Matter of Cassano v. Sunrise Medical Laboratory, Inc. , 23 N.Y.S.3d 598 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 28, 2016 521244
________________________________
In the Matter of the Claim of
KIMBERLY CASSANO,
Respondent,
v
SUNRISE MEDICAL LABORATORY,
INC., et al.,
Respondents, MEMORANDUM AND ORDER
and
SPECIAL FUND FOR REOPENED
CASES,
Appellant.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: December 15, 2015
Before: Peters, P.J., Garry, Rose and Devine, JJ.
__________
Steven M. Licht, Special Funds Conservation Committee,
Albany (Jill B. Singer of counsel), for appellant.
William O'Brien, State Insurance Fund, Melville (Peter
Lampasona of counsel), for Sunrise Medical Laboratory, Inc. and
another, respondents.
__________
Peters, P.J.
Appeal from a decision of the Workers' Compensation Board,
filed January 21, 2015, which ruled that the application of the
Special Fund for Reopened Cases for review of an administrative
-2- 521244
decision was untimely.
In 2005, claimant suffered work-related injuries and her
claim for workers' compensation benefits was established.
Subsequently, claimant was found to be permanently partially
disabled and the employer's workers' compensation carrier filed a
claim for reimbursement from the Special Fund for Reopened Cases
pursuant to Workers' Compensation Law § 15 (8). In 2009, the
Special Fund conceded a 40% liability under Workers' Compensation
Law § 15 (8) and the carrier requested that the Workers'
Compensation Board issue an administrative decision establishing
the Special Fund's liability at that rate. In an administrative
decision filed on September 16, 2009, the Board established the
applicability of Workers' Compensation Law § 15 (8), without
limiting the Special Fund's liability to 40%. In March 2014, the
Special Fund applied for review of the Board's administrative
decision. The Board denied the application as untimely,
prompting this appeal.
We affirm. Objections to an administrative decision must
be submitted to the Board within 30 days of its issuance (see
Matter of Isaacs v Fleet Fin. Servs., 8 AD3d 879, 879 [2004];
12 NYCRR 313.3 [c]). Moreover, "[t]he Board has broad discretion
to accept or reject as untimely an application for review, and we
will not disturb such a determination absent an abuse of that
discretion" (Matter of Backus v Wesley Health Care Ctr., Inc., 26
AD3d 664, 665 [2006]; see Matter of Isaacs v Fleet Fin. Servs., 8
AD3d at 879). Here, it is undisputed that the Special Fund's
application was untimely, as it was filed more than four years
after the administrative decision was filed. Further, the
Special Fund provided no explanation for the long delay. Under
these circumstances, the Board's denial of the application for
review was not an abuse of discretion (see Matter of Backus v
Wesley Health Care Ctr., Inc., 26 AD3d at 665; Matter of Brown v
American Ballet Theatre, 13 AD3d 797, 798 [2004]). Although the
Special Fund contends that the Board should have entertained the
untimely application 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 AD3d 1113, 1114-1115 [2013]) and, in light of
the foregoing, we again find no abuse of discretion by the Board.
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Garry, Rose and Devine, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court