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Case # 00611427
Date of Accident: 10/23/2001
District Office: Peekskill
Employer: NYC Housing Authority
Carrier: NYC Housing Authority
Carrier ID No.: W843254
Carrier Case No.:
Date of Filing of Decision: 10/02/2013
Claimant's Attorney: Joseph A. Romano Law Offices
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on October 17, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the case should be returned to the trial calendar for further development of the record, and final adjudication, of the issue of timeliness of the claim under Workers' Compensation Law (WCL) § 28.

In a decision filed on November 10, 2011, the Workers' Compensation Law Judge (WCLJ) found that the case is closed, per prior WCLJ decisions, until such time as the claimant produces evidence of advance payment of compensation.

In a Memorandum of Decision filed on October 17, 2012, the Board Panel majority rescinded the WCLJ's decision, returned the case to the trial calendar for further development of the record of the issue of WCL § 28, and directed final adjudication on that issue.

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

In their application for Mandatory Full Board Review filed on October 25, 2012, the attorneys for the self-insured employer (SIE) and its workers' compensation administrator request that the Board Panel majority decision be rescinded and argue that the dissenting Board Panel member properly found that the WCLJ was correct to close the case on prior findings and mark the case no further action. The SIE notes that it is undisputed that the claim was not filed within two years of the date of the accident, as required by WCL § 28. The SIE further notes that the claimant had previously raised the issue of advanced payment of compensation in an effort to overcome the defense of WCL § 28. However, the case has repeatedly been closed upon the claimant's failure to produce any evidence of advance payment of compensation.

In a rebuttal filed with the Board on November 14, 2012, the attorneys for the claimant request that the Board Panel majority decision be affirmed. The claimant argues that "giving every party the right to present evidence in support of their positions is the proper route for the Board Panel." The claimant further contends that the Board Panel was correct to direct that "all evidence be produced for a final determination of Section 28."

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

FACTS

On March 17, 2006, the claimant filed a C-3 (Employee Claim) and reported that he injured his right knee and back while he was at work on October 23, 2001. The claimant alleged that he was injured "while working on the boiler [he] was on the ladder [and] lost [his] balance and slipped."

On March 17, 2006, the Board also received a copy of a "Leave of Absence Request" that was signed by the claimant for a leave of absence that was requested for the day of October 23, 2001. The claimant reported that the reason for his absence was that he "injured his knee and back climbing a ladder on boilers in the process of lowering [pressure] on controls that were excessively high." The leave of absence request was approved by the Division Chief or Housing Manager on October 24, 2001.

In a decision filed on December 22, 2006, the WCLJ directed both sides to investigate the applicability of WCL § 28, and marked the case no further action.

In a decision filed on February 28, 2007, the WCLJ directed the claimant to produce proof of advance payment of compensation, in order to overcome the defense of WCL § 28, and marked the case no further action.

On April 3, 2008, the claimant responded to the direction set forth in the February 28, 2007, decision. He stated that to the best of his recollection, he only missed a few days, if any, so "how could [he] have proof of advance payment?" The claimant alleged that he has proof in the form of a written accident report that he sent to all of the parties, but that the claim was not reported by his supervisor. Attached to the claimant's correspondence is another copy of the "Leave of Absence Request" form dated October 23, 2001.

On June 3, 2008, the WCLJ found that no further action was needed pending submission of evidence of advance payment of compensation.

On September 8, 2008, the claimant submitted another note to the Board and objected to the WCLJ's direction for him to produce proof of advance payment of compensation when he was only out for one or two days. Attached to the claimant's correspondence is another copy of the "Leave of Absence Request" form dated October 23, 2001, and a copy of a C-8 form that was filed in another claim for an injury that occurred on February 15, 2003. A handwritten note on top of the C-8 form states that the form is presented as "[proof] of advance payment."

The parties submitted written summations on the issue of whether WCL § 28 applies to bar the claim for injuries on October 23, 2001.

In the summation dated March 29, 2011, the claimant's attorney argued that WCL § 28 is not applicable because the employer has waived the defense by providing advance payment to the claimant. As proof of the employer's advance payment, the claimant's attorney relies on the "Leave of Absence Request" form dated October 23, 2001. The claimant's attorney explains that the form shows that the employer has acknowledged the claimant's accident when he slipped and fell from a ladder, that the employer approved the leave of absence, that the claimant took two days leave from his employment, and that the claimant received pay from the employer for those two days. The claimant's attorney further alleges that the employer has paid for the claimant's medical expenses.

