Countdown to Disaster: Employer Faced with 2 Million Dollar Payout for Late Filing in NY Workers Comp

Last week, a decision in the New York Court of Appeals (in NY, the highest court) sent a chilling message to employers and carriers. Soon, in the future, it might be sending the same message to workers and the comp lawyers.

The claim, “Matter of Cappellino v Baumann & Sons Bus Co.”, had, until last week, been an unbroken string of successes for the employer/carrier. In a contested heart attack death claim, the employer/carrier, producing excellent expert opinion, had won before the judge, in responding to an appeal to the Board and in responding to an appeal to the Appellate Division. But that ended in the Court of Appeals. [WCx]

The expert testimony that the heart attack was not related to work was not discredited. A description of the events leading to the heart attack remained the same. But a small technical detail rose to change everything as the C-7 contesting the claim was filed late, a detail that in the past was usually ignored.

The decision does not say how late the C-7 was just that it was simply after the 25 day period to file, measured from the day the Board sent a notice that a claim had been indexed until the date a reply was received by the Board.

As a result, all the expert opinion notwithstanding, the employer became liable for future payments to a surviving spouse that could exceed $2,000,000.

The decision makes mention of some requirements that could, and often SHOULD, give employers and carriers insomnia. The period starts to run if either the employer OR carrier receives the notice of claim indexing. Why should that be so troubling?

In order for a carrier to make a proper reply, the carrier would need to know what facts the employer had regarding the claim. In order for the employer to call a carrier, it would have to have some reason to believe that the carrier was not responding to the Board’s notice. But unless both employer and carrier received the same notice on the same day, a misunderstanding might cause either or both parties to allow the sands of time to flow through the hourglass without a timely response.

25 days can seem like an eternity (when waiting for a refund check, for example) but they pass all too quickly when coordinated action is required.

And “25 days” is NOT 25 business days. It is in calendar days. Practically, there are three or four weekends between the start and finish and six, or sometimes seven or eight, weekend days are excluded from the 25 day period, leaving 17-19 days to complete the investigation and prepare and mail a notice of controversy.

If an employer’s team responsible for collecting and forwarding information knew that several million dollars was in the balance, a sense of urgency would be present that would quickly spread to the carrier. But a sense of urgency did not mark the handling of serious claims in the past. Raising the issue of late filing of forms was viewed by the Board as a bit too draconian.

But that has all changed. Attorneys for workers would be wise to consider that they too have to meet deadlines and they too could be on the wrong end of a future decision. [WCx]

The moral of the tale is that deadlines in a law mean just that, a death of claims for those who imagine that a judge or Board panel, or even a court, can grant leniency. In the present case, the first three levels were not terribly upset by a late filed form, but the last court was.

Employers must stay in touch with carriers, and vice versa.

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. [email protected]

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.