Krietsch v. Ufsd

• Decision Date: 17 April 2014
• Citation: 984 N.Y.S.2d 452,116 A.D.3d 1255,2014 N.Y. Slip Op. 02636
• Parties: In the Matter of the Claim of Christopher A. KRIETSCH, Respondent, v. NORTHPORT–EAST NORTHPORT UFSD et al., Appellants. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 1255
984 N.Y.S.2d 452
2014 N.Y. Slip Op. 02636

In the Matter of the Claim of Christopher A. KRIETSCH, Respondent,
v.
NORTHPORT–EAST NORTHPORT UFSD et al., Appellants.
Workers' Compensation Board, Respondent.

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

April 17, 2014.

[984 N.Y.S.2d 453]

Leonard B. Feld Law Office, Jericho (Leonard B. Feld of counsel), for appellants.

Eric T. Schneiderman, Attorney General, New York City (Steven Segall of counsel), for Workers' Compensation Board, respondent.

Before: PETERS, P.J., STEIN, ROSE and EGAN JR., JJ.

PETERS, P.J.

Appeals (1) from a decision of the Workers' Compensation Board, filed November 1, 2011, which, among other things, ruled that decedent's back surgery was causally related to the compensable accident, and (2) from a decision of said Board, filed March 30, 2012, which denied a request by the employer and its third-party administrator for reconsideration and/or full Board review.

Kathryn Krietsch (hereinafter decedent) suffered from severe scoliosis and, since childhood, had fixation rods surgically installed to stabilize her spine. ¹ In 2008, she fell down a flight of stairs while working and suffered back injuries. The fixation rods appeared to be intact in X rays taken immediately after the accident; however, subsequent X rays taken eight months later showed that one of the rods had broken. Decedent thereafter requested authorization from the Workers' Compensation Board for surgery to remove the broken rod and take other steps to restore spinal stability. A Workers' Compensation Law Judge found the surgery to be unrelated to the work accident but, upon review, the Workers' Compensation Board disagreed. The self-insured employer and its third-party administrator appeal from that decision, as well as the Board's subsequent rejection of the employer's application for reconsideration and/or full Board review.²

The employer and its third-party administrator initially argue that the Board erred in considering claimant's application for Board review of the decision of the Workers' Compensation Law Judge because claimant failed to timely serve the employer with it ( see12 NYCRR 300.13[a]; 300.15[b] ). The employer's attorney and its third-party administrator were provided timely notice of the application, however, and the employer submitted opposition to it. Shortly thereafter, the employer was directly served by claimant ( compare

[984 N.Y.S.2d 454]

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