Matter of Boro Transit, Inc., Employer
No. G1220773
New York Workers Compensation
February 28, 2018
Date
of Accident: 09/16/2014
Issues:
Board reviewability: late application; average weekly wage
District
Office: NYC
Carrier:
Paramount Insurance Company, Carrier ID No.: W168256, Carrier
Case No.: 2239613-1
Claimant's Attorney: Bangel Cohen & Falconetti LLP
Panel:
Clarissa M. Rodriguez
MANDATORY FULL BOARD REVIEW FULL BOARD MEMORANDUM OF
DECISION
The
Full Board, at its meeting on January 23, 2018, considered
the above captioned case for Mandatory Full Board Review of
the Board Panel Memorandum of Decision filed April 20, 2017.
ISSUE
The
issue presented for Mandatory Full Board Review is whether
the carrier's untimely application for review, filed over
21 months after the disputed Workers' Compensation Law
Judge (WCLJ) decision, should be considered in the interest
of justice and pursuant to the Board's continuing
jurisdiction.
In a
decision filed on April 2, 2015, the WCLJ set the
claimant's average weekly wage (AWW) at $1,181.78 per
payroll and compensation was awarded.
Upon
the carrier's application for administrative review filed
on January 3, 2017, the majority of Board Panel members
accepted the late application in the interest of justice,
fixed a tentative AWW at $818.16, and restored the matter for
further development, including for the claimant to testify
and produce documentation on the issues of AWW and proper
rates. In addition, the Board Panel found that "[t]he
carrier is not to take credit for any overpayment at this
time, pending the directed development."
The
dissenting Board Panel member agreed that the matter should
be reopened to determine the proper AWW, but would have found
that the carrier waived its right to recoup an overpayment.
The
claimant filed an application for Mandatory Full Board Review
on May 18, 2017, arguing that the Full Board should reject
the carrier's application for administrative review as
untimely, pursuant to 12 NYCRR 300.13(b)(4), because it was
filed nearly two years after the April 2, 2015, WCLJ
decision.
The
carrier, Paramount Insurance Company, filed a rebuttal on
June 16, 2017, asking that the Full Board adopt the opinion
of the majority, the awards be modified to reflect the new
AWW, "and the carrier be entitled to take credit for the
overpayment[.]"
Upon
review, the Full Board votes to adopt the following findings
and conclusions.
FACTS
Claimant,
a school bus driver, filed a C-3 (Employee Claim) on
September 30, 2014, indicating that he was injured on
September 16, 2014, when he...