Appellate Division of the Supreme Court of New York, 2002

Claim of Noel v. Owens-Brockway

Appellate Division of the Supreme Court of New York · Decided January 17, 2002 · Cardona

290 A.D.2d 739; 736 N.Y.S.2d 753; 2002 N.Y. App. Div. LEXIS 410

Cases that cite this one

3 later published cases cite this decision.

Pelli v. St. Luke's Memorial Hospital Center (Appellate Division of the Supreme Court of New York 2003)
Claim of Duff v. Port Authority of New York & New Jersey (Appellate Division of the Supreme Court of New York 2004)
Claim of Spector v. New York City Board of Education (Appellate Division of the Supreme Court of New York 2002)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Cardona, P.J.

Appeal from a decision of the Workers’ Compensation Board, filed March 15, 2000, which ruled, inter alia, that the employer’s application for review was untimely.

After a Workers’ Compensation Law Judge (hereinafter WCLJ) issued a decision amending a claim for workers’ compensation benefits to include additional injuries, the self-insured employer filed an application for review. In response, claimant argued that the appeal was not filed within the 30-day period established by Workers’ Compensation Law § 23 and maintained that the underlying decision was supported by credible medical evidence in the record. The Workers’ Compensation Board reviewed the record and adopted the WCLJ’s findings of fact and opinion on the merits as “fully supported by the record,” thus affirming his decision. The Board additionally noted that the appeal was late “and should be denied.” On appeal to this Court, the employer argues that the Board erred in finding its application for review untimely.

An untimely application for Board review of a WCLJ’s decision is not a jurisdictional defect since the Board has discretionary authority to consider an application beyond the 30-day period (see, Matter of Chaousy v Marine Midland Bank, 269 AD2d 625). Accordingly, regardless of whether the employer’s ap*740plication for review was timely, the Board had the authority to consider the merits of the employer’s appeal which it clearly did by reviewing the record, adopting the WCLJ’s findings and affirming his decision. In effect, the Board adopted alternative grounds for resolving the appeal, one based on untimeliness and the other on the merits. On appeal to this Court, the employer argues the timeliness issue only and does not address the merits. Inasmuch as the Board was authorized to and did in fact determine the merits of the application for review, resolution of the only issue raised on this appeal in favor of the employer will not entitle the employer to any relief because the Board’s alternative resolution of the application on the merits remains unchallenged. Accordingly, we find no reason to disturb the Board’s decision.

Peters, Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

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