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Workers' Compensation Board

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Case # G1033695
Date of Accident: 12/05/2013
District Office: Albany
Employer: Whiteman Chevrolet Inc.
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 66866633
Date of Filing of Decision: 10/04/2017
Claimant's Attorney: Martin Harding & Mazzotti LLP
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 October 5, 2016.

ISSUE

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

The Workers' Compensation Law Judge (WCLJ) concluded that the claimant violated Workers' Compensation Law (WCL) § 114-a and assessed a mandatory penalty from March 21, 2016, to April 5, 2016, and a discretionary penalty of total disqualification thereafter.

The Board Panel majority declined to consider the claimant's untimely application for review.

The dissenting Board Panel member would consider claimant's application for review.

The claimant filed an application for Mandatory Full Board Review on November 3, 2016.

The State Insurance Fund (SIF) filed a rebuttal on November 29, 2016,

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

FACTS

This claim is established for an injury to the claimant's left knee sustained when he was struck by an automobile in the course of his employment on December 5, 2013. Compensation was awarded to the claimant for periods of lost time. The claimant underwent left total knee replacement on February 11, 2015.

At a hearing held on April 5, 2016, SIF raised the issue of WCL § 114-a. The record was developed on the issue with testimony of the claimant at a hearing held on May 4, 2016, and an investigator hired by SIF at a hearing held on June 6, 2016. SIF's investigator produced an investigative report and video surveillance.

In a decision filed on June 9, 2016, the WCLJ concluded that the claimant violated WCL § 114-a based on a review of SIF's video surveillance and investigative reports, and the claimant's testimony. The WCLJ assessed a mandatory penalty from March 21, 2016, to April 5, 2016, and a discretionary penalty of total disqualification thereafter.

The claimant filed an application for administrative review on July 11, 2016. The application contained the incorrect Board case number and was served on Charter Oak Fire Insurance Company, c/o Travelers.

The claimant subsequently filed another application for administrative review with the Board on July 19, 2016, which was served on SIF, and was accompanied by a correspondence advising that the initial application was served on an incorrect carrier due to an "office error."

SIF filed a rebuttal on August 1, 2016, contending that the claimant's July 19, 2016, application for administrative review was untimely filed and should not be considered.

The claimant filed a reply to SIF's rebuttal on August 31, 2016. This supplementary document was filed with the Board after the expiration of the 30-day period set forth in 12 NYCRR 300.13(a). As a result, it will not be considered pursuant to 12 NYCRR 300.13(e)(2).

LEGAL ANALYSIS

Workers' Compensation Law 23 provides that any party may, within thirty days after notice of the filing of an award or decision of a referee, file with the Board an application in writing for a modification or rescission or review of such award or decision; otherwise, the award or decision shall be final and conclusive upon all questions within its jurisdiction, as against the State Fund or between the parties (Matter of Friss v City of Hudson Police Dept., 187 AD2d 94 [1993]).

12 NYCRR 300.13(a) provides "An application to the board to review a decision of a Workers' Compensation Law Judge shall be in writing and shall be accompanied by a cover sheet form prescribed by the chair ... Such application shall be filed with the Board within 30 days after notice of filing of the decision of the Workers' Compensation Law Judge together with proof of service upon all other parties in interest." An Application for Board Review must be served on all parties to the proceeding, and the Board is bound by the service requirements of 12 NYCRR 300.13(a) (see Matter of Vukel v New York Water & Sewer Mains, 94 NY2d 494 [2000]; Matter of Faello v Federal Express, 34 AD3d 942 [2006]).

"The board panel may deny review where the completed application for review, including prescribed cover sheet form if required, was not timely filed with the board or served upon the parties in interest within the 30-day period set forth in subdivision (a) of this section. . ." (12 NYCRR 300.13 [e][1][i]).

The WCLJ decision at issue herein was filed on June 9, 2016. The claimant's initial application for review was received by the Board on July 11, 2016. Although this application was timely filed with the Board, it was not served on the liable carrier, SIF, and was therefore defective and should not be considered (see Matter of Vukel, 94 NY2d 494).

The claimant's subsequent application for review filed on July 19, 2016, which was served on SIF, was filed with the Board well beyond the 30-day period set forth in WCL § 23 and 12 NYCRR 300.13(a).

In Matter of Larchmont (2001 NY Wrk Comp 0946 7679), cited in the claimant's application for Mandatory Full Board Review, the Board considered the carrier's application for administrative review even though it listed an incorrect Board case number. However, in Matter of Larchmont, unlike the present case, the application was served timely upon the attorney for the claimant.

Therefore, the Full Board declines to consider claimant's untimely application for administrative review.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed June 9, 2016, REMAINS IN EFFECT. No further action is planned by the Board at this time.