Opinion
No. CV-22-1926
02-15-2024
In the Matter of the Claim of Jason R. Golisano, Claimant, v. ABX Innovative Packaging Solutions LLC et al., Appellants. Workers' Compensation Board, Respondent.
Pillinger Miller Tarallo, LLP, Elmsford (Anthony M. Napoli of counsel), for appellants. Letitia James, Attorney General, New York City (Alison Kent-Friedman of counsel), for Workers' Compensation Board, respondent.
Calendar Date:January 19, 2024
Pillinger Miller Tarallo, LLP, Elmsford (Anthony M. Napoli of counsel), for appellants.
Letitia James, Attorney General, New York City (Alison Kent-Friedman of counsel), for Workers' Compensation Board, respondent.
Before: Egan Jr., J.P., Clark, Pritzker, Fisher and Powers, JJ.
Clark, J.
Appeal from a decision of the Workers' Compensation Board, filed September 19, 2022, which ruled that the employer and its workers' compensation carrier failed to comply with 12 NYCRR 300.13 (b) and denied review of a decision by the Workers' Compensation Law Judge.
Claimant filed a claim for workers' compensation benefits in August 2021 alleging that he sustained work-related injuries to his left wrist and hand. In a decision filed on September 30, 2021, a Workers' Compensation Law Judge (hereinafter WCLJ) established the claim for an injury to claimant's left wrist. On November 3, 2021, the employer and its workers' compensation carrier (hereinafter collectively referred to as the carrier) filed an application for review of the WCLJ's decision with the Workers' Compensation Board. The Board denied the application as untimely, and the carrier appeals.
We affirm. It is well established that "[a] party seeking review of a WCLJ's decision is required to file an application for review with the Board within 30 days of the filing of the decision" (Matter of Zuniga v Aliah Home Care Inc., 183 A.D.3d 983, 984 [3d Dept 2020] [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 904 [2020]; accord Matter of D'Addio v Peter Annis, Inc., 105 A.D.3d 1113, 1114 [3d Dept 2013]; see Workers' Compensation Law § 23; 12 NYCRR 300.13 [b] [3] [i]). "The Board is vested with broad discretion to accept or reject as untimely an application for review and, absent an abuse of such discretion, the Board's decision will not be disturbed" (Matter of Rodriguez v American Bridge Co., 213 A.D.3d 1118, 1120 [3d Dept 2023] [internal quotation marks and citations omitted]; see Matter of Zuniga v Aliah Home Care Inc., 183 A.D.3d at 984). Here, it is undisputed that the application for review was filed beyond the 30-day limit. Although the carrier contends that the Board should have exercised its discretion and accepted the untimely application, citing the short delay and the COVID-19 pandemic, we cannot conclude that the Board erred or abused its discretion in declining to do so (see Matter of Rodriguez v American Bridge Co., 213 A.D.3d at 1120; Matter of Ceccato v Outokumpu Am. Brass, 79 A.D.3d 1324, 1324-1325 [3d Dept 2010]). "To the extent that the carrier notes that the Board has on prior occasions elected to entertain untimely applications in the interest of justice (see Workers' Compensation Law § 123), the Board's exercise of such power is an inherently discretionary act" (Matter of D'Addio v Peter Annis, Inc., 105 A.D.3d at 1114-1115 [citation omitted]). Finding no abuse of that discretion by the Board, we need not address the carrier's remaining contentions.
In citing the COVID-19 pandemic, the carrier generalizes that it was "an extraordinary time," but does not explain how the pandemic actually prevented it from filing a timely application.
Egan Jr., J.P., Pritzker, Fisher and Powers, JJ., concur.
ORDERED that the decision is affirmed, without costs.