DeVivo v. Sizzler Restaurant

• Decision Date: 02 December 1999
• Parties: 1999 N.Y. Slip Op. 10,257 In the Matter of the Claim of Margaret DeVIVO, Appellant, v. SIZZLER RESTAURANT et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 514

699 N.Y.S.2d 514

1999 N.Y. Slip Op. 10,257

In the Matter of the Claim of Margaret DeVIVO, Appellant, v. SIZZLER RESTAURANT et al., Respondents Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 2, 1999.

Margaret DiVivo, New York City, appellant in person.

James P. O'Connor, State Insurance Fund (David E. Baida of counsel), New York City, for Sizzler Restaurant and another, respondents.

Before: CARDONA, P.J., MIKOLL, MERCURE, YESAWICH JR. and CARPINELLO, JJ.

YESAWICH JR., J.

Appeal from a decision of the Workers' Compensation Board, filed July 30, 1998, which denied claimant's application for full Board review.

Claimant sought workers' compensation benefits alleging that she injured her back and arm after she slipped and fell at her place of employment on July 22, 1993. After a hearing, by decision filed March 27, 1997 the Workers' Compensation Law Judge allowed the claim, authorized treatment of her symptoms and directed the carrier to pay claimant's medical bills. On appeal by both parties, a panel of the Workers' Compensation Board, by a decision filed October 28, 1997, found no credible evidence in the record that claimant's accident arose out of or in the course of her employment and reversed the Workers' Compensation Law Judge. Claimant's subsequent request for full Board review was denied on July 30, 1998 and claimant appeals.

Nothing in the record suggests that claimant had other than timely notice of the Board's October 28, 1997 decision and yet did not file her notice of appeal until August 17, 1998, well beyond the statutorily prescribed period for doing so (see, Workers' Compensation Law § 23). And inasmuch as claimant's request for review by the full Board did not, as she contends, toll the statutory time for filing an appeal, her appeal must be dismissed (see, Matter of Stabak v. ISS Intl., 248 A.D.2d 814, 670 N.Y.S.2d 242, lv. dismissed, lv. denied 92 N.Y.2d 891, 678 N.Y.S.2d 590, 700 N.E.2d 1226; Matter of Dukes v. Capitol Formation, 213 A.D.2d 756, 623 N.Y.S.2d 364, lvs. dismissed 86 N.Y.2d 810, 632 N.Y.S.2d 495, 656 N.E.2d 594, 87 N.Y.2d 891, 640 N.Y.S.2d 872, 663 N.E.2d 913). Were we to reach the merits of claimant's appeal, we would nevertheless affirm for the record contains substantial evidence supportive of the Board's finding.

Where the evidence is conflicted "regarding the occurrence of an accident or the causal relationship to the injury, it is solely within the province of the Board to resolve the disputed facts, even if the evidence rejected by the Board is also substantial" (Matter of Grucza v. Waste Stream Technology, 252 A.D.2d 901, 903, 676 N.Y.S.2d 336; see, Matter of Altman v. Hazan Import Corp., 198...