New York Appellate Division Reports

MATTER OF HARABEDIAN v. NY HOSP. MED. CTR., 500003 [3d Dept
12-7-2006] 2006 NY Slip Op 09075 In the Matter of the
Claim of SUSAN HARABEDIAN, Appellant, v. NEW YORK HOSPITAL
MEDICAL CENTER et al., Respondents. WORKERS’ COMPENSATION
BOARD, Respondent. 500003. Appellate Division of the
Supreme Court of New York, Third Department. Decided and
Entered: December 7, 2006.

Appeal from a decision of the Workers’ Compensation Board,
filed May 9, 2005, which, inter alia, ruled that claimant
violated Workers’ Compensation Law § 114-a and
disqualified her from receiving wage replacement benefits.

Deborah C. Levine, Hempstead, for appellant.

Steven I. Jacobs, Melville, for New York Hospital Medical
Center and another, respondents.

Before: CARPINELLO, J.P., ROSE, LAHTINEN and KANE, JJ.,
concur.

MEMORANDUM AND ORDER

LAHTINEN, J.

Claimant was arrested on felony fraud charges for allegedly
repeatedly obtaining reimbursements for medical-related
expenses from her employers’ carrier while also receiving
payments for such expenses through her spouse’s health
insurance. She eventually pleaded guilty to the misdemeanor
of petit larceny in satisfaction of the charges.
Thereafter, decisions were rendered by separate Workers’
Compensation Law Judges in December 2003 and June 2004
continuing the wage replacement benefits of claimant, who
had previously been found to have a permanent, partial
disability. The workers’ compensation carrier sought review
by the Workers’ Compensation Board in July 2004. The Board
determined, among other things, that claimant had violated
Workers’ Compensation Law § 114-a and that permanent
disqualification of wage replacement benefits was an
appropriate discretionary penalty. The issues on appeal, as
limited by claimant’s brief, are whether the Board
permitted an untimely review of the December 2003 decision
of the Workers’ Compensation Law Judge and whether the
penalty imposed was disproportionate to claimant’s offense.

While review generally should be sought within 30 days, the
Board nevertheless has discretion to entertain late
applications for review (see Matter of Cohen v New York
City Dept. of Envtl. Protection, 18 AD3d 1036, 1037 [2005],
lv dismissed 5 NY3d 872 [2005]). Here, the Board observed
that, although Workers’ Compensation Law § 114-a was
discussed on the record at the hearing underlying the
December 2003 decision, that written decision did not
expressly address such issue. The Board stated that it
would thus review the issue in the interest of justice and
also as part of its continuing jurisdiction under Workers’
Compensation Law § 123 (see generally Matter of
Rodriguez v Burn-Brite Metals Co., 1 NY3d 553, 556 [2003]).
Under these circumstances, we are unpersuaded that it was
reversible error for the Board to address such issue.

Nor are we persuaded to set aside the discretionary
penalty. The Board discussed and set forth a variety of
reasons for its action, including the serious problem with
workers’ compensation fraud, the intent underlying the
enactment of Workers’ Compensation Law § 114-a, the
absence of mitigating circumstances, and the acknowledged
criminal scheme employed by claimant. The Board’s
determination is supported by substantial evidence and is
not disproportionate to the underlying offense (see
generally Matter of Jacob v New York City Tr. Auth., 26
AD3d 631, 632-633 [2006]; Matter of Clarke v Lomasney
Combustion, 26 AD3d 604, 605 [2006]; Matter of Dieter v
Trigen-Cinergy Solutions of Rochester, 14 AD3d 748, 749
[2005], appeal dismissed 4 NY3d 881 [2005]).

ORDERED that the decision is affirmed, without costs.