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Workers' Compensation Board

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Case # G0278049
Date of Accident: 05/01/2010
District Office: Binghamton
Employer: Frito Lay
Carrier: Indemnity Ins. of N America
Carrier ID No.: W112502
Carrier Case No.: B164637799000101646
Date of Filing of Decision: 04/13/2017
Claimant's Attorney: Wayne M. Chariff, Esq.
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

* This decision also pertains to the following case(s): G0089986 and G0279155.

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 November 8, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's application for Mandatory Full Board Review was timely filed and whether it complied with the requirements of Board Rule 300.13.

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

FACTS

This claim (WCB #G0089986) is established for occupational hypersensitivity pneumonitis. The Workers' Compensation Law Judge (WCLJ), in a reserved decision filed April 15, 2015, found that the claimant violated Workers' Compensation Law (WCL) § 114-a(1) and was disqualified from receiving indemnity benefits for two years. Both the claimant and the carrier requested administrative review of that decision.

In a decision filed November 8, 2016, the Board Panel addressed the applications for review of the April 15, 2015, reserved decision in WCB #G0089986, as well as several other applications for review of other decisions in this claim and in two claims involving the same employer and carrier (WCB #G0278049 and #G0279155). As is relevant here, the Board Panel majority modified the WCLJ reserved decision filed April 15, 2015, to permanently disqualify the claimant from receiving future indemnity benefits pursuant to WCL § 114-a(1). The dissenting Board Panel member would affirm the WCLJ decision to limit the discretionary penalty to the disqualification to two years of future indemnity benefits.

The claimant's attorney filed an application for Mandatory Full Board Review consisting of a cover sheet (RB-89.2), a nine page brief and 33 pages of attachments. Although the application is dated December 7, 2016, and the affirmation of service on the RB-89.2 indicates that it was filed with the Board by email, the Board did not receive the application until December 14, 2016.

The carrier filed a rebuttal on January 6, 2017, arguing that the claimant's application for Mandatory Full Board Review should not be considered because it violated the page limit imposed by Board Rule 300.13, and it was not timely filed.

LEGAL ANALYSIS

Board Rule 300.13(b)(1)(i) provides:

Unless otherwise specified by the chair, the appellant may attach a legal brief of up to eight pages in length, in 12-point font, with one inch margins, on 8.5 inch by 11 paper. A brief longer than eight pages will not be considered, unless the appellant specifies, in writing, why the legal argument could not have been made within eight pages. In no event shall a brief longer than 15 pages be considered.

In this case, the claimant's application for Mandatory Full Board Review, which was filed by his attorney, contains a brief that is nine pages long, exclusive of the attachments to the application. The claimant's attorney provides no explanation why the arguments could not be made within the eight page limit. Under these circumstances, the claimant's application will not be considered because it failed to comply with Board Rule 300.13(b)(1)(i).

The claimant's application for Mandatory Full Board Review also contains 33 pages of attachments, consisting of medical reports. Among the attachments is a Sleep Disorder Laboratory report singed by Dr. Patel, dated August 13, 2013. A copy of that report had previously been filed with the Board and been present in the Board's electronic case folder since August 13, 2013 (document #216496021). Board Rule 300.13(b)(1)(ii) provides:

Documents that are present in the Board's electronic case folder at the time the administrative review is submitted shall not be included with or attached to the application. The Board may reject applications for review by an appellant, or an attorney or licensed representative of the appellant, who attaches documents that are already in the case folder at the time of the application.

Therefore, even had the claimant's application for Mandatory Full Board Review contained no other defects, the application could have been rejected based on the attachment of a document that was already in the Board's electronic case folder. The remaining attachments do not appear to have been previously filed with the Board. With respect to evidence which a party seeks to introduce with an application for Administrative Review or Full Board Review, Board Rule 300.13(b)(1)(iii) provides:

If the appellant seeks to introduce additional documentary evidence in the administrative appeal that was not presented before the Workers' Compensation Law Judge, the appellant must submit a sworn affidavit, setting forth the evidence, and explaining why it could not have been presented before the Workers' Compensation Law Judge. The Board has discretion to accept or deny such newly filed evidence. Newly filed evidence submitted without the affidavit will not be considered by the Board Panel.

Therefore, had the Full Board considered claimant's application for Mandatory Full Board Review, the Board would decline to consider the attachments to the application, as claimant failed to submit an affidavit explaining why those documents were not presented before the Workers' Compensation Law Judge.

Finally, WCL § 23 provides that an application for Mandatory Full Board Review must be filed within thirty days of the filing of the Board Panel decision. Here, although the application is dated December 7, 2016, the Board did not receive the application until December 14, 2016, well past thirty days from the filing of the Board Panel's decision on November 8, 2016. This fact was raised by the carrier in its rebuttal, but claimant has not produced any evidence showing that the application was timely filed. On this basis alone, the Full Board would also decline to review the claimant's application.

CONCLUSION

ACCORDINGLY, the claimant's application for Mandatory Full Board Review filed December 14, 2016, is DENIED. The decision of the Board Panel majority filed November 8, 2016, remains in effect. No further action is planned by the Board at this time.