The Full Board, at its meeting on July 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on October 12, 2012.
The issue presented for Mandatory Full Board Review is whether a penalty should be assessed against the carrier for untimely payment of awards pursuant to Workers' Compensation Law (WCL) § 25(3)(f).
In a Notice of Decision filed on June 8, 2011, the Workers' Compensation Law Judge (WCLJ) found that no penalty should be assessed.
The Board Panel majority disagreed with the WCLJ and assessed against the carrier for untimely payment of awards pursuant to WCL § 25(3)(f).
The dissenting Board Panel member agreed with the WCLJ, finding that no penalty should be assessed against the carrier because the carrier timely mailed the payment to the claimant at the address that was on file with the Board.
On November 6, 2012, the carrier filed an application for Mandatory Full Board Review, arguing that a penalty should not have been assessed pursuant to WCL § 25(3)(f), as the payment was timely mailed to the official address of record for the claimant as it appeared on the Notice of Decision filed on August 6, 2010.
No rebuttal was filed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case is established for a left foot injury as a result of a work-related accident that occurred on May 19, 2009, whereby the claimant, who was working as a valet, got his foot caught under a car that he was moving. The average weekly wage was determined to be $375.00, with wage expectancy, per stipulation.
On February 22, 2010, the claimant filed an RFA-1 (Claimant's Request for Further Action) form claiming a 25% schedule loss of use (SLU) of the left ankle, per an attached report, and requested that a hearing be scheduled.
Based on claimant's RFA-1, a hearing was scheduled for July 30, 2010. The hearing notice was sent to claimant at his address of record at the time: 1504 Sheridan Avenue, Bronx, New York. At the hearing on July 30, 2010, the claimant, his attorney, and the carrier's representative were present. After being duly sworn, the claimant testified that his address was 1605 Metropolitan Avenue, Apartment 10A, Bronx, New York 10462. The WCLJ asked the claimant if that was a new address, and the claimant responded in the affirmative. The WCLJ directed the claimant to "[c]hange the address up front" (Hearing Minutes, 7/30/10, pg. 3).
In the resulting decision filed on August 6, 2010, the WCLJ, among other things, held that the claimant had a 25% SLU of the left foot, entitling him to 51.25 weeks of benefits. The total award was $12,812.50, less payments already made and less an attorney fee totaling $1,400.00. The case was marked for no further action. The decision was mailed to the claimant at the 1504 Sheridan Avenue address.
A C-8/8.6 (Notice that Payment of Compensation has Been Stopped or Modified) form dated August 6, 2010, indicated that the balance due to the claimant, less fees to the claimant's attorney and prior payments of $211.33, was $11,201.17. The C-8/8.6 form stated that payments were mailed on August 6, 2010, and reflected the claimant's mailing address as the Sheridan Avenue address.
The claimant filed an RFA-1 on August 27, 2010, alleging that the carrier sent the payment of the award to his old address at Sheridan Avenue.
A hearing was held on June 3, 2011, to address the issue of a late payment penalty. At the hearing, the claimant's attorney contended that the award that was made at the hearing on July 30, 2010, was not timely paid to the claimant as the carrier remitted payment to the claimant's old address. In response, the carrier's attorney argued that, while the payment was sent to the old address, it was paid timely, inasmuch as it was sent to the address of record listed on the notice of decision. When questioned by the WCLJ as to whether he had gone up front after the last hearing to change his address with the Board, as instructed, the claimant testified that he did not do so. The WCLJ then indicated that the carrier would not be responsible because it could rely on the address that was on the August 6, 2010, Notice of Decision.
In a decision dated June 8, 2011, the WCLJ held that no penalty was due, and the case was marked for no further action.
"If the employer or its insurance carrier shall fail to make payments of compensation according to the terms of the award within ten days … there shall be imposed a penalty equal to twenty percent of the unpaid compensation which shall be paid to the injured worker or his or her dependents" (WCL § 25[f]).
In the present case, it is uncontested that the carrier remitted timely payment to the address of record for the claimant as it appeared on the Notice of Decision filed on August 6, 2010. While the claimant noted during a hearing on July 30, 2010, that his address had changed, providing oral notice of an address change during a hearing is not sufficient to change the address of record with the Board. As such, the WCLJ specifically directed the claimant during the hearing to change his address at the front desk. Despite the WCLJ's clear instruction, the claimant failed to do so. Consequently, the resulting decision continued to indicate the claimant's old address, as it remained the address of record. It was the claimant's obligation to make sure that the Board and all interested parties had his proper and current address. The carrier should not be penalized for remitting payment to the address of record for the claimant simply because the claimant failed to appropriately change his address with the Board, as instructed. In addition, the carrier should not be penalized for making payments to an address listed on a Board decision that the carrier should be permitted to rely on as being correct.
In this case, although the payment was received by the claimant late, the payment was not remitted late by the carrier for purposes of WCL § 25(3)(f). Accordingly, under these circumstances, it is improper to impose a penalty against the carrier for the untimely payment of awards.
Therefore, the Full Board finds, based upon a preponderance of the evidence, that a penalty should not be assessed against that carrier for untimely payment of awards pursuant to WCL § 25(3)(f).
ACCORDINGLY, the WCLJ decision filed on June 8, 2011, is AFFIRMED. No further action is planned by the Board at this time.