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.
-3- 521244 

Garry, Rose and Devine, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court