In re Boro Transit, Inc., 022818 NYWC, G1220773

Docket Nº:G1220773
Case Date:February 28, 2018
Court:New York
 
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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...

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