In re Kane, 052413 NYWC, G0215259

• Case Date: May 24, 2013
• Court: New York

Matter of James Kane Sr. No. G0215259 New York Workers Compensation May 24, 2013           By: Board Members Beloten, Paprocki and Higgins           BOARD PANEL DECISION          Ruling:          The Full Board, at its meeting on November 18, 2014, resolved that the Memorandum of Decision filed on May 24, 2013, and amended on January 10, 2014, be rescinded and the matter returned to this Board Panel for further consideration.          The carrier requests review of the Workers' Compensation Law Judge (WCLJ) decision filed on July 10, 2012. The claimant filed a rebuttal.          ISSUES          The issues presented for review are:

1. whether a claimant may be paid workers' compensation lost wage benefits and/or settlement proceeds by debit card; and

2. whether the WCLJ properly imposed a late payment penalty on the carrier.

         FACTS          On February 27, 2010, claimant, a home health aide, was injured when she slipped and fell on water in front of a refrigerator during the course of her employment. This case has been established for injury to the claimant's low back.          On March 13, 2010, the carrier began making voluntary payments to the claimant. At this time, the claimant was unrepresented by counsel.          In an enrollment application supplied by the carrier and dated May 20, 2010, the claimant was told to select a payment option of either receiving payment by direct deposit to a bank account or receiving payment via a Chase Workers' Compensation Pay Card. The enrollment application states "PAYMENT OPTION INFORMATION Please select which payment method you prefer and complete the necessary information". The enrollment application advises the claimant that she will continue to receive payment of benefits by paper check until the debit card is activated. The enrollment application did not advise the claimant that she could continue to receive her payments by paper check. The claimant completed the enrollment application and elected to receive her benefit payments in the form of the Visa debit card issued by Chase. Pursuant to this arrangement, the claimant's weekly indemnity benefits were to be electronically transferred to the debit card account. The form stated that there would be daily limits on the amount that could be withdrawn from the account by way of an ATM or an over-the-counter withdrawal at a bank.          On July 13, 2010, the claimant retained her first attorney.          In a notice of decision filed on August 19, 2010, the WCLJ established the claimant's claim for injury to her lower back; set the claimant's average weekly wage at $375.49; found no medical evidence for the period from February 27, 2010, to March 3, 2010; awarded compensation from March 3, 2010, to June 30, 2010 at a rate of $250.00 per week, and from June 30, 2010, to August 16, 2010, at a rate of $175.17 per...