| Matter of Bordenet v Maines Paper & Food Serv. |
| 2008 NY Slip Op 03270 [50 AD3d 1276] |
| April 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Kyle Bordenet, Respondent, v MainesPaper & Food Service et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Coughlin & Gerhart, L.L.P., Binghamton (Lars P. Mead of counsel), for Kyle Bordenet,respondent. Andrew M. Cuomo, Attorney General, New York City (Steven Segall of counsel), forWorkers' Compensation Board, respondent.
Malone Jr., J. Appeal from a decision of the Workers' Compensation Board, filed November30, 2006, which ruled that claimant's accident arose out of and in the course of his employment.
On December 22, 2005, claimant was injured when he slipped on ice in the visitor's parkinglot at the warehouse where he worked. He went there to retrieve his paycheck, which he plannedto cash at a nearby bank, before returning to the warehouse to work. He filed a claim for workers'compensation benefits which was denied by a Workers' Compensation Law Judge (hereinafterWCLJ) following a hearing. On August 11, 2006, claimant filed an application for review of theWCLJ's decision by the Workers' Compensation Board. A rebuttal to the [*2]application was not filed by the employer and its workers'compensation carrier (hereinafter collectively referred to as the carrier) until November 29, 2006.On November 30, 2006, the Board reversed the WCLJ's decision and ruled that claimant'saccident arose out of and in the course of employment. In so doing, the Board noted that its filedid not include a rebuttal by the carrier. The carrier now appeals.[FN*]
Initially, the carrier takes issue with the Board's failure to consider its rebuttal, which itconcedes was not timely filed due to claimant's failure to serve a copy of the application forBoard review upon its counsel. The Board's decision suggests that this omission was notintentional, but occurred because the Board had not yet received the rebuttal at the time itrendered its decision. Pursuant to 12 NYCRR 300.13 (e) (2), the Board retains the discretion todetermine whether to accept or reject an untimely submission (see e.g. Matter of Curatolo v SofiaFabulous Pizza, 41 AD3d 1049, 1051 [2007]). In the instant case, the Board was notafforded the opportunity to exercise that discretion because it was unaware that the rebuttal hadeven been filed. Accordingly, the matter must be remitted to the Board to consider, in theexercise of its discretion, whether to accept the carrier's November 29, 2006 rebuttal. In view ofour disposition, we need not address the carrier's remaining claim.
Cardona, P.J., Peters, Carpinello and Rose, JJ., concur. Ordered that the decision is reversed,without costs, and matter remitted to the Workers' Compensation Board for further proceedingsnot inconsistent with this Court's decision.
Footnote *: The carrier evidently also filedan application for full Board review that is still pending.