Case # 00209143
Date of Accident: 01/20/2002
District Office: NYC
Employer: CCIP/Associated For Services
Carrier: Continental Insurance Co
Carrier ID No.: W064000
Carrier Case No.: 1E017562 F3
Date of Filing of Decision: 10/10/2012
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on September 11, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 28, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's claim for a January 20, 2002, work injury to her left hip should be barred under Workers' Compensation Law (WCL) § 123.

The Workers' Compensation Law Judge (WCLJ) established the case for a left hip injury.

The Board Panel majority affirmed, finding that WCL § 123 does not apply to this case.

The dissenting Board Panel member would find that WCL § 123 applies.

On November 28, 2011, the carrier filed a request for Mandatory Full Board Review.

The claimant filed a rebuttal on December 22, 2011.

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

FACTS

This case was indexed on March 1, 2002, upon the filing of a C-2 (Employer's Report of Injury/Illness) and C-669 (Notice to the Chair of Carrier's Action on Claim for Benefits). The C-2 form stated the claimant injured her left hip when she slipped while walking down stairs on January 20, 2002. The C-669 form noted the carrier's intent to accept this case for a left hip injury. The C-2 and C-669 forms listed the claimant's address as 1044 Rutland Road, PO Box 105, Brooklyn, NY.

Pursuant to these forms, the Board issued an April 12, 2002, administrative decision finding the claimant had a work-related accident on January 20, 2002, and properly notified her employer. However, the decision indicated that "[n]o further action will be taken at this time and no benefits can be awarded in your case until the Board receives a proper medical report." The carrier did not object to the administrative decision.

On April 29, 2002, the claimant filed Dr. Rashid's April 23, 2002, narrative report where Dr. Rashid stated the claimant was seen on January 26, 2002, with complaints of left hip pain after the claimant fell at work, injuring her hip. However, the Board took no action based on Dr. Rashid's report.

Prior to any further action, the claimant filed a claim for an October 13, 2009, injury to her right hip. All pertinent forms, including the claimant's C-3 form, listed the claimant's address as 751 East 81st Street, Brooklyn, NY. The Board indexed this case as WCB No. G0220961 and had both cases travel together.

In the instant case, the Board forwarded a Notice of Hearing to all parties on March 19, 2010, and advised that a hearing had been scheduled in both cases for April 5, 2010. The address listed on this specific notice was PO Box 120105, 1044 Rutland Road, Brooklyn, NY. The claimant's Notice of Hearing was returned to the Board as undeliverable as it could not be forwarded.

The notice of the April 5, 2010, hearing in WCB No. G0220961 listed the claimant's address as 751 East 81st Street, Brooklyn, NY. The record contains no evidence that this Notice of Hearing was returned as undeliverable.

The claimant did not appear at the scheduled time for the April 5, 2010, hearing and both cases were marked for no further action. The corresponding Notices of Decision filed on April 8, 2010, were forwarded to the claimant at an address listed as 751 East 81st Street, Brooklyn, NY. The Board's file revealed the claimant's address in the instant case was changed on April 5, 2010.

The record in WCB No. G0220961 contains a letter from claimant dated April 5, 2010, in which she stated that she "arrived at the court late and would like to reopen this case." Pursuant to the claimant's letter, the Board reopened both cases.

On June 29, 2010, the Board sent out Notices of Hearing in both cases and stated that a hearing was scheduled for July 19, 2010. Both Notices were forwarded to the claimant's current address.

At the July 19, 2010, hearing, the carrier in the instant case raised WCL § 123 and asserted the case should not be established because the claimed accident is over seven years old and the claimant had an opportunity to be heard in this case. The WCLJ denied the carrier's application and established the case for the left hip. This decision was memorialized by Amended Decision filed on July 23, 2010.

LEGAL ANALYSIS

The carrier filed an application for Mandatory Full Board Review arguing that this claim should be barred by WCL § 123, as found by the dissenting Board Panel member.

In rebuttal, the claimant asserts that WCL § 123 should not apply in this case because she was not provided an opportunity to be heard on the merits of her case.

WCL § 123 provides, in relevant part, that:

"no claim for compensation or for death benefits that has been disallowed after a trial on the merits, or that has been otherwise disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits, shall be reopened after a lapse of seven years from the date of the accident or death." [Emphasis added].

By an administrative decision filed April 12, 2002, the Board found that the claimant had a work-related accident on January 20, 2002, and properly notified her employer. The decision indicated that "[n]o further action will be taken at this time and no benefits can be awarded in your case until the Board receives a proper medical report." The carrier did not object to the administrative decision. While that decision did not make awards, it did establish this claim for an accidental injury, and clearly constituted a determination "on the merits."

Therefore, the Full Board finds that the provision of WCL § 123 relied upon by the carrier is inapplicable to the present claim.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on July 23, 2010, is affirmed. No further action is planned by the Board at this time.