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Workers' Compensation Board

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Case # G1544599
Date of Accident: 01/30/2016
District Office: NYC
Employer: New York City Transit Authority
Carrier: NYC Transit Authority
Carrier ID No.: W848006
Carrier Case No.: TA201600226
Date of Filing of Decision: 10/04/2017
Claimant's Attorney: Joel Fredericson
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed January 17, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant's untimely application for Mandatory Full Board Review should be considered.

The Workers' Compensation Law Judge (WCLJ), in a decision filed June 9, 2016, disallowed the claim, finding that the accident did not arise out of or occur during the course of the claimant's employment because the assault took place before the claimant's shift commenced and was outside of her assigned station, and the "dual purpose" exception did not apply.

The Board Panel majority affirmed the WCLJ decision in its entirety.

The dissenting Board Panel member would have reversed the WCLJ decision and established the claim on the ground that a causal nexus existed between the assault and the claimant's employment.

The claimant filed an application for Mandatory Full Board Review on February 21, 2017, asking that the Full Board consider the untimely application and find that claimant's injuries arose out of and in the course of her employment. On the merits, the claimant argues that the Board Panel majority's opinion is contrary to prior Board rulings and asks the Full Board to adopt the opinion of the dissenting Board Panel member.

The self-insured employer (SIE) filed a rebuttal on March 21, 2017, arguing that the Board should not consider the claimant's late application for Mandatory Full Board Review. On the merits, the SIE contends that the majority's opinion should be adopted by the Full Board.

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

FACTS

This is controverted claim for injuries that claimant, a transit authority conductor, sustained on January 30, 2016, when she was assaulted while waiting for a train. At the time of the injury, claimant was commuting to work and had not begun her shift, but was in uniform.

In a decision filed on June 9, 2016, the WCLJ disallowed the claim. The WCLJ reasoned that the claim was not compensable because the assault took place before the claimant's scheduled shift began at a station other than the one at which the claimant had to report for duty. The WCLJ also rejected the claimant's argument that she was serving a dual purpose when the assault occurred, reasoning that the claimant was at the station only to commute to work, not for the purpose of keeping the assailant out.

The claimant sought administrative review, arguing that the accident arose out of and in the course of her employment because she was engaged in a dual purpose at the time of the incident.

In rebuttal, the SIE maintained that the decision should be affirmed because the claim is not compensable, as the claimant was injured during her commute to work and no exception applies

LEGAL ANALYSIS

In an application for Mandatory Full Board Review, filed on February 21, 2017, the claimant's licensed representative initially asks that the Board accept the application for Mandatory Full Board Review, which was filed five days late. The claimant's counsel asserts that on the evening of February 7, 2017, the computer in his home office "was subjected to intermittent power outages and surges due to a manhole fire..." Claimant's representative explained,

It is representative's consistent practice to review every board decision as it arrives and electronically calendar each appeal or other response that needs to be submitted. Representative instituted a local date backup system after previous experience with a remote backup service proved unsatisfactory. However, it appears that the local backup server, along with the primary computer, was impacted by the power outage, apparently because a backup was in progress at the time of the outage. On the morning of 02/08/2017 a data recovery operation was performed and thought successful. On 02/15/2017 and 02/16/2017 various discrepancies became apparent and so on 02/17/2017 a manual review of all possible incoming decisions was begun. Late on 02/20/2017 the divided board panel decision in the instant case was discovered, and this response was drafted.

Claimant's representative attaches several documents proving the existence of the power outage in proximity to his home office.

Workers' Compensation Law (WCL) § 23 provides that a party can request review of a Board Panel decision by the Full Board within 30 days from the filing of the Board Panel decision. 12 NYCRR 300.13(b)(3)(i) provides, in pertinent part, that requests for Full Board Review filed pursuant to WCL 23 "shall be filed with the [B]oard within 30 days after the notice of the filing of the decision[.]"

"Although the plain language of [12 NYCRR 300.13] speaks in mandatory terms, section 300.30 of the Rules and Regulations (12 NYCRR 300.30) provides that the '[B]oard may in its discretion suspend or modify the application of any of these rules'" (Matter of Vukel v New York Water & Sewer Mains, 94 NY2d 494 [2000]). Likewise, section 300.13(b)(4) of the Board's rules and regulations indicates that the Board has the discretion whether to deny review for untimeliness, stating: "[An] application for review may be denied . . . (ii) by decision of the [B]oard [P]anel, when the appellant does not file the application within 30 days" (12 NYCRR 300.13[b][4] [emphasis added]).

Here, the claimant's representative explains in great detail that a power outage on February 7, 2017, impacted the computer in his home office and the backup server he used, which delayed the service of an application for Mandatory Full Board Review of the Board Panel decision filed January 17, 2017. However, it is not clear how an intermittent power outage on February 7, 2017, prevented him from requesting review of a decision filed 21 days earlier, and for which the deadline for requesting review was more than a week later. The representative's assertion that "various discrepancies" purportedly resulting from the February 7, 2017, power outage did not become apparent until February 15, 2017, is not sufficient to excuse the untimely filing.

Therefore, the claimant's untimely application for Mandatory Full Board Review will not be considered.

CONCLUSION

ACCORDINGLY, the claimant's application for Mandatory Full Board Review filed February 21, 2017, is DENIED. The decision of the Board Panel majority filed January 17, 2017, remains in effect. No further action is planned by the Board at this time.