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Case # G0154818
Date of Accident: 10/22/2009
District Office: Rochester
Employer: Keeler Cont Inc
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 63811863-77
Date of Filing of Decision: 07/19/2017
Claimant's Attorney: The Harrison Law Office
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on June 20, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 1, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the Board will grant review of the Workers' Compensation Law Judge (WCLJ) decision filed on January 13, 2016.

The WCLJ concluded that the claimant is entitled to continuing awards and that the credit from claimant's third party action is $130,901.86.

The Board Panel majority denied the carrier's application for review of the WCLJ decision.

The dissenting Board Panel member would consider the carrier's application in the interest of justice under Workers' Compensation Law (WCL) § 123.

The carrier filed an application for Mandatory Full Board Review on August 30, 2016, arguing that its appeal should be entertained in the interests of justice under WCL § 123, and its third party credit modified to $156,469.06.

The claimant filed a rebuttal on September 9, 2016, requesting that the majority decision be upheld, arguing that the carrier failed to raise the issue of the proper credit to be taken from claimant's third party action despite being an active participant in the January 7, 2016, hearing.

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

FACTS

This claim is established for work-related injuries to the claimant's right shoulder, left hip, and low back stemming from an October 22, 2009, work-related motor vehicle accident. Awards have been issued at various rates. By a decision filed August 15, 2011, the WCLJ classified the claimant with a permanent partial disability, found that he had a 75% loss of earning capacity, and awarded ongoing benefits at the rate of $600.00 per week. The effective date of permanency was August 8, 2011.

The work-related accident gave rise to a third party action.

The carrier filed correspondence dated April 24, 2015, in which it informed the Board that the claimant's third party action had been settled with consent. Attached to the letter is a closing statement that indicates a gross settlement in the amount of $375,000.00, less disbursements in the amount of $5,296.41, attorney's fees in the amount of $123,290.09, and liens of $25,290.09 to Travelers Insurance, $277.11 to a Medicare Secondary Payer Recovery Contractor, and $90,000.00 to the State Insurance Fund. The result was a net recovery to the claimant in the amount of $130,901.86.

The carrier filed an RFA-2 (Request for Further Action by Employer or Carrier) with the Board on November 17, 2015, requesting a hearing to "put the third party settlement on the record."

At a hearing held on January 7, 2016, the carrier indicated that the third party action was settled with consent for $375,000.00, the net amount to the claimant was $130,901.86, and the Burns percentage was 33.33%, with the credit effective March 23, 2015. Awards were brought from August 9, 2011, to March 23, 2015, at the weekly rate of $600.00, and then from March 23, 2015, to date at $200.00, reflecting the Burns percentage. The claimant's attorney was awarded a fee in the amount of $150.00. The record does not reflect any discussions by the carrier's representative with respect to the liens of Travelers Insurance and Medicare.

In the decision filed on January 13, 2016, for the hearing held on January 7, 2016, the WCLJ made the following awards: August 9, 2011, to March 23, 2015, at the weekly rate of $600.00, March 23, 2015, to January 8, 2016, and continuing, at the weekly rate of $200.00. The decision notes that the third party action was settled with consent for the gross amount of $375,000.00, that the net amount to the claimant was $130,901.86, and the Burns percentage of 33.33% was effective as of March 23, 2015. An attorney fee of $150.00 was awarded to the claimant's attorney. The decision also indicates that the carrier reserved the right to credit and offset against the net recovery for indemnity purposes, and the case was marked no further action.

The carrier filed an application for administrative review on February 9, 2016, arguing that the WCLJ decision should be modified to reflect a net recovery to claimant of $156,469.06 because the reimbursement of $25,290.09 to Travelers Insurance and $277.11 to Medicare should be included in the net recovery. The carrier acknowledged that it did not raise the issue at the underlying hearing by noting an objection, but indicates that it "appeal[s] in the interests of justice or else contends it is a more [sic] ministerial matter."

In rebuttal, claimant argues that the carrier failed to raise the issue at the hearing below and therefore its application for review should be denied.

LEGAL ANALYSIS

At the time the carrier filed its application for review, 12 NYCRR 300.13(a) provided that an "application (for review) must make reference to the record below or such part thereof as is relevant to the issues and grounds raised in such application and indicate when and where they were raised before the Workers' Compensation Law Judge."

At the time the carrier filed its application for review, 12 NYCRR 300.13(e)(1) provided that "[t]he board panel may deny review: ... (iii) of any issues raised in the application that were not raised before the Workers' Compensation Law Judge."

Review of the January 7, 2016, hearing minutes reveals that the carrier's representative participated in the hearing and presented the WCLJ with the details of the claimant's third party settlement, yet failed to raise any issues with respect to the proper amount of the third party credit. As such, pursuant to 12 NYCRR 300.13(a) and (e)(1)(iii), the carrier failed to preserve on appeal the issue of the proper credit to be taken from claimant's third party action.

Therefore, the Full Board finds that the preponderance of the evidence warrants denial of the carrier's February 9, 2016, application for review of the WCLJ's January 13, 2016, decision.

CONCLUSION

ACCORDINGLY, the carrier's application for review filed February 9, 2016, is DENIED. The WCLJ decision filed January 13, 2016, remains in effect. No further action is planned by the Board at this time.