In the Matter of PHF

WCB #: 3040 1175

DATE OF APPEAL HEARING: 03/31/06

Scott D. Frendel for the claimant

APPELLATE DECISION:

Carrier appeals from the Decision of ECR Arbitrator Carolyn M. Laredo dated and filed December 8, 2005, which found that the claimant's decedent's death on March 12, 2003 was causally related to the prior work related injury compensable claim which took place on October 31, 1991 and awarded benefits to the claimant at the rate of $400.00 per week from March 12, 2003 and reimbursement to the claimant for funeral and burial expenses in the amount of $4,625.00.

It is the carrier's contention that the Arbitrator's Decision is not supported by the record nor common sense evaluation of such record and, therefore, should be overturned and the claim disallowed. The claimant contends that the Decision is supported by substantial evidence in the record, is not arbitrary and capricious, and should be affirmed.

The first issue to be determined by this Panel, as raised by both parties in their submissions and extensively argued by counsel for both parties at the Hearing before this Panel, is the timeliness of this appeal. The carrier's appeal was filed on February 13, 2006, some 67 days after the filing of the Decision on December 8, 2005. Workers' Compensation Law (WCL) §23 provides the "[a]ny 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...". [italics added] (see, also, 12 NYCRR §303.9)

The claimant contends that the above quoted statute and rule act as an absolute bar to a review of the Arbitrator's Decision, but the Board does have discretionary authority to entertain the appeal application beyond the 30-day period [Cohen v. NYC Dept. of Envir. Protection, 18 AD3d 1036 (3d Dept., 2005)]. The claimant further contends that the appeal was prompted by, and filed after, the claimant's request for penalties against the carrier for late payment of the award (made on January 23, 2006) and the mailing (February 10, 2006) of a Notice of Hearing, which was scheduled for March 10, 2006 and was to determine the question of possible late and/or non-payment penalty. WCL §25 (3)(f) provides for a penalty equal to 20% of the unpaid compensation paid to the claimant and a $50.00 assessment paid to the State Treasury if payment is not made within 10 days of the award, except in the case of an application to the Board for review of the award.

It is the carrier's contention that the appeal should be entertained in the interest of justice and based on the Board's continuing jurisdiction pursuant to WCL § 123. The carrier's reason for the late filing is its contention, through its attorney's letter/brief and oral argument, that the Decision was apparently not sent or faxed to the carrier's White Plains, New York office and, therefore it was not discovered by the carrier until February 3, 2006. Thus, the late filing was not the fault of the carrier, but was due to an inadvertent error made by the Arbitrator. After hearing both parties, reviewing the submissions of both parties and reviewing the file of the Workers' Compensation Board, it is the Decision of this Panel of Arbitrators that the filing of the Application for Board Review was untimely. The filing was substantially beyond the 30-day period set by law and the carrier has failed to offer any basis to excuse the late filing. The only excuse offer is the claim that the Decision was not received in its White Plains office. Yet the carrier has failed to explain the fact that the Notice of Decision lists as recipients the New York City address for the State Insurance Fund (199 Church Street) and the carrier's attorneys, in addition to the White Plains office (105 Corporate Park Drive) and it has failed to rebut the presumption of mailing and receipt (see CPLR 2103). It even acknowledged that the Decision was, in fact, received when it stated that the Decision was actually found at its White Plains office, albeit two months later. Therefore, since the appeal was filed late, it is hereby dismissed.

If we were to address the merits of this appeal, it is clear from the record, the parties' submissions and the oral arguments at the Hearing that there was sufficient evidence before the Arbitrator for her to determine that the claimant's decedent's death was related to the established compensable coronary insufficiency incident of October 31, 1991. In fact, the only significant disagreement between the carrier's consultant, Dr. Carl Friedman, and the claimant's doctors, Dr. Richard L. Kole and Dr. Richard S. Cantor, and the Board's impartial specialist, Dr. Bernard M. Wechsler, is Dr. Friedman's belief that the 1991 incident was transitory in nature. He did acknowledge that coronary insufficiency is a progressive disease and Drs. Kole, Cantor and Wechsler clearly showed how the progression of the compensable incident in 1991 eventually lead to the decedent's demise in 2003. In this Panel's opinion, the evidence before the Arbitrator was overwhelmingly in support of her determination that the decedent's death on March 12, 2003 was causally related to the prior incident of October 31, 1991.

The appeal filed by the State Insurance Fund on February 13, 2006 is hereby DISSMISED as untimely. As no payments have been paid and no timely application for appeal has been filed, the carrier is hereby directed to pay to the claimant the sums directed by Arbitrator Laredo in her Decision of December 8, 2005, namely the lump sum of $4,625.00 as reimbursement for funeral and burial expenses and the continuing sums of $400.00 per week from March 12, 2003, together with a late payment penalty of 20% on both awards, calculated to the date of payment, and $50.00 paid to the State Treasury.

