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In re Lehsten5/6/1999
In the Matter of Betty Lou Lehsten, Appellant, v. NACM-Upstate New York et al., Respondents, Workers' Compensation Board, Appellant.
May 6, 1999
[99 NY Int. 0069]
This opinion is uncorrected and subject to revision before publication in the New York Reports.
This appeal concerns the interpretation of several sections of the Workers' Compensation Law and its administrative review procedures. A three–member panel of the Workers' Compensation Board unanimously affirmed the decision of theWorkers Compensation Law Judge (WCLJ) allowing compensation benefits to the claimant. During the pendency of the panel's review, the employer's obligation to pay the award was statutorily stayed by operation of Workers' Compensation Law § 25(3)(f). The issue before us is whether an employer, by filing for discretionary full Board review of the panel finding, gains a continuation of the stay of its obligation to pay the award. We hold that it does not.
Facts And Procedural History
In June 1993, claimant Betty Lou Lehsten filed for workers' compensation benefits for an asserted on–the–job back injury. Her employer, respondent NACM–Upstate New York, and its insurance carrier, respondent Commercial Union Insurance Company (collectively "employer"), controverted the claim. On May 3, 1994, after a series of medical examinations and a hearing at which claimant testified, the WCLJ determined that claimant's injury was work–related, entitling her to an award.
On June 1, 1994, the employer filed an "Application for Board Review," seeking recission of the WCLJ's decision (Workers' Compensation Law § 23). Workers' Compensation Law § 25(3)(f) served to stay the employer's obligation under the award –– which it was otherwise required to pay, under pain of penalty, within 10 days after it received notice of the WCLJ's decision.
On June 28, 1994, claimant's attorney filed a rebuttal to the employer's application for Board review. The Board, acting through a three–member panel, held a hearing on February 16, 1995 at which it considered the merits of the claim and the challenge. In a decision filed June 7, 1995, the panel unanimously affirmed the WCLJ's decision establishing claimant's entitlement to compensation benefits. On June 26, 1995, the employer filed a notice of appeal to the Appellate Division.
The employer did not pay the award. Instead, on July 7, 1995, it filed an "Application for Full Board Review" of the panel's June 7, 1995 decision. On the same day, claimant filed a "Request for Priority Hearing" before a WCLJ, and on September 18, 1995, pressed for the hearing because her employer was continuing to withhold payment while seeking further review.
On October 13, 1995, a WCLJ conducted the priority hearing and, in a decision filed on October 17, 1995, ruled that the employer's request for discretionary full Board review of the unanimous Board panel decision did not operate as an additionalstay of the employer's obligation to make payment. Accordingly, pursuant to Workers' Compensation Law § 25(3)(f), the WCLJ imposed on the employer the statutory 20% penalty for nonpayment. On November 16, 1995, still not having paid the award, the employer filed an "Application for Board Review" of the WCLJ's priority hearing decision of October 17, 1995. Two months later, claimant's attorney opposed the application, pointing out that two and one–half years had elapsed and the award was still unpaid. On March 14, 1996, the employer filed a "Supplemental Application for Board Review" in connection with the penalty, and claimant's attorney submitted a rebuttal on April 1, 1996.
In a decision filed June 17
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