaza on of the date of her accident. The claimant was directed to find and produce any tax returns or pay stubs she had relating to her employment with Crowne Plaza.
In a decision filed on June 26, 2003, the WCLJ made awards for the period from April 25, 2002, to June 20, 2002, found no medical evidence for the period from June 20, 2002, to December 4, 2002, directed the claimant to produce evidence of concurrent employment, and continued the case.
In a decision filed on December 9, 2003, the Board Panel modified the decision filed on June 26, 2003, to find no medical evidence for the period from April 25, 2002, to May 3, 2002, and to find no compensable lost time for the period from May 3, 2002, to June 20, 2002, because the claimant voluntarily removed herself from the labor market during that period. The rest of the WCLJ's decision was affirmed, and the case is closed.
The case remained closed until February 2010, when the claimant retained new counsel.
In a decision filed on July 13, 2010, the WCLJ directed that the Special Funds be taken off notice on the issue of WCL § 25-a liability. The WCLJ found that there was no true closing in December 2003, since the issue of concurrent employment had remained unresolved. However, the WCLJ directed that the Special Funds remain on notice for the WCL § 14(6) issue. The WCLJ directed the claimant to produce proof of concurrent employment, and continued the case.
On September 29, 2010, the claimant filed an RFA-1 form and attached proof of earnings from her concurrent employment with the Omni Hotel. According to the W-2 provided by the IRS, the claimant's gross earnings with Omni during the year 2000 amounted to $3,813.00.
A hearing was held on November 4, 2010, to address the issues of concurrent employment, laches and potential reimbursement by the Special Funds. At the hearing, the SIE submitted a C-251.3, to request reimbursement from the Special Disability Fund, pursuant to WCL § 14(6).
On November 15, 2010, the claimant's attorney submitted a letter to the Board dated August 2, 2010, from the Director of Human Resources at the Crowne Plaza, which confirms that the claimant was employed at the Crowne Plaza for the period from May 30, 2000, to October 18, 2000, and left the company for health related reasons.
At the hearing held on February 22, 2011, the Director of Human Resources at the Crowne Plaza testified that the claimant worked at the Crowne Plaza from May 30, 2000, through October 18, 2000, when the claimant had to leave for health reasons. The claimant worked full time for the Crowne Plaza and made $4.00 per hour, plus tips. The witness was unable to say exactly what hours and days the claimant worked, or whether she worked during the week of September 7, 2000. The witness explained that if she had been asked for that information in 2000, 2001 or 2002, she would have been able to provide it.
As noted above, in a decision filed on February 25, 2011, the WCLJ modified the claimant's average weekly wage to $542.76 per week based on her concurrent employment; modified prior awards; found that the claimant gave sufficient information about her concurrent employment in 2003 to permit the SIE to file a C-251.3; found the SIE liable for the concurrent employment because its reimbursement request was filed after July 1, 2010; and discharged and removed the Special Funds from notice.
WCL § 23
WCL § 23 states that if a Board Panel decision contains a dissenting opinion, "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 a written decision that includes "a statement of the facts which formed the basis of its action on the issues raised before it on such application."
As argued by Special Funds in its rebuttal, the first copy of the SIE's application for Mandatory Full Board Review scanned into the Board's electronic case folder is date stamped as having been received by the Board on August 29, 2011, more than thirty days after the WCLJ's decision. However, the application is dated August 25, 2011, and indicates that it was "hand delivered and date stamped 08/25/2011." The SIE subsequently filed a copy of its application for Mandatory Full Board Review which contains a date stamp reflecting that it was received by the Board on August 25, 2011.
Therefore, the Full Board finds that the SIE's application for Mandatory Full Board Review was timely filed.
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 ). While there is no statutory deadline for raising the issue of concurrent employment, the court has previously found that a claim of concurrent employment can be barred by the doctrine of laches (Matter of Schroeter v Grand Hyatt Hotel, 262 AD2d 725 ). In Schroeter, the claimant was injured in 1987, and the case was formally established with an average weekly wage set in 1990. The claimant was classified as permanently partially disabled and the case was closed in 1991. The claimant first raised the issue of concurrent employment in 1995, more than seven years after the date of injury (id.). The Court denied the claim for concurrent employment and stated that "[b]y belatedly claiming concurrent employment through her 1995 application, the claimant was endeavoring to modify the November 1990 decision which had established her average weekly wage based only on her employment with Grand Hyatt" (id. at 726). The Court also found that the claimant's seven year delay precluded the Special Funds investigation of the underlying claim, resulting in prejudice (id.).
Here, the issue of concurrent employment was raised on the claimant's C-3 form that was filed on January 17, 2001. Further, she testified about her concurrent employment on June 19, 2003, before the case was closed in December 2003. The Full Board finds that Schroeter is distinguishable from the case at bar because the claimant raised the issue of concurrent employment at the time that she filed her workers' compensation claim. Therefore, any prejudice to the SIE could have been alleviated if the SIE had investigated the claim when it was raised in 2001 and addressed during the claimant's testimony in 2003.
Therefore, the Full Board finds that claimant is not barred by the doctrine of laches from raising the issue of concurrent employment.
Claim for Reimbursement
WCL § 14(6) provides, in relevant part, that if the claimant was "concurrently engaged in more than one employment at the time of injury," the average weekly wage is calculated "upon the basis of wages earned from all concurrent employments." The employer in whose employment the employee was injured is "initially responsible for paying additional benefits attributable to a claimant's concurrent employment" (Matter of Belance v Manhattan Beer Distribs., 52 AD3d 1059 , lv denied 11 NY3d 715 ). However, if the accident or death occurred on or after January 1, 1986 and if the date of accident or disability precedes July 1, 2007, the employer or its carrier has until July 1, 2010 to seek Special Disability Fund reimbursement for benefits attributable to the concurrent employment (see WCL § 14; § 15[h][A]; § 15[l] as added by L 1985, ch 416, § 2; Matter of Jaworek v Sears Roebuck & Co., 67 AD3d 1161 ).
Here, it is undisputed that the SIE did not file its request for WCL § 14(6) reimbursement until November 4, 2010, four months after the July 1, 2010 deadline set forth in the statute.
Therefore, the Full Board finds that the SIE remains liable for the concurrent employment since the SIE's claim for reimbursement was untimely filed.
Accordingly, the WCLJ decision filed February 25, 2011, is AFFIRMED. No further action is planned by the Board at this time.