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Case # G1000843
Date of Accident: 08/12/2013
District Office: NYC
Employer: ABM Industries Inc
Carrier: Indemnity Ins. of N America
Carrier ID No.: W112502
Carrier Case No.: C494C3463713
Date of Filing of Decision: 04/13/2017
Claimant's Attorney: Bronnberg & Henriquez PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on March 21, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed April 4, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the carrier should be assessed a late payment penalty pursuant to Workers' Compensation Law (WCL) § 25(3)(f).

The Workers' Compensation Law Judge (WCLJ) imposed a late payment penalty against the carrier.

The Board Panel majority disagreed, finding that the carrier's late payment of an award of compensation to the claimant should be excused, and rescinded the late payment penalty.

The dissenting Board Panel member would have found that the carrier's late payment of an award of compensation should not be excused and the decision of the WCLJ filed May 13, 2015, be affirmed.

The claimant filed an application for Mandatory Full Board Review on May 2, 2016, contending that the carrier failed to timely send the award to the address in the record and therefore, a late payment penalty is warranted. Claimant argues that there was never any change of address submitted to the carrier or the Board, and at the October 21, 2014, hearing, the claimant's address was confirmed on the record in front of the carrier's representative. Claimant further contends that although the carrier was notified of the mistaken address as early as October 30, 2014, through several telephone calls, the carrier did not re-issue the check until more than six weeks after it became aware of the incorrect address.

The carrier filed a rebuttal on June 2, 2016, arguing that the claimant's application for Mandatory Full Board Review should be denied, as the claimant failed to serve the Board (i.e. the claimant served an RB-89.2 with only a copy of the Board Panel decision), and incorrectly served the carrier's former attorney, and not the current attorney. The carrier further contends that the decision of the Board Panel to reverse the late payment penalty was proper and supported by the record. The carrier contends that the claimant has failed to submit any evidence that the carrier was notified much earlier than the time the carrier issued the new check.

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

FACTS

The claim is established for multiple injuries sustained in a slip and fall in the course of the claimant's employment as a porter on August 12, 2013. The average weekly wage was determined to be $950.43.

The claimant died from an unrelated cause on April 20, 2014, and claimant's widow (hereinafter referred to as "claimant") was designated as the voluntary administrator of his estate by a Certificate of Voluntary Administration issued by the Surrogate's Court in Queens County on August 4, 2014, which listed her address as "86-06 63rd Avenue."

Pursuant to a stipulation entered into by the parties, a hearing was held on October 21, 2014. During the hearing, the WCLJ posthumously awarded a 22.50 percent schedule loss of use of the left arm resulting in a total award of $44,480.12 with a net amount owing to the claimant's estate of $34,516.61. Prior to making the award, the WCLJ confirmed the address of record for the deceased ("8306 63rd Avenue") was claimant's current address. The WCLJ's findings were memorialized in a decision filed October 24, 2014.

The claimant's attorney filed a form RFA-1LC (Request for Further Action by Legal Counsel), dated January 15, 2015, requesting the imposition of a penalty for the late payment of an award of compensation.

A hearing was scheduled for May 8, 2015, to address the issue of the late payment penalty. During the hearing, the carrier did not dispute the late payment, but explained that it initially sent the payment to an incorrect address supplied by the claimant's attorney and that it promptly issued payment on December 12, 2014, upon learning the correct address from the claimant's attorney. The claimant's attorney acknowledged that it initially provided the carrier the incorrect address, but alleged that as of October 30, 2014, the carrier was provided the correct address through an email exchange.

The carrier's attorney explained that after the October 21, 2014, hearing, the carrier noted the discrepancy between the address of record for the decedent in the compensation claim ("8306 63rd Avenue") and the address listed for claimant in the Certificate of Voluntary Administration issued by the Surrogate's Court ("86-06 63rd Avenue"). The carrier reached out to claimant's attorneys and were erroneously advised that claimant's proper address was 86-06 63rd Avenue.

The carrier noted that the claimant's attorney had never produced the emails wherein it allegedly advised the carrier of the correct address.

The WCLJ imposed a penalty on the carrier in the amount of $6,903.32 payable to the claimant for failure to timely pay the award pursuant to WCL § 25(3)(f) and assessed the carrier $50.00 payable to the Chair. The carrier noted an exception on the record to the issuance of the penalty. The WCLJ's findings were memorialized in a decision filed May 13, 2015.

