Waufle v. Chittenden
| Decision Date | 06 December 2018 |
| Docket Number | 526587 |
| Citation | 167 A.D.3d 1135,87 N.Y.S.3d 748 |
| Parties | In the Matter of the Claim of Bernard J. WAUFLE, Respondent, v. Robert CHITTENDEN, Appellant, and ESIS, Inc., Respondent, et al., Respondent. Workers' Compensation Board, Respondent. |
| Court | New York Supreme Court — Appellate Division |
167 A.D.3d 1135
87 N.Y.S.3d 748
In the Matter of the Claim of Bernard J. WAUFLE, Respondent,
v.
Robert CHITTENDEN, Appellant,
and
ESIS, Inc., Respondent, et al., Respondent.
Workers' Compensation Board, Respondent.
526587
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: October 12, 2018
Decided and Entered: December 6, 2018
Felt Evans, LLP, Clinton (Jay G. Williams III of counsel), for appellant.
Martin, Harding & Mazzotti, LLP, Albany (Crystal A. Watts of counsel), for Bernard J. Waufle, respondent.
Goldberg Segalla, LLP, Buffalo (Cory A. DeCresenza of counsel), for ESIS, Inc., respondent.
Barbara D. Underwood, Attorney General, New York City (Marjorie S. Leff of counsel), for Workers' Compensation Board, respondent.
Before: Garry, P.J., Devine, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Clark, J.
Appeal from a decision of the Workers' Compensation Board, filed July 14, 2017, which, among other things, denied applications by Robert Chittenden to review a decision by the Workers' Compensation Law Judge for failure to comply with 12 NYCRR 300.13(b).
Claimant, a route merchandiser who delivered and stocked bread products, filed an amended claim for workers' compensation benefits alleging that he was injured during the course of his employment for Robert Chittenden, a distributor who was an independent contractor responsible for delivering baked goods and bread products for Bimbo Bakeries USA, Inc. According to claimant, he sustained injuries to his left leg and foot when a customer driving an electric cart struck him and pinned his left leg and foot against a shelving rack. Following a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ) found, in a December 1, 2016 decision, that, among other things, an employer-employee relationship existed between claimant and Chittenden and established the claim.1 On December 29, 2016, Chittenden's counsel sought Workers' Compensation Board review by submitting an incorrect RB–89.2 cover sheet and "Application for Reconsideration/Full Board Review." On January 11, 2017, Chittenden attempted to cure the defective filing by submitting an application for review using the proper form. Finding that the original application was defective because it did not utilize the proper Board-designated form and that the subsequent submission was untimely, the Board denied consideration of Chittenden's applications. Upon review of the issues raised by the Uninsured Employers' Fund, which also sought review of the WCLJ's decision, the Board affirmed the decision of the WCLJ. Chittenden appeals.
We affirm. In addition to the requirement that a party seeking review of a WCLJ's decision file an application for review with the Board within 30 days of the
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