Matter of Vanacore v. Genovese Drug Store , 26 N.Y.S.3d 649 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 17, 2016 520838
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In the Matter of the Claim of
CHARLOTTE VANACORE,
Respondent,
v
GENOVESE DRUG STORE et al.,
Respondents,
and MEMORANDUM AND ORDER
SPECIAL DISABILITY FUND,
Appellant.
WORKERS' COMPENSATION BOARD,
Respondent.
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Calendar Date: February 18, 2016
Before: Peters, P.J., Garry, Rose and Devine, JJ.
__________
Steven M. Licht, Special Funds Conservation Committee,
Albany (Jill B. Singer of counsel), for appellant.
Jones Jones LLC, New York City (Sarah Thomas of counsel),
for Genovese Drug Store and another, respondents.
__________
Peters, P.J.
Appeal from a decision of the Workers' Compensation Board,
filed September 19, 2014, which ruled that the Special Disability
Fund's application for review of an administrative decision was
untimely.
Claimant was injured in a motor vehicle accident while
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working on February 28, 1997. Her subsequent claim for workers'
compensation benefits was established for injuries to her neck
and back and for consequential temporomandibular joint pain. In
September 2003, claimant injured her back in a work-related
accident while working for a different employer. Her claim for
workers' compensation benefits for this accident was established
for an exacerbation of a preexisting back injury. In 2005,
claimant was classified with a permanent partial disability with
liability apportioned 55% to the 1997 claim and 45% to the 2003
claim. The Special Disability Fund thereafter conceded the
applicability of Workers' Compensation Law § 15 (8) (d) on the
2003 claim and an S-15 (8) form was filed with the Workers'
Compensation Board, indicating the Fund's concession. An almost
identical S-15 (8) form was also filed with the Board on the same
day, again indicating the Fund's concession as to the
applicability on the 2003 claim, with the only difference being
that it referenced the workers' compensation claim number of the
1997 claim. In two decisions by the Board, filed on May 12,
2006, the Board found Workers' Compensation Law § 15 (8) to be
applicable on both claims. In January 2013, the Fund applied for
review of the Board's decision as to the 1997 claim, contending
that it was erroneous as the Fund had never conceded the
applicability of Workers' Compensation Law § 15 (8) on that
claim. The Board ultimately rejected the Fund's application as
untimely, prompting this appeal.
We affirm. A party seeking review of an administrative
decision must file an application for review with 30 days of its
issuance (see Matter of Isaacs v Fleet Fin. Servs., 8 AD3d 879,
879 [2004]; 12 NYCRR 313.3 [c]). Here, it is undisputed that the
Fund's application was untimely, as it was filed more than six
years after the administrative decision was filed. Further, the
Fund provided no explanation for the delay. The Board has broad
discretion to accept or reject an application for review as
untimely (see Matter of Isaacs v Fleet Fin. Servs., 8 AD3d at
879), and we cannot say that its denial of the Fund's application
here was an abuse of that discretion. Nor do we find, under
these circumstances, that the Board abused its discretion in
denying the Fund's request to entertain the application in the
interest of justice pursuant to Workers' Compensation Law § 123
(see Matter of D'Addio v Peter Annis, Inc., 105 AD3d 1113, 1114-
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1115 [2013]).
Garry, Rose and Devine, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court