The carrier filed an application for administrative review requesting that the penalty be rescinded because it acted in good faith and that a penalty is not warranted. The carrier contends that after the hearing on October 21, 2014, its adjuster noted the discrepancy with respect to claimant's address and "sent an email the claimant's attorney's office requesting proper address to send the check to. However, the adjuster was provide with the wrong address. See copy of attached e-mail attached hereto as 'Exhibit A. The check was sent to this address." The carrier does not indicate the date on which the initial check, sent to the incorrect address ("86-06 63rd Avenue") was mailed. Nor did the carrier submit an affidavit by anyone with personal knowledge to corroborate its contentions. Two exhibits are attached to the carrier's application for review. Exhibit "A" is copy of an e-mail exchange between the carrier and claimant's attorneys. In an email dated October 24, 2014, claimant's attorneys advised the carrier's claims representative that claimant's address was "86-06 63rd Avenue" and that this address is "from document #235557433 [Certificate of Voluntary Administration issued by the Surrogate's Court] in case you need to verify." In response, the carrier's claims representative emailed claimant's attorneys stating, "I was going to make the payment and I reviewed the address you have below. I just want to confirm because the claimant's address is 83-06 63rd not 86-06? Please confirm it is 86-06." Exhibit "B" is a copy of a check dated December 12, 2014, in the amount of $34,516.61 payable to claimant, which lists claimant's address as "83-06 63rd Avenue."

The claimant did not submit a rebuttal to the carrier's application.

LEGAL ANALYSIS

Service of FBR Application

Contrary to the carrier's assertion, a review of the Board file shows that the claimant timely filed his application for Mandatory Full Board Review (both the form RB-89.2 and the corresponding memorandum) with the Board. Although the claimant did serve the carrier's former attorney, the claimant also served the carrier in conformity with 12 NYCRR 300.15(b). Further, the carrier submitted a timely rebuttal, and specifically referenced arguments within the claimant's application.

Therefore, based on the preceding, the Full Board should initially find that the claimant properly served his application for Mandatory Full Board Review, and that it will address the application on the merits.

Late Payment Penalty

Pursuant to WCL § 25(3)(f):

If the employer or its insurance carrier shall fail to make payments of compensation according to the terms of the award within ten days...except in case of an application to the Board for a modification, rescission or review of such award, 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, and there shall also be imposed an assessment of fifty dollars, which shall be paid into the state treasury.

The late payment penalty is generally self-executing (see Matter of Surdi v Premium Coal & Oil Co., 52 NY2d 860 [1991]; Matter of White v New York City Housing Authority, 83 AD2d 707 [1981]), and there are only very limited circumstances where it will not be imposed. For example, a late payment penalty is not appropriate where timely payment would violate a Court order (Matter of Con Edison, 2009 NY Wrk Comp 00448852); where there is confusion and/or inconsistent evidence of the claimant's proper address in the record (Matter of Delphi, 2008 NY Wrk Comp 70405530); or where timely payment was made to an incorrect "old" address due to the claimant's failure to timely notify the carrier of his or her correct "new" address (Matter of Krug's Glazing Servs., 1998 NY Wrk Comp 89512610; Matter of Healthcare Services Group, 2001 NY Wrk Comp 09607784).

Here, the carrier contends that a late payment penalty should not be assessed because it mailed the initial check to the claimant at the incorrect address provided by the claimant's attorneys. However, in its assertions at the hearing on May 8, 2015, as well as in its application for administrative review and rebuttal to the claimant's application for Mandatory Full Board Review, the carrier never indicates the date on which it allegedly sent the initial check to claimant at the incorrect address [In its rebuttal to claimant's application for Mandatory Full Board Review, the carrier's attorney stated that "the adjuster was provided with the wrong address by the claimant's attorney. The check was sent to the address provided by claimant's attorney."]. More importantly, the carrier has failed to produce any evidence whatsoever of the date that it issued the initial check to the claimant or the address to which it was sent, which it alleges was not received by the claimant because it was sent to the incorrect address.

In the absence of proof that the carrier mailed payment to the claimant within ten days of the WCLJ decision filed on October 24, 2014, a penalty pursuant to WCL § 25(3)(f) is warranted. The carrier might have submitted a copy of the check returned as undeliverable, copies of the carrier's banking records indicating the date on which the check was issued, or the testimony of an employee with actual knowledge of the relevant circumstances. However, the carrier failed to do so.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports the assessment of a late payment penalty pursuant to WCL § 25(3)(f).

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 13, 2015, is AFFIRMED. No further action is planned by the Board at this time.