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Malone v. Bob Bernhardt Paving11/13/2003
and the case cited by the carrier, we reject the carrier's contention that the Board's decision must be reversed based on its failure to follow precedent or explain a departure therefrom (see Matter of Johnson v Onondaga Heating & A.C., 301 AD2d 903, 905-906 ; Matter of De La Concha v Fordham Univ., 292 AD2d 662, 664 ).
Spain and Rose, JJ., concur.
Carpinello, J. (dissenting).
We respectfully disagree. There is nothing in the record to contradict the assertion by the employer and its workers' compensation carrier that the carrier's timely mailing of the check to claimant's former address was an honest mistake. Under these circumstances, the unconscionable penalty does little to further the purposes of the statute and is nothing more than a windfall to claimant. We view the facts of this case as insufficiently distinguishable from Matter of Krug's Glazing Servs. (WCB No. 8951 2610 [Sept. 16, 1998]) to justify a different result and, accordingly, we would reverse the decision of the Workers' Compensation Board.
Crew III, J.P., concurs.
ORDERED that the decision is affirmed, without costs.
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