Supreme Court, Appellate Division, Second Department, New York

In the Matter of HAVERSTRAW VILLAGE POLICEMAN'S BENEVOLENT

ASSOCIATION, INC., petitioner-respondent,

v.

TOWN OF HAVERSTRAW, et al., appellants, et al., respondents.

15 A.D.3d 403, 790 N.Y.S.2d 671

Decided: February 7, 2005.

Background: Article 78 proceeding in nature of mandamus was initiated to compel town, and its supervisor and councilpersons to notify State Civil Service Commission (CSC) for purpose of creating police advisory board. The Supreme Court, Rockland County, Nelson, J., granted petition. Defendants appealed.

Decision: The Supreme Court, Appellate Division, held that notice to Commission was required.

Affirmed.

Keane & Beane, P.C., White Plains, N.Y. (Ronald A. Longo and Mark D. Pellis of counsel), for appellants Town of Haverstraw, Howard Phillips, Paul Piperato, Frank Rundel, and Isador Cansell, and for Michael Grant.

Raymond G. Kruse, P.C., Spring Valley, N.Y., for appellant Town of Haverstraw, PBA.

Keith I. Braunfotel, for Haverstraw Village PBA respondents.

ANITA R. FLORIO, J.P., HOWARD MILLER, SONDRA MILLER, and ROBERT A. SPOLZINO, JJ.

In a proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the Town of Haverstraw, Howard Phillips, in his capacity as Supervisor of the Town of Haverstraw, Paul Piperato, Michael Grant, Frank Rundel, and Isador Cansell, in their capacities as councilpersons of the Town of Haverstraw, to notify the New York State Civil Service Commission pursuant to Civil Service Law § 83-a for the purpose of creating a police advisory board, the Town of Haverstraw, Howard Phillips, Paul Piperato, Frank Rundel, and Isador Cansell appeal, and the Town of Haverstraw, PBA separately appeals, from so much of an order of the Supreme Court, Rockland County (Nelson, J.), dated October 27, 2003, as granted that branch of the petition which was to compel the Town of Haverstraw to make the requisite notification.

ORDERED that on the court's own motion, the notices of appeal are treated as applications for leave to appeal, and leave to appeal is granted (see CPLR 5701[b][1], [c] ); and it is further,

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the petitioner, payable by the appellants appearing separately and filing separate briefs.

Under the circumstances of this case, the agreement dated March 13, 2003, between the Village of Haverstraw and the Town of Haverstraw (hereinafter the Town) contemplated a consolidation of their respective police forces as of December 31, 2005. Accordingly, pursuant to Civil Service Law § 83-a, the Town is required to notify the New York State Civil Service Commission (hereinafter the CSC) of the upcoming consolidation for the purpose of creating a police advisory board.

We note that both of the separate notices of appeal limit the respective appeals to so much of the Supreme Court's order as granted that branch of the petition which was to direct the Town to notify the CSC of the planned consolidation. Thus, the appellants' remaining contention on appeal, that the Supreme Court erred when, in effect, it denied that branch of the motion of the Town of Haverstraw, PBA which was to dismiss the proceeding for failure to join purportedly necessary parties, is beyond the scope of our review (see CPLR 5515[1]; O'Donoghue v. New York City School Constr. Auth., 1 A.D.3d 333, 767 N.Y.S.2d 49; Joslin v. Lopez, 309 A.D.2d 837, 765 N.Y.S.2d 895; Vias v. Rohan, 119 A.D.2d 672, 501 N.Y.S.2d 109). We further note that although a brief was submitted on behalf of Michael Grant, in his capacity as councilperson of the Town, no notice of appeal was filed on his behalf.

Supreme Court, Appellate Division, Second Department, New York

Tara HENTHORN, petitioner,

v.

ROCKLAND COUNTY SHERIFF, respondent.

283 A.D.2d 527, 724 N.Y.S.2d 892

Decided: May 16, 2001.

Keith I. Braunfotel, New City, N.Y, for petitioner.

Michael E. Bongiorno, District Attorney, New City, N.Y. (Brian P. Coffey of counsel), for respondent.

Writ of habeas corpus in the nature of an application to reduce bail upon Rockland County Indictment No. 01-122.

ADJUDGED that the writ is sustained, without costs or disbursements, to the extent of reducing bail on Rockland County Indictment No. 01-122 to the sum of $10,000, which may be posted in the form of an insurance company bail bond in that sum or by depositing the same sum as a cash bail alternative.

SANTUCCI, J.P., GOLDSTEIN, LUCIANO and ADAMS, JJ., concur.