State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 12, 2016 521600 

________________________________

In the Matter of the Claim of 

NERISSA CRAIG,

Claimant,

v

LEATHERSTOCKING HEALTHCARE, 

 LLC, et al., 

Respondents,

and MEMORANDUM AND ORDER 

WESCO INSURANCE COMPANY, Care

of AM TRUST NORTH AMERICA,

Appellant.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: March 24, 2016

Before: McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

__________

Gitto & Niefer, LLP, Binghamton (Jason M. Carlton of

counsel), for appellant.

Sullivan Keenan Oliver & Violando LLP, Albany (Michael J.

Keenan of counsel), for Leatherstocking Healthcare LLC,

respondent.

Uninsured Employers' Fund, Schenectady (Victoria Plotsky of

counsel), for Uninsured Employers' Fund, respondent.

__________
-2- 521600 

Clark, J.

Appeal from a decision of the Workers' Compensation Board,

filed December 29, 2014, which ruled that the employer's workers'

compensation carrier was responsible for claimant's claim.

Claimant filed a claim for workers' compensation benefits

alleging that she sustained a work-related injury to her back in

May 2012. The employer's alleged workers' compensation carrier

controverted coverage on the basis that it had canceled the

employer's policy in January 2012 for nonpayment of premiums. 

Following a hearing, a Workers' Compensation Law Judge determined

that the carrier's cancellation of the policy was without effect

because it had failed to strictly comply with the notice

requirements of Workers' Compensation Law § 54 (5) and that,

therefore, its coverage of the employer continued through the

date of claimant's injury. The Workers' Compensation Board

affirmed, prompting this appeal.

To effectuate the cancellation of a workers' compensation

insurance policy, a carrier must strictly comply with the notice

requirements of Workers' Compensation Law § 54 (5) (see Matter of

Case v State Ins. Fund, 72 NY2d 992, 993 [1988]; Matter of Estes

v Metropolitan Warehouse, Inc., 50 AD3d 1341, 1342 [2008]; Matter

of Rue v Northeast Timber Erectors, 289 AD2d 787, 788 [2001], lv

dismissed 98 NY2d 671 [2002], lv denied 99 NY2d 503 [2002]). As

relevant here, Workers' Compensation Law § 54 (5) requires a

workers' compensation carrier to serve notice of cancellation of

an insurance contract upon an employer "by delivering it to him,

her or it or by sending it by mail, by certified or registered

letter, return receipt requested, addressed to the employer at

his, her or its last known place of business." To establish

compliance with the statute, the carrier is not required to

produce the return receipt; rather, the carrier need only

demonstrate that it requested a return receipt (see Matter of Rue

v Northeast Timber Erectors, 289 AD2d at 789; Matter of Russell v

Linens Plus, Linen Mill Outlet, 188 AD2d 748, 749 [1992]; Matter

of Muszynski v Puricelli Masonry & Concrete, 92 AD2d 666, 667

[1983]). 
-3- 521600 

At the hearing, the carrier produced the notice of

cancellation that it allegedly sent to the employer, which

indicated an effective cancellation date of February 9, 2012, a

mailing manifest showing that the carrier paid $4.40 to send an

article of mail to the employer in Herkimer, New York – $1.15 of

which was required to send the article by "ERR" – and a United

States Postal Service "[t]rack and [c]onfirm" notice

demonstrating that that same article of mail was delivered to an

address in Herkimer, New York by first class mail on January 30,

2012. The carrier also submitted a Workers' Compensation Board

investigator's report stating, among other things, that the Board

had received notice of cancellation of the employer's policy on

January 30, 2012. In addition, Christopher Coons, an underwriter

for the carrier, testified that the carrier sent the notice of

cancellation to the employer by certified mail, return receipt

requested, and that the mailing manifest and the "[t]rack and

[c]onfirm" notice demonstrated that the notice of cancellation

was mailed and delivered to the employer. He explained that the

carrier's practice was to submit its mailing requests

electronically, including those sent by certified mail, return

receipt requested, and that, as a result, it would not have

received a physical return receipt. Contrary to the Board's

conclusion, Coons' uncontroverted testimony and the supporting

documentary evidence was sufficient to demonstrate that the

carrier complied with the notice requirements of Workers'

Compensation Law § 54 (5) and effectively canceled the employer's

policy in February 2012 (compare Matter of Russell v Linens Plus,

Linen Mill Outlet, 188 AD2d at 749; Matter of Bitterman v Friscos

Rest., 91 AD2d 810, 810 [1982]). Thus, the Board's determination

that the carrier continued to cover the employer through the date

of claimant's injury in May 2012 is not supported by substantial

evidence.

In light of our determination, we need not reach the

remaining contentions raised by the carrier. 

McCarthy, J.P., Egan Jr., Rose and Devine, JJ., concur.
-4- 521600 

ORDERED that the decision is reversed, without costs, and

matter remitted to the Workers' Compensation Board for further

proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court