Claim of Pasciucco v. Pasciucco

176 A.D.2d 392, 574 N.Y.S.2d 99, 1991 N.Y. App. Div. LEXIS 11540

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 12, 1991
• Status: Published

Opinion

— Yesawich Jr., J.

Appeal from a decision of the Workers’ Compensation Board, filed June 26, 1990, which ruled that claimant’s decedent did not file a notice with the workers’ compensation insurance carrier for coverage and denied claimant’s claim for workers’ compensation benefits.

Decedent, a self-employed mason, died March 12, 1987 following a work-related accident. Although he had an insurance policy in effect at the time which provided workers’ compensation benefits for his employees, he had not, as required by Workers’ Compensation Law § 54 (8), filed a notice with the workers’ compensation insurance carrier electing to bring himself within the coverage of the policy. The issue is not, as urged by claimant (decedent’s widow), whether decedent, a sole proprietor who since 1983 maintained compensation coverage for his employees, is deemed covered by reason of the enactment in 1985 of Workers’ Compensation Law § 54 (8) (L 1985, ch 858) unless he affirmatively opted to be excluded, but rather whether he gave the carrier notice that he intended to have himself included in the coverage (cf., Matter of Lusardi v Eugene Lusardi, M.D., P. C., 167 AD2d 3, 4-5). It being undisputed that no such notice was furnished, the Workers’ Compensation Board, affirming the Workers’ Compensation Law Judge, was constrained to conclude that "there was no coverage on the date of accident” and to disallow claimant’s claim for death benefits.

Mahoney, P. J., Weiss, Crew III and Harvey, JJ., concur. Ordered that the decision is affirmed, without costs.