In the summation dated June 20, 2011, the SIE argued that the claim should be disallowed as time-barred, pursuant to WCL § 28, since the claimant has failed to produce any proof of advance payment of compensation. The SIE notes that although the claimant did apply for and was approved for a leave of absence, there is no evidence that the claimant either applied for or was granted an advance of his vacation pay. The SIE further notes that the claimant has failed to submit any evidence to support his argument that the employer paid for any medical bills related to treatment for his alleged work injuries.

On June 21, 2011, the claimant's attorney filed an RFA-1 (Claimant's Request for Further Action) to request that a reserved decision be issued, or a hearing scheduled, on the pending issue of WCL § 28, since the claimant is "ready, willing and able" to proceed with the claim.

On July 18, 2011, the claimant sent a letter to the Board and alleged that his supervisor gave him the leave of absence request form to fill out instead of a formal accident report when he was injured on October 23, 2001. Attached to the claimant's correspondence are: another copy of the "Leave of Absence Request" form dated October 23, 2001; some documents related to injuries that occurred on October 3, 2003, and February 2003; a radiology requisition form for an MRI of the right knee; and a report of an MRI of the right knee that was done on December 4, 2007.

A hearing was held on November 7, 2011, and the WCLJ noted the direction made by two prior WCLJs that the claimant was to produce proof of advance payment of compensation in order to overcome the WCL § 28 defense. The claimant's attorney explained that the evidence on the issue of WCL § 28 had been submitted with summations but conceded that there is no new evidence to produce. The WCLJ found that the case stays closed since there is no new evidence. The WCLJ explained that if the claimant disagrees with the finding made by the prior WCLJ to close the case pending submission of evidence, he needs to file an application for administrative review.

The WCLJ's findings were set forth in the decision filed on November 10, 2011, and the claimant filed an application for administrative review.

LEGAL ANALYSIS

Pursuant to WCL § 28, a claim for compensation will be barred unless the claim is filed with the Board within two years from the accident date.

Under WCL § 28, remuneration or payments by an employer or its carrier in the form of wages, medical treatment, or other compensable expenses constitute advance payments that trigger the exception to the two-year claim-filing requirement, provided that the payments were made in recognition or acknowledgment of liability under the Workers' Compensation Law (see Matter of Schneider v Dunkirk Ice Cream, 301 AD2d 906 [2003]). When payments are made without regard to the cause of injury, there can be no finding of advance payment (see Matter of Kaschak v IBM Corp., 256 AD2d 830 [1998]).

As noted herein, the claimant has filed a "Leave of Absence Request" that was signed by the claimant for a leave of absence that was requested for the day of October 23, 2001. The claimant has submitted this form several times, and has argued that it is his written accident report. However, while this form may be offered for consideration of whether the claimant provided timely notice to the employer of his work injury on October 23, 2001, it does not provide sufficient evidence that the claimant filed his claim with the Board within two years of the date of the accident, as required by WCL § 28. As noted herein, it is undisputed that the claimant did not file a claim with the Board until March 17, 2006, over four years after the accident allegedly occurred on October 23, 2001.

Further, the "Leave of Absence Request" form does not provide sufficient evidence of any advance payment of compensation by the employer which would demonstrate a waiver of the defense of WCL § 28. Specifically, although the "Leave of Absence Request" form includes a section to request an "Advance Vacation Pay Request," this section of the form is not complete and there is no indication on the form or in the record that the claimant received pay for his leave of absence on October 23, 2001. In fact, the Board recently received two documents that provide evidence that the claimant did not work and was not paid for the day of October 23, 2001 (ECF Doc ID #205425756, p. 1 and ECF Doc ID #205483778, p. 3).

Here, the claimant has been provided with multiple opportunities to provide evidence to support his claim that the employer made an advance payment of compensation in recognition of its liability for his injury at work on October 23, 2001. However, despite these numerous opportunities, the claimant has repeatedly failed to submit any evidence other than a document that only shows that he was not paid for his absence from work on October 23, 2001. Therefore, it is clear that the claimant does not have sufficient evidence of the employer's advance payment of compensation.

The Full Board finds that the claimant has not met his burden to show that the employer made an advance payment of compensation; the claim for an accident that allegedly occurred on October 23, 2001, is barred by WCL § 28 since it was not filed until March 17, 2006; and the claim is disallowed.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed November 10, 2011, is MODIFIED to find that the claimant has not met his burden to show that the employer made an advance payment of compensation; that the claim for an accident that allegedly occurred on October 23, 2001, is barred by WCL § 28 since it was not filed until March 17, 2006; and that the claim is disallowed.