The lone decision from the 3rd Dept today is very harsh.
In Matter of Coyle v. W & W Steel Erectors, the 3rd Dept. affirmed the Board Panel’s decision to reject an appeal as late, despite the basis for the appeal being a change in the law that was not effective at the time of the original decision. Here, in 2020 a claim was established for permanent partial benefits for 375 weeks. The claimant died from unrelated causes in January 2021. In July 2021, the decedent’s minor son filed for entitlement of any unpaid benefits. In December 2021, the Board ordered unpaid benefits to be paid to the son. No further appeal was made. In October 2022, the Court of Appeals decided in another case (Green, 39 NY3d 35 2022) that unaccrued portions of a non-schedule award may not pass posthumously. In November 2022, the Carrier moved for reconsideration of the December 2021 decision based on the Green case. The Board denied that application because the Carrier did not file a Board Panel appeal of that December 2021 decision within the 30 days allotted for an appeal. The 3rd Dept. affirmed. The Carrier argued that had they appealed the decision given the law at the time, it would have been frivolous. The 3rd Dept. did not believe that excuse to be valid